Common use of Restriction on Fundamental Changes Clause in Contracts

Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity.

Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s 's consolidated business or propertyproperty (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) transactions Fundamental Changes permitted under Sections 6.02 7.3(a), 7.3(b) or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.027.3(f), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or any wholly-owned another Subsidiary of the Company; , as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person, provided if that (xA) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Subsidiary Borrower is merged intoPerson in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, liquidated into related or consolidated with another incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving Subsidiary shall be (corporation in such Fundamental Change is or shall concurrently become) the Subsidiary Borrower, and (y) becomes as a Subsidiary Guarantor is merged into, liquidated into or consolidated with another result thereof a Wholly-Owned Subsidiary of the CompanyCompany and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iiiD) if at the time thereof and immediately after giving effect thereto no Event such transaction is with a Person in a line of Default shall have occurred and be continuing, any Person (other than business substantially similar to or related to that of the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of and its Subsidiaries in connection with as of the Closing Date or is a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitylogical extension thereof.

Restriction on Fundamental Changes. Neither Borrower will not, and will cause each Fundamental Subsidiary not to fundamentally change the Company nor any nature of its Subsidiaries shall business, enter into any merger merger, consolidation, reorganization or consolidationrecapitalization, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell (other than in the ordinary course of its business), assign, lease, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any part of the Company’s its business, property, assets or any such Subsidiary’s business or propertysecurities, whether now owned or hereafter acquired, except or acquire by purchase or otherwise, all or substantially all the business, property, assets, securities or interest of any Person; provided that (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (iia) a Domestic Subsidiary of may merge or consolidate with Borrower, provided that the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall Borrower will be the surviving corporation; (b) a Domestic Subsidiary may merge or consolidate with another Domestic Subsidiary that is both a Fundamental Subsidiary and a Restricted Subsidiary; (c) a Domestic Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to Borrower or another Domestic Subsidiary that is both a Fundamental Subsidiary and a Restricted Subsidiary; (d) Borrower may acquire or form additional Subsidiaries; provided that each such newly formed or acquired Subsidiary is wholly-owned Subsidiary by Borrower (unless Borrower has obtained the prior written consent of the Company; provided if (x) Requisite Banks to acquire or form a Subsidiary which will not be wholly-owned, which consent will not be unreasonably withheld); and further provided that each such newly formed or acquired Subsidiary becomes, on its formation, both a Restricted Subsidiary and a Fundamental Subsidiary; and (e) Borrower is merged into, liquidated into or consolidated with another Subsidiary and its Subsidiaries may dispose of any assets if the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the Companybusiness, assets, rights, revenues and property disposed of after the surviving Subsidiary date of this Agreement shall be (or shall concurrently become) less than 5% of such aggregate book value of the Subsidiary BorrowerConsolidated total assets of the Borrower and its Subsidiaries as of the most recently ended fiscal year, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto such transaction, no Unmatured Event of Default or Event of Default shall exist or shall have occurred and be continuing. On the closing of any transaction permitted by this Section 6.3, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company test required by Section 5.12 must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitybe met.

Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s 's consolidated business or propertyproperty (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) transactions Fundamental Changes permitted under Sections 6.02 7.3(a), 7.3(b) or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.027.3(f), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or any wholly-owned another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided if that (xA) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Subsidiary Borrower is merged intoPerson in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, liquidated into related or consolidated with another incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving Subsidiary shall be (corporation in such Fundamental Change is or shall concurrently become) the Subsidiary Borrower, and (y) becomes as a Subsidiary Guarantor is merged into, liquidated into or consolidated with another result thereof a Wholly-Owned Subsidiary of the CompanyCompany and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iiiD) if at the time thereof and immediately after giving effect thereto no Event such transaction is with a Person in a line of Default shall have occurred and be continuing, any Person (other than business substantially similar to or related to that of the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of and its Subsidiaries in connection with as of the Closing Date or is a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitylogical extension thereof.

Restriction on Fundamental Changes. Neither The Loan Parties will not, and will not permit their respective Subsidiaries to, directly or indirectly: (A) unless and only to the Company nor extent required by law or as would not be reasonably expected to be adverse to the interests of Lenders, amend, modify or waive any term or provision of its Subsidiaries shall their respective articles of organization, operating agreements, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, articles of formation or partnership agreement (provided that 10 days prior written notice will be delivered to Administrative Agent of any modification that results in a Loan Party, any Subsidiary of a Loan Party or any entity whose equity interest is pledged by a Loan Party pursuant to the Pledge and Security Agreement opting into Article 8 of the UCC); (B) enter into any transaction of merger or consolidation, except that (i) any Subsidiary of Borrower may be merged with or into Borrower (provided that Borrower is the surviving entity), (ii) any Loan Party other than Borrower may merge or consolidate with any other Loan Party other than Borrower, (iii) any Subsidiary that is not a Loan Party may merge, dissolve, liquidate, consolidate with or into any Loan Party, provided that such Loan Party shall be the continuing or surviving corporation, (iv) any Subsidiary which is not a Loan Party may merge, dissolve, liquidate, consolidate with or into any other Subsidiary which is not a Loan Party, (v) any Permitted Acquisition and Investment or any other permitted Investment or any permitted asset disposition may be structured as merger, consolidation or amalgamation; (C) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a another transaction permitted under Section 6.02), clause (iiB) a Subsidiary above or any Asset Disposition permitted under Subsection 3.7; or (D) acquire by purchase or otherwise all or any substantial part of the Company may be merged intobusiness, liquidated into assets or consolidated with the Company (equity interests of or in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (whether by stock purchase or otherwise) other than pursuant to a Permitted Acquisition and Investment, the Company Verizon Acquisition or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisitionother Investment permitted hereunder; provided that any 10 days prior to the effective date of such merger merger, consolidation, dissolution, liquidation, or consolidation involving (A) the Company must result amalgamation in the Company as the surviving entity, case of clause (B) subject to or clause (C), or such acquisition in the preceding case of clause (D), and promptly following such amendment, modification or waiver in the case of clause (A), Borrower shall provide written notice and a Subsidiary Borrower must result in such Subsidiary Borrower as copy thereof or the surviving entity and (C) subject documentation relating thereto to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entityAdministrative Agent.

Restriction on Fundamental Changes. Neither the Company nor The U.S. Borrower shall not, and shall not permit any of its Material Subsidiaries shall enter into any merger to: (i) merge or consolidationconsolidate with, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or ii) convey, leasetransfer, sell, transfer lease or otherwise dispose of, of (whether in one transaction or a series of transactions, ) all or substantially all of the Company’s or any such Subsidiary’s business or property, property (whether now owned or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged intoU.S. Borrower and its Subsidiaries, liquidated into taken as a whole, to, or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at convey, transfer, lease or otherwise dispose of (whether in one transaction or a series of transactions, and whether by or pursuant to merger, consolidation or any other arrangement), any property (whether now owned or hereafter acquired) essential to the time thereof conduct of the business of the U.S. Borrower and immediately after giving effect thereto its Subsidiaries, taken as a whole, to, any Person; provided however, that so long as no Event of Default shall have occurred and then be continuingcontinuing or would result therefrom, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company U.S. Borrower, so long as such Borrower is the surviving entity, (B) subject to the preceding clause (A)any other Borrower, a Subsidiary so long as such other Borrower must result in such Subsidiary Borrower as is the surviving entity and (C) subject to any other Material Subsidiary; provided further, that in the preceding case of clauses (A), (B) and (BC), such merger or consolidation is not otherwise prohibited by this Agreement. Subject to the foregoing, and except to the extent otherwise prohibited by this Agreement, the U.S. Borrower may, directly or indirectly, sell all or a portion of the capital stock or other equity interests of any Subsidiary Guarantor must result (including by way of a merger or consolidation) for fair market value, as determined in good faith by the U.S. Borrower’s board of directors; provided however, that if such Subsidiary Guarantor is also a Euro Borrower, such Subsidiary ceases to be a Euro Borrower, as applicable, immediately prior to such sale and all Obligations of such Subsidiary in its capacity as a Euro Borrower are paid in full prior to the surviving entity.date of such sale. (c)

Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s 's consolidated business or propertyproperty (each such transaction a "FUNDAMENTAL CHANGE"), whether now or hereafter acquired, except (i) transactions Fundamental Changes permitted under Sections 6.02 7.3(B), 7.3(D) or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.027.3(G), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or any wholly-owned another Subsidiary of the Company; provided if , as applicable, and (xiv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person, provided, that (A) no Default or Unmatured Default shall exist immediately after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Subsidiary Borrower is merged intoPerson in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, liquidated into related or consolidated with another incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving Subsidiary shall be (corporation in such Fundamental Change is or shall concurrently become) the Subsidiary Borrower, and (y) becomes as a Subsidiary Guarantor is merged into, liquidated into or consolidated with another result thereof a Wholly-Owned Subsidiary of the CompanyCompany and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iiiD) if at the time thereof and immediately after giving effect thereto no Event such transaction is with a Person in a line of Default shall have occurred and be continuing, any Person (other than business substantially similar to that of the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of and its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) as of the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entityClosing Date.

Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company’s or any such Subsidiary’s its business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction as otherwise permitted under Section 6.02)7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, PROVIDED, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary CKE SIXTH AMENDED AND RESTATED CREDIT AGREEMENT merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into, liquidated into or consolidated merge with the Company (in which case the Company shall be the surviving corporation) Borrower or any wholly-owned Subsidiary of the Company; provided if Borrower, PROVIDED, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, PROVIDED, FURTHER, that in each case, (xA) a Subsidiary Borrower is merged into, liquidated into or consolidated with another any such wholly-owned Subsidiary of the Company, Borrower which is the surviving Subsidiary corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (or shall concurrently becomeB) the Borrower shall give the Agent at least ten (10) days prior written notice of any such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary Borrower, or the assets of any Subsidiary so merged and (yD) a Subsidiary Guarantor is merged into, liquidated into no Default or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and or be continuing, any Person (other than the Company continuing or any of its Subsidiaries) may merge would occur after giving effect thereto or consolidate with the Company or any of its Subsidiaries in connection with as a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitythereof.

Restriction on Fundamental Changes. Neither the Company nor Borrower will not, and will not permit any of its Subsidiaries shall to, directly or indirectly: (i) unless and only to the extent required by law or as would not be reasonably expected to be adverse to the interests of Lenders, amend, modify or waive any term or provision of its articles of organization, operating agreement, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock or by-laws; (ii) enter into any transaction of merger or consolidation, except that any Subsidiary of Borrower may be merged with or into Borrower or any wholly owned Subsidiary (provided that Borrower or such wholly owned Subsidiary is the surviving entity) and except that any Permitted Acquisition or any permitted Asset Disposition may be structured as merger; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), except in connection with another transaction permitted under clause (ii) above; or convey, lease, sell, transfer (iv) acquire by purchase or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company’s business or assets of any other Person (whether by stock purchase or otherwise), provided, that Borrower or any such Subsidiary’s Subsidiary of Borrower may acquire all or any substantial part of the business or propertyassets of any other Person or equity interests in any Person so long as (a) no Default or Event of Default exists before or will result after giving effect to such acquisition on a pro forma basis, whether now (b) such assets or hereafter acquiredbusiness are held in Borrower, except an existing Subsidiary or a new Subsidiary that complies with Subsection 2.12, and (c) the aggregate amount of assets or business acquired pursuant to this proviso in any fiscal year of Borrower (without deduction for Indebtedness assumed) does not exceed the sum of (X) 5% of Borrower’s consolidated assets for the prior fiscal year plus (Y) the excess, if any, of the amount that Borrower was permitted in the prior fiscal year to dividend or distribute pursuant to clause (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with first proviso in Subsection 3.5 over the Company aggregate amount of dividends and distributions actually made by Borrower during such fiscal year pursuant to clause (in which case the Company shall be the surviving corporationi) or any wholly-owned Subsidiary of the Company; provided if first proviso in Subsection 3.5, minus (xZ) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary the aggregate amount of Investments made pursuant to Section 3.3(I) for the fiscal year of the Companyacquisition (each, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a “Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A”), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity.

Restriction on Fundamental Changes. Neither Except in connection with a Permitted Acquisition, the Company nor Borrower shall not, and shall not permit any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02)to, (iia) a Subsidiary of the Company may be merged intomerge or consolidate with any Person (provided that, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuingcontinuing (i) any Wholly-Owned Subsidiary may merge into the Borrower so long as the Borrower is the surviving company, (ii) any Person (Wholly-Owned Subsidiary may merge into or consolidate with any other Wholly-Owned Subsidiary in a transaction in which the surviving entity is a Wholly-Owned Subsidiary and no person other than the Company Borrower or a Wholly-Owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of its Subsidiariessuch transaction shall be a Loan Party) and (iii) any Subsidiary of the Borrower may merge with another person in a transaction constituting an Asset Sale permitted hereunder), (b) acquire all or consolidate substantially all of the Stock or Stock Equivalents of any Person, (c) acquire all or substantially all of the assets of any Person or all or substantially all of the assets constituting the business of a division, branch or other unit operation of any Person, (d) enter into any joint venture or partnership with the Company any Person that is not a Loan Party other than any Permitted Joint Venture or (e) acquire or create any of its Subsidiaries in connection with Subsidiary unless, after giving effect to such acquisition or creation, (i) such Subsidiary is a Permitted Acquisition; provided that any such merger Joint Venture or consolidation involving a Wholly-Owned Subsidiary of the Borrower, (Aii) the Company must result Borrower is in compliance with Section 7.11 (Additional Collateral and Guaranties) and (iii) the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result Investment in such Subsidiary Borrower as the surviving entity and is permitted under Section 8.3(c) (C) subject to the preceding clauses (A) and (BInvestments), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity.

Restriction on Fundamental Changes. Neither the Company (i) No Borrower will, nor will it permit any of its Subsidiaries shall enter Restricted Subsidiary to, merge into or consolidate with any merger or consolidationother Person, or liquidate, wind-up permit any other Person to merge into or dissolve (or suffer any liquidation or dissolution)consolidate with it, or conveyliquidate or dissolve, lease, and no Borrower will sell, transfer transfer, lease or otherwise dispose of, of (in one transaction or in a series of transactions, ) all or substantially all of the Company’s or any such Subsidiary’s business or propertyits assets on a consolidated basis (in each case, whether now owned or hereafter acquired), except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidationthat, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (A) any Restricted Subsidiary of any Borrower may merge into any Borrower in a transaction in which such Borrower is the surviving corporation; (B) any Restricted Subsidiary may merge into any Loan Party in a transaction in which the surviving entity is a Loan Party; (C) any Person (other than the Company may merge with or into any Loan Party or any of its Subsidiaries) may merge or consolidate with the Company or any of its Restricted Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result Acquisition so long as, in the Company as case of a merger involving any Loan Party, such Loan Party is the surviving entity; (D) any Restricted Subsidiary may (x) sell, transfer, lease or otherwise dispose of its assets to any Borrower or to another Restricted Subsidiary, (By) subject be dissolved or liquidated into another Loan Party; provided, that the surviving Person is a Loan Party and (z) otherwise have their existence terminated to the preceding clause extent that the assets of such Restricted Subsidiary are distributed, upon such termination, to one or more Borrowers or Restricted Subsidiaries; provided, that to the extent that any assets that are distributed by a Loan Party shall be distributed to another Loan Party (Aor another Person who concurrently becomes a Loan Party), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity ; and (CE) subject to any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the preceding clauses (A) and (B), a Loan Party which owns such Restricted Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity.determines 96 -

Restriction on Fundamental Changes. Neither Unless permitted by Section 8.07, the Company nor shall not, and shall not permit any of its Wholly-Owned Subsidiaries shall to, enter into any merger or merger, consolidation, reorganization or recapitalization liquidate, wind-wind up or dissolve (or suffer any liquidation or dissolution), or conveysell, lease, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of the Company’s its or any such Subsidiary’s their business or propertyassets, whether now owned or hereafter acquired, except that: (ia) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) Wholly-Owned Subsidiaries may merge or consolidate with enter into a merger as part of a Permitted Acquisition, provided that the Company or any such Wholly-Owned Subsidiary owns or controls a majority of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entityentity of such merger; and (b) as long as no Default or Event of Default shall exist after giving effect thereto, (B) subject to any Wholly-Owned Subsidiary may be merged or consolidated into the preceding clause (A)Company, a Subsidiary Borrower must result or any other Significant Subsidiary which has become a Guarantor or be liquidated, wound up or dissolved, or all or substantially all of its business or assets may be sold, leased, transferred, or otherwise disposed of, in one transaction or a series of transactions, to the Company, a Subsidiary Borrower or any other Significant Subsidiary which has become a Guarantor; provided that neither the Company nor any Significant Subsidiary may be involved in any such transaction unless the Company, a Subsidiary Borrower, or a Significant Subsidiary, as the case may be, is the surviving or acquiring corporation and the net worth of the Company, such Subsidiary Borrower or a Significant Subsidiary, as the surviving entity and (C) subject case may be, is unchanged or higher after giving effect to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitymerger or other transaction.

Restriction on Fundamental Changes. Neither the Company nor The Borrower shall not, and shall not permit any of its Subsidiaries shall enter into to, (a) (i) merge with any merger or consolidationPerson, or liquidate(ii) consolidate with any Person, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, iii) acquire all or substantially all of the Company’s Stock or Stock Equivalents of any such Subsidiary’s Person or (iv) acquire all or substantially all of the assets of any Person or all or substantially all of the assets constituting the business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02)division, branch or other unit operation of any Person, (iib) a enter into any joint venture or partnership with any Person or (c) acquire or create any Subsidiary of the Company may be merged intounless, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, before and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto to such creation or acquisition, no Default or Event of Default shall have occurred and be continuingcontinuing and such Subsidiary is a Wholly-Owned Subsidiary of the Borrower, the Borrower is in compliance with Section 7.11 (Additional Collateral and Guaranties) and the Investment in such Subsidiary is permitted under Section 8.3(c) (Investments). Notwithstanding the foregoing, with the consent of the Administrative Agent, (i) any Person (other than Subsidiary of the Company or any of its Subsidiaries) Borrower that is not a Subsidiary Guarantor may merge or consolidate with with, or acquire substantially all of the Company assets of, any other Subsidiary of the Borrower that is also not a Subsidiary Guarantor, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge or consolidate with, or have substantially all of its assets acquired by, the Borrower or any Subsidiary Guarantor, so long as, in the case of its Subsidiaries in connection with a Permitted Acquisition; provided that any merger or consolidation, the Borrower or such Subsidiary Guarantor is the survivor of such merger or consolidation involving consolidation, and (Aiii) any Subsidiary Guarantor may merge or consolidate with, or have substantially all of its assets acquired by, the Company must result Borrower or any other Subsidiary Guarantor so long as, in the Company as case of a merger or consolidation of the surviving entityBorrower and any Subsidiary Guarantor, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in is the survivor of such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitymerger or consolidation.

Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s 's consolidated business or propertyproperty (each such transaction a "FUNDAMENTAL Change"), whether now or hereafter acquired, except (i) transactions Fundamental Changes permitted under Sections 6.02 SECTIONS 7.3(B), 7.3(D) or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.027.3(G), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or any wholly-owned another Subsidiary of the Company; provided if , as applicable, and (xiv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person, PROVIDED, that (A) no Default or Unmatured Default shall exist immediately after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Subsidiary Borrower is merged intoPerson in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, liquidated into related or consolidated with another incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving Subsidiary shall be (corporation in such Fundamental Change is or shall concurrently become) the Subsidiary Borrower, and (y) becomes as a Subsidiary Guarantor is merged into, liquidated into or consolidated with another result thereof a Wholly-Owned Subsidiary of the CompanyCompany and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iiiD) if at the time thereof and immediately after giving effect thereto no Event such transaction is with a Person in a line of Default shall have occurred and be continuing, any Person (other than business substantially similar to that of the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of and its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) as of the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entityClosing Date.

Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company’s or any such Subsidiary’s its business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction as otherwise permitted under Section 6.02)7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, PROVIDED, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into, liquidated into or consolidated merge with the Company (in which case the Company shall be the surviving corporation) Borrower or any wholly-owned Subsidiary of the Company; provided if Borrower, PROVIDED, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, PROVIDED, FURTHER, that in each case, (xA) a Subsidiary Borrower is merged into, liquidated into or consolidated with another any such wholly-owned Subsidiary of the Company, Borrower which is the surviving Subsidiary corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (or shall concurrently becomeB) the Borrower shall give the Administrative CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT Agent at least ten (10) days prior written notice of any such sale, merger or other transfer, (C) the Administrative Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary Borrower, or the assets of any Subsidiary so merged and (yD) a Subsidiary Guarantor is merged into, liquidated into no Default or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and or be continuing, any Person (other than the Company continuing or any of its Subsidiaries) may merge would occur after giving effect thereto or consolidate with the Company or any of its Subsidiaries in connection with as a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitythereof.

Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company’s or any such Subsidiary’s its business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction as otherwise permitted under Section 6.02)7.5, (ii) a any wholly-owned Non-Summit Subsidiary of the Borrower other than the Company and any Hardee's Subsidiaries may be merged into, liquidated merge into or consolidated convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other wholly-owned Non-Summit Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Non-Summit Subsidiary in a Permitted Acquisition permitted hereunder other than the Company and any Hardee's Subsidiaries may merge with the Company (Borrower or any wholly-owned Non-Summit Subsidiary of the Borrower, provided, that in which case any such merger, the Company Borrower or such wholly-owned Subsidiary shall be the surviving corporation, (iv) with the prior written consent of the Agent and the Required Lenders, the Company and any Hardee's Subsidiaries may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other wholly-owned Non-Summit Subsidiary, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower shall be Solvent and (v) any Summit Subsidiary may merge into or convey, sell, lease or transfer all or substantially all of its assets to, any Summit Subsidiary; provided, that in each case, (A) any such wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower which is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary corporation of any such merger or to which any business or property is so transferred shall be (or shall concurrently become) a party to the Guaranty and the Subsidiary Borrower, Security Agreement and (yB) a Subsidiary Guarantor is merged into, liquidated into no Default or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and or be continuing, any Person (other than the Company continuing or any of its Subsidiaries) may merge would occur after giving effect thereto or consolidate with the Company or any of its Subsidiaries in connection with as a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitythereof.

Restriction on Fundamental Changes. Neither Borrower will not, and will cause each Restricted Subsidiary not to fundamentally change the Company nor any nature of its Subsidiaries shall business, enter into any merger merger, consolidation, reorganization or consolidationrecapitalization, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell (other than in the ordinary course of its business), assign, lease, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any part of the Company’s its business, property, assets or any such Subsidiary’s business or propertysecurities, whether now owned or hereafter acquired, except or acquire by purchase or otherwise, all or substantially all the business, property, assets, securities or interest of any Person; provided that (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (iia) a Domestic Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with Borrower, provided that the Company Borrower will be the surviving corporation, (b) a Domestic Subsidiary may merge or consolidate with another Domestic Subsidiary, (c) a Domestic Subsidiary may sell, lease, transfer or otherwise dispose of any of its Subsidiaries in connection with a Permitted Acquisitionassets to Borrower or another Domestic Subsidiary, (d) Borrower may acquire or form additional Subsidiaries; provided that any each such merger newly formed Subsidiary is wholly-owned by Borrower (unless Borrower has obtained the prior written consent of the Requisite Banks to acquire or consolidation involving (A) the Company must result in the Company as the surviving entityform a Subsidiary which will not be wholly-owned, (B) subject to the preceding clause (Awhich consent will not be unreasonably withheld), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (Ce) subject to Borrower may dispose of any assets owned by Lincoln Brass Works, Inc. or its subsidiaries, any assets owned by the preceding clauses (A) and (B)coaxial cable division of the Precision Tube Division of Xxxxxxx Streamlining Co., a Subsidiary Guarantor must result in such Subsidiary Guarantor as and/or the surviving entityassets of Xxxxxxx Copper Tube Products, Inc. which are not core manufacturing assets.

Restriction on Fundamental Changes. Neither Borrower will not and ---------------------------------- will not permit its Subsidiaries directly or indirectly to: (i) unless and only to the Company nor extent required by law, amend, modify or waive any term or provision of its Subsidiaries articles of organization, partnership agreement, operating agreement, management agreements, articles of incorporation or certificates of designations pertaining to preferred stock or by-laws without the consent of CoBank (which consent shall not be unreasonably withheld), other than an amendment, modification or waiver that is solely ministerial or administrative in nature or the reincorporation of Borrower in the State of Delaware; provided, however, Borrower shall promptly give CoBank notice of any such amendment, modification or waiver; (ii) enter into any transaction of merger or consolidationconsolidation or acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person, except (a) any Subsidiary of Borrower may be merged with or into Borrower or any wholly owned Subsidiary of Borrower provided that Borrower or such wholly owned Subsidiary of Borrower is the surviving entity and (b) Borrower or its Subsidiaries may consolidate or merge with or into any other Person or acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person, provided that no Default or Event of Default then exists or would result from such transaction, Borrower or such Subsidiary is the surviving or continuing entity and the consideration for each such transaction provided by Borrower (whether in the form of stock, cash or other consideration) does not exceed $50,000,000 and such consideration for all such transactions under this subclause (b) does not in the aggregate exceed $100,000,000; or (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity.. Credit Agreement/SureWest Communications

Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company’s or any such Subsidiary’s its business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction as otherwise permitted under Section 6.02)7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, PROVIDED, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into, liquidated into or consolidated merge with the Company (in which case the Company shall be the surviving corporation) Borrower or any wholly-owned Subsidiary of the Company; provided if Borrower, PROVIDED, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, PROVIDED, FURTHER, that in each case, (xA) a Subsidiary Borrower is merged into, liquidated into or consolidated with another any such wholly-owned Subsidiary of the Company, Borrower which is the surviving Subsidiary corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (or shall concurrently becomeB) the Borrower shall give the Agent at least ten (10) days prior written notice of any such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary Borrower, or the assets of any Subsidiary so merged and (yD) a Subsidiary Guarantor is merged into, liquidated into no Default or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and or be continuing, any Person (other than the Company continuing or any of its Subsidiaries) may merge would occur after giving effect thereto or consolidate with the Company or any of its Subsidiaries in connection with as a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitythereof.

Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any 77 liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company’s or any such Subsidiary’s its business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction as otherwise permitted under Section 6.02)7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into, liquidated into or consolidated merge with the Company (in which case the Company shall be the surviving corporation) Borrower or any wholly-owned Subsidiary of the Company; provided if Borrower, provided, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, provided, that in each case, (xA) a Subsidiary Borrower is merged into, liquidated into or consolidated with another any such wholly-owned Subsidiary of the Company, Borrower which is the surviving Subsidiary corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.20, a Subsidiary Pledge Agreement, (or shall concurrently becomeB) the Borrower shall give the Agent at least ten (10) days prior written notice of any such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary Borrower, or the assets of any Subsidiary so merged and (yD) a Subsidiary Guarantor is merged into, liquidated into no Default or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and or be continuing, any Person (other than the Company continuing or any of its Subsidiaries) may merge would occur after giving effect thereto or consolidate with the Company or any of its Subsidiaries in connection with as a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitythereof.

Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company’s or any such Subsidiary’s its business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction as otherwise permitted under Section 6.02)7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or ----------- convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into, liquidated into or consolidated merge with the Company (in which case the Company shall be the surviving corporation) Borrower or any wholly-owned Subsidiary of the Company; provided if Borrower, provided, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, provided, further, that in each case, (xA) a Subsidiary Borrower is merged into, liquidated into or consolidated with another any such wholly-owned Subsidiary of the Company, Borrower which is the surviving Subsidiary corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (B) ------------ the Borrower shall give the Agent at least ten (10) days prior written notice of any such sale, merger or shall concurrently becomeother transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary Borrower, or the assets of any Subsidiary so merged and (yD) a Subsidiary Guarantor is merged into, liquidated into no Default or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and or be continuing, any Person (other than the Company continuing or any of its Subsidiaries) may merge would occur after giving effect thereto or consolidate with the Company or any of its Subsidiaries in connection with as a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitythereof.

Restriction on Fundamental Changes. Neither the Company (i) No Borrower will, nor will it permit any of its Subsidiaries shall enter Restricted Subsidiary to, merge into or consolidate with any merger or consolidationother Person, or liquidate, wind-up permit any other Person to merge into or dissolve (or suffer any liquidation or dissolution)consolidate with it, or conveyliquidate or dissolve, lease, and no Borrower will sell, transfer transfer, lease or otherwise dispose of, of (in one transaction or in a series of transactions, ) all or substantially all of the Company’s or any such Subsidiary’s business or propertyits assets on a consolidated basis (in each case, whether now owned or hereafter acquired), except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidationthat, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (A) any Restricted Subsidiary of any Borrower may merge into any Borrower in a transaction in which such Borrower is the surviving corporation; (B) any Restricted Subsidiary may merge into any Loan Party in a transaction in which the surviving entity is a Loan Party; 96 WEIL:\98721861\10\35899.0596 (C) any Person (other than the Company may merge with or into any Loan Party or any of its Subsidiaries) may merge or consolidate with the Company or any of its Restricted Subsidiaries in connection with a Permitted AcquisitionAcquisition so long as, in the case of a merger involving any Loan Party, such Loan Party is the surviving entity; provided (D) any Restricted Subsidiary may (x) sell, transfer, lease or otherwise dispose of its assets to any Borrower or to another Restricted Subsidiary, (y) be dissolved or liquidated into another Loan Party; provided, that the surviving Person is a Loan Party and (z) otherwise have their existence terminated to the extent that the assets of such Restricted Subsidiary are distributed, upon such termination, to one or more Borrowers or Restricted Subsidiaries; provided, that to the extent that any assets that are distributed by a Loan Party shall be distributed to another Loan Party (or another Person who concurrently becomes a Loan Party); and (E) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Loan Party which owns such Restricted Subsidiary determines in good faith that such liquidation or dissolution is in the best interests of such Loan Party and is not materially disadvantageous to the Lenders; provided, that any such merger involving a Person that is not a wholly owned Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04(d). Notwithstanding anything to the contrary in the foregoing, each Borrower and each of its Restricted Subsidiaries shall be permitted to enter into an agreement to effect any transaction of merger or consolidation involving that is not otherwise permitted under this Section 6.04(c) at a future time; provided, that such agreement shall be conditioned on (A1) obtaining requisite approvals permitting the respective transaction (and any related financing or other transactions) in accordance with the requirements of Section 9.01 or (2) the Company must result satisfaction and discharge of all outstanding Obligations under this Agreement and the other Loan Documents; provided, further that such agreement shall (x) not contain any provision imposing fees or damages on any Borrower or any of its respective Restricted Subsidiaries for failure to meet the conditions set forth above and (y) contain termination provisions which will provide for the termination of the agreement within a reasonable time if the conditions described in the Company as preceding proviso have not been satisfied by such time. (ii) No Borrower will, nor will it permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the surviving entitytype conducted by Livent and its Restricted Subsidiaries on the date of execution of this Agreement and businesses which are, in the good faith judgment of the Board of Directors, similar, complimentary or substantially related thereto or are reasonable extensions thereof. (Biii) subject to the preceding clause Livent and each of its Restricted Subsidiaries will not change their respective Fiscal Year. (Ad), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity.

Restriction on Fundamental Changes. (a) Neither the Company ERP nor any of its Subsidiaries EQR shall enter into any merger or consolidation, unless (i) either (x) ERP or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution)EQR is the surviving entity, or convey(y) the individuals constituting EQR’s Board of Trustees immediately prior to such merger or consolidation represent a majority of the surviving entity’s Board of Directors or Board of Trustees after such merger or consolidation, leaseand (ii) the entity which is merged with ERP or EQR is predominantly in the commercial real estate business. The Borrower shall not enter into any merger or consolidation with any Person, sellother than a merger or consolidation with and into ERP, transfer a Wholly-Owned Domestic Subsidiary or otherwise dispose ofan Eligible REIT Subsidiary; provided, in one transaction that (i) ERP, such Wholly-Owned Domestic Subsidiary or series of transactionssuch Eligible REIT Subsidiary, all or substantially as the case may be, assumes all of the Company’s or any such Subsidiary’s business or property, whether now or hereafter acquired, except (i) transactions permitted obligations of the Borrower under Sections 6.02 or 6.06) (including this Agreement and the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02)other Loan Documents pursuant to documentation reasonably satisfactory to the Administrative Agent, (ii) a Subsidiary of ERP has supplied such documentation and other evidence as is reasonably requested by the Company may Administrative Agent or any Bank in order for the Administrative Agent or such Bank to carry out and be merged into, liquidated into or consolidated satisfied it has complied with the Company (in which results of all necessary “know your customer” or other similar checks under all applicable laws and regulations with respect to any such Wholly-Owned Domestic Subsidiary or Eligible REIT Subsidiary, as the case may be, where the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower necessary information is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor not already available to the extent required under Section 6.11 Administrative Agent or 6.17 hereundersuch Bank, and (iii) if at ERP, such Wholly-Owned Subsidiary or such Eligible REIT Subsidiary, as the time thereof and immediately after giving effect thereto no Event of Default case may be, shall have occurred executed and delivered to the Administrative Agent a new Note for the account of each Bank requesting a new Note, and, upon the execution and delivery of any such Note, such Bank agrees to promptly return any existing Note payable to such Bank and (iv) in the case of any Wholly-Owned Domestic Subsidiary or Eligible REIT Subsidiary, the Administrative Agent shall have received all documents required to be continuingdelivered pursuant to Section 3.1 with respect to a Qualified Subsidiary, any Person (other than each of which shall be in form and substance reasonably satisfactory to the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that Administrative Agent. Following any such merger or consolidation involving (A) consolidation, each reference in this Agreement and the Company must result in other Loan Documents to the Company “Borrower” shall be deemed to refer to ERP, such Wholly-Owned Domestic Subsidiary or such Eligible REIT Subsidiary, as the surviving entitycase may be, (B) subject to which is the preceding clause (A), a Subsidiary Borrower must result in survivor of such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitymerger or consolidation.

Restriction on Fundamental Changes. Neither the Company nor The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (a) amend, modify or waive any term or provision of its Subsidiaries shall organizational documents, including its articles of incorporation, articles of association, certificates of designations pertaining to preferred stock, by-laws, partnership agreement, operating agreement or any shareholders' agreements (except in a manner that would not conflict with any provision of any Loan Document and would not be adverse in any material respect to Lenders) unless required by law; (b) enter into any merger transaction of merger, amalgamation or consolidation except, (i) upon not less than five (5) Business Days prior written notice to Agent, (w) any Wholly-owned US Subsidiary of a US Borrower may be merged with or into such US Borrower (PROVIDED that such US Borrower is the surviving entity), (x) any Wholly-owned Non-US Subsidiary (other than an Unrestricted Subsidiary) of European Borrower may be merged with or into European Borrower (PROVIDED that European Borrower is the surviving entity), (y) any Wholly-owned Subsidiary of a Borrower may be merged or amalgamated with or into another Wholly-owned Subsidiary of such Borrower (PROVIDED that (A) both such Subsidiaries were formed or incorporated under the laws of the same country, (B) the Stock of the Subsidiary that is the surviving entity is subject to a Pledge Agreement, (C) the Subsidiary that is the surviving entity has executed a Guaranty and (D) neither such Subsidiary is an Unrestricted Subsidiary), (ii) with respect to the European Mergers and (iii) Borrowers and their Subsidiaries may enter into an agreement to effect any merger, amalgamation or consolidation, or the closing of which is conditioned upon the payment in full in cash of all of the Obligations (other than contingent indemnification obligations to the extent Annex A Page 51 no unsatisfied claim giving rise thereto has been asserted) and the termination of the Revolving Loan Commitments; (c) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), except in the case of Subsidiaries of a Borrower, (i) to the extent such Subsidiary is dormant, (ii) to the extent such dissolution, wind-up or conveyliquidation will not have a Material Adverse Effect, lease, sell, transfer or (iii) the Agent shall have consented thereto; or (d) acquire by purchase or otherwise dispose ofall or any substantial part of the business or assets of any other Person. Notwithstanding the foregoing, in one transaction or series of transactionsany Credit Party, may acquire all or substantially all of the Company’s assets or any such Subsidiary’s business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution Stock of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries"TARGET") may merge or consolidate with the Company or any of its Subsidiaries (in connection with each case, a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B"PERMITTED ACQUISITION") subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as satisfaction of each of the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity.following conditions:

Restriction on Fundamental Changes. Neither the Company nor The U.S. Borrower shall not, and shall not permit any of its Material Subsidiaries shall enter into any merger to: (i) merge or consolidationconsolidate with, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or ii) convey, leasetransfer, sell, transfer lease or otherwise dispose of, of (whether in one transaction or a series of transactions, ) all or substantially all of the Company’s or any such Subsidiary’s business or property, property (whether now owned or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged intoU.S. Borrower and its Subsidiaries, liquidated into taken as a whole, to, or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at convey, transfer, lease or otherwise dispose of (whether in one transaction or a series of transactions, and whether by or pursuant to merger, consolidation or any other arrangement), any property (whether now owned or hereafter acquired) essential to the time thereof conduct of the business of the U.S. Borrower and immediately after giving effect thereto its Subsidiaries, taken as a whole, to, any Person; provided, however, that so long as no Event of Default shall have occurred and then be continuingcontinuing or would result therefrom, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company any Borrower, so long as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary such Borrower must result in such Subsidiary Borrower as is the surviving entity and (CB) subject to any Material Subsidiary; provided, further, that in the preceding case of clauses (A) and (B), such merger or consolidation is not otherwise prohibited by this Agreement. Subject to the foregoing, and except to the extent otherwise prohibited by this Agreement, the U.S. Borrower may, directly or indirectly, sell all or a portion of the capital stock or other equity interests of any Subsidiary Guarantor must result (including by way of a merger or consolidation) for fair market value, as determined in good faith by the U.S. Borrower’s board of directors; provided, however, that if such Subsidiary Guarantor is also a Euro Borrower or Swing Loan Borrower, such Subsidiary ceases to be a Euro Borrower or Swing Loan Borrower, as applicable, immediately prior to such sale and all Obligations of such Subsidiary in its capacity as a Euro Borrower or Swing Loan Borrower, as applicable are paid in full prior to the surviving entity.date of such sale. Notwithstanding the foregoing, nothing in this Section 6.04(b) shall prohibit the U.S. Borrower and its Subsidiaries from consummating the Transactions. (c)

Restriction on Fundamental Changes. Neither Except in connection with a Permitted Acquisition, the Company nor Borrower shall not, and shall not permit any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02)to, (iia) a Subsidiary of the Company may be merged intomerge or consolidate with any Person (provided that, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuingcontinuing (i) any Wholly-Owned Subsidiary may merge into the Borrower so long as the Borrower is the surviving company, (ii) any Person (Wholly-Owned Subsidiary may merge into or consolidate with any other Wholly-Owned Subsidiary in a transaction in which the surviving entity is a Wholly-Owned Subsidiary and no person other than the Company Borrower or a Wholly-Owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of its Subsidiariessuch transaction shall be a Loan Party) and (iii) any Subsidiary of the Borrower may merge with another person in a transaction constituting an Asset Sale permitted hereunder), (b) acquire all or consolidate substantially all of the Stock or Stock Equivalents of any Person, (c) acquire all or substantially all of the assets of any Person or all or substantially all of the assets constituting what is known by the Borrower to be the business of a division, branch or other unit operation of any Person, (d) enter into any joint venture or partnership with the Company any Person that is not a Loan Party other than any Permitted Joint Venture or (e) acquire or create any of its Subsidiaries in connection with Subsidiary unless, after giving effect to such acquisition or creation, (i) such Subsidiary is a Permitted Acquisition; provided that any such merger Joint Venture or consolidation involving a Wholly-Owned Subsidiary of the Borrower, (Aii) the Company must result Borrower is in compliance with Section 7.11 (Additional Collateral and Guaranties) and (iii) the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result Investment in such Subsidiary Borrower as the surviving entity and is permitted under Section 8.3 (C) subject to the preceding clauses (A) and (BInvestments), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity.

Restriction on Fundamental Changes. Neither Borrower will not, and will cause each Fundamental Subsidiary not to fundamentally change the Company nor any nature of its Subsidiaries shall business, enter into any merger merger, consolidation, reorganization or consolidationrecapitalization, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell (other than in the ordinary course of its business), assign, lease, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any part of the Company’s its business, property, assets or any such Subsidiary’s business or propertysecurities, whether now owned or hereafter acquired, except or acquire by purchase or otherwise, all or substantially all the business, property, assets, securities or interest of any Person; provided that (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (iia) a Domestic Subsidiary of may merge or consolidate with Borrower, provided that the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall Borrower will be the surviving corporation; (b) a Domestic Subsidiary may merge or consolidate with another Domestic Subsidiary that is both a Fundamental Subsidiary and a Restricted Subsidiary; (c) a Domestic Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to Borrower or another Domestic Subsidiary that is both a Fundamental Subsidiary and a Restricted Subsidiary; (d) Borrower may acquire or form additional Subsidiaries; provided that each such newly formed or acquired Subsidiary is wholly-owned Subsidiary by Borrower (unless Borrower has obtained the prior written consent of the Company; provided if (x) Requisite Banks to acquire or form a Subsidiary which will not be wholly owned, which consent will not be unreasonably withheld); and further provided that each such newly formed or acquired Subsidiary becomes, on its formation, both a Restricted Subsidiary and a Fundamental Subsidiary; and (e) Borrower is merged into, liquidated into or consolidated with another Subsidiary and its Subsidiaries may dispose of any assets if the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the Companybusiness, assets, rights, revenues and property disposed of after the surviving Subsidiary date of this Agreement shall be (or shall concurrently become) less than 5% of such aggregate book value of the Subsidiary BorrowerConsolidated total assets of the Borrower and its Subsidiaries as of the most recently ended fiscal year, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto such transaction, no Unmatured Event of Default or Event of Default shall exist or shall have occurred and be continuing. On the closing of any transaction permitted by this Section 6.3, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company test required by Section 5.12 must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitybe met.

Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter (a) Enter into any ---------------------------------- transaction of merger or consolidation, or ; (b) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution); (c) convey, or conveysell, lease, sellsublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any substantial part of the Company’s or any such Subsidiary’s its business or propertyassets, whether now owned or hereafter acquired; or (d) (other than with respect to Holdings), issue or sell any capital stock of any Loan Party or its Subsidiaries or any warrants, rights or options to acquire such capital stock or assign, pledge or otherwise encumber or dispose of any shares of capital stock of any Loan Party or its Subsidiaries except as permitted in subsection 7.5 and for the pledge and Lien in favor of Agent pursuant to the Loan Documents; (e) sell any of the Target Shares purchased pursuant to the Offer to Purchase and purchased through Open Market Purchases or assign, pledge or otherwise encumber or dispose of any such purchased Target Shares, except for the pledge and Lien in favor of Agent pursuant to the Loan Documents; or (f) acquire by purchase or otherwise all or any substantial part of the business or assets of, or stock or other evidence of beneficial ownership of, any Person or enter into any joint venture with any Person; provided, however, that (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution Acquisition and Merger shall be consummated in accordance with and subject to the terms and conditions of a Subsidiary in connection with a transaction permitted under Section 6.02)the Acquisition Documents, (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if Holdings (xother than Borrower) a Subsidiary or of Borrower is merged intomay be liquidated, liquidated wound-up or dissolved into or consolidated with another any other wholly-owned Subsidiary of the Company, the surviving Subsidiary shall be (Holdings or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuingupon not less than five (5) Business Days prior written notice to Agent, any Person (wholly-owned Subsidiary of Holdings or Borrower may be merged with or into any other than the Company wholly-owned Subsidiary of Holdings or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; Borrower, provided that Borrower is the surviving entity in the case of any such -------- merger or consolidation involving (A) to which the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), Borrower is a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entityparty.

Restriction on Fundamental Changes. Neither the Company Unless permitted by Section 8.07, no Borrower Party shall, nor shall any Borrower Party permit any of its Wholly-Owned Subsidiaries shall to, enter into any merger or merger, consolidation, reorganization or recapitalization, reclassification of its capital stock which causes the maturity date of such capital stock to be earlier than 3 years after the date of such classification, liquidate, wind-wind up or dissolve (or suffer any liquidation or dissolution), or conveysell, lease, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of the Company’s its or any such Subsidiary’s their business or propertyassets, whether now owned or hereafter acquired, except (i) transactions permitted under Sections 6.02 that, as long as no Default or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuingexist after giving effect thereto, any Person (other than the Company Wholly-Owned Subsidiary of a Borrower Party may be merged or consolidated into a Borrower Party or any other Subsidiary of a Borrower Party or be liquidated, wound up or dissolved, or all or substantially all of its Subsidiaries) business or assets may merge be sold, leased, transferred, or consolidate with the Company otherwise disposed of, in one transaction or a series of transactions, to a Borrower Party or any other Subsidiary of its Subsidiaries in connection with a Permitted AcquisitionBorrower Party; provided that neither any Borrower Party nor any Subsidiary of a Borrower Party may be involved in any such transaction unless such Borrower Party, or a Subsidiary of a Borrower Party, as the case may be, is the surviving or acquiring corporation and the net worth of such Borrower Party or Subsidiary of a Borrower Party, as the case may be, is unchanged or higher after giving effect to such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entityother transaction.

Restriction on Fundamental Changes. Neither the Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- Company nor shall not, and shall not permit any of its Restricted Subsidiaries shall to, alter the corporate, capital or legal structure of Company or any of its Restricted Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, leasesell, selllease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any part of the Company’s its business, property or any such Subsidiary’s business or propertyassets, whether now owned or hereafter acquired, except or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a any Restricted Subsidiary of the Company may be merged into, liquidated with or into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company or such -------- wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; (ii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; (iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business; (iv) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (v) Company and its Restricted Subsidiaries may make Asset Sales of the CompanyAssets Held for Sale or Development; provided if that the consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary consideration received for such assets shall be (or in the form of Cash and/or promissory notes, which notes shall concurrently become) be pledged to Administrative Agent pursuant to the Subsidiary Borrower, and applicable Collateral Documents; (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of respect to an Asset Sale involving the CompanyLas Vegas Facility, the surviving Subsidiary Net Asset Sale Proceeds of such Asset Sale shall also be or shall become a Subsidiary Guarantor to the extent applied as required under Section 6.11 or 6.17 hereunder, by subsection 2.4B(iii)(d); and (iiiz) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (with respect to all other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (AAsset Sales permitted under this subsection 7.7(vi), a Subsidiary Borrower must result in the Net Asset Sale Proceeds of such Subsidiary Borrower Asset Sales shall be applied as the surviving entity and (C) subject to the preceding clauses (A) and (Brequired by subsection 2.4B(iii)(a), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity.. 7.8

Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company’s or any such Subsidiary’s its business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction as otherwise permitted under Section 6.02)7.5, (ii) any wholly-owned Subsidiary of the Borrower other than Hardee's and any of the Hardee's Subsidiaries may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other wholly-owned Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into, liquidated into or consolidated merge with the Company (in which case the Company shall be the surviving corporation) Borrower or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary other than Hardee's and any of the CompanyHardee's Subsidiaries, provided, that in any such merger, the surviving Borrower or such wholly-owned Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereundercorporation, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (Aiv) the Company must result in the Company as the surviving entityand its Subsidiaries may merge into or convey, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity.sell,

Restriction on Fundamental Changes. (a) Neither the Company nor any of its Subsidiaries Guarantor shall enter into any merger or consolidationconsolidation without obtaining the prior written consent thereto in writing of the Required Banks, unless the following criteria are met: (i) such Guarantor is the surviving entity; (ii) the entity which is merged into such Guarantor is predominantly in the commercial real estate business; (iii) the creditworthiness of the surviving entity's long term unsecured debt or implied senior debt, as applicable, is either (A) Investment Grade or (B) if not Investment Grade, not lower than Guarantors' creditworthiness two months immediately preceding such merger; and (iv) in the case of any merger where the then fair market value of the assets of the entity which is merged into such Guarantor is more than twenty-five percent (25%) of such Guarantors' then Total Asset Value following such merger, the consent of the Required Banks has been obtained, which consent shall not be unreasonably withheld, conditioned or delayed. Neither the Guarantor shall liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s its business or property, whether now or hereafter acquired, except (i. Nothing in this Section 5.9(a) transactions permitted under Sections 6.02 shall be deemed to prohibit the sale or 6.06) (including the liquidation, winding up or dissolution leasing of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary portions of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result Real Property Assets in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entityordinary course of business.

Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company’s or any such Subsidiary’s its business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction as otherwise permitted under Section 6.02)7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into, liquidated into or consolidated merge with the Company (in which case the Company shall be the surviving corporation) Borrower or any wholly-owned Subsidiary of the Company; provided if Borrower, provided, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, provided, that in each case, (xA) a Subsidiary Borrower is merged into, liquidated into or consolidated with another any such wholly-owned Subsidiary of the Company, Borrower which is the surviving Subsidiary corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (or shall concurrently becomeB) the Borrower shall give the Agent at least ten (10) days prior written notice of any such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary Borrower, or the assets of any Subsidiary so merged and (yD) a Subsidiary Guarantor is merged into, liquidated into no Default or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and or be continuing, any Person (other than the Company continuing or any of its Subsidiaries) may merge would occur after giving effect thereto or consolidate with the Company or any of its Subsidiaries in connection with as a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entitythereof.

Restriction on Fundamental Changes. Neither the Company nor Borrower will not and will not permit any of its Restricted Subsidiaries shall directly or indirectly to: (i) unless and only to the extent required by law, amend, modify or waive any term or provision of its articles of organization, partnership Credit Agreement/US Unwired Inc. agreement, operating agreement, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock or by-laws, provided that in connection with the IWO Acquisition, Borrower may amend its articles of incorporation and bylaws as described in the Draft S-4; and provided, further, that Borrower may amend its articles of incorporation and bylaws to implement certain anti-takeover provisions as described in the Draft S-4; (ii) enter into any transaction of merger or consolidation, except any Subsidiary of Borrower (other than the Unrestricted Subsidiaries or any of their Subsidiaries) may be merged with or into Borrower or any wholly-owned Subsidiary of Borrower (excluding the Unrestricted Subsidiaries or any of their Subsidiaries), provided that Borrower or such wholly-owned Subsidiary of Borrower (excluding the Unrestricted Subsidiaries or any of their Subsidiaries) is the surviving entity, and except GA PCS Acquisition Merger Subsidiary may merge with GA PCS, with GA PCS as the surviving entity, to consummate the GA PCS Acquisition and IWO Acquisition Merger Subsidiary may merge with IWO, with IWO as the surviving entity, to consummate the IWO Acquisition; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), ; or convey, lease, sell, transfer (iv) acquire by purchase or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company’s or any such Subsidiary’s business or propertyassets of any other Person; provided, whether now however, that Borrower or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including LA Unwired may consummate the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) GA PCS Acquisition subject to the preceding clause (A), a Subsidiary Borrower must result conditions set forth in such Subsidiary Borrower as Subsection 7.4 and may consummate the surviving entity and (C) IWO Acquisition subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result conditions set forth in such Subsidiary Guarantor as the surviving entitySubsection 7.5.

Restriction on Fundamental Changes. Neither No Borrower shall, or shall permit any Subsidiary to: (a) undergo a Change of Control, (b) acquire by purchase or otherwise all or any material portion of the Company nor assets of, or Capital Stock or other evidence of beneficial ownership, of any Person or any business or division of any Person, (c) merge into or consolidate with any other Person or (d) create any new classes of Capital Stock, except that, so long as Borrowers shall have given at least thirty (30) days prior written notice to Agent of any of its Subsidiaries shall enter into any merger or consolidationthe following events and have executed all documents and agreements (including supplemental powers of attorney) and taken such other additional actions as Agent may request in order to protect and continue Agent’s rights and perfection with respect to this Agreement and the other Loan Documents, or liquidatethe Collateral and the liens and security interests in the Collateral created herein and therein, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s business or property, whether now or hereafter acquired, except then: (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a any Subsidiary of the Company any Borrower or may be merged into, liquidated merge into or consolidated consolidate with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Companyany Borrower; provided if (xii) a any Subsidiary of any Borrower may merge into or consolidate with any Borrower, so long as such Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (entity of such merger or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunderconsolidation, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person Borrower (other than the Company or any of its SubsidiariesSecureAlert) may merge into or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; other Borrower, provided that in any such merger or consolidation involving between any Borrower and another Borrower, the surviving entity does not (A) change its legal name as reflected in its articles or certificate of incorporation, organization or formation and/or as reflected on the Company must result in the Company as the surviving entityrecords of its jurisdiction of incorporation, (B) subject to change its jurisdiction of organization and/or become organized under the preceding clause (A)laws of any other jurisdiction, a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses change its entity organization number as issued by its jurisdiction of organization, or (AD) change its chief executive office and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entityprincipal place of business.

Restriction on Fundamental Changes. Neither the Company nor (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its Subsidiaries shall organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement that is adverse to Lenders, unless required by law; (ii) enter into any transaction of merger or consolidationconsolidation except, upon not less than five (5) Business Days prior written notice to Agent, (A) any wholly-owned Subsidiary of Borrower may be merged with or into Borrower (provided that Borrower is the surviving entity) or with or into any other wholly-owned Subsidiary of Borrower (which must be a Domestic Subsidiary of Borrower if the Subsidiary being merged is a Domestic Subsidiary of Borrower) and (B) Borrower may become a wholly-owned Subsidiary of a corporation organized under the laws of any State of the United States of America so long as (x) no Change of Control results, (y) the new parent of Borrower is a newly formed single-purpose entity and (z) the new parent guarantees the Obligations and secures the Obligations with a pledge in favor of Agent of all of the Stock of Borrower and a general security agreement in favor of Agent over all of its assets, in each case, in form substantially similar to the Loan Documents executed concurrently herewith and delivers to Agent such legal opinions as Agent shall have requested in connection therewith; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or that any wholly-owned Subsidiary of the CompanyBorrower may liquidate or dissolve; provided if or (xiv) a Subsidiary Borrower is merged into, liquidated into acquire by purchase or consolidated with another Subsidiary otherwise all or any substantial part of the Company, the surviving Subsidiary shall be (business or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary assets of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entityPerson.

Restriction on Fundamental Changes. Neither Borrower will not, and will cause each Fundamental Subsidiary not to fundamentally change the Company nor any nature of its Subsidiaries shall business, enter into any merger merger, consolidation, reorganization or consolidationrecapitalization, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell (other than in the ordinary course of its business), assign, lease, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any part of the Company’s its business, property, assets or any such Subsidiary’s business or propertysecurities, whether now owned or hereafter acquired, except or acquire by purchase or otherwise, all or substantially all the business, property, assets, securities or interest of any Person; provided that (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (iia) a Domestic Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with Borrower, provided that the Company Borrower will be the surviving corporation; (b) a Domestic Subsidiary may merge or consolidate with another Domestic Subsidiary that is both a Fundamental Subsidiary and a Restricted Subsidiary; (c) a Domestic Subsidiary may sell, lease, transfer or otherwise dispose of any of its Subsidiaries in connection with assets to Borrower or another Domestic Subsidiary that is both a Permitted AcquisitionFundamental Subsidiary and a Restricted Subsidiary; (d) Borrower may acquire or form additional Subsidiaries; provided that any each such merger newly formed Subsidiary is wholly-owned by Borrower (unless Borrower has obtained the prior written consent of the Requisite Banks to acquire or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), form a Subsidiary Borrower must result in which will not be wholly-owned, which consent will not be unreasonably withheld); and further provided that each such newly formed Subsidiary Borrower as the surviving entity becomes, on its formation, both a Restricted Subsidiary and a Fundamental Subsidiary; and (Ce) subject to Borrower may dispose of any assets owned by any Subsidiary other than a Fundamental Subsidiary. On the preceding clauses (A) and (B)closing of any transaction permitted by this Section 6.3, a Subsidiary Guarantor the test required by Section 5.12 must result in such Subsidiary Guarantor as the surviving entitybe met.

Restriction on Fundamental Changes. Neither the Company nor Borrower will not, and will not permit any of its Subsidiaries shall to, directly or indirectly: (i) unless and only to the extent required by law or as would not be reasonably expected to be adverse to the interests of Lenders, amend, modify or waive any term or provision of its articles of organization, operating agreement, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock or by-laws; (ii) enter into any transaction of merger or consolidation, except that any Subsidiary of Borrower may be merged with or into Borrower or any wholly owned Subsidiary (provided that Borrower or such wholly owned Subsidiary is the surviving entity) and except that any Permitted Credit Agreement/Atlantic Tele-Network, Inc. Acquisition or any permitted Asset Diposition may be structured as merger; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), except in connection with another transaction permitted under clause (ii) above; or convey, lease, sell, transfer (iv) acquire by purchase or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company’s business or assets of any other Person (whether by stock purchase or otherwise), provided, that Borrower or any such Subsidiary’s Subsidiary of Borrower may acquire all or any substantial part of the business or propertyassets of any other Person or equity interests in any Person so long as (a) no Default or Event of Default exists before or will result after giving effect to such acquisition on a pro forma basis, whether now (b) such assets or hereafter acquiredbusiness are held in Borrower, except an existing Subsidiary or a new Subsidiary that complies with Subsection 2.12, and (c) the aggregate amount of assets or business acquired pursuant to this proviso in any fiscal year of Borrower (without deduction for Indebtedness assumed) does not exceed the sum of (Y) 5% of Borrower’s consolidated assets plus (Z) the excess, if any, of the amount that Borrower was permitted in the prior fiscal year to dividend or distribute pursuant to clause (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with first proviso in Subsection 3.5 over the Company aggregate amount of dividends and distributions actually made by Borrower during such fiscal year pursuant to clause (in which case the Company shall be the surviving corporationi) or any wholly-owned Subsidiary of the Company; provided if first proviso in Subsection 3.5 (x) each, a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a “Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A”), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity.

Restriction on Fundamental Changes. Neither Borrower will not and will not permit its Significant Subsidiaries directly or indirectly to: (i) unless and only to the Company nor extent required by law, amend, modify or waive any term or provision of its Subsidiaries articles of organization, partnership agreement, operating agreement, management agreements, articles of incorporation or certificates of designations pertaining to preferred stock or by-laws without the consent of CoBank (which consent shall not be unreasonably withheld), other than an amendment, modification or waiver that is solely ministerial or administrative in nature or the reincorporation of Borrower in the State of Delaware; provided, however, Borrower shall promptly give CoBank notice of any such amendment, modification or waiver; (ii) enter into any transaction of merger or consolidationconsolidation or acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person, except (a) any Subsidiary of Borrower may be merged with or into Borrower or any wholly owned Subsidiary of Borrower provided that Borrower or such wholly owned Subsidiary of Borrower is the surviving entity and (b) Borrower or its Subsidiaries may consolidate or merge with or into any other Person or acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person, provided that no Default or Event of Default then exists or would result from such transaction, Borrower or such Subsidiary is the surviving or continuing entity and the consideration for each such transaction provided by Borrower (whether in the form of stock, cash or other consideration) does not exceed $100,000,000 and such consideration for all such transactions under this subclause (b) does not in the aggregate exceed $200,000,000; or (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s or any such Subsidiary’s business or property, whether now or hereafter acquired, except (i) transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly-owned Subsidiary of the Company; provided if (x) a Subsidiary Borrower is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Company, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Permitted Acquisition; provided that any such merger or consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity.