Common use of Mergers and Consolidations Clause in Contracts

Mergers and Consolidations. Directly or indirectly merge into or consolidate with any Person, except that: (a) any Material Subsidiary may merge into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into or consolidate with the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger or consolidation to which the Company is not a party, either (A) a Subsidiary of the Company shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreement, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving Person or (B) if the Company is not the continuing or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required Noteholders, the obligations of the Company under this Agreement, the Notes and the Indemnity Letter and shall become successor to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required Noteholders, with respect to the enforceability of the assumption of this Agreement, the Notes and the Indemnity Letter by such continuing or surviving Person.

Mergers and Consolidations. Directly Notwithstanding the other Sections of this Article VIII, upon the dissolution or indirectly merge into or consolidate with any Person, except that: (a) any Material Subsidiary may merge into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into or consolidate with liquidation of the Company, and the Company or upon any Material Subsidiary may merge into or consolidate with any other Person; provided that in each casereorganization, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger or consolidation to which the Company is not a party, either (A) a Subsidiary of the Company shall be the continuing with one or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreement, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) more corporations where the Company is the continuing surviving corporation and the stockholders of the Company immediately prior to such transaction do not own at least eighty percent (80%) of the Company's Common Stock immediately after such transaction, or surviving Person upon any reorganization, merger or (B) if consolidation of the Company with one or more corporations where the Company is not the continuing or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws upon a sale of substantially all of the United States, a State thereof assets or eighty percent (80%) or more of the District then outstanding shares of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required Noteholders, the obligations Common Stock of the Company to another corporation or entity, (any such reorganization, merger, consolidation, sale of assets, or sale of shares of Common Stock being hereinafter referred to as the "Transaction"), the Plan shall terminate; provided however, that (i) any Options theretofore granted and outstanding under this the Plan shall become immediately exercisable in full and shall remain exercisable until the effective date of such Transaction; (ii) the termination of the Plan, and any exercise of any Option (to the extent that the holder's right to exercise such Option has been accelerated by the operation of Section 8.3(i)), shall be subject to and conditioned upon the consummation of the Transaction to which such termination and acceleration relates, and if, for any reason, such Transaction is abandoned, exercise of the Option shall be void and such Option shall thereafter be exercisable only as permitted by the Plan and the Option Agreement, the Notes which shall remain in full force and the Indemnity Letter and shall become successor to the Company for effect. For purposes of this Agreement, the Notes and the Indemnity Letter and applying Section 8.3: (IIIA) the continuing or surviving Person Fair Market Value of shares of Common Stock underlying the Incentive Stock Options shall deliver to be determined as of the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to time the Required Noteholders, Option with respect to such shares is granted; (B) the enforceability Incentive Stock Options shall be transformed, to the extent required, into Nonqualified Stock Options in reverse chronological order, such that the last-granted Incentive Stock Option shall be the first Option transformed into a Nonqualified Stock Option and the first granted Incentive Stock Option shall be the last Option so transformed; and (C) the terms and conditions of each Nonqualified Stock Option so created shall be identical, to the extent possible, in all respects to those of the assumption Incentive Stock Option that it replaces including but not limited to the fact that it shall be immediately exercisable in full and shall remain exercisable until the time at which the Transaction becomes effective. In the event that Incentive Stock Options are transformed into Nonqualified Stock Options by operation of this AgreementSection 8.3, the Notes Board may in its discretion issue replacement Option Agreements that reflect the adjusted number of Incentive Stock Options and Nonqualified Stock Options. The Company shall use its best efforts to give each Grantee written notice of any proposed Transaction at least thirty (30) days prior to the Indemnity Letter effective date of any such Transaction. Any Option not exercised by such continuing or surviving Personthe time the Transaction legally becomes effective shall thereupon terminate.

Mergers and Consolidations. Directly The Company may not, in a single transaction or indirectly through a series of related transactions, consolidate or merge with or into or consolidate with sell, assign, transfer, lease, convey or otherwise dispose of (or permit any Personof its Restricted Subsidiaries to sell, except thatassign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's and its Restricted Subsidiaries' assets (determined on a consolidated basis for the Company and its Restricted Subsidiaries taken as a whole) in one or more related transactions to another Person unless: (a) any Material Subsidiary may merge into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into or consolidate with the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuingthe resulting, surviving or transferee Person (iithe "Successor Issuer") in the case of any merger or consolidation to which the Company is not a party, either (A) a Subsidiary of the Company shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreement, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving Person or (B) if the Company is not the continuing or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership partnership, trust or limited liability company that is duly formed organized and validly existing under the laws of the United StatesStates of America, a any State thereof or the District of Columbia, Columbia and the Successor Issuer (IIif not the Company) the continuing or surviving Person shall expressly assume, by execution supplemental indenture, executed and delivery of instruments reasonably delivered to the Trustee, in form satisfactory to the Required NoteholdersTrustee, all the obligations of the Company under the Securities and this AgreementIndenture; (ii) 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 Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; (iii) immediately after giving effect to such transaction, the Notes and the Indemnity Letter and Successor Issuer (A) shall become successor have a Consolidated Net Worth equal or greater to the Consolidated Net Worth of the Company for purposes of this Agreement, the Notes and the Indemnity Letter immediately prior to such transaction and (IIIB) would be able to incur at least an additional $1.00 of Indebtedness pursuant to Section 4.3(a); and (iv) the continuing or surviving Person Company shall deliver have delivered to the Noteholders Trustee an opinion Officers' Certificate and an Opinion of counsel of Counsel, each stating that such continuing consolidation, merger or surviving Person, in form transfer and substance reasonably satisfactory to the Required Noteholders, such supplemental indenture (if any) comply with respect to the enforceability of the assumption of this Agreement, the Notes and the Indemnity Letter by such continuing or surviving PersonIndenture.

Mergers and Consolidations. Directly or indirectly merge into or No Issuer will, nor will it permit any Subsidiary Guarantor to, consolidate with or merge with any Personother Person or convey, except thattransfer, sell or lease all or substantially all of its assets in a single transaction or series of transactions to any Person unless: (a) any Material Subsidiary may merge into the successor formed by such consolidation or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with the survivor of such merger or consolidation); and (b) any Material the Person that acquires by conveyance, transfer, sale or lease all or substantially all of the assets of such Issuer or such Subsidiary may merge into or consolidate with the CompanyGuarantor, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in as the case of any merger or consolidation to which may be (the Company is not a party“Successor Corporation”), either (A) a Subsidiary of the Company shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreement, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving Person or (B) if the Company is not the continuing or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership solvent corporation or limited liability company that is duly formed organized and validly existing under the laws of the United States, a States or any State thereof or (including the District of Columbia), and (IIi) except for any such transaction involving only Issuers and/or only Subsidiary Guarantors or any such transaction where an Issuer and/or Subsidiary Guarantor is the continuing Successor Corporation of any such transaction, such corporation or surviving Person limited liability company shall assume, by execution have executed and delivery delivered to each holder of instruments any Notes its assumption of the due and punctual performance and observance of each covenant and condition of such Obligor under the applicable Financing Documents in form and substance satisfactory to the Required Holders and (ii) shall have caused to be delivered to each holder of any Notes an opinion reasonably satisfactory to the Required NoteholdersHolders of nationally recognized independent counsel, the obligations of the Company under this Agreement, the Notes and the Indemnity Letter and shall become successor to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of other independent counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required NoteholdersHolders, with respect to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their respective terms (except as such enforceability may be limited by (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (y) general principles of equity) and comply with the terms hereof; and (b) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing and the Company shall have delivered to each holder of the assumption Notes computations evidencing, on a pro forma basis, as if such transaction had occurred the day before the last day of the most recently ended fiscal quarter, compliance (on consolidated basis) with Section 10.3, Section 10.4, Section 10.5, Section 10.6, Section 10.7 and Section 10.9. No such conveyance, transfer, sale or lease of all or substantially all of the assets of any Obligor shall have the effect of releasing such Obligor or any Successor Corporation that shall theretofore have become such in the manner prescribed in this Agreement, Section 10.2 from its liability under the Notes and the Indemnity Letter by such continuing or surviving Personapplicable Financing Documents.

Mergers and Consolidations. Directly or indirectly The Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with or into any other Person, or convey, transfer, spin-off or lease all or substantially all of its assets in a single transaction or series of transactions to any Person, except that: (ai) any Material such Restricted Subsidiary may merge into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into into, or consolidate with the Companyconvey, and transfer or spin-off all or substantially all of its assets to, the Company or any Material Subsidiary may merge into or consolidate with any other Person; (provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger or consolidation to which the Company is not a party, either (A) a Subsidiary of the Company shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreement, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving corporation), another Restricted Subsidiary or any Person that concurrently with such merger, consolidation, conveyance, transfer or spin-off becomes a Restricted Subsidiary, and (Bii) the Company may merge or consolidate with or into, or convey, transfer or spin-off all or substantially all of its assets to, another corporation, PROVIDED that (a) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or spin-off all or substantially all of the assets of the Company as an entirety, as the case may be (the "SUCCESSOR CORPORATION"), shall be a solvent corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia, (b) if the Company is not the continuing or surviving Person: (I) Successor Corporation, the continuing or surviving Person Successor Corporation shall have executed and delivered to each holder of Notes its assumption of the due and punctual performance and observance of each covenant and condition of this Agreement and the Notes pursuant to such agreements and instruments as shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required NoteholdersHolders, the obligations of and the Company under this Agreement, the Notes and the Indemnity Letter and shall become successor have caused to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver be delivered to the Noteholders each holder an opinion of counsel of such continuing or surviving Personopinion, in form and substance satisfactory to the Required Holders, of independent counsel reasonably satisfactory to the Required NoteholdersHolders, with respect to the enforceability effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof, and (c) immediately after, and immediately after giving effect to, such transaction, no Default or Event of the assumption of this Agreement, the Notes and the Indemnity Letter by such continuing or surviving PersonDefault would exist.

Mergers and Consolidations. Directly The Company shall not consolidate with or indirectly merge into any other Person or consolidate with convey or transfer all or substantially all of its assets, revenues and other properties as an entirety to any Person, except thatwhether in a single transaction or in a series of related transactions, unless: (a) any Material Subsidiary may merge the Person formed by such consolidation or into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into or consolidate with the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger or consolidation to which the Company is not a partymerged or the Person which acquires by conveyance or transfer the assets, either (A) a Subsidiary revenues and other properties of the Company shall be substantially as an entirety (the continuing or surviving Person or (B"Surviving Entity") such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreement, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving Person or (B) if the Company is not the continuing or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed corporation organized and validly existing under the laws of the United StatesStates of America, a any State thereof or the District of Columbia, (II) the continuing or surviving Person Columbia and shall expressly assume, by execution an agreement supplemental hereto, executed and delivery delivered to the Agent for the benefit of instruments reasonably the Agent and the Banks in form satisfactory to the Required NoteholdersAgent, the obligations due and punctual payment of the Company principal of and interest on all the Loans and Notes and all other amounts payable under this Agreement, Agreement and the Notes and the Indemnity Letter performance and observance of every covenant of this Agreement on the part of the Company to be performed or observed; (b) immediately after giving effect to such transaction, no Default or Event of Default shall become successor have occurred and be continuing, nor shall any Rating Decline be likely to occur as an immediate consequence of such transaction (in the reasonable judgment of the Company's Board of Directors) and, without limiting the foregoing, The Coca-Cola Company shall directly own and continue to own, both beneficially and of record and free and clear of all Mortgages, and control at least 20% of the Common Stock of the Surviving Entity; and (c) the Company has delivered to the Company Agent for purposes the benefit of this Agreement, the Notes Agent and the Indemnity Letter Banks an Officers' Certificate and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion Opinion of counsel of such continuing or surviving Person, Counsel in form and substance reasonably satisfactory to the Required NoteholdersAgent, each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with respect this Section 8.04 and that all conditions precedent herein provided for relating to such transaction have been complied with. Anything in this Section 8.04 to the enforceability contrary notwithstanding, no such consolidation, merger, conveyance or transfer shall be entered into or made by the Company with or to another corporation which has outstanding any obligations secured by a Mortgage if, as a result of such consolidation, merger, conveyance or transfer, any Principal Property of the assumption Company or any Restricted Subsidiary would be subjected to the lien of this Agreement, such Mortgage and such Mortgage is not expressly excluded from the restrictions or permitted by the provisions of Section 8.05 unless simultaneously therewith or prior thereto effective provision shall be made for the securing of all the Loans and the Notes (together with, if the Company shall so determine, any other Debt of the Company now existing or hereafter created which is not subordinated to the Loans and the Indemnity Letter Notes), equally and ratably with (or, at the option of the Company, prior to) the obligations secured by such continuing or surviving PersonMortgage by a lien upon such Principal Property.

Mergers and Consolidations. Directly The Lessee will not, and will not permit any Restricted Subsidiary to, consolidate with, or indirectly merge into be a party to a merger with, or consolidate with sell, lease or otherwise dispose of all or substantially all of its assets to, any other Person; PROVIDED, except HOWEVER, that: (a) any Material Restricted Subsidiary may merge into or consolidate with or into, or sell, lease or otherwise dispose of all or substantially all of its assets to, the Lessee or any other Material Wholly-owned Restricted Subsidiary (including so long as in any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation)consolidation involving the Lessee, the Lessee shall be the surviving or continuing entity; and (b) the Lessee may consolidate or merge with, or sell all or substantially all of its assets to, any Material Subsidiary may merge into or consolidate with the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, business entity if: (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger surviving or consolidation continuing entity or the entity to which the Company is not a party, either (A) a Subsidiary all or substantially all of the Company Lessee's assets are sold (the "SURVIVING ENTITY") shall be either the continuing Lessee or surviving Person or (B) such merger or consolidation will not impair an entity organized under the ability laws of the Company to perform United States or any state thereof which conducts substantially all of its obligations under this Agreement, business and has substantially all of its assets within the Notes and the Indemnity LetterUnited States, and (iii) in the case of any such consolidation or merger or consolidation to in which the Company Lessee is a partynot the Surviving Entity or in the case of any such sale, either the Surviving Entity shall (A) expressly assume in writing the Company is due and punctual performance and observance of all of the continuing covenants in the Operative Agreements to be performed or surviving Person or observed by the Lessee, and (B) if furnish to the Company is not Owner-Trustee, the continuing or surviving Person: (I) Indenture Trustee and each Participant an opinion of independent counsel to the continuing or surviving Person effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the Surviving Entity enforceable in accordance with its terms, which counsel and opinion shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required NoteholdersOwner-Trustee and the Indenture Trustee; (ii) at the time of such consolidation or merger or such sale and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing and (B) the Consolidated Net Worth of the Surviving Entity shall not be less than the Consolidated Net Worth of the Lessee immediately prior to such consolidation or merger or such sale; and (iii) after giving effect to such consolidation or merger or such sale, the obligations Surviving Entity would be permitted to incur at least $1.00 of additional Funded Debt under the Company under this Agreement, the Notes and the Indemnity Letter and shall become successor to the Company for purposes provisions of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required Noteholders, with respect to the enforceability of the assumption of this Agreement, the Notes and the Indemnity Letter by such continuing or surviving PersonSection 6.2(a)(iv).

Mergers and Consolidations. Directly The Company will not, nor will it permit any Restricted Subsidiary to, merge with or indirectly merge into or consolidate with any Person, except that: (a) any Material Subsidiary may merge into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into or consolidate with the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person, permit any other Person to merge or consolidate with or into it or sell all or substantially all of its Property to any other Person; provided PROVIDED, HOWEVER, that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in the case of any foregoing restriction does not apply to the merger or consolidation to which the Company is not a party, either (A) a Subsidiary of the Company shall be with another corporation or sale of all or substantially all of the continuing or surviving Property of the Company to any other Person or if: (Ba) the corporation that results from such merger or consolidation will not impair or to which all or substantially all of the ability Property of the Company to perform is sold (the "SURVIVING CORPORATION"), if other than the Company, is organized under the laws of, and conducts substantially all of its obligations under this Agreementbusiness and has substantially all of its Properties within, the Notes and the Indemnity Letter, and United States of America or any jurisdiction or jurisdictions thereof; (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving Person or (Bb) if the Company is not the continuing Surviving Corporation, the due and punctual (a) 14 payment of the principal of and Prepayment Compensation Amount, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observance of all the covenants in the Notes, this Agreement and each other Financing Document to be performed or surviving Person: (I) observed by the continuing or surviving Person Company, are expressly assumed by the Surviving Corporation pursuant to such assumption agreements and instruments in such forms as shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, approved by execution and delivery of instruments reasonably satisfactory to the Required NoteholdersHolders, the obligations of and the Company under this Agreementcauses to be delivered to each holder of Notes an opinion, the Notes and the Indemnity Letter and shall become successor to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, satisfactory in form and substance reasonably satisfactory to the Required NoteholdersHolders, with respect of independent counsel to the enforceability effect that such agreements and instruments are enforceable in accordance with their terms; and (c) immediately prior to, and immediately after the consummation of the assumption transaction, and after giving effect thereto: (i) no Default or Event of this AgreementDefault exists or would exist; and (ii) the Surviving Corporation would be permitted by the provisions of Section 4.6 and Section 4.7 to incur at least One Dollar ($1.00) of additional Adjusted Debt which is not subordinated to the Subordinated Debt, assuming that the Notes financial ratios set forth in Section 4.6 and Section 4.7 were recalculated on a Pro Forma Combined Basis as of the Indemnity Letter by last day of the fiscal quarter of the Surviving Corporation then most recently ended. Notwithstanding the foregoing: (A) a Restricted Subsidiary may merge into the Company so long as the Company is the Surviving Corporation; (B) a Restricted Subsidiary may merge into a Wholly-Owned Restricted Subsidiary, so long as the Wholly-Owned Restricted Subsidiary is the Surviving Corporation; and (C) a Restricted Subsidiary may merge with or into or consolidate with, or Transfer all or substantially all of its Property to, any Person other than the Company or a Restricted Subsidiary so long as such continuing or surviving PersonTransfer complies in all respects with each provision of Section 4.2.

Mergers and Consolidations. Directly The Company will not, and will not permit any Restricted Subsidiary to, consolidate with, or indirectly merge into be a party to a merger with, or consolidate with sell, lease or otherwise dispose of all or substantially all of its assets to, any other Person; PROVIDED, except HOWEVER, that: (a1) any Material Restricted Subsidiary may merge into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into into, or consolidate with the Companysell, and lease or otherwise dispose of all or substantially all of its assets to, the Company or any Material Wholly-owned Restricted Subsidiary may merge into or consolidate with any other Person; provided that so long as in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger or consolidation to which involving the Company is not a partyCompany, either (A) a Subsidiary of the Company shall be the surviving or continuing entity; and (2) the Company may consolidate or merge with, or sell all or substantially all of its assets to, any business entity if: (i) the surviving Person or (B) such merger continuing entity or consolidation will not impair the ability entity to which all or substantially all of the Company's assets are sold (the "SURVIVING ENTITY") shall be either the Company to perform or an entity organized under the laws of the United States or any state thereof which conducts substantially all of its obligations under this Agreement, business and has substantially all of its assets within the Notes and the Indemnity LetterUnited States, and (iii) in the case of any such consolidation or merger or consolidation to in which the Company is a party, either (A) the Company is the continuing or surviving Person or (B) if the Company is not the Surviving Entity or in the case of any such sale, the Surviving Entity shall (x) expressly assume in writing the due and punctual payment of the principal of, premium, if any, and the interest on all of the Notes outstanding according to their tenor and the due and punctual performance and observance of all of the covenants in the Notes and this Agreement to be performed or observed by the Company, and (y) furnish to the Holders an opinion of independent counsel to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the Surviving Entity enforceable in accordance with its terms, which counsel and opinion shall be satisfactory to Holders holding at least 66-2/3% in aggregate principal amount of the then outstanding Notes; (ii) at the time of such consolidation or merger or such sale and after giving effect thereto (a) no Default or Event of Default shall have occurred and be continuing or surviving Person: and (Ib) the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws Consolidated Net Worth of the United States, a State thereof or Surviving Entity shall not be less than the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required Noteholders, the obligations Consolidated Net Worth of the Company under this Agreementimmediately prior to such consolidation or merger or such sale; and (iii) after giving effect to such consolidation or merger or such sale, the Notes and Surviving Entity would be permitted to incur at least $1.00 of additional Funded Debt under the Indemnity Letter and shall become successor to the Company for purposes provisions of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required Noteholders, with respect to the enforceability of the assumption of this Agreement, the Notes and the Indemnity Letter by such continuing or surviving PersonSECTION 4.6(a)(4).

Mergers and Consolidations. Directly or indirectly merge into or The Company will not, and will not permit any of the Restricted Subsidiaries to, consolidate with or merge with any Personother corporation or convey, transfer, spin-off or lease substantially all of its assets in a single transaction or series of transactions to any Person (except thatthat a Restricted Subsidiary may (x) consolidate with or merge with, or convey, transfer, spin-off or lease substantially all of its assets in a single transaction or series of transactions to, another Restricted Subsidiary or the Company and (y) convey, transfer, spin-off or lease all of its assets in compliance with the provisions of Section 10.6), provided that the foregoing restriction does not apply to the consolidation or merger of the Company with, or the conveyance, transfer, spin-off or lease of substantially all of the assets of the Company in a single transaction or series of transactions to, any Person so long as: (a) any Material Subsidiary may merge into the successor formed by such consolidation or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with the survivor of such merger or consolidationthe Person that acquires by conveyance, transfer, spin-off or lease substantially all of the assets of the Company as an entirety, as the case may be (the "Successor Corporation"); and, shall be a solvent corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and shall conduct substantially all of its business in one or more of such jurisdictions; (b) any Material Subsidiary may merge into or consolidate with the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger or consolidation to which the Company is not a party, either (A) a Subsidiary of the Company shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreement, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving Person or (B) if the Company is not the continuing or surviving Person: Successor Corporation, such corporation shall have executed and delivered to each holder its assumption of the due and punctual performance and observance of each covenant and condition of this Agreement and the Notes (I) the continuing or surviving Person pursuant to such agreements and instruments as shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required NoteholdersHolders), the obligations of and the Company under this Agreementshall have caused to be delivered to each holder an opinion, the Notes and the Indemnity Letter and shall become successor to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required NoteholdersHolders, with respect of Xxxxxxx & Xxxxx Mayor Day Xxxxxxxx & Xxxxxx, L.L.P. or other nationally recognized independent counsel satisfactory to the enforceability Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; (c) immediately prior to, and immediately after giving effect to, such transaction, no Default or Event of Default would exist; and (d) immediately after giving effect to such transaction, the Successor Corporation would be permitted, pursuant to the provisions of Section 10.3, to incur at least One Dollar ($1) of additional Debt owing to a Person other than a Restricted Subsidiary of the assumption Successor Corporation. No such conveyance, transfer, spin-off or lease of substantially all of the assets of the Company shall have the effect of releasing the Company or any Successor Corporation from its liability under this Agreement, Agreement or the Notes and the Indemnity Letter by such continuing or surviving PersonNotes.

Mergers and Consolidations. Directly The Company shall not consolidate with or indirectly merge into any other Person or consolidate with convey or transfer all or substantially all of its assets, revenues and other properties as an entirety to any Person, except thatwhether in a single transaction or in a series of related transactions, unless: (a) any Material Subsidiary may merge the Person formed by such consolidation or into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into or consolidate with the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger or consolidation to which the Company is not a partymerged or the Person which acquires by conveyance or transfer the assets, either (A) a Subsidiary revenues and other properties of the Company shall be substantially as an entirety (the continuing or surviving Person or (B“Surviving Entity”) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreement, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving Person or (B) if the Company is not the continuing or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed corporation organized and validly existing under the laws of the United StatesStates of America, a any State thereof or the District of Columbia, (II) the continuing or surviving Person Columbia and shall expressly assume, by execution an agreement supplemental hereto, executed and delivery delivered to the Agent for the benefit of instruments reasonably the Agent and the Banks in form satisfactory to the Required NoteholdersAgent, the obligations due and punctual payment of the Company principal of and interest on all the Loans and Notes and all other amounts payable under this Agreement, Agreement and the Notes and the Indemnity Letter performance and observance of every covenant of this Agreement on the part of the Company to be performed or observed; (b) immediately after giving effect to such transaction, no Default or Event of Default shall become successor have occurred and be continuing, nor shall any Rating Decline be likely to occur as an immediate consequence of such transaction (in the reasonable judgment of the Company’s Board of Directors) and, without limiting the foregoing, The Coca-Cola Company shall directly own and continue to own, both beneficially and of record and free and clear of all Mortgages, and control at least 20% of the Common Stock of the Surviving Entity; and (c) the Company has delivered to the Company Agent for purposes the benefit of this Agreement, the Notes Agent and the Indemnity Letter Banks an Officers’ Certificate and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion Opinion of counsel of such continuing or surviving Person, Counsel in form and substance reasonably satisfactory to the Required NoteholdersAgent, each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with respect this Section 8.04 and that all conditions precedent herein provided for relating to such transaction have been complied with. Anything in this, Section 8.04 to the enforceability contrary notwithstanding, no such consolidation, merger, conveyance or-transfer shall be entered into or made by the Company with or to another corporation which has outstanding any obligations secured by a Mortgage if, as a result of such consolidation, merger, conveyance or transfer, any Principal Property of the assumption Company or any Restricted Subsidiary would be subjected to the lien of this Agreement, such Mortgage and such Mortgage is not expressly excluded from the restrictions or permitted by the provisions of Section 8.05 unless simultaneously therewith or prior thereto effective provision shall be made for the securing of all the Loans and the Notes (together with, if the Company shall so determine, any other Debt of the Company now existing or hereafter created which is not subordinated to the Loans and the Indemnity Letter Notes), equally and ratably with (or, at the option of the Company, prior to) the obligations secured by such continuing or surviving PersonMortgage by a lien upon such Principal Property.

Mergers and Consolidations. Directly Not, and not permit any Subsidiary to, be a party to any merger or indirectly merge into consolidation, or consolidate with purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person (or any business unit of any other Person), except that: for (a) any Material such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary may merge into the Company (provided that the Company shall be the surviving corporation) or consolidate into, with or to any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation)Wholly-Owned Subsidiary; and (b) any Material Subsidiary may merge into such purchase or consolidate with the Company, and other acquisition by the Company or any Material Wholly-Owned Subsidiary may merge into of the assets or consolidate with stock of any Wholly-Owned Subsidiary; and (c) any Acquisition by the Company or any Wholly-Owned Subsidiary where (1) the assets acquired (in the case of an asset purchase) are for use, or the Person acquired (in the case of any other PersonAcquisition) is engaged, solely in businesses in which the Company is permitted to engage under Section 10.21; provided that in each case(2) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist; (3) immediately after giving effect theretoto such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6 (iand, if the Designated Consideration (defined below) no Event of Default for any such Acquisition equals or exceeds $5,000,000, the Company shall occur have delivered to the Administrative Agent a certificate demonstrating such pro forma compliance, in form and be continuing, substance satisfactory to the Administrative Agent); (ii4) in the case of the Acquisition of any merger or consolidation to which the Company is not a party, either (A) a Subsidiary of the Company shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this AgreementPerson, the Notes and the Indemnity Letter, and Board of Directors (iiior similar governing body) in the case of any such merger or consolidation to which the Company is a party, either Person has approved such Acquisition; (A5) the Company is has given the continuing or surviving Person or Administrative Agent notice of such Acquisition at least 10 days prior to the consummation thereof; (B6) if the Administrative Agent shall be satisfied that the Company is not the continuing or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed and validly existing will have sufficient availability under the laws Revolving Loan facility hereunder for the 12 months immediately following the consummation of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, by execution such Acquisition and delivery of instruments reasonably satisfactory to the Required Noteholders, the obligations of that the Company will be in compliance with all of its covenants under this Agreement, the Notes and the Indemnity Letter and shall become successor to the Company Section 10.6 on a pro forma basis for purposes of this Agreement, the Notes and the Indemnity Letter such period; and (III7) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required Noteholders, other than with respect to a single Acquisition after the enforceability Closing Date for a Designated Consideration not in excess of $15,000,000, if the assumption of this AgreementDesignated Consideration for any such Acquisition equals or exceeds $10,000,000, the Notes Required Lenders shall have consented thereto. When used in this Section, "Designated Consideration" means all consideration paid by the Company and the Indemnity Letter by such continuing or surviving Person.its Subsidiaries in

Mergers and Consolidations. Directly or indirectly merge into or No Issuer will, nor will it permit any Subsidiary Guarantor to, consolidate with or merge with any Personother Person or convey, except thattransfer or lease all or substantially all of its assets in a single transaction or series of transactions to any Person unless: (a) any Material Subsidiary may merge into the successor formed by such consolidation or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with the survivor of such merger or consolidation); and (b) any Material the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of such Issuer or such Subsidiary may merge into or consolidate with the CompanyGuarantor, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in as the case of any merger or consolidation to which may be (the Company is not a party“Successor Corporation”), either (A) a Subsidiary of the Company shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreement, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving Person or (B) if the Company is not the continuing or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed solvent corporation organized and validly existing under the laws of the United States, a States or any State thereof or (including the District of Columbia), and (IIi) except for any such transaction involving only Issuers and/or only Subsidiary Guarantors or any such transaction where an Issuer and/or Subsidiary Guarantor is the continuing or surviving Person Successor Corporation of any such transaction, such corporation shall assume, by execution have executed and delivery delivered to each holder of instruments any Notes its assumption of the due and punctual performance and observance of each covenant and condition of such Obligor under the applicable Financing Documents in form and substance satisfactory to the Required Holders and (ii) shall have caused to be delivered to each holder of any Notes an opinion reasonably satisfactory to the Required NoteholdersHolders of nationally recognized independent counsel, the obligations of the Company under this Agreement, the Notes and the Indemnity Letter and shall become successor to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of other independent counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required NoteholdersHolders, with respect to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their respective terms (except as such enforceability may be limited by (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (y) general principles of equity) and comply with the terms hereof; and (b) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing and the Company shall have delivered to each holder of the assumption Notes computations evidencing, on a pro forma basis, as if such transaction had occurred the day before the last day of the most recently ended fiscal quarter, compliance (on consolidated basis) with Section 10.3, Section 10.4, Section 10.5, Section 10.6, Section 10.7 and Section 10.9. No such conveyance, transfer or lease of all or substantially all of the assets of any Obligor shall have the effect of releasing such Obligor or any Successor Corporation that shall theretofore have become such in the manner prescribed in this Agreement, Section 10.2 from its liability under the Notes and the Indemnity Letter by such continuing or surviving Personapplicable Financing Documents.

Mergers and Consolidations. Directly or indirectly The Company will not, and will not permit any of its Restricted Subsidiaries to, merge into or consolidate with or into any Person, except thatother Person except: (ai) any Material Restricted Subsidiary may merge into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into or consolidate with the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger or consolidation to which the Company is not a party, either (A) a Subsidiary of the Company shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreement, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving Person corporation and immediately prior to, and immediately after giving effect to, such transaction, no Default or Event of Default would exist; (Bii) if any wholly-owned Restricted Subsidiary may merge or consolidate with or into another wholly-owned Restricted Subsidiary, provided that immediately prior to, and immediately after giving effect to, such transaction, no Default or Event of Default would exist; (iii) the Company may merge or consolidate with or into any other corporation, provided that the Company is not the continuing or surviving Person: corporation and immediately prior to, and immediately after giving effect to, such transaction, no Default or Event of Default would exist; and (Iiv) any Restricted Subsidiary may merge or consolidate with or into any other corporation, provided that: (a) the continuing or surviving Person shall corporation (the "Successor Corporation") shall, immediately after giving effect to such transaction, be a Restricted Subsidiary, (b) if such Restricted Subsidiary is not the Successor Corporation, such Successor Corporation shall have executed and delivered to each U.S. AGGREGATES, INC. 17 AMENDED AND RESTATED NOTE AND WARRANT PURCHASE AGREEMENT holder of Notes, prior to giving effect to, or concurrently with the consummation of, such transaction, a copy of the Joinder Agreement in the form attached to the Subsidiary Guaranty as Annex 2, duly executed by such corporation, partnership and (c) immediately prior to, and immediately after giving effect to, such transaction, no Default or limited liability company that is duly formed and validly existing under the laws Event of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required Noteholders, the obligations of the Company under this Agreement, the Notes and the Indemnity Letter and shall become successor to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required Noteholders, with respect to the enforceability of the assumption of this Agreement, the Notes and the Indemnity Letter by such continuing or surviving PersonDefault would exist.

Mergers and Consolidations. Directly The Company shall not, and shall not permit any of its Subsidiaries to, consolidate with or indirectly merge into any other Person or consolidate with permit any other Person to merge into it, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets of any other Person, except that: that (ai) any Material Subsidiary the Company may consummate the Merger with Varsity in accordance with the Merger Documents upon satisfaction of the Conditions to Merger, (ii) the Company and its Subsidiaries may merge into with each other, provided that (A) no Default or consolidate with Event of Default then exists or will result after giving effect to any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into or consolidate with the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect theretoto such merger, (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger or consolidation to which the Company is not would be permitted by the provisions of Paragraph 6A hereof to incur at least $1.00 of additional Indebtedness owing to a party, either (A) Person other than a Subsidiary of the Company shall be the continuing or surviving Person or and (B) in any such merger or consolidation will not impair involving the ability of Company, the Company to perform its obligations under this Agreement, is the Notes and the Indemnity Letter, surviving Person and (iii) in the case Company may acquire any Person as a new Subsidiary or acquire all or substantially all the assets of any such merger or consolidation to which the Company is a party, either other Person provided that (A) no Default or Event of Default will result after giving effect to any such acquisition and immediately after giving effect to such acquisition, the Company is would be permitted by the continuing or surviving provisions of Paragraph 6A hereof to incur at least $1.00 of additional Indebtedness owing to a Person or other than a Subsidiary of the Company, (B) if the Company Person to be so acquired is not the continuing engaged in a business or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments activity reasonably satisfactory related to the Required Noteholders, the obligations business of the Company under this Agreementand its Subsidiaries, (C) the Person to be so acquired has executed or timely executes a Guaranty in favor of the holders of Subordinated Notes in accordance with the terms hereof and (D) the Indemnity Letter and shall become successor consideration for such acquisition does not, when added to the Company consideration for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver all other acquisitions subsequent to the Noteholders an opinion Closing Date, exceed the sum of counsel $10,000,000 plus the amount funded from the proceeds of cash equity received by the Company (such continuing or surviving Person, in form and substance reasonably satisfactory cash equity being received by the Company from the Parent from either equity contributions to the Required Noteholders, with respect to Parent or the enforceability proceeds of the assumption issuance of this Agreement, Indebtedness by the Notes and Parent permitted by the Indemnity Letter by such continuing or surviving PersonParent Guaranty).

Mergers and Consolidations. Directly or indirectly merge into or Neither the Company nor the Guarantor will consolidate with or merge with or into any Personother Person or convey, except thattransfer or lease all or substantially all of its assets as an entirety to any Person (the Person formed by such consolidation or into which the Company or the Guarantor is merged or the Person which acquires by conveyance, transfer or lease substantially all of the assets of the Company or the Guarantor as the case may be, as an entirety, being referred to herein as the “Successor”) unless: (ai) any Material Subsidiary may merge into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes in the case of a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into or consolidate with transaction involving the Company, and the Successor of the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, a Certificated Air Carrier; (ii) in the case of any merger or consolidation to which either the Company is not a party, either (A) a Subsidiary of or the Company shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this AgreementGuarantor, the Notes Successor shall execute and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving Person or (B) if the Company is not the continuing or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required Noteholders, the obligations of the Company under this Agreement, the Notes and the Indemnity Letter and shall become successor to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving PersonSecured Party a duly authorized, valid, binding and enforceable agreement in form and substance reasonably satisfactory to the Required Noteholders, with respect to Secured Party containing an assumption by the enforceability Successor of the assumption due and punctual performance and observance of this Agreementeach covenant and condition of the Transaction Documents to be performed or observed by the Company or the Guarantor, as the case may be; (iii) no Event of Default shall have occurred and be continuing at the time of the proposed transaction, and no Potential Default or Event of Default shall arise upon giving effect to such transaction; such transaction shall not materially impair the ability of the Successor to perform the obligations of the Company or the Guarantor, as the case may be, under the Transaction Documents to which the Company or the Guarantor, as the case may be, is a party; (iv) (A) in the case of the Company, the Notes tangible net worth (determined in accordance with GAAP) of the Successor, after giving effect to such transaction, shall not be less than the greater of (1) the lesser of (x) the tangible net worth of the Company immediately prior to such transaction and (y) the Indemnity Letter by tangible net worth of the Company as of December 31, 2001, and (2) [***]% of the tangible net worth of the Company immediately before completion of such continuing or surviving Person.transaction; provided, that if the Guarantor owns more than 50% of the capital stock of the Company immediately before such transaction, the net worth test contained in this Section 3.07(iv)(A) shall not prevent the Company from completing such transaction with the Guarantor;

Mergers and Consolidations. Directly The Lessee will not, and will not permit any Restricted Subsidiary to, consolidate with, or indirectly merge into be a party to a merger with, or consolidate with sell, lease or otherwise dispose of all or substantially all of its assets to, any other Person; PROVIDED, except HOWEVER, that: (a) any Material Restricted Subsidiary may merge into or consolidate with or into, or sell, lease or otherwise dispose of all or substantially all of its assets to, the Lessee or any other Material Wholly-owned Restricted Subsidiary (including so long as in any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation)consolidation involving the Lessee, the Lessee shall be the surviving or continuing entity; and (b) the Lessee may consolidate or merge with, or sell all or substantially all of its assets to, any Material Subsidiary may merge into or consolidate with the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, business entity if: (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger surviving or consolidation continuing entity or the entity to which the Company is not a party, either (A) a Subsidiary all or substantially all of the Company Lessee's assets are sold (the "SURVIVING ENTITY") shall be either the continuing Lessee or surviving Person or (B) such merger or consolidation will not impair an entity organized under the ability laws of the Company to perform United States or any state thereof which conducts substantially all of its obligations under this Agreement, business and has substantially all of its assets within the Notes and the Indemnity LetterUnited States, and (iii) in the case of any such consolidation or merger or consolidation to in which the Company Lessee is a partynot the Surviving Entity or in the case of any such sale, either the Surviving Entity shall (A) expressly assume in writing the Company is due and punctual performance and observance of all of the continuing covenants in the Operative Agreements to be performed or surviving Person or observed by the Lessee, and (B) if furnish to the Company is not OwnerTrustee, the continuing or surviving Person: (I) Indenture Trustee and each Participant an opinion of independent counsel to the continuing or surviving Person effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the Surviving Entity enforceable in accordance with its terms, which counsel and opinion shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required NoteholdersOwnerTrustee and the Indenture Trustee; (ii) at the time of such consolidation or merger or such sale and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing and (B) the Consolidated Net Worth of the Surviving Entity shall not be less than the Consolidated Net Worth of the Lessee immediately prior to such consolidation or merger or such sale; and (iii) after giving effect to such consolidation or merger or such sale, the obligations Surviving Entity would be permitted to incur at least $1.00 of additional Funded Debt under the Company under this Agreement, the Notes and the Indemnity Letter and shall become successor to the Company for purposes provisions of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required Noteholders, with respect to the enforceability of the assumption of this Agreement, the Notes and the Indemnity Letter by such continuing or surviving PersonSection 6.2(a)(iv).

Mergers and Consolidations. Directly or indirectly The Company will not, and will not permit any of its Subsidiaries to, merge into or consolidate with or into any other Person, or convey, transfer, spinoff or lease all or substantially all of its assets in a single transaction or series of transactions to any Person, except that: (i) any such Subsidiary may (a) any Material Subsidiary may merge into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into into, or consolidate with convey, transfer or spin-off all or substantially all of its assets to, the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger or consolidation to which the Company is not a party, either (A) a Subsidiary of the Company shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreement, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving corporation, or (b) convey, transfer or spin-off all or substantially all of its assets in compliance with the provisions of paragraph 6K hereof; (ii) any such Subsidiary may merge or consolidate with or into, or convey, transfer or spin-off all or substantially all of its assets to, another Subsidiary of the Company, provided that immediately after giving effect to such transaction, the Company, directly or indirectly, retains at least the same ownership interest in the surviving or transferee Subsidiary as it had in the other Subsidiary immediately prior to such transaction, and (iii) the Company may merge or consolidate with or into, or convey, transfer or spin-off all or substantially all of its assets to, any other solvent corporation, provided that (a) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or spin-off all or substantially all of the assets of the Company as an entirety, as the case may be (Bthe "Successor Corporation"), shall be a solvent corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia, (b) if the Company is not the continuing or surviving Person: Successor Corporation, such corporation shall have executed and delivered to each holder of Notes its assumption of the due and punctual performance and observance of each covenant and condition of this Agreement and the Notes (I) the continuing or surviving Person pursuant to such agreements and instruments as shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required NoteholdersHolders), the obligations of and the Company under this Agreement, the Notes and the Indemnity Letter and shall become successor have caused to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver be delivered to the Noteholders each holder an opinion of counsel of such continuing or surviving Personopinion, in form and substance satisfactory to the Required Holders, of independent counsel reasonably satisfactory to the Required NoteholdersHolders, with respect to the enforceability effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof, and (c) immediately prior to, and immediately after giving effect to, such transaction, no Default or Event of Default would exist, including, without limitation, an Event of Default arising from a failure to comply with paragraph 6A and paragraph 6B hereof. No such conveyance, transfer or spin-off of all or substantially all of the assumption Property of the Company shall have the effect of releasing the Company or any Successor Corporation from its liability under this Agreement, Agreement or the Notes and the Indemnity Letter by such continuing or surviving PersonNotes.

Mergers and Consolidations. Directly Borrower will not, directly or indirectly indirectly, in a single transaction or a series of related transactions, consolidate or merge with or into another person, or consolidate with any Personsell, except thatlease, transfer, convey or otherwise dispose of or assign all or substantially all of the assets of Borrower and the Subsidiaries (taken as a whole) unless: (1) either: (a) Borrower will be the surviving or continuing person; or (b) the person (if other than Borrower) formed by or surviving such consolidation or merger or to which such sale, lease, transfer, conveyance or other disposition or assignment shall be made (collectively, the “Successor”) is a corporation, limited liability company or limited partnership organized and existing under the laws of any Material Subsidiary State of the United States of America or the District of Columbia, and the Successor expressly assumes, by agreements in form and substance reasonably satisfactory to the Administrative Agent, all of the Obligations of Borrower; (2) immediately after giving effect to such transaction and the assumption of the obligations as set forth in clause (1)(b) above and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds of such Indebtedness on a pro forma basis, no Default or Event of Default shall have occurred and be continuing; and (3) immediately after giving effect to such transaction and the assumption of the obligations as set forth in clause (1)(b) above and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds of such Indebtedness on a pro forma basis either (x) Borrower or the Successor, as the case may merge into be, could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to the Coverage Ratio Exception or consolidate with (y) the Consolidated Interest Coverage Ratio for Borrower or the Successor, as the case may be, would be equal to or greater than such ratio for Borrower immediately prior to such transaction. For purposes of this covenant, any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary Indebtedness of the Successor which was not Indebtedness of Borrower immediately prior to the transaction shall be deemed to have been incurred in connection with such transaction to the extent such Indebtedness remains outstanding immediately after giving effect to such transaction. Except in the event of a sale or other disposition of all or substantially all of the assets of a Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all of the Equity Interests of such Guarantor then held by Borrower and its Subsidiaries, in each case in a transaction permitted by Section 6.06, no Guarantor may consolidate with or merge with or into (whether or not such Guarantor is the surviving person) another person, unless: (1) either: (a) such Guarantor will be the surviving or continuing person; or (b) the person (if other than such Guarantor) formed by or surviving any such consolidation or merger is another Guarantor or consolidation)assumes, by agreements in form and substance reasonably satisfactory to the Administrative Agent, all of the obligations of such Guarantor under the Guarantee of such Guarantor and hereunder; and (b2) any Material Subsidiary may merge into or consolidate with the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect theretoto such transaction, (i) no Default or Event of Default shall occur have occurred and be continuing. For purposes of the foregoing, the transfer (iiby 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 Borrower, will be deemed to be the transfer of all or substantially all of the properties and assets of Borrower. Upon any consolidation, combination or merger of Borrower or a Guarantor, or any transfer of all or substantially all of the assets of Borrower in accordance with the case of any merger foregoing, in which Borrower or such Guarantor is not the continuing obligor under this Agreement or its Guarantee, the surviving entity formed by such consolidation or into which Borrower or such Guarantor is merged or the person to which the Company sale, conveyance, lease, transfer, disposition or assignment is not a partymade will succeed to, either (A) a Subsidiary of the Company shall and be the continuing substituted for, and may exercise every right and power of, Borrower or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations Guarantor under this Agreement, the Notes and the Indemnity LetterGuarantees with the same effect as if such surviving entity had been named therein as Borrower or such Guarantor and, and (iii) except in the case of a lease, Borrower or such Guarantor, as the case may be, will be released from the obligation to pay the principal of and interest on the Obligations or in respect of its Guarantee, as the case may be, and all of Borrower’s or such Guarantor’s other obligations and covenants hereunder and its Guarantee, if applicable. Notwithstanding the foregoing, (i) any such merger Subsidiary may consolidate with, merge with or consolidation into or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to which Borrower or another Subsidiary; and (ii) Borrower or any Guarantor may consolidate with, merge with or into or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to Borrower or another Guarantor or merge with a Subsidiary of Borrower solely for the Company is purpose of reincorporating Borrower or a party, either (A) the Company is the continuing or surviving Person or (B) if the Company is not the continuing or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws Guarantor in any State of the United States, a State thereof States of America or the District of Columbia. Notwithstanding the foregoing, clause (II3) the continuing or surviving Person shall assume, by execution and delivery above will not prohibit Borrower from entering into a transaction as a result of instruments reasonably satisfactory to the Required Noteholders, the obligations which Borrower is reorganized in any State of the Company under this Agreement, United States of America or the Notes and the Indemnity Letter and shall become successor to the Company for purposes District of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required Noteholders, with respect to the enforceability of the assumption of this Agreement, the Notes and the Indemnity Letter by such continuing or surviving PersonColumbia.

Mergers and Consolidations. Directly or indirectly merge into or consolidate with any Person, except that: (a) any Material Subsidiary may merge into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into or consolidate with the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, The Borrower will not (i) no Event consolidate or combine with or merge with or into or, directly or indirectly, sell, assign, convey, lease, transfer or otherwise dispose of Default shall occur all or substantially all of its properties and be continuingassets to any person or persons in a single transaction or through a series of transactions, or (ii) permit any of the Restricted Subsidiaries to enter into any such transaction or series of transactions if it would result in the disposition of all or substantially all of the properties or assets of the Borrower and the Restricted Subsidiaries on a consolidated basis, unless, in the case of any merger either clause (i) or consolidation to which (ii), (a) the Company is not a party, either (A) a Subsidiary of the Company Borrower shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreementperson or, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving Person or (B) if the Company Borrower is not the continuing person, the resulting, surviving or transferee person (the "surviving Person: (Ientity") the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed organized and validly existing under the laws of the United States, a States or any State thereof or the District of Columbia, territory thereof; (IIb) the continuing or surviving Person entity shall assume, by execution and delivery expressly assume all of instruments reasonably satisfactory to the Required Noteholders, the obligations of the Company Borrower hereunder and under this Agreementthe other Loan Documents, and shall, if required by law to effectuate such assumption, execute an instrument to effect such assumption which instrument shall be delivered to the Notes and the Indemnity Letter Administrative Agent and shall become successor to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, be in form and substance reasonably satisfactory to the Required NoteholdersAdministrative Agent; (c) immediately after giving effect to such transaction or series of transactions on a pro forma basis (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions), the Borrower or the surviving entity (assuming such surviving entity's assumption of the Borrower's obligations under this Agreement), as the case may be, would be in compliance with the covenants in Section 6.10; (d) immediately after giving effect to such transaction or series of transactions on a pro forma basis (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions), no Default shall have occurred and be continuing; and (e) the Borrower or the surviving entity, as the case may be, shall have delivered to the Administrative Agent certificate of a senior financial officer of the Borrower stating that such transaction or series of transactions complies with this covenant and that all conditions precedent in this Agreement relating to the transaction or series of transactions have been satisfied. Upon any consolidation or merger or any sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of the assets of the Borrower in accordance with the foregoing in which the Borrower or the Restricted Subsidiary, as the case may be, is not the continuing corporation, the successor corporation formed by such a consolidation or into which the Borrower or such Restricted Subsidiary is merged or to which such transfer is made will succeed to, and be substituted or, and may exercise every right and power of, the Borrower or such Restricted Subsidiary, as the case may be, under this Agreement and the other Loan Document to which the Borrower or such Restricted Subsidiary is a party, as the case may be, with respect the same effect as if such successor corporation had been named as the Borrower or such Restricted Subsidiary therein; and thereafter, except in the case of (i) any lease or (ii) any sale, assignment, conveyance, transfer, lease or other disposition to the enforceability a Restricted Subsidiary of the assumption Borrower, the Borrower shall be discharged from all obligations and covenants under this Agreement. For all purposes of this Agreement, Subsidiaries of any surviving entity will, upon such transaction or series of related transactions, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to Section 6.11 and all Indebtedness, and all Liens on property or assets, of the Notes Borrower and the Indemnity Letter by Restricted Subsidiaries in existence immediately prior to such continuing transaction or surviving Personseries of related transactions will be deemed to have been incurred upon such transaction or series of related transactions.

Mergers and Consolidations. Directly The Lessee will not consolidate with, or indirectly merge into be a party to a merger with, or consolidate with any Personsell, except that: (a) any Material Subsidiary may merge into lease or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger otherwise dispose of all or consolidation); and (b) any Material Subsidiary may merge into or consolidate with the Companysubstantially all of its assets to, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided provided, however, that in each casethe Lessee may consolidate or merge with, immediately after giving effect theretoor sell all or substantially all of its assets to, any business entity if: (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger surviving or consolidation continuing entity or the entity to which the Company is not a party, either (A) a Subsidiary all or substantially all of the Company Lessee's assets are sold (the "Surviving Entity") shall be either the continuing Lessee or surviving Person or (B) such merger or consolidation will not impair an entity organized under the ability laws of the Company to perform United States or any state thereof which conducts at least a majority of its obligations under this Agreement, business and has at least a majority of its assets within the Notes and the Indemnity LetterUnited States, and (iii) in the case of any such consolidation or merger or consolidation to in which the Company Lessee is a partynot the Surviving Entity or in the case of any such sale, either the Surviving Entity shall (A) expressly assume in writing the Company is due and punctual performance and observance of all of the continuing covenants in the Operative Agreements to be performed or surviving Person or observed by the Lessee, and (B) if furnish to the Company is not Owner Trustee, the continuing or surviving Person: Indenture Trustee and each Participant an opinion of independent counsel to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the Surviving Entity enforceable in accordance with its terms (I) subject to customary limitations relating to bankruptcy and the continuing or surviving Person enforcement of equitable remedies), which counsel and opinion shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required Noteholders, Owner Trustee and the obligations Indenture Trustee; and (ii) at the time of such consolidation or merger or such sale and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing and (B) the Adjusted Net Worth of the Company under this Agreement, Surviving Entity shall not be less than the Notes and the Indemnity Letter and shall become successor to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required Noteholders, with respect to the enforceability Adjusted Net Worth of the assumption of this Agreement, the Notes and the Indemnity Letter by Lessee immediately prior to such continuing consolidation or surviving Personmerger or such sale.

Mergers and Consolidations. Directly or indirectly merge into or No Issuer will, nor will it permit any Subsidiary Guarantor to, consolidate with or merge with any Personother Person or convey, except thattransfer, sell or lease all or substantially all of its assets in a single transaction or series of transactions to any Person (including, in each case, pursuant to a Delaware LLC Division) unless: (a) any Material Subsidiary may merge into the successor formed by such consolidation or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with the survivor of such merger or consolidation); and (b) any Material the Person that acquires by conveyance, transfer, sale or lease all or substantially all of the assets of such Issuer or such Subsidiary may merge into or consolidate with the CompanyGuarantor, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in as the case of any merger or consolidation to which may be (the Company is not a party“Successor Corporation”), either (A) a Subsidiary of the Company shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreement, the Notes and the Indemnity Letter, and (iii) in the case of any such merger or consolidation to which the Company is a party, either (A) the Company is the continuing or surviving Person or (B) if the Company is not the continuing or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership solvent corporation or limited liability company that is duly formed organized and validly existing under the laws of the United States, a States or any State thereof or (including the District of Columbia), and (IIi) except for any such transaction involving only Issuers and/or only Subsidiary Guarantors or any such transaction where an Issuer and/or Subsidiary Guarantor is the continuing Successor Corporation of any such transaction, such corporation or surviving Person limited liability company shall assume, by execution have executed and delivery delivered to each holder of instruments any Notes its assumption of the due and punctual performance and observance of each covenant and condition of such Obligor under the applicable Financing Documents in form and substance satisfactory to the Required Holders and (ii) shall have caused to be delivered to each holder of any Notes an opinion reasonably satisfactory to the Required NoteholdersHolders of nationally recognized independent counsel, the obligations of the Company under this Agreement, the Notes and the Indemnity Letter and shall become successor to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of other independent counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required NoteholdersHolders, with respect to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their respective terms (except as such enforceability may be limited by (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the DB1/ 131461627.9 enforcement of creditors’ rights generally and (y) general principles of equity) and comply with the terms hereof; and (b) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing and the Company shall have delivered to each holder of the assumption Notes computations evidencing, on a pro forma basis, as if such transaction had occurred the day before the last day of the most recently ended fiscal quarter, compliance (on a consolidated basis) with Section 10.3, Section 10.4, Section 10.5, Section 10.6, Section 10.7 and Section 10.9. No such conveyance, transfer, sale or lease of all or substantially all of the assets of any Obligor shall have the effect of releasing such Obligor or any Successor Corporation that shall theretofore have become such in the manner prescribed in this Agreement, Section 10.2 from its liability under (x) this Agreement or the Notes and (in the Indemnity Letter by case of the Issuers) or (y) the Subsidiary Guarantee (in the case of any Subsidiary Guarantor), unless, in the case of the conveyance, transfer or lease of substantially all of the assets of a Subsidiary Guarantor, such continuing Subsidiary Guarantor is released from its Subsidiary Guarantee in accordance with Section 9.6(c) in connection with or surviving Personimmediately following such conveyance, transfer, sale or lease.

Mergers and Consolidations. Directly The Lessee will not consolidate -------------------------- with, or indirectly merge into be a party to a merger with, or consolidate with any Personsell, except that: (a) any Material Subsidiary may merge into lease or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger otherwise dispose of all or consolidation); and (b) any Material Subsidiary may merge into or consolidate with the Companysubstantially all of its assets to, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided provided, however, that in each casethe Lessee may consolidate or merge with, immediately after giving effect theretoor sell all or substantially all of its assets to, any business entity if: (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger surviving or consolidation continuing entity or the entity to which the Company is not a party, either (A) a Subsidiary all or substantially all of the Company Lessee's assets are sold (the "Surviving Entity") shall be either the continuing Lessee or surviving Person or (B) such merger or consolidation will not impair an entity organized under the ability laws of the Company to perform United States or any state thereof which conducts at least a majority of its obligations under this Agreement, business and has at least a majority of its assets within the Notes and the Indemnity LetterUnited States, and (iii) in the case of any such consolidation or merger or consolidation to in which the Company Lessee is a partynot the Surviving Entity or in the case of any such sale, either the Surviving Entity shall (A) expressly assume in writing the Company is due and punctual performance and observance of all of the continuing covenants in the Operative Agreements to be performed or surviving Person or observed by the Lessee, and (B) if furnish to the Company is not Owner Trustee, the continuing or surviving Person: Indenture Trustee and each Participant an opinion of independent counsel to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the Surviving Entity enforceable in accordance with its terms (I) subject to customary limitations relating to bankruptcy and the continuing or surviving Person enforcement of equitable remedies), which counsel and opinion shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws of the United States, a State thereof or the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required Noteholders, Owner Trustee and the obligations Indenture Trustee; and (ii) at the time of such consolidation or merger or such sale and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing and (B) the Adjusted Net Worth of the Company under this Agreement, Surviving Entity shall not be less than the Notes and the Indemnity Letter and shall become successor to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required Noteholders, with respect to the enforceability Adjusted Net Worth of the assumption of this Agreement, the Notes and the Indemnity Letter by Lessee immediately prior to such continuing consolidation or surviving Personmerger or such sale.

Mergers and Consolidations. Directly The Company will not, and will not permit any Restricted Subsidiary to, consolidate with, or indirectly merge into be a party to a merger with, or consolidate with sell, lease or otherwise dispose of all or substantially all of its assets to, any other Person; PROVIDED, except HOWEVER, that: (a1) any Material Restricted Subsidiary may merge into or consolidate with any other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and (b) any Material Subsidiary may merge into into, or consolidate with the Companysell, and lease or otherwise dispose of all or substantially all of its assets to, the Company or any Material Wholly-owned Restricted Subsidiary may merge into or consolidate with any other Person; provided that so long as in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger or consolidation to which involving the Company is not a partyCompany, either (A) a Subsidiary of the Company shall be the surviving or continuing entity; and (2) the Company may consolidate or merge with, or sell all or substantially all of its assets to, any business entity if: (i) the surviving Person or (B) such merger continuing entity or consolidation will not impair the ability entity to which all or substantially all of the Company's assets are sold (the "SURVIVING ENTITY") shall be either the Company to perform or an entity organized under the laws of the United States or any state thereof which conducts substantially all of its obligations under this Agreement, business and has substantially all of its assets within the Notes and the Indemnity LetterUnited States, and (iii) in the case of any such consolidation or merger or consolidation to in which the Company is a party, either (A) the Company is the continuing or surviving Person or (B) if the Company is not the Surviving Entity or in the case of any such sale, the Surviving Entity shall (x) expressly assume in writing the due and punctual payment of the principal of, premium, if any, and the interest on all of the Notes outstanding according to their tenor and the due and punctual performance and observance of all of the covenants in the Notes and this Agreement to be performed or observed by the Company, and (y) furnish to the Holders an opinion of independent counsel to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the Surviving Entity enforceable in accordance with its terms, which counsel and opinion shall be satisfactory to Holders holding at least 66-2/3% in aggregate principal amount of the then outstanding Notes; (ii) at the time of such consolidation or merger or such sale and after giving effect thereto (a) no Default or Event of Default shall have occurred and be continuing or surviving Person: and (Ib) the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed and validly existing under the laws Consolidated Net Worth of the United States, a State thereof or Surviving Entity shall not be less than the District of Columbia, (II) the continuing or surviving Person shall assume, by execution and delivery of instruments reasonably satisfactory to the Required Noteholders, the obligations Consolidated Net Worth of the Company under this Agreementimmediately prior to such consolidation or merger or such sale; and (iii) after giving effect to such consolidation or merger or such sale, the Notes and Surviving Entity would be permitted to incur at least $1.00 of additional Funded Debt under the Indemnity Letter and shall become successor to the Company for purposes provisions of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required Noteholders, with respect to the enforceability of the assumption of this Agreement, the Notes and the Indemnity Letter by such continuing or surviving PersonSection 4.6(a)(4).

Mergers and Consolidations. Directly or indirectly merge into or The Company will not, and will not permit any of the Restricted Subsidiaries to, consolidate with any Person, except that: (a) any Material Subsidiary may or merge into or consolidate with any other Material corporation or convey, transfer, spin-off or lease substantially all of its assets in a single transaction or series of transactions to any Person (except that a Restricted Subsidiary may (including x) consolidate with or merge with, or convey, transfer, spin-off or lease substantially all of its assets in a single transaction or series of transactions to, another Restricted Subsidiary or the Company and (y) convey, transfer, spin-off or lease all of its assets in compliance with the provisions of Section 10.6), provided that the foregoing restriction does not apply to the consolidation or merger of the Company with, or the conveyance, transfer, spin-off or lease of substantially all of the assets of the Company in a single transaction or series of transactions to, any Subsidiary that becomes a Material Subsidiary in connection with Person so long as: the successor formed by such consolidation or the survivor of such merger or consolidation); and (b) any Material Subsidiary may merge into the Person that acquires by conveyance, transfer, spin-off or consolidate with lease substantially all of the Company, and the Company or any Material Subsidiary may merge into or consolidate with any other Person; provided that in each case, immediately after giving effect thereto, (i) no Event of Default shall occur and be continuing, (ii) in the case of any merger or consolidation to which the Company is not a party, either (A) a Subsidiary assets of the Company shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Company to perform its obligations under this Agreementas an entirety, the Notes and the Indemnity Letter, and (iii) in as the case of any such merger or consolidation to which may be (the Company is a party"Successor Corporation"), either (A) the Company is the continuing or surviving Person or (B) if the Company is not the continuing or surviving Person: (I) the continuing or surviving Person shall be a corporation, partnership or limited liability company that is duly formed solvent corporation organized and validly existing under the laws of the United StatesStates of America, a State any state thereof or the District of ColumbiaColumbia and shall conduct substantially all of its business in one or more of such jurisdictions; if the Company is not the Successor Corporation, such corporation shall have executed and delivered to each holder its assumption of the due and punctual performance and observance of each covenant and condition of this Agreement and the Notes (II) the continuing or surviving Person pursuant to such agreements and instruments as shall assume, by execution and delivery of instruments be reasonably satisfactory to the Required NoteholdersHolders), the obligations of and the Company under this Agreementshall have caused to be delivered to each holder an opinion, the Notes and the Indemnity Letter and shall become successor to the Company for purposes of this Agreement, the Notes and the Indemnity Letter and (III) the continuing or surviving Person shall deliver to the Noteholders an opinion of counsel of such continuing or surviving Person, in form and substance reasonably satisfactory to the Required NoteholdersHolders, with respect of Gardere Xxxxx Xxxxxx & Xxxxx, L.L.P. or other nationally recognized independent counsel satisfactory to the enforceability Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; immediately prior to, and immediately after giving effect to, such transaction, no Default or Event of Default would exist; and immediately after giving effect to such transaction, the Successor Corporation would be permitted, pursuant to the provisions of Section 10.3, to incur at least One Dollar ($1) of additional Debt owing to a Person other than a Restricted Subsidiary of the assumption Successor Corporation. No such conveyance, transfer, spin-off or lease of substantially all of the assets of the Company shall have the effect of releasing the Company or any Successor Corporation from its liability under this Agreement, Agreement or the Notes and the Indemnity Letter by such continuing or surviving PersonNotes.