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

Merger, Consolidation or Sale of Assets. The Issuer shall not consolidate or merge with or into (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (i) the Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is organized and existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied with.

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

Merger, Consolidation or Sale of Assets. The Issuer shall Company may not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and after giving pro forma effect thereto to such transaction as if such transaction had occurred at the beginning of the applicable most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding such transaction either: (A) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 or (B) would have a pro forma Fixed Charge Coverage Ratio that is greater than the actual Fixed Charge Coverage Ratio for the same four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior period without giving pro forma effect to such transaction. Notwithstanding the foregoing clauses (iii) and clause (iv)) in the immediately foregoing paragraph, (ai) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer Company; and (bii) the Issuer Company may merge with an Affiliate that has no significant assets or liabilities and was incorporated solely for the purpose of reincorporating the Issuer Company in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all State of the assets United States so long as the amount of Indebtedness of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability Company and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Restricted Subsidiaries is not increased thereby.

Merger, Consolidation or Sale of Assets. The Issuer shall Company may not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (ia) the Issuer Company is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer under the Notes and this Indenture Company, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, under the Notes and this Indenture; (iiic) immediately after such transaction, transaction no Default or Event of Default exists; and (ivd) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (i) shall have Consolidated Net Worth immediately after the transaction (but prior to any purchase accounting adjustments or accrual of deferred tax liabilities resulting from the transaction) not less than the Consolidated Net Worth of the Company immediately preceding the transaction and (ii) would, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Indebtedness to Cash Flow Ratio test set forth in an amount which the first paragraph of Section 4.09. Notwithstanding the foregoing, the Company may merge with another Person if (a) the Company is not less the surviving Person; (b) the consideration issued or paid by the Company in such merger consists solely of Equity Interests (other than the Consolidated Net Worth Disqualified Stock) of the Issuer Company or Equity Interests of EchoStar; and (c) immediately after giving effect to such merger, the Company's Indebtedness to Cash Flow Ratio does not exceed the Company's Indebtedness to Cash Flow Ratio immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withmerger.

Merger, Consolidation or Sale of Assets. The Issuer shall Company may not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and after giving pro forma effect thereto to such transaction as if such transaction had occurred at the beginning of the applicable most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding such transaction either (A) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 or (B) would have a pro forma Fixed Charge Coverage Ratio that is greater than the actual Fixed Charge Coverage Ratio for the same four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior period without giving pro forma effect to such transaction. Notwithstanding the foregoing clauses (iii) and clause (iv)) in the immediately foregoing paragraph, (ai) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer Company and (bii) the Issuer Company may merge with an Affiliate that has no significant assets or liabilities and was incorporated solely for the purpose of reincorporating the Issuer Company in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all State of the assets United States so long as the amount of Indebtedness of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability Company and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Restricted Subsidiaries is not increased thereby.

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

Merger, Consolidation or Sale of Assets. The Issuer Except as otherwise provided in Section 11.06, the Company and any Guarantor shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Issuer Company or such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets assets, in one or more related transactions, to another Person unless unless: (i) the Issuer Company or such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany or such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation or other legal entity organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than the Company or such Issuer), Guarantor) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company or such Guarantor under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company or a Guarantor with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company or a Guarantor, or the merger or consolidation of a Restricted Subsidiary with or into the Company or a transfer of all or substantially all of the assets of a Restricted Subsidiary to the Company, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been mademade will, shall, at the time of immediately after such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Worth Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In addition, the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv)Company shall not, (a) any Restricted Subsidiary may consolidate withdirectly or indirectly, merge into or transfer lease all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose any other Person. The provisions of reincorporating the Issuer in another jurisdiction. In the case of this Section 5.01 shall not be applicable to a sale, assignment, lease, transfer, conveyance or other disposition of all assets between or substantially all of among the assets of Company and the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withGuarantors.

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

Merger, Consolidation or Sale of Assets. The Issuer Company shall not not, directly or indirectly, consolidate or merge with or into another Person (whether or not the Issuer Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets assets, in one or more related transactions, to another Person Person, unless (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; , (iii) immediately after such transaction, transaction no Default or Event of Default exists; and , (iv) except in the case of a the amalgamation, consolidation or merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary or with or into any Person solely for the purpose of effecting a change in the state of incorporation of the Company, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, Company) shall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Worth Interest Expense Coverage Ratio test set forth in the first paragraph of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) Section 4.09 hereof, and (iv)v) the Company shall have delivered to the Trustee an Officer's Certificate stating that such consolidation, (a) any Restricted Subsidiary may consolidate withmerger, merge into sale, assignment, transfer, conveyance or transfer other disposition complies with this Indenture. In addition, the Company shall not, directly or indirectly, lease all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose any other Person. The provisions of reincorporating the Issuer in another jurisdiction. In the case of this Section 5.01 shall not be applicable to a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all assets by the Company to any of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Wholly Owned Restricted Subsidiaries.

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

Merger, Consolidation or Sale of Assets. The Issuer Company shall not not, directly or indirectly, consolidate or merge with or into another Person (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person unless (i) (A) the Issuer Company is the surviving corporation corporation, limited liability company, business trust or limited partnership; or (B) the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, limited liability company, business trust or limited partnership organized and or existing under the laws of the United States, any state thereof or the District of Columbia; provided that in the case of (A) or (B) above, if the surviving Person is a limited liability company, business trust or limited partnership, a corporation which is Wholly Owned Subsidiary of the surviving Person shall act as joint and several obligor with respect to the Notes; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in form agreements reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at : (A) will have a Consolidated Net Worth immediately after the time transaction equal to or greater than the Consolidated Net Worth of such the Company immediately preceding the transaction; and (B) on the date of the transaction and after giving pro forma effect thereto to the transaction and any related financing transactions as if such transaction they had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth will be permitted to incur at least $1.00 of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets additional Indebtedness pursuant to the Issuer and (b) Fixed Charge Coverage Ratio test set forth in the Issuer may merge with an Affiliate incorporated solely for the purpose first paragraph of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withSection 4.09 hereof.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (ia) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; , (iiic) immediately after such transaction, transaction no Default or Event of Default exists; exists and (ivd) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Worth Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof, provided, however, that this clause (d) shall no longer be effective if the Issuer immediately prior Terminated Covenants shall have terminated in accordance with Section 4.19 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to such transaction. Notwithstanding be delivered, to the foregoing clauses (iii) Trustee, in form and (iv)substance reasonably satisfactory to the Trustee, (ai) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger or transfer disposition and such any supplemental indenture in respect thereto comply with this Article 5 provision and that all conditions precedent herein in the Indenture provided for relating to such transaction or transactions have been complied withwith and (ii) an Opinion of Counsel stating that the requirements of Section 5.01(a) and (b) have been satisfied.

Merger, Consolidation or Sale of Assets. The Issuer shall not (a) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person (whether or not the such Issuer is the surviving corporation), survivor) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets assets, in one or more related transactions, to another Person unless unless: (i) the either (A) such Issuer is the surviving corporation entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than the such Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is an entity organized and or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), ) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the such Issuer under the Notes and this Indenture pursuant to a supplemental indenture indentures in form forms reasonably satisfactory to the Trustee; (iii) immediately after giving pro forma effect to such transaction, no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiariesimmediately after giving pro forma effect to such transaction, the such Issuer or the Person formed by or surviving any such consolidation or merger (if other than the such Issuer), or to which except in the case of such salea transaction involving EOTT Finance, assignmentwill, transfer, lease, conveyance or other disposition shall have been made, shall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) Section 5.12 hereof; and (iv), (av) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the such Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger or transfer and and, if a supplemental indenture is required, such supplemental indenture comply complies with this Article 5 Indenture and that all conditions precedent herein provided for therein relating to such transaction have has been complied withsatisfied.

Merger, Consolidation or Sale of Assets. The Issuer shall Company may not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (ia) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such that sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such that sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iiic) immediately after such transaction, that transaction no Default or Event of Default exists; and (ivd) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such that sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (i) will, at the time of such transaction and after giving pro forma effect thereto as if such that transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof or (ii) would, together with its Restricted Subsidiaries, have a Consolidated Net Worth in an amount which is not less higher Fixed Charge Coverage Ratio immediately after that transaction (after giving pro forma effect thereto as if that transaction had occurred at the beginning of the applicable four-quarter period) than the Consolidated Net Worth Fixed Charge Coverage Ratio of the Issuer Company and its Restricted Subsidiaries immediately prior to such that transaction. Notwithstanding The foregoing clause (d) will not prohibit (i) a merger between the foregoing clauses Company and a Wholly Owned Subsidiary of Parent created for the purpose of holding the Capital Stock of the Company; (ii) a merger between the Company and a Wholly Owned Restricted Subsidiary; or (iii) a merger between the Company and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer Company in another jurisdictionState of the United States so long as, in each 57 case, the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of The Company will not lease all or substantially all of the its assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withany Person.

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

Merger, Consolidation or Sale of Assets. (a) The Issuer Borrower shall not not, consolidate or merge with or into (whether or not the Issuer Borrower is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (i) the Issuer Borrower is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the IssuerBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Borrower) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer under the Notes by an assignment and this Indenture pursuant to a supplemental indenture assumption agreement in form reasonably satisfactory to the TrusteeAdministrative Agent all the obligations of the Borrower under the Notes, this Agreement and the other Loan Documents; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Borrower with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Borrower, the Issuer Borrower or the Person formed by or surviving any such consolidation or merger (if other than the IssuerBorrower), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been mademade would, shall, at the time of such transaction both immediately prior to and immediately after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets additional Indebtedness pursuant to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer Debt to Cash Flow Ratio test set forth in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withSection 7.2 hereof.

Merger, Consolidation or Sale of Assets. The Issuer shall Company may not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (ia) the Issuer Company is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer under the Notes and this Indenture Company, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, under the Notes and this Indenture; (iiic) immediately after such transaction, transaction no Default or Event of Default exists; and (ivd) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (i) shall have Consolidated Net Worth immediately after the transaction (but prior to any purchase accounting adjustments or accrual of deferred tax liabilities resulting from the transaction) not less than the Consolidated Net Worth of the Company immediately preceding the transaction and (ii) would, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Indebtedness to Cash Flow Ratio test set forth in an amount which Section 4.09. Notwithstanding the foregoing, the Company may merge with another Person if (a) the Company is not less the surviving Person; (b) the consideration issued or paid by the Company in such merger consists solely of Equity Interests (other than the Consolidated Net Worth Disqualified Stock) of the Issuer Company; and (c) immediately after giving effect to such merger, the Company's Indebtedness to Cash Flow Ratio does not exceed the Company's Indebtedness to Cash Flow Ratio immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withmerger.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture hereunder pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made (A) shall have Consolidated Net Worth immediately after the transaction equal to or greater than 90% of the Consolidated Net Worth of the Company immediately preceding the transaction and (B) shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets additional Indebtedness pursuant to the Issuer and (bFixed Charge Coverage Ratio test set forth in the Section 4.09(a) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdictionhereof. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withSECTION 5.02.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Subordinated Registration Rights Agreement, the Senior Subordinated Notes and this Senior Subordinated Note Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Senior Subordinated Note Trustee; (iii) immediately before and after such transaction, transaction no Default or Event of Default existsshall have occurred; and (iv) except in the case of a merger of the Issuer Company with or into one of its Wholly Owned Restricted Subsidiariesa Subsidiary, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, conveyance or other disposition shall have been made will, immediately after such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof or (B) the Fixed Charge Coverage Ratio for the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been mademade would, shall, at the time of such transaction and immediately after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not be less than such Fixed Charge Coverage Ratio for the Consolidated Net Worth of the Issuer Company and its Restricted Subsidiaries immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv)The Company may not, (a) any Restricted Subsidiary may consolidate withdirectly or indirectly, merge into or transfer lease all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose any other Person. The provisions of reincorporating the Issuer in another jurisdiction. In the case of this Section 5.01 will not be applicable to a sale, assignment, lease, transfer, conveyance or other disposition of all assets between or substantially all of among the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability Company and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations Obligations of the Issuer Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Indebtedness to Adjusted Operating Cash Flow Ratio set forth in Section 4.09(a) hereof and (v) each Subsidiary Guarantor, if any, unless it is the other party to the transactions described above, shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such transaction. Notwithstanding Person's obligations under the foregoing clauses (iii) Indenture and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withNotes.

Merger, Consolidation or Sale of Assets. The Issuer (a) MBIA shall not merge or consolidate or merge with or into (whether or not the Issuer is the surviving corporation), any other Person or sell, assignconvey, transfer, lease, convey transfer or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionsto any Person, to another Person unless (i) (A) in the Issuer case of a merger or consolidation, MBIA is the surviving corporation or (B) in the Person formed by case of a merger or consolidation where MBIA is not the surviving corporation and in the case of any such consolidation or merger (if other than the Issuer) or to which such sale, assignmentconveyance, transfer, lease, conveyance transfer or other disposition shall have been made disposition, the successor corporation is a corporation organized and existing under the laws of the United States, any state States or a State thereof or the District of Columbia; (ii) the Person formed and such corporation expressly assumes by or surviving any such consolidation or merger (if other than such Issuer), or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, assumes supplemental fiscal agency agreement all the obligations of the Issuer MBIA under the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee; Agreement, (iiiii) immediately after such transaction, no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of any such transaction and after giving pro forma effect thereto as if merger or consolidation, or such transaction had occurred at the beginning sale, conveyance, transfer or other disposition, MBIA shall not have failed to make payment of the applicable four-quarter periodinterest on, have a Consolidated Net Worth in an amount which is not less than principal of or Redemption Price or Make Whole Redemption Price with respect to the Consolidated Net Worth of Notes after having satisfied the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses Payment Restrictions and (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets MBIA has delivered to the Issuer and (b) the Issuer may merge with Fiscal Agent an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a Officers’ Certificate stating that such merger, consolidation, sale, assignmentconveyance, lease, transfer, conveyance transfer or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply complies with this Article 5 Section and that all conditions precedent herein provided for relating to such transaction and supplemental fiscal agency agreement, if any, have been complied with. In the event of the assumption by a successor corporation of the obligations of MBIA as provided in clause (i)(B) of the immediately preceding sentence, such successor corporation shall succeed to and be substituted for MBIA under this Agreement and the Notes and all such obligations of MBIA shall terminate.

Merger, Consolidation or Sale of Assets. The Issuer Holdings shall not not, in a single transaction or series of related transactions, consolidate or merge with or into (whether or not the Issuer Holdings is the surviving corporation), or directly and/or indirectly through its Restricted Subsidiaries sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets determined on a consolidated basis for Holdings and its Restricted Subsidiaries taken as a whole in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Holdings is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerHoldings) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), Holdings) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Holdings, under the Notes Exchange Debentures and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Holdings or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerHoldings), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made (A) shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of Holdings immediately preceding the transaction and (B) shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) Section 4.10; and (iv), (av) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer Holdings shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver have delivered to the Trustee an Officers' Certificate and an Opinion of CounselCounsel addressed to the Trustee with respect to the foregoing matters; provided, each of which however, that the requirement set forth in clause (iv) above shall state that such consolidation, not apply to a merger between Holdings and any Wholly Owned Subsidiary or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withany merger between Wholly Owned Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company (other than a Receivables Subsidiary), the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than 95% of the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-fourth quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets additional Indebtedness pursuant to the Issuer and (b) Fixed Charge Coverage Ratio test set forth in the Issuer may merge with an Affiliate incorporated solely for the purpose first paragraph of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withSection 4.09 hereof.

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

Merger, Consolidation or Sale of Assets. The No Issuer shall not shall, directly or indirectly, consolidate or merge with or into (whether or not the such Issuer is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Issuers and their Restricted Subsidiaries, taken as a whole, in one or more related transactionstransactions to, to another Person unless unless: (i) the either: (a) such Issuer is the surviving corporation corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, limited liability company or limited partnership organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), ) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Issuers under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in form agreements reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Issuers or the Person formed by or surviving any such consolidation or merger (if other than the IssuerIssuers), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made shall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter periodfiscal quarter, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of Section 4.09 hereof. In addition, the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv)Issuers may not, (a) any Restricted Subsidiary may consolidate withdirectly or indirectly, merge into or transfer lease all or part substantially all of its their properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose any other Person. The provisions of reincorporating the Issuer in another jurisdiction. In the case of this Section 5.01 shall not apply to a sale, assignment, lease, transfer, conveyance or other disposition of all assets between or substantially all among the Issuers and any of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withtheir Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture Indenture in a form reasonably satisfactory to the Trustee; , (iii) except in the case of a merger of the Company with or into a Wholly Owned Subsidiary of the Company, immediately after such transaction, transaction no Default or Event of Default exists; exists and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness (in an amount which is not less than addition to Permitted Indebtedness) pursuant to the Consolidated Net Worth of the Issuer immediately prior to such transactionFixed Charge Coverage Ratio test set forth in Section 4.9(a) hereof. Notwithstanding the foregoing clauses (iii) and (iv)In connection with any consolidation, (a) any Restricted Subsidiary may consolidate with, merge into merger or transfer all contemplated by this provision, the Company shall deliver, or part of its properties and assets cause to be delivered, to the Issuer Trustee, in form and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior substance reasonably satisfactory to the proposed transactionTrustee, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger or transfer and such the supplemental indenture in respect thereto comply with this Article 5 provision and that all conditions precedent herein in this Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Neither Issuer shall not may consolidate or merge with or into (whether or not the such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, 66 conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), ) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Issuers under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately prior thereto and immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one a Restricted Subsidiary of its Wholly Owned Restricted Subsidiariesthe Company and except in the case of a merger entered into solely for the purpose of reincorporating the Company in another jurisdiction, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and made will immediately after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth (x) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less the first paragraph of the covenant described in Section 4.9 hereof or (y) the Fixed Charge Coverage Ratio for the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Consolidated Net Worth of Company) would be greater than such ratio for the Issuer Company or such surviving entity immediately prior to such transaction. Notwithstanding the foregoing clauses foregoing, the Company shall be permitted to reorganize as a corporation in accordance with the procedures established in this Indenture, provided that the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that such reorganization is not adverse to Holders of the Notes (iiiit being recognized that such reorganization shall not be deemed adverse to the Holders of the Notes solely because (i) and of the accrual of deferred tax liabilities resulting from such reorganization or (iv), ii) the successor or surviving corporation (a) any Restricted Subsidiary may consolidate with, merge into is subject to income tax as a corporate entity or transfer all or part of its properties and assets to the Issuer and (b) is considered to be an "includible corporation" of an affiliated group of corporations within the Issuer meaning of the Code or any similar state or local law) and certain other conditions are satisfied. The entity or the Person formed by or surviving any consolidation or merger (if other than the Company) will succeed to, and be substituted for, and may merge with an Affiliate incorporated solely for exercise every right and power of, the purpose of reincorporating the Issuer Issuers under this Indenture, but, in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition lease of all or substantially all its assets, neither Issuer will be released from the obligation to pay the principal of and interest on the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withNotes.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations Obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Indebtedness to Adjusted Operating Cash Flow Ratio set forth in Section 4.09(a) hereof and (v) each Subsidiary Guarantor, if any, unless it is the other party to the transactions described above, shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such transaction. Notwithstanding Person's obligations under the foregoing clauses (iii) Indenture and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withNotes.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactionstransactions to, to another Person unless (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes Notes, this Indenture, the Intercreditor Agreements and this Indenture the Security Agreements, pursuant to agreements in a supplemental indenture in form reasonably satisfactory to the Trustee; , (iii) immediately after such transaction, no Default or Event of Default exists; exists and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made (A) shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) shall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, have a be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Total Consolidated Net Worth Indebtedness to Adjusted Consolidated Operating Cash Flow ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of Section 4.09 hereof. In addition, the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv)Company shall not, (a) any Restricted Subsidiary may consolidate withdirectly or indirectly, merge into or transfer lease all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose any other Person. The provisions of reincorporating the Issuer in another jurisdiction. In the case of this Section 5.01 shall not be applicable to a consolidation, merger, sale, assignment, lease, transfer, conveyance or other disposition of all properties or substantially all of assets between or among (i) the assets of the Issuer, upon the assumption provided for in clause Company and its Wholly Owned Restricted Subsidiaries or (ii) above, the Issuer shall be discharged from all further liability Company and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withHoldings.

Merger, Consolidation or Sale of Assets. The Issuer shall DBS Corp may not consolidate or merge with or into (whether or not the Issuer DBS Corp is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (ia) the Issuer DBS Corp is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the IssuerDBS Corp) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), DBS Corp) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer under the Notes and this Indenture DBS Corp, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, under the Notes and this Indenture; (iiic) immediately after such transaction, transaction no Default or Event of Default exists; and (ivd) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer DBS Corp or the Person formed by or surviving any such consolidation or merger (if other than the IssuerDBS Corp), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (i) shall have Consolidated Net Worth immediately after the transaction (but prior to any purchase accounting adjustments or accrual of deferred tax liabilities resulting from the transaction) not less than the Consolidated Net Worth of DBS Corp immediately preceding the transaction and (ii) would, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Indebtedness to Cash Flow Ratio test set forth in an amount which Section 4.9. Notwithstanding the foregoing, DBS Corp may merge with another Person if (a) DBS Corp is the surviving Person; (b) the consideration issued or paid by DBS Corp in such merger consists solely of Equity Interests (other than Disqualified Stock) of DBS Corp; and (c) immediately after giving effect to such merger, DBS Corp's Indebtedness to Cash Flow Ratio does not less than the Consolidated Net Worth of the Issuer exceed DBS Corp's Indebtedness to Cash Flow Ratio immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withmerger.

Merger, Consolidation or Sale of Assets. The Issuer shall EchoStar may not consolidate or merge with or into (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (ia) the Issuer EchoStar is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the IssuerEchoStar) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), EchoStar) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer under the Notes and this Indenture EchoStar, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, under the Notes and this Indenture; (iiic) immediately after such transaction, transaction no Default or Event of Default exists; and (ivd) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer EchoStar or the Person formed by or surviving any such consolidation or merger (if other than the Issuer)merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, made (i) shall have a Consolidated Net Worth in an amount which is immediately after the transaction (but prior to any purchase accounting adjustments or accrual of deferred tax liabilities resulting from the transaction) not less than the Consolidated Net Worth of EchoStar immediately preceding the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) transaction and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, will have an Indebtedness to Cash Flow Ratio immediately after the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior transaction that does not exceed EchoStar's Indebtedness to Cash Flow Ratio immediately preceding the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied with.

Merger, Consolidation or Sale of Assets. The Issuer shall issuers may not consolidate or merge with or into (whether or not the Issuer is Issuers are the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its their properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the such Issuer is the surviving corporation entity or the entity or the Person formed by or surviving any such consolidation or merger (if other than the such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is organized and existing under the laws of the United States, any state thereof or the District of Columbia; , provided that FCC may not consolidate or merge with or into any entity other than a corporation satisfying such requirements for so long as Foamex remains a partnership and (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), ) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the such Issuer under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the an Issuer, upon the assumption provided for in clause (ii) above, the such Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied with."

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; , (iii) immediately after such transaction, no Default or Event of Default exists; (iv) such transaction will not result in the loss or suspension or material impairment of any licenses or other authorizations that are material to the future prospects of the Company and its Restricted Subsidiaries, taken as a whole; and (ivv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets additional Indebtedness pursuant to the Issuer and (b) Debt to Cash Flow Ratio test set forth in the Issuer may merge with an Affiliate incorporated solely for the purpose first paragraph of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withSection 4.09 hereof.

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

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (ia) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; , (iiic) immediately after such transaction, transaction no Default or Event of Default exists; exists and (ivd) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, made will have a Consolidated Net Worth in an amount which is not less immediately after the transaction equal to or greater than the Consolidated Net Worth of the Issuer Company immediately prior to such preceding the transaction. Notwithstanding In connection with any consolidation, merger or disposition contemplated by this provision, the foregoing clauses (iii) Company shall deliver, or cause to be delivered, to the Trustee, in form and (iv)substance reasonably satisfactory to the Trustee, (ai) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger or transfer disposition and such any supplemental indenture in respect thereto comply with this Article 5 provision and that all conditions precedent herein in the Indenture provided for relating to such transaction or transactions have been complied withwith and (ii) an Opinion of Counsel stating that the requirements of Section 5.01(a) and (b) have been satisfied.

Merger, Consolidation or Sale of Assets. The Issuer shall not consolidate or merge with or into (whether or not the Issuer is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person (other than the REIT) unless (ia) the Issuer is the surviving corporation entity, or the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (iib) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer), or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, assumes assumes, pursuant to a supplemental indenture and appropriate collateral documents in forms reasonably satisfactory to the Trustee, all of the obligations Obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee; Operative Documents, (iiic) immediately before and immediately after giving effect to such transaction, transaction no Default or Event of Default exists; and , (ivd) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer)merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and made after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, end of the most recently completed Fiscal Quarter shall have a Consolidated Net Worth in an amount which is not less equal to or greater than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding preceding the foregoing clauses (iii) transaction and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (be) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver have delivered to the Trustee an Officers' Officer's Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein the Indenture. If, upon any consolidation or merger, or upon any sale, assignment, transfer or lease, as provided in the preceding paragraph, any material property of the Trust Estate, owned immediately prior thereto, would thereupon become subject to any Lien securing any indebtedness for relating borrowed money of, or guaranteed by, such other Person, the Issuer, prior to such transaction have been complied withconsolidation, merger, sale, assignment, transfer or lease, will secure the due and punctual payment of the principal of, and premium, if any, and interest on the Notes then outstanding equally and ratably with (or, at the option of the Issuer, prior to) the Indebtedness secured by such Xxxx.

Merger, Consolidation or Sale of Assets. The Issuer shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Issuer is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Issuer and its Restricted Subsidiaries, taken as a whole, in one or more related transactionstransactions to, to another Person unless unless: (i) either: (a) the Issuer is the surviving corporation corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, limited liability company or limited partnership organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer), ) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in form agreements reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made shall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter periodfiscal quarter, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Adjusted Debt to Cash Flow Ratio test set forth in an amount which is not less than the Consolidated Net Worth of first paragraph, or the Issuer immediately prior Debt to such transaction. Notwithstanding the foregoing clauses Cash Flow Ratio test set forth in clause (iii) and (iv)of the second paragraph, (a) any Restricted Subsidiary of Section 4.09 hereof. In addition, the Issuer may consolidate withnot, merge into directly or transfer indirectly, lease all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose any other Person. The provisions of reincorporating the Issuer in another jurisdiction. In the case of this Section 5.01 shall not apply to a sale, assignment, lease, transfer, conveyance or other disposition of all assets between or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, among the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion any of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer shall will not consolidate or merge with or into (whether or not the Issuer is the surviving corporation)into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the Issuer's consolidated properties or assets in one or more related transactions, to another corporation or other Person unless unless: (i) the Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Issuer) formed by such consolidation or to into which such salethe Issuer is merged or the Person that acquires by conveyance, assignment, transfer, lease, conveyance transfer or other disposition lease substantially all of the properties and assets of the Issuer (the "Surviving Entity") shall have been made is be a corporation organized and validly existing under the laws of the United States, States or any state thereof or the District of Columbia; (ii) if the Person formed by or Issuer is not the surviving any such consolidation or merger (if other than such Issuer)corporation, or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, Surviving Entity assumes all the obligations of the Issuer under the Notes Securities and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Issuer or a merger entered into solely for the purpose of reincorporating the Issuer in another jurisdiction, the Issuer or the Person formed by Surviving Entity, as the case may be, (A) will have Consolidated Net Worth immediately after the transaction equal to or surviving any such consolidation or merger (if other greater than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallConsolidated Net Worth of the Issuer immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than be permitted to incur at least $1.00 of additional Debt pursuant to the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) Fixed Charge Coverage Ratio test set forth in Section 4.12(a); and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (bv) the Issuer may merge with an Affiliate incorporated solely for or the purpose of reincorporating the Issuer in another jurisdiction. In Surviving Entity, as the case of a salemay be, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger merger, sale, assignment transfer, lease, conveyance or transfer and other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Article 5 Indenture and that all conditions precedent herein provided for in this Indenture relating to such transaction have been complied withsatisfied.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; , (iii) immediately after such transaction, no Default or Event of Default exists; (iv) such transaction will not result in the loss or suspension or material impairment of any licenses or other authorizations that are material to the future prospects of the Company and its Subsidiaries, taken as a whole; and (ivv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company or into a parent corporation the principal purpose of which transaction is to change the state of incorporation of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets additional Indebtedness pursuant to the Issuer and (bDebt to Cash Flow Ratio test set forth in Section 4.09(a) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withhereof.

Merger, Consolidation or Sale of Assets. The Issuer shall not Company may not, directly or indirectly, consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets assets, in one or more related transactions, to another Person corporation, person or entity unless (i) the Issuer Company is the surviving corporation or the Person entity or the Persons formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition deposition shall have been made (the "Surviving Entity") is a Person organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia; (ii) if the Person formed Company is not the Surviving Entity, the Surviving Entity expressly and unconditionally assumes by or surviving any such consolidation or merger (if other than such Issuer)supplemental indenture, or executed and delivered to the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture Trustee in form reasonably satisfactory to the Trustee, all obligations of the Company on the Notes issued and outstanding under this Indenture; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of a Wholly-Owned Subsidiary of the Issuer Company with or into one of its Wholly Owned Restricted Subsidiariesthe Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, made (A) will have a Consolidated Net Worth in an amount which is not less immediately after the transaction equal to or greater than the Consolidated Net Worth of the Issuer Company immediately prior to such transaction. Notwithstanding preceding the foregoing clauses (iii) transaction and (iv)B) will, immediately after such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred as of the end of the applicable quarter, be permitted to incur at least $1.00 of additional Debt pursuant to Section 4.7; and (av) any Restricted Subsidiary may consolidate withthe Company or the Surviving Entity, merge into as applicable, shall have delivered or transfer all or part of its properties and assets caused to be delivered to the Issuer Trustee, in form and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior substance reasonably satisfactory to the proposed transactionTrustee, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state to the effect that such consolidation, merger merger, sale, assignment, transfer, lease, conveyance or transfer and such supplemental indenture comply other disposition complies with this Article 5 Indenture and that all conditions precedent herein provided for relating to such transaction in clauses (i) through (v) above have been complied with.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (ia) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; Columbia or Canada or any province thereof, (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; , (iiic) immediately after such transaction, transaction no Default or Event of Default exists; exists and (ivd) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Worth Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Issuer immediately prior Company shall deliver, or cause to such transaction. Notwithstanding be delivered, to the foregoing clauses (iii) Trustee, in form and (iv)substance reasonably satisfactory to the Trustee, (ai) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger or transfer disposition and such any supplemental indenture in respect thereto comply with this Article 5 provision and that all conditions precedent herein in the Indenture provided for relating to such transaction or transactions have been complied withwith and (ii) an Opinion of Counsel stating that the requirements of Section 5.01(a) and (b) have been satisfied.

Merger, Consolidation or Sale of Assets. The Issuer shall not consolidate or merge with or into (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (i) the Issuer is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such the Issuer), ) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Issuer immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets additional Indebtedness pursuant to the Issuer and (b) Fixed Charge Coverage Ratio test set forth in the Issuer may merge with an Affiliate incorporated solely for the purpose first paragraph of reincorporating the Issuer in another jurisdictionSection 4.09 hereof. In the case of a connection with any consolidation or merger, or any sale, assignment, transfer, lease, transferconveyance, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for Issuer in clause (ii) aboveaccordance with this Section 5.01, the Issuer shall deliver, or cause to be discharged from all further liability and obligation under this Indenture. Prior delivered, to the proposed transactionTrustee, the Issuer shall deliver in form reasonably satisfactory to the Trustee Trustee, an Officers' Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger merger, sale, assignment, transfer, lease, conveyance, or transfer other disposition and such any supplemental indenture in respect thereto comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied with.

Merger, Consolidation or Sale of Assets. The Issuer shall not or Issuers holding all or substantially all of the assets of the Issuers on a combined basis will not, directly or indirectly, consolidate or merge with or into (whether or not the such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Issuers on a combined basis in one or more related transactions, to another Person unless (i) the such Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized and or existing under the laws of the United States, any state thereof or the District of Columbia; provided that the Issuers agree that so long as the Senior Subordinated Notes are outstanding at least one of the Issuers shall be a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), ) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the such Issuer under the Senior Subordinated Notes and this the Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately before and after such transaction, transaction no Default or Event of Default existsshall have occurred; and (iv) except in the case of a merger of the such Issuer with or into one a Restricted Subsidiary of its Wholly Owned Restricted Subsidiariessuch Issuer, the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the such Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shalltogether with the surviving Issuers, at the time of will, immediately before and after such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter periodquarter, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of Section 4.9. None of the Issuer immediately prior Issuers may, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to such transactionany other Person. Notwithstanding the foregoing clauses (iii) and (iv)foregoing, (a) any Restricted Subsidiary or all of the Issuers may merge or consolidate with, merge into with or transfer substantially all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated that has no significant assets or liabilities and was formed solely for the purpose of reincorporating changing the jurisdiction of organization of such Issuer or the form of organization of such Issuer, provided that the amount of Indebtedness of such Issuer and its Restricted Subsidiaries is not increased thereby and provided, further, that the successor assumes all obligations of such Issuer under the Indenture and the Registration Rights Agreement and (b) nothing in another jurisdiction. In this Section 5.1 shall be deemed to prevent the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all consummation of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withReorganization.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Issuer Company is the surviving corporation), ; or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactionstransactions (including, in each case, by operation of or as a result of an LLC Division), to another Person unless Person, unless: (i1) either: (a) the Issuer Company is the surviving corporation corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made (the “Surviving Entity”) is a corporation organized and or existing under the laws of the United States, any state thereof of the United States or the District of Columbia; (ii2) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, Surviving Entity expressly assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trusteeindenture; (iii3) immediately after such transaction, no Default or Event of Default existsshall have occurred and be continuing; (4) the Company or the Surviving Entity shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Company (in each case, in form and substance reasonably satisfactory to the Trustee); provided that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact; and (iv5) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than Surviving Entity would, on the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, either (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof or (B) have a Consolidated Net Worth in an amount which is Fixed Charge Coverage Ratio of not less than the Consolidated Net Worth Fixed Charge Coverage Ratio of the Issuer Company immediately prior to such transactionmerger, sale, assignment, transfer, lease, conveyance or other disposition. Notwithstanding In addition, the foregoing clauses (iii) and (iv)Company shall not, (a) any Restricted Subsidiary may consolidate withdirectly or indirectly, merge into or transfer lease all or part substantially all of its the properties and assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. This Section 5.01 shall not apply to: (1) a merger of the Issuer and (b) the Issuer may merge Company with an Affiliate incorporated solely for the purpose of reincorporating the Issuer Company in another jurisdiction. In the case of a ; or (2) any consolidation or merger, or any sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition of all assets (including, in each case, by operation of or substantially all as a result of an LLC Division) between or among the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability Company and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with 44 or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, made at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) Section 4.09 hereof; and (iv)v) each Guarantor, (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets unless it is the other party to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) transactions described above, shall have by supplemental indenture in a form substantially similar to EXHIBIT F hereto confirmed that its Notes Guarantee shall apply to the Issuer shall be discharged from all further liability and obligation Company's or the surviving Person's obligations under this Indenture. Prior to Indenture and the proposed transaction, Notes; and the Issuer shall deliver to the Trustee Company delivers an Officers' Certificate and an Opinion of CounselCounsel to the Trustee, each of which shall state stating (A) that such consolidation, merger or transfer the proposed transaction and such supplemental indenture comply with this Article 5 Indenture and (B) that all conditions precedent herein provided for relating the Trustee shall be entitled to conclusively rely upon such transaction have been complied withOfficers' Certificate and Opinion of Counsel.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Senior Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory substantially similar to the TrusteeExhibit E hereto; (iii) immediately after --------- such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) Section 4.08 hereof; and (iv)v) each Subsidiary Guarantor, (a) unless it is the other party to the transactions described above, shall have by supplemental indenture in a form substantially similar to Exhibit E hereto --------- confirmed that its Subsidiary Guarantee shall apply to the Company's or the surviving Person's obligations under this Indenture and the Senior Notes. In connection with any Restricted Subsidiary may consolidate withconsolidation, merge into merger or transfer all of assets contemplated by this Section 5.01, the Company will deliver, or part of its properties and assets cause to be delivered, to the Issuer Trustee, in form and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior substance reasonably satisfactory to the proposed transactionTrustee, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger or transfer and such the supplemental indenture in respect thereto comply with this Article 5 provision and that all conditions precedent herein provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Issuer shall not not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Issuer is the surviving corporation), ; or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Issuer and its Subsidiaries, taken as a whole, in one or more related transactions, to another Person unless Person; unless: (i1) either: (a) the Issuer is the surviving corporation corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made is a corporation organized and or existing under the laws of the United States, any state thereof of the United States or the District of Columbia; (ii2) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer), ) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made, made (if other than the Issuer) assumes all the obligations of the Issuer Issuer's Obligations under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in form agreements reasonably satisfactory to the Trustee; (iii3) immediately after such transaction, transaction no Default or Event of Default exists; and (iv4) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made: (a) shall have been made, Consolidated Net Worth immediately after the transaction equal to or greater than the Issuer's Consolidated Net Worth immediately preceding the transaction; and (b) shall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of Section 4.09 hereof. In addition, the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv)shall not, (a) any Restricted Subsidiary may consolidate withdirectly or indirectly, merge into or transfer lease all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdictionany other Person. In the case of This Section 5.01 shall not apply to a sale, assignment, leasetransfer, conveyance or other disposition of assets between or among the Issuer and its Restricted Subsidiaries and shall not apply to a sale, assignment, transfer, conveyance or other disposition of all or substantially all any portion of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withUnrestricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other -49- 57 disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations Obligations of the Issuer Company under the Notes and Notes, this Indenture and the Security Documents pursuant to a supplemental indenture in a form reasonably satisfactory to the TrusteeTrustee and such entity or Person shall have taken all steps necessary or reasonably requested by the Trustee to protect and perfect the Security Interests granted or purported to be granted under the Security Documents; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made (A) shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately prior to the transaction and (B) shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof; (v) the Company shall have a Consolidated Net Worth in delivered to the Trustee an amount which is not less than Officers' Certificate and an Opinion of Counsel each stating that (A) such transaction and supplemental indenture comply with this Article, and (B) all conditions precedent herein provided for relating to such transaction have been complied with; and (vi) the Consolidated Net Worth Company shall have delivered to the Trustee all instruments of further assurance and all actions, as are necessary to maintain, preserve and protect the rights of the Issuer immediately prior Holders of the Notes and the Trustee hereunder and under each of the applicable Security Documents with respect to such transactionthe Security Interests have been taken. Notwithstanding The sale, assignment, transfer, lease, conveyance or other disposition by the foregoing clauses (iii) and (iv)Company or its Restricted Subsidiaries of all or substantially all of their respective property or assets to one or more of their Subsidiaries shall not relieve either the Company or the Restricted Subsidiaries from their respective obligations hereunder, (a) under the Notes or under the Security Documents. Subject to the foregoing, any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance Company or any other Restricted Subsidiary or other disposition entity that becomes, by reason of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withtransfer, a Restricted Subsidiary.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture indentures in form forms reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been mademade will, shall, both at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets additional Indebtedness pursuant to the Issuer and (b) Debt to Cash Flow test set forth in the Issuer may merge with an Affiliate incorporated solely for the purpose first paragraph of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withSection 5.05 hereof.

Merger, Consolidation or Sale of Assets. (a) The Issuer Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets assets, in one or more related transactions, to another Person unless unless: (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, no Default or Event of Default exists( or an event that, with the passing of time or giving of notice or both, would constitute an Event of Default) shall exist or shall occur immediately after giving effect on a pro forma basis to such transaction; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of made will immediately after such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to either clause (i) or (ii) of the Issuer immediately prior to first paragraph of Section 4.09 hereof; (v) if, as a result of any such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into property or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon Company would become subject to a Lien subject to the assumption provided for in clause (ii) aboveprovisions of Section 4.12 hereof, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior Company or the successor entity to the proposed transaction, Company shall have secured the Issuer Notes as required by said covenant; and (vi) the Company shall deliver have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with the terms of the Indenture. The Company shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Article 5 covenant will not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets solely between or among the Company and that all conditions precedent herein provided for relating to such transaction have been complied withits Wholly Owned Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer shall Company may not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person Person, unless (ia) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; , (iiic) immediately after such transaction, transaction no Default or Event of Default exists; exists and (ivd) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (i) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof or (ii) would (together with its Restricted Subsidiaries) have a Consolidated Net Worth in an amount which is not less higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Consolidated Net Worth Fixed Charge Coverage Ratio of the Issuer Company and its Restricted Subsidiaries immediately prior to such transaction. Notwithstanding The foregoing clause (d) will not prohibit the foregoing clauses Acquisition or (iiii) a merger between the Company and (iv), (a) any a 58 Wholly Owned Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties (ii) a merger between the Company and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer Company in another jurisdictionState of the United States so long as, in each case, the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of The Company shall not lease all or substantially all of the its assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withany Person.

Merger, Consolidation or Sale of Assets. The Issuer shall Issuers may not consolidate or merge with or into (whether or not the Issuer is Issuers are the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its their properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the such Issuer is the surviving corporation entity or the entity or the Person formed by or surviving any such consolidation or merger (if other than the such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is organized and existing under the laws of the United States, any state thereof or the District of Columbia, provided that FCC may not consolidate or merge with or into any entity other than a corporation satisfying such requirements for so long as Foamex remains a partnership; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), ) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the such Issuer under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the an Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made (A) shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of such Issuer immediately preceding the transaction and (B) shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets additional Indebtedness pursuant to the Issuer and (b) Fixed Charge Coverage Ratio test set forth in the Issuer may merge with an Affiliate incorporated solely for the purpose first paragraph of reincorporating the Issuer in another jurisdictionSection 4.9 hereof. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the an Issuer, upon the assumption provided for in clause (ii) above, the such Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied with.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (a) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (b) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. Notwithstanding clause (iv) above, the Company may consolidate with or merge with or into (A) another Person if such Person is a single purpose corporation that has not conducted any business or incurred any Indebtedness or other liabilities and such transaction is being consummated solely to change the state of incorporation of the Company or (B) Holdings; provided, however, that, in the case of clause (B), (x) Holdings shall not have owned any assets other than assets owned by Holdings on the date of this Indenture, including the Capital Stock of the Company (and other immaterial assets incidental to its ownership of such Capital Stock) or conducted any business other than owning the Capital Stock of the Company, (y) Holdings shall not have any Indebtedness or other liabilities (other than ordinary course liabilities incidental to its ownership of the Capital Stock of the Company) and (z) immediately after giving effect to such consolidation or merger, the Company, Holdings or the Person formed by or surviving such consolidation or merger (if other than the Company or Holdings) shall have a Consolidated Net Worth in an amount which pro forma Fixed Charge Coverage Ratio that is not less than the Consolidated Net Worth Fixed Charge Coverage Ratio of the Issuer Company immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into consolidation or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withmerger.

Merger, Consolidation or Sale of Assets. The Issuer Holding shall not consolidate or merge with or into (whether or not the Issuer Holding is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (i) the Issuer Holding is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerHolding) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), Holding) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Holding under the Notes Debentures and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Holding or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerHolding), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (a) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof or (b) would (together with its Restricted Subsidiaries) have a Consolidated Net Worth in an amount which is not less higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Consolidated Net Worth Fixed Charge Coverage Ratio of the Issuer Holding and its subsidiaries immediately prior to such the transaction. Notwithstanding the The foregoing clauses (iii) and clause (iv), ) will not prohibit (a) any Restricted a merger between Holding and a Wholly Owned Subsidiary may consolidate withof Acquisition Corp. created for the purpose of holding the Capital Stock of Holding, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with a merger between Holding and a Wholly Owned Subsidiary or (c) a merger between Holding and an Affiliate incorporated solely for the purpose of reincorporating the Issuer Holding in another jurisdictionstate of the United States so long as, in each case, the amount of Indebtedness of Holding and its Restricted Subsidiaries is not increased thereby. In the case The Indenture will also provide that Holding may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 will not be applicable to a sale, assignment, lease, transfer, conveyance or other disposition of all assets between or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability among Holding and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Wholly Owned Restricted Subsidiaries.

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

Merger, Consolidation or Sale of Assets. The Issuer Holdings shall not consolidate or merge with or into (whether or not the Issuer Holdings is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Holdings is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerHoldings) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), Holdings) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Holdings under the Notes Debentures and this Indenture pursuant to a supplemental indenture indentures in form forms reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Holdings with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of Holdings and except in the case of a merger entered into solely for the purpose of incorporating Holdings or reincorporating Holdings in another jurisdiction, the Issuer Holdings or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerHoldings), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable fourFour-quarter periodQuarter Period, have a Consolidated Net Worth in an amount which is not less than be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Worth Fixed Charge Coverage Ratio test set forth in the first paragraph of the Issuer immediately prior to such transactionSection 4.09. Notwithstanding the foregoing clauses (iii) and (iv)Holdings shall not, (a) any Restricted Subsidiary may consolidate withdirectly or indirectly, merge into or transfer lease all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose any other Person. The provisions of reincorporating the Issuer in another jurisdiction. In the case of this covenant will not be applicable to a merger, sale, assignment, lease, transfer, conveyance or other disposition of all assets between or substantially all among Holdings and any of its Restricted Subsidiaries. Notwithstanding the assets of foregoing, Holdings is permitted to reorganize as a corporation in accordance with the Issuer, upon the assumption procedures established in this Indenture (and AC Holdings Corp. may thereafter liquidate); provided for in clause (ii) above, the Issuer that Holdings shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver have delivered to the Trustee an Officers' Certificate and an Opinion opinion of Counsel, each of which shall state counsel in the United States reasonably acceptable to the Trustee confirming that such consolidationreorganization (and, merger if applicable, liquidation of AC Holdings Corp.) is not adverse to holders of the Debentures from a U.S. federal tax standpoint (it being recognized that such reorganization shall not be deemed adverse to the holders of the Debentures solely because (i) of the accrual of deferred tax liabilities resulting from such reorganization or transfer (ii) the successor or surviving corporation (a) is subject to income tax as a corporate entity or (b) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of the Code or any similar state or local law) and such supplemental indenture comply with this Article 5 and that all certain other conditions precedent herein provided for relating to such transaction have been complied withare satisfied.

Merger, Consolidation or Sale of Assets. The Issuer Neither the Company nor any of its Restricted Subsidiaries shall not consolidate or merge with or into (whether or not the Issuer Company or such Restricted Subsidiary is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (i) the Issuer Company is the surviving corporation or such Restricted Subsidiary is the surviving entity, as the case may be, or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany or such Restricted Subsidiary) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation (in the case of the Company) or a corporation or other entity (in the case of such Restricted Subsidiary) organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than the Company or such Issuer), Restricted Subsidiary) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes Notes, this Indenture, the Pledge Agreement and this Indenture the Registration Rights Agreement, or of such Restricted Subsidiary under its Subsidiary Guarantee, as the case may be, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been mademade (a) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (b) will, shall, at the time of immediately after such transaction and after giving pro forma effect thereto and to any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of the Issuer immediately prior to such transactionSection 4.09 hereof. Notwithstanding the foregoing clauses (iii) The Company and (iv)its Restricted Subsidiaries shall not, (a) any Restricted Subsidiary may consolidate withdirectly or indirectly, merge into or transfer lease all or part substantially all of its their properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose any other Person. The provisions of reincorporating the Issuer in another jurisdiction. In the case of this Section 5.01 will not be applicable to a sale, assignment, lease, transfer, conveyance or other disposition of all assets between or substantially all among the Company and any of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer shall not Neither of the Issuers may consolidate or merge with or into (whether or not the such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, transactions to another corporation, Person or entity unless (i) the such Issuer is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), ) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the such Issuer under the Notes and Notes, this Indenture and Registration Rights Agreement pursuant to agreements in a supplemental indenture in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) immediately after the transaction and after giving pro forma effect thereto (except as otherwise specified in clause (b) below) as if the case of a merger transaction had occurred at the beginning of the Issuer with or into one of its Wholly Owned Restricted Subsidiariesapplicable four-quarter period, the (a) such Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than the such Issuer), ) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been mademade will be permitted to incur at least $1.00 of additional Indebtedness pursuant to, shallin the case of the Co-Issuer or its successor Person, at the time Co-Issuer’s Debt to Adjusted Consolidated Cash Flow Ratio test or, in the case of such transaction the Company or its successor Person, the Company’s Debt to Adjusted Consolidated Cash Flow Ratio test, in each case, set forth in the first paragraph of Section 4.09 or (b) in the case of the Co-Issuer or its successor Person, the Co-Issuer’s Debt to Adjusted Consolidated Cash Flow Ratio and, in the case of the Company or its successor Person, the Co-Issuer’s Debt to Adjusted Consolidated Cash Flow Ratio and after the Company’s Debt to Adjusted Consolidated Cash Flow Ratio, in each case, shall be less than or equal to, in the case of the Co-Issuer or its successor Person, the Co-Issuer’s Debt to Adjusted Consolidated Cash Flow Ratio and, in the case of the Company or its successor Person, the Co-Issuer’s Debt to Adjusted Consolidated Cash Flow Ratio and the Company’s Debt to Adjusted Consolidated Cash Flow Ratio, respectively, for the same period without giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses foregoing, in no event shall (iiii) the Company and (iv)Co-Issuer consolidate or merge with or into each other, (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (bii) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a saleCompany sell, assignmentassign, transfer, lease, transfer, conveyance convey or other disposition otherwise dispose of all or substantially all of the its properties or assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior one or more related transactions to the proposed transactionCo-Issuer or (iii) the Co-Issuer sell, the Issuer shall deliver assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withCompany.

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

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations Obligations of the Issuer Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Indebtedness to Adjusted Operating Cash Flow Ratio set forth in Section 4.09(a) hereof and (v) each Subsidiary Guarantor, if any, unless it is the other party to the transactions described above, shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such transaction. Notwithstanding Person's obligations under the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) aboveIndenture, the Issuer shall be discharged from all further liability Notes and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withRegistration Rights Agreement.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation or limited liability company organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately prior to and immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, made at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of Section 4.09 hereof. For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the Issuer immediately prior properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to such transactionbe the transfer of all or substantially all of the properties and assets of the Company. Notwithstanding Clause (iv) of the foregoing clauses (iii) and (iv), paragraph will not prohibit (a) any Restricted a merger between the Company and a Wholly Owned Subsidiary may consolidate withof Holding created for the purpose of holding the Capital Stock of the Company, merge into or transfer all or part of its properties and assets to the Issuer and (b) a merger between the Issuer may merge with Company and a Wholly Owned Subsidiary of the Company or (c) a merger between the Company and an Affiliate incorporated solely for the purpose of reincorporating the Issuer Company in another jurisdiction. In State of the United States so long as, in the case of a saleeach of clause (a), assignment(b) and (c), lease, transfer, conveyance or other disposition the amount of all or substantially all Indebtedness of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability Company and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Restricted Subsidiaries is not increased thereby.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer under the Notes and this Indenture Company pursuant to a supplemental indenture under the Securities and this Indenture in a form reasonably satisfactory to the Trustee; , (iii) immediately after such transaction, no Default or Event of Default exists; exists and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been mademade shall satisfy certain financial requirements set forth in this Indenture or in a Board Resolution, shallsupplemental indenture hereto or an Officer's Certificate pursuant to Section 2.2 hereof. The Company may not, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter perioddirectly or indirectly, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer lease all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose any other Person. The provisions of reincorporating the Issuer in another jurisdiction. In the case of this Section 5.1 shall not be applicable to a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of assets between or among the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability Company and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Wholly Owned Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer shall Company will not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person Person, unless (i) the Issuer Company is the resulting, transferee or surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which whom such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations and covenants of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately before and after such transaction, transaction no Default or Event of Default existsshall have occurred and be continuing; and (iv) except in the case of a merger of the Issuer Company with or into one of its Wholly Owned a Restricted SubsidiariesSubsidiary, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which whom such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and Section 4.09 hereof; provided, however, that this clause (iv), (a) any shall be permanently terminated in the event that the Company and its Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets Subsidiaries are no longer subject to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior Terminated Covenants subject to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withSection 4.19 hereof.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes Debentures and this Indenture hereunder pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made (A) shall have Consolidated Net Worth immediately after the transaction equal to or greater than 90% of the Consolidated Net Worth of the Company immediately preceding the transaction and (B) shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets additional Indebtedness pursuant to the Issuer and (bFixed Charge Coverage Ratio test set forth in the Section 4.09(a) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withhereof.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and Notes, this Indenture and the Collateral Documents pursuant to a supplemental indenture or other documents or instruments in a form reasonably satisfactory to the Trustee; , (iii) immediately after such transaction, no Default or Event of Default exists; and , (iv) such transaction would not result in the loss or suspension or material impairment of any Gaming License unless a comparable replacement Gaming License is effective prior to or simultaneous with such loss, suspension or material impairment; (v) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been mademade (A) shall have Consolidated Net Worth (immediately after the transaction) equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction, (B) shall, at upon the time consummation of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter periodReference Period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof and (C) shall have a Consolidated Net Worth in an amount Fixed Charge Coverage Ratio for the Reference Period immediately preceding the date on which such transaction occurred, determined on a pro forma basis (including a pro forma application of the proceeds therefrom) as if such transaction had occurred at the beginning of such Reference Period, that is not no less than the Consolidated Net Worth 85% of the Issuer immediately Company's or such Person's Fixed Charge Coverage Ratio for such period prior to giving effect to such transaction. Notwithstanding the foregoing clauses (iii) ; and (iv)vi) such transaction would not require any Holder or beneficial owner of Notes to obtain a Gaming License or be qualified or found suitable under the law of any applicable gaming jurisdiction; PROVIDED, (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger Holder or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction beneficial owner would not have been complied withrequired to obtain a Gaming License or be qualified or found suitable under the laws of any applicable gaming jurisdiction in the absence of such transaction.

Merger, Consolidation or Sale of Assets. (a) The Issuer Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets assets, in one or more related transactions, to another Person unless unless: (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Registration Rights Agreement, the Notes, the Exchange Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, no Default or Event of Default exists( or an event that, with the passing of time or giving of notice or both, would constitute an Event of Default) shall exist or shall occur immediately after giving effect on a pro forma basis to such transaction; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of made will immediately after such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to either clause (i) or (ii) of the Issuer immediately prior to first paragraph of Section 4.09 hereof; (v) if, as a result of any such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into property or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon Company would become subject to a Lien subject to the assumption provided for in clause (ii) aboveprovisions of Section 4.12 hereof, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior Company or the successor entity to the proposed transaction, Company shall have secured the Issuer Notes as required by said covenant; and (vi) the Company shall deliver have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with the Indenture. The Company shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Article 5 covenant will not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets solely between or among the Company and that all conditions precedent herein provided for relating to such transaction have been complied withits Wholly Owned Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer Company ---------------------------------------- shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation or limited liability company organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes Securities and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately prior to and immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, made at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) Section 4.09 hereof; and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (bv) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer Company shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Article 5 Indenture. For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and that assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all conditions precedent herein provided or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. Clause (iv) of the foregoing paragraph will not prohibit (a) a merger between the Company and a Wholly Owned Subsidiary of Holding created for relating to such transaction have been complied withthe purpose of holding the Capital Stock of the Company, (b) a merger between the Company and a Wholly Owned Subsidiary of the Company or (c) a merger between the Company and an Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States so long as, in the case of each of clause (a), (b) and (c), the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets of the Company and its Subsidiaries taken as a whole, in one or more related transactionstransactions to, to another Person unless (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and Notes, this Indenture and the Collateral Documents pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; , (iii) immediately after such transaction, no Default or Event of Default exists; and exists (iv) except such transaction would not result in the case loss or suspension or material impairment of any Gaming License unless a merger of comparable replacement Gaming License is effective prior to or simultaneously with such loss, suspension or material impairment; (v) the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, : (a) shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction; and (b) shall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth clause (ii) of the Issuer immediately prior first paragraph of Section 4.09 hereof; and (vi) such transaction would not require any Holder or beneficial owner of Notes to obtain a Gaming License or be qualified or found suitable under the law of any applicable gaming jurisdiction; provided that such Holder or beneficial owner would not have been required to obtain a Gaming License or be qualified or found suitable under the laws of any applicable gaming jurisdiction in the absence of such transaction. Notwithstanding In addition, the foregoing clauses (iii) and (iv)Company shall not, (a) any Restricted Subsidiary may consolidate withdirectly or indirectly, merge into or transfer lease all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose any other Person. The provisions of reincorporating the Issuer in another jurisdiction. In the case of this Section 5.01 shall not be applicable to a sale, assignment, lease, transfer, conveyance or other disposition of all assets between or substantially all among the Company and any of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Wholly Owned Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate consolidate, or merge with or into (whether or not the Issuer Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation consolidation, or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, no Default or Event of Default exists; (iv) each of the Subsidiary Guarantors confirms its obligations under the Subsidiary Guarantees and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee and (ivv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets additional Indebtedness pursuant to the Issuer and (b) Fixed Charge Coverage Ratio test set forth in the Issuer may merge with an Affiliate incorporated solely for the purpose first paragraph of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied with.Section 4.9.(a)

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

Merger, Consolidation or Sale of Assets. The Issuer shall not Company may consolidate or merge with or into (whether or not the Issuer is the surviving corporation)into, convert itself into, or sell, assign, transfer, lease, convey or otherwise dispose of (including any such disposition that might be deemed to occur as a result of the conversion of the Company into another form of organization) all or substantially all of its properties or assets in one or more related transactions, to another Person unless (iother than an individual, a government or an agency or political subdivision of a government), but only if (a) the Issuer Company is the surviving corporation entity; or (b) the Person formed by or surviving any such consolidation consolidation, merger or merger conversion (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Securities and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee and either (A) the Person formed by or surviving any such consolidation, merger or conversion (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized and or existing under the laws of the United States, any state thereof or the District of Columbia or (B) if not organized or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) , the Person formed by agrees to be subject to the service of process of the laws of the State of New York and, under the laws of its jurisdiction or surviving organization, payments on the Securities would not be subject to withholding tax; and in any event (c) immediately after such consolidation transaction no Default or merger (if other than such Issuer)Event of Default exists. If the Company requests the Trustee to enter into any supplemental indenture, or the Person to which take any other action, as a result of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition shall have been made, assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiariesdisposition, the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver Company will also furnish to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each of which shall state to the effect that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all the conditions precedent herein provided for relating to such transaction set forth in this Section 5.01 have been complied with.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations Obligations of the Issuer Company under the Notes and Notes, this Indenture and the Security Documents pursuant to a supplemental indenture in a form reasonably satisfactory to the TrusteeTrustee and such entity or Person shall have taken all steps necessary or reasonably requested by the Trustee to protect and perfect the Security Interests granted or purported to be granted under the Security Documents; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made (A) shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately prior to the transaction and (B) shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof; (v) the Company shall have a Consolidated Net Worth in delivered to the Trustee an amount which is not less than Officers' Certificate and an Opinion of Counsel each stating that (A) such transaction and supplemental indenture comply with this Article, and (B) all conditions precedent herein provided for relating to such transaction have been complied with; and (vi) the Consolidated Net Worth Company shall have delivered to the Trustee all instruments of further assurance and all actions, as are necessary to maintain, preserve and protect the rights of the Issuer immediately prior Holders of the Notes and the Trustee hereunder and under each of the applicable Security Documents with respect to such transactionthe Security Interests have been taken. Notwithstanding The sale, assignment, transfer, lease, conveyance or other disposition by the foregoing clauses (iii) and (iv)Company or its Restricted Subsidiaries of all or substantially all of their respective property or assets to one or more of their Subsidiaries shall not relieve either the Company or the Restricted Subsidiaries from their respective obligations hereunder, (a) under the Notes or under the Security Documents. Subject to the foregoing, any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance Company or any other Restricted Subsidiary or other disposition entity that becomes, by reason of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withtransfer, a Restricted Subsidiary.

Merger, Consolidation or Sale of Assets. The Issuer shall Company may not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person Person, unless (ia) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; , (iiic) immediately after such transaction, transaction no Default or Event of Default exists; exists and (ivd) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (i) will, at the time of such transaction and after giving pro forma PRO FORMA effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof or (ii) would (together with its Restricted Subsidiaries) have a Consolidated Net Worth in an amount which is not less higher Fixed Charge Coverage Ratio immediately after such transaction (after giving PRO FORMA effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Consolidated Net Worth Fixed Charge Coverage Ratio of the Issuer Company and its Restricted Subsidiaries immediately prior to such transaction. Notwithstanding The foregoing clause (d) will not prohibit the foregoing clauses Merger or (i) a merger between the Company and a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company, (ii) a merger between the Company and a Wholly Owned Restricted Subsidiary or (iii) a merger between the Company and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer Company in another jurisdiction. In State of the United States so long as, in the case of a saleclauses (i), assignment(ii), leaseand (iii), transfer, conveyance or other disposition the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. The Company shall not lease all or substantially all of the its assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withany Person.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth Fixed Charge Coverage Ratio of the Issuer immediately prior at least 2.0 to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied with1.0.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not, and shall not permit its Subsidiaries to, in a single transaction or series of related transactions, consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Company or of the Company and its Subsidiaries taken as a whole in one or more related transactions, to another Person unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (such surviving corporation or transferee Person, the "SURVIVING ENTITY") is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, Surviving Entity assumes all the obligations of the Issuer Company under the Notes and Notes, this Indenture and the Collateral Documents, and the Surviving Entity's Subsidiaries become Subsidiary Guarantors, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after the Surviving Entity causes such transactionamendments, no Default supplements or Event other instruments to be filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien of Default exists; and (iv) except the Collateral Documents in the case of a merger Collateral owned by or transferred to the Surviving Entity, together with such financing statements as may be required by applicable law to preserve and protect the Lien of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, Collateral Documents in the Issuer or the Person formed Collateral owned by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets transferred to the Issuer and (b) the Issuer Surviving Entity, together with such financing statements as may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied with.required to

Merger, Consolidation or Sale of Assets. The Neither Issuer shall not may consolidate or merge with or into (whether or not the such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), ) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Issuers under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately prior thereto and immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one a Restricted Subsidiary of its Wholly Owned Restricted Subsidiariesthe Company and except in the case of a merger entered into solely for the purpose of reincorporating the Company in another jurisdiction, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and made will immediately after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth (x) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less the first paragraph of the covenant described in Section 4.9 hereof or (y) the Fixed Charge Coverage Ratio for the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Consolidated Net Worth of Company) would be greater than such ratio for the Issuer Company or such surviving entity immediately prior to such transaction. Notwithstanding the foregoing clauses foregoing, the Company shall be permitted to reorganize as a corporation in accordance with the procedures established in this Indenture, provided that the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that such reorganization is not adverse to Holders of the Notes (iiiit being recognized that such reorganization shall not be deemed adverse to the Holders of the Notes solely because (i) and of the accrual of deferred tax liabilities resulting from such reorganization or (iv), ii) the successor or surviving corporation (a) any Restricted Subsidiary may consolidate with, merge into is subject to income tax as a corporate entity or transfer all or part of its properties and assets to the Issuer and (b) is considered to be an “includible corporation” of an affiliated group of corporations within the Issuer meaning of the Code or any similar state or local law) and certain other conditions are satisfied. The entity or the Person formed by or surviving any consolidation or merger (if other than the Company) will succeed to, and be substituted for, and may merge with an Affiliate incorporated solely for exercise every right and power of, the purpose of reincorporating the Issuer Issuers under this Indenture, but, in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition lease of all or substantially all its assets, neither Issuer will be released from the obligation to pay the principal of and interest on the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withNotes.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture hereunder pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made (A) shall have Consolidated Net Worth immediately after the transaction equal to or greater than 90% of the Consolidated Net Worth of the Company immediately preceding the transaction and (B) shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth be permitted to incur at least $1.00 of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets additional Indebtedness pursuant to the Issuer and (bFixed Charge Coverage Ratio test set forth in the Section 4.09(a) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withhereof.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not not, directly or indirectly, consolidate or merge with or into another Person (whether or not the Issuer Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person Person, unless (i) either (a) the Issuer Company is the surviving corporation or (b) the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof of the United States or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made, made assumes all the obligations of the Issuer Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in form agreements reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made, made shall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing 47 transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of Section 4.09 hereof. In addition, the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv)Company shall not, (a) any Restricted Subsidiary may consolidate withdirectly or indirectly, merge into or transfer lease all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdictionany other Person. In the case of This Section 5.01 shall not apply to a sale, assignmentlicense, lease, assignment, transfer, conveyance or other disposition of all assets (by way of merger or substantially all otherwise) between or among the Company and any of the assets Guarantors. The Company may merge with an Affiliate incorporated for the purpose of reincorporating the Issuer, upon the assumption provided for Company in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior another jurisdiction to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger realize tax or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withother benefits.

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

Merger, Consolidation or Sale of Assets. The Issuer shall may not consolidate or merge with or into (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ia) the Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (iib) the Person formed by or surviving any such consolidation or merger (if other than such the Issuer), ) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer under the Notes Registration Rights Agreement, the Debentures and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; , (iiic) immediately after such transaction, transaction no Default or Event of Default exists; exists and (ivd) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (i) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof or (ii) would (together with its Restricted Subsidiaries) have a Consolidated Net Worth in an amount which is not less higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Consolidated Net Worth Fixed Charge Coverage Ratio of the Issuer and its Restricted Subsidiaries immediately prior to such transaction. Notwithstanding the The foregoing clauses clause (iiid) and (iv), will not prohibit (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to a merger between the Issuer and an Affiliate of the Issuer created for the purpose of holding the Capital Stock of the Issuer, (b) a merger between the Issuer may merge with and a Wholly Owned Restricted Subsidiary or (c) a merger between the Issuer and an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdictionState of the United States so long as, in each case, the amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of The Issuer shall not lease all or substantially all of the its assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withany Person.

Merger, Consolidation or Sale of Assets. The Issuer Unless provided otherwise in a Supplemental Indenture, the Company shall not consolidate or merge with or into (whether or not the Issuer is the surviving corporation), another Person or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ia) the Issuer Company is the surviving corporation of such consolidation or merger or the lessor or transferor in such sale, conveyance, lease or transfer; (b) the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (the "Successor Company") (i) is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , and (ii) expressly assumes, by an indenture supplemental hereto, executed and delivered to the Person formed by or surviving any such consolidation or merger (if other than such Issuer)Trustee, or the Person to which such salein form reasonably satisfactory thereto, assignment, transfer, lease, conveyance or other disposition shall have been made, assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a Supplemental Indenture, including all obligations of the Company for due and punctual payment of principal of, premium, if any, and interest on all Notes, and the performance and observance of all covenants contained herein or in any indenture supplemental indenture in form reasonably satisfactory to the Trusteehereto; (iiic) immediately after such transaction, no Default has occurred or Event of Default existsis continuing; and (ivd) except in the case of a merger of the Issuer with Company or into one of its Wholly Owned Restricted Subsidiaries, the Issuer or the such Person formed by or surviving any such consolidation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver delivered to the Trustee an and Officers' Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger or transfer sale, transfer, lease or conveyance and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withsatisfied.

Merger, Consolidation or Sale of Assets. The Neither Issuer shall not consolidate or merge with or into (whether or not the such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (i) the such Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than one of the IssuerIssuers) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person or other entity organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), one of the Issuers) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the such Issuer under the Notes Registration Rights Agreement, the Debentures and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of one of the Issuer Issuers with or into one of its a Wholly Owned Restricted Subsidiaries, the Issuer Subsidiary of Grove Investors or the Person formed by or surviving any such consolidation or merger (if other than one of the IssuerIssuers), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) Section 4.09 hereof; and (iv), (av) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver Grove Investors has delivered to the Trustee an Officers' Officer's Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger merger, sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indenture comply complies with this Article 5 Indenture and that all conditions precedent herein provided for in this Indenture relating to such transaction have been complied with. Notwithstanding the foregoing, Grove Investors is permitted to reorganize as a corporation in accordance with the procedures established in this Indenture (and Grove Investors Capital may thereafter liquidate); PROVIDED that Grove Investors shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that such reorganization (and, if applicable, liquidation of Grove Investors Capital) is not adverse to Holders of the Debentures (it being recognized that such reorganization shall not be deemed adverse to the Holders of the Debentures solely because (i) of the accrual of deferred tax liabilities resulting from such reorganization or (ii) the successor or surviving corporation (a) is subject to income tax as a corporate entity or (b) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of the Code or any similar state or local law) and certain other conditions are satisfied.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall Company may not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer covenant described in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withSection 4.9 hereof.

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

Merger, Consolidation or Sale of Assets. The Issuer Company shall not consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another corporation, Person or entity unless (i) the Issuer Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; , (iii) immediately after such transaction, no Default or Event of Default exists; , and (iv) except in the case of a merger of the Issuer Company with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made (A) shall have Consolidated Net Worth (immediately after the transaction) equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is the first paragraph of Section 4.09 hereof; provided that this Section 5.01 shall not less than the Consolidated Net Worth apply to any merger or consolidation of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iiix) and (iv)Mrs. Xxxxxx' Xretzel Concepts, (a) any Restricted Subsidiary may consolidate with, merge Inc. into or transfer all with the Company or part of its properties and assets to (y) Mrs. Xxxxxx' Xther Names, Inc. into or with MFB, in each case, on the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withIssue Date.

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

Merger, Consolidation or Sale of Assets. The Issuer Company shall not not, directly or indirectly consolidate or merge with or into another Person (whether or not the Issuer Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person unless (i) either (a) the Issuer Company is the surviving corporation corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made is a corporation organized and or existing under the laws of the United States, any state thereof of the United States or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made, made assumes all the obligations of the Issuer Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in form agreements reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in immediately after such transaction after giving pro forma effect thereto and any related financing transactions as if the case of a merger same had occurred at the beginning of the Issuer with or into one of its Wholly Owned Restricted Subsidiariesapplicable four-quarter period, either the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, leaseconveyance or other disposition has been made would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof or the Fixed Charge Coverage Ratio of the Company or the surviving Person, as applicable, or of the Person to which such sale, assignment, transfer, conveyance or other disposition shall have has been made, shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is would not be less than the Consolidated Net Worth Fixed Charge Coverage Ratio of the Issuer Company immediately prior to such the transaction. In addition, the Company may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. Notwithstanding the foregoing clauses (iii) and preceding clause (iv), (a) any Restricted Subsidiary of the Company may consolidate with, merge into or sell, assign, transfer or convey all or part of its properties and assets to the Issuer Company and (b) the Issuer Company may merge with an Affiliate incorporated that has no significant assets or liabilities and was formed solely for the purpose of reincorporating changing the Issuer in another jurisdiction. In the case jurisdiction of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all organization of the assets Company to another state of the Issuer, upon United States so long as the assumption provided for in clause (ii) above, amount of the Issuer shall be discharged from all further liability Company's Indebtedness and obligation under this Indenture. Prior to the proposed transaction, Indebtedness of the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withRestricted Subsidiaries is not increased thereby.

Merger, Consolidation or Sale of Assets. The Issuer shall not Company may not: (1) consolidate or merge with or into another Person (whether or not the Issuer Company is the surviving corporation), ; or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless unless: (A) either (i) the Issuer Company is the surviving corporation corporation, or (ii) the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (iiB) the Person formed by entity or surviving any such consolidation or merger (if other than such Issuer), or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, no Default or Event of Default exists; and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or the entity or Person to which such sale, assignment, transfer, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (C) immediately after such transaction no Default or Event of Default exists; and (D) the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made (a) shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 or (b) would (together with its Restricted Subsidiaries) have a Consolidated Net Worth in an amount which is not less higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Consolidated Net Worth Fixed Charge Coverage Ratio of the Issuer Company and its subsidiaries immediately prior to such the transaction. Notwithstanding the foregoing clauses The preceding clause (iiiD) and (iv), shall not prohibit (a) any Restricted a merger between the Company and a Wholly Owned Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) a merger between the Issuer may merge with Company and an Affiliate incorporated solely for the purpose of reincorporating the Issuer Company in another jurisdictionstate of the United States so long as, in each case, the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. In addition, the case Company may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 shall not be applicable to a sale, assignment, lease, transfer, conveyance or other disposition of all assets between or substantially all among the Company and any of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Wholly Owned Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Issuer Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactionstransactions to, to another Person unless (i) the Issuer Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Company under the Registration Rights Agreement, the Pledge Agreement, the Security Agreement, the Notes and this Indenture pursuant to agreements in a supplemental indenture in form reasonably satisfactory to the Trustee; , (iii) immediately after such transaction, no Default or Event of Default exists; exists and (iv) except in the case of a merger of the Issuer with or into one of its Wholly Owned Restricted Subsidiaries, the Issuer Company or the Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made (A) shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) shall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, have a be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Total Consolidated Net Worth Indebtedness to Adjusted Consolidated Operating Cash Flow ratio test set forth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), clause (a) any Restricted Subsidiary may consolidate withof the first paragraph of Section 4.09 hereof. In addition, merge into the Company shall not, directly or transfer indirectly, lease all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose any other Person. The provisions of reincorporating the Issuer in another jurisdiction. In the case of this Section 5.01 shall not be applicable to a sale, assignment, lease, transfer, conveyance or other disposition of all assets between or substantially all of among the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability Company and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withits Wholly Owned Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Issuer Borrower shall not consolidate or merge with or into (whether or not the Issuer Borrower is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ia) the Issuer Borrower is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the IssuerBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and or existing under the laws of the United States, any state thereof or the District of Columbia; , (iib) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), the Borrower) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the Issuer Borrower under the Notes Term Loans, the Term Notes, this Agreement and this Indenture each other Loan Document to which it is a party pursuant to an assumption agreement in a supplemental indenture in form reasonably satisfactory to the Trustee; Administrative Agent, (iiic) immediately after such transaction, transaction no Default or Event of Default exists; exists and (ivd) except in the case of a merger of the Issuer Borrower with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Borrower, the Issuer Borrower or the entity or Person formed by or surviving any such consolidation or merger (if other than the IssuerBorrower), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Borrower immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth in an amount which is not less than be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Worth Interest Coverage Ratio test set forth in the first sentence of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each of which shall state that such consolidation, merger or transfer and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied withSection 7.2.1 hereof.

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

Merger, Consolidation or Sale of Assets. The Issuer shall not None of the Issuers or the Parent may, directly or indirectly, (1) consolidate or merge with or into another Person (whether or not such Issuer or the Issuer Parent is the surviving corporationsurvivor), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, transactions to another Person unless Person, unless: (ia) either (1) such Issuer or the Issuer Parent, as applicable, is the surviving corporation survivor or (2) the Person formed by or surviving any such consolidation or merger (if other than such Issuer or the IssuerParent, as applicable) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made is a Person organized and or existing under the laws of the 107920296 70 United States, any state thereof of the United States or the District of Columbia; provided, however, that Finance Corp. may not consolidate or merge with or into any Person other than a corporation satisfying such requirement so long as the Company is not a corporation; (iib) the Person formed by or surviving any such consolidation or merger (if other than such Issuer)Issuer or the Parent, as applicable) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made, made assumes all the obligations of such Issuer or the Issuer Parent, as applicable, under the Notes and Notes, this Indenture and the Parent’s Guarantee of the Notes, if applicable, pursuant to a supplemental indenture in form or other agreements reasonably satisfactory to the Trustee; (iiic) immediately after such transaction, transaction no Default or Event of Default exists; and (ivd) except in the case of a merger of transaction involving the Issuer with or into one of its Wholly Owned Restricted SubsidiariesParent, either; (1) the Issuer Parent or the Person formed by or surviving any such consolidation or merger (if other than the IssuerParent), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been mademade will, shall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, have be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.08 hereof; or (2) immediately after giving effect to such transaction on a Consolidated Net Worth in an amount pro forma basis and any related financing transactions as if the same had occurred at the beginning of the Parent’s most recently ended four full quarters for which is not less internal financial statements are available immediately preceding the date of the transactions, the Fixed Charge Coverage Ratio of the Parent or the Person formed by or surviving any such consolidation or merger (if other than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (ivParent), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a which such sale, assignment, transfer, lease, transfer, conveyance or other disposition of all has been made, will be equal to or substantially all greater than the Fixed Charge Coverage Ratio of the assets of Parent immediately before such transactions; and (e) such Issuer or the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver Parent has delivered to the Trustee an Officers' ’ Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger or transfer disposition and such supplemental indenture (if any) comply with this Article 5 Indenture. The restrictions described in the foregoing clause (d) will not apply to (a) any consolidation or merger of the Parent with or into one of its Restricted Subsidiaries for any purpose or (b) any sale, assignment, transfer, conveyance, lease or other disposition of properties or assets of a Restricted Subsidiary (other than Finance Corp.) to the Parent, the Company or another Restricted Subsidiary that is a Subsidiary Guarantor. Notwithstanding the first paragraph of this Section 5.01, the Parent and that all conditions precedent herein the Company are permitted to reorganize as any other form of entity in accordance with the following procedures provided for relating to such transaction have been complied with.that:

Merger, Consolidation or Sale of Assets. The Neither Issuer shall not consolidate or merge with or into (whether or not the such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (i) the such Issuer is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than one of the IssuerIssuers) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized and or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than such Issuer), one of the Issuers) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, made assumes all the obligations of the such Issuer under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, transaction no Default or Event of Default exists; and (iv) except in the case of a merger of one of the Issuer Issuers with or into one of its a Wholly Owned Restricted SubsidiariesSubsidiary of the Company, the Issuer or the Person formed by or surviving any such consolidation or merger (if other than one of the IssuerIssuers), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, shallmade will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, have a Consolidated Net Worth be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in an amount which is not less than the Consolidated Net Worth first paragraph of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) Section 4.09 hereof; and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (bv) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In the case of a sale, assignment, lease, transfer, conveyance or other disposition of all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Issuer shall be discharged from all further liability and obligation under this Indenture. Prior to the proposed transaction, the Issuer shall deliver Company has delivered to the Trustee an Officers' Officer's Certificate and an Opinion of Counsel, each of which shall state stating that such consolidation, merger merger, sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indenture comply complies with this Article 5 Indenture and that all conditions precedent herein provided for in this Indenture and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Notwithstanding the foregoing, the Company is permitted to reorganize as a corporation in accordance with the procedures established in the Indenture (and Grove Capital may thereafter liquidate); provided that the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that such reorganization (and, if applicable, liquidation of Grove Capital) is not adverse to holders of the Notes (it being recognized that such reorganization shall not be deemed adverse to the holders of the Notes solely because (i) of the accrual of deferred tax liabilities resulting from such reorganization or (ii) the successor or surviving corporation (a) is subject to income tax as a corporate entity or (b) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of the Code or any similar state or local law) and certain other conditions are satisfied.