Common use of Amendment of Certificate of Incorporation Clause in Contracts

Amendment of Certificate of Incorporation. (a) The Contributor shall not merge or consolidate with any other Person or permit any other Person to become the successor to the Contributor's business except in accordance with the requirements of this Section. The certificate of incorporation of any corporation (i) into which the Contributor may be merged or consolidated, (ii) resulting from any merger or consolidation to which the Contributor shall be a party, or (iii) succeeding to the business of Contributor, shall contain provisions relating to limitations on business and other matters substantively identical to those contained in the Contributor's certificate of incorporation. Any such successor corporation shall execute an agreement of assumption of every obligation of the Contributor under this Agreement and each Related Document and, whether or not such assumption agreement is executed, shall be the successor to the Contributor under this Agreement without the execution or filing of any document or any further act on the part of any of the parties to this Agreement. The Contributor shall provide prompt notice of any merger, consolidation or succession pursuant to this Section 6.2 to the Issuer, the Trustee and the Rating Agencies. Notwithstanding the foregoing, the Contributor shall not merge or consolidate with any other Person or permit any other Person to become a successor to the Contributor's business, unless (w) immediately after giving effect to such transaction, no representation or warranty made pursuant to Section 2.4 shall have been breached (for purposes hereof, such representations and warranties shall speak as of the date of the consummation of such transaction) and no event that, after notice or lapse of time, or both, would become an Event of Default or a Servicer Termination Event shall have occurred and be continuing, (x) the Contributor shall have delivered to the Issuer and the Trustee a certificate of a Responsible Officer of the Contributor and an Opinion of Counsel each stating that such consolidation, merger or succession and such agreement of assumption comply with this Section 6.2 and that all conditions precedent, if any, provided for in this Agreement relating to such transaction have been complied with, (y) the Contributor shall have delivered to the Issuer and the Trustee an Opinion of Counsel, stating that, in the opinion of such counsel, either (A) all financing statements and continuation statements and amendments thereto have been executed and filed that are necessary to preserve and protect the interest of the Issuer in the Trust Assets and reciting the details of the filings or (B) no such action shall be necessary to preserve and protect such interest, and (z) the Rating Agency Condition shall have been satisfied.

Amendment of Certificate of Incorporation. (a) The Contributor Depositor shall not merge or consolidate with any other Person or permit any other Person to become the successor to the ContributorDepositor's business except in accordance with the requirements of this Section. The certificate of incorporation of any corporation (i) into which the Contributor Depositor may be merged or consolidated, (ii) resulting from any merger or consolidation to which the Contributor Depositor shall be a party, or (iii) succeeding to the business of ContributorDepositor, shall contain provisions relating to limitations on business and other matters substantively identical to those contained in the ContributorDepositor's certificate of incorporation. Any such successor corporation shall execute an agreement of assumption of every obligation of the Contributor Depositor under this Agreement and each Related Document and, whether or not such assumption agreement is executed, shall be the successor to the Contributor Depositor under this Agreement without the execution or filing of any document or any further act on the part of any of the parties to this Agreement. The Contributor Depositor shall provide prompt written notice of any merger, consolidation or succession pursuant to this Section 6.2 to the IssuerOwner Trustee, the Indenture Trustee and the Rating Agencies. Notwithstanding the foregoing, the Contributor Depositor shall not merge or consolidate with any other Person or permit any other Person to become a successor to the ContributorDepositor's business, unless (w) immediately after giving effect to such transaction, no representation or warranty made pursuant to Section 2.4 shall have been breached (for purposes hereof, such representations and warranties shall speak as of the date of the consummation of such transaction) and no event that, after notice or lapse of time, or both, would become an Event of Default or a Servicer Termination Event shall have occurred and be continuing, (x) the Contributor Depositor shall have delivered to the Issuer Owner Trustee and the Indenture Trustee a certificate of a Responsible Officer of the Contributor Depositor and an Opinion of Counsel each stating that such consolidation, merger or succession and such agreement of assumption comply with this Section 6.2 and that all conditions precedent, if any, provided for in this Agreement relating to such transaction have been complied with, (y) the Contributor Depositor shall have delivered to the Issuer Owner Trustee and the Indenture Trustee an Opinion of Counsel, stating that, in the opinion of such counsel, either (A) all financing statements and continuation statements and amendments thereto have been executed and filed that are necessary to preserve and protect the interest of the Issuer in the Trust Assets and reciting the details of the filings or (B) no such action shall be necessary to preserve and protect such interest, and (z) the Rating Agency Condition shall have been satisfied.

Amendment of Certificate of Incorporation. The Corporation reserves the right to amend, modify or repeal any provision contained in this Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware, and all rights conferred upon the members of the Corporation are granted subject to this reservation. Any amendment of, or modification or repeal of any provision contained in Section (aC) The Contributor of Article IV of this Certificate of Incorporation or this sentence of this Article IX of this Certificate of Incorporation shall require, first, the approval of the Board of Directors of the Corporation and second, the approval of a majority of the votes cast by the Class A Members. Except as provided in the immediately preceding sentence, any amendment of, or modification or repeal of any provision contained in, this Certificate of Incorporation shall require, first, the approval of the Board of Directors of the Corporation and, second, the approval of the Class B Member and no other member or series or class of membership shall have the right to vote on any such amendment or repeal. * * * * EXHIBIT D FORM OF WAIVER AND RELEASE Capitalized terms used but not merge otherwise defined herein shall have the meaning ascribed thereto in the Merger Agreement. By executing this Waiver and Release, and effective upon acceptance of the Membership Rights Payment, the Class A Member, for itself and its past, present, and future direct and indirect subsidiaries, shareholders, members, equityholders, Affiliates, and its and their respective successors and assigns and, if the Class A Member is a natural person, for himself or consolidate with herself, the Class A Member’s spouse, heirs, administrators, children, representatives, executors, successors and assigns, and any other Person person (natural or permit any other Person otherwise) acting or purporting to become the successor to the Contributor's business except in accordance with the requirements of this Section. The certificate of incorporation act on behalf of any corporation of the foregoing (“Releasing Parties”), effective as of the Effective Time, hereby absolutely, unconditionally and irrevocably waives any right to and releases and forever discharges NYMEX Holdings, NYMEX, CME Group, Merger Sub, the CME Group Subsidiaries and each of their respective Affiliates, shareholders, related organizations, agents, employees, officers, directors, advisors, successors and assigns (collectively, the “Released Parties”) from any and all manner of causes of action, damages, liabilities, obligations, promises, judgments, claims and demands of any nature whatsoever, in law or in equity, of every kind and description, whether known or unknown, suspected, absolute or contingent (“Actions”), which such Releasing Parties (in any capacity whatsoever, including, without limitation, their capacities as stockholders of NYMEX Holdings) ever had, now have or hereafter can, shall or may have against any Released Party, including, without limitation, those Actions arising out of (i) into which the Contributor may be merged or consolidatedform and structure of the transactions relating to the Membership Rights Payments, (ii) resulting from the amount and form of consideration received by any merger or consolidation to which Releasing Party in connection with the Contributor shall be a partyMembership Rights Payments, or (iii) succeeding the transactions entered into in contemplation of or in connection with the Membership Rights Payments, including, without limitation, the Merger, and (iv) any such Releasing Parties’ ownership of the Class A Memberships, including, without limitation, any and all rights any Releasing Party may have under Section 311G of the Bylaws of NYMEX (the “Bylaws”); provided, however, that this waiver and release shall not apply to the business respective rights and obligations of Contributorthe Releasing Parties to receive the Merger Consideration, if applicable, to enforce their rights to receive the Membership Rights Payments under the Merger Agreement and to enforce their rights as provided under Section (C) of Article IV and under the second sentence of Article IX of the Certificate of Incorporation of NYMEX. EXHIBIT F FORM OF WAIVER AND RELEASE Capitalized terms used but not otherwise defined herein shall contain provisions relating to limitations on business and other matters substantively identical to those contained have the meaning ascribed thereto in the Contributor's certificate of incorporationMerger Agreement. Any such successor corporation shall execute an agreement of assumption of every obligation By executing this Waiver and Release, and effective upon acceptance of the Contributor under this Agreement Membership Rights Payment, the Class A Member, for itself and each Related Document its past, present, and future direct and indirect subsidiaries, shareholders, members, equityholders, Affiliates, and its and their respective successors and assigns and, whether if the Class A Member is a natural person, for himself or not such assumption agreement is executedherself, shall be the successor Class A Member’s spouse, heirs, administrators, children, representatives, executors, successors and assigns, and any other person (natural or otherwise) acting or purporting to the Contributor under this Agreement without the execution or filing of any document or any further act on the part behalf of any of the parties to this Agreement. The Contributor shall provide prompt notice of any mergerforegoing (“Releasing Parties”), consolidation or succession pursuant to this Section 6.2 to the Issuer, the Trustee and the Rating Agencies. Notwithstanding the foregoing, the Contributor shall not merge or consolidate with any other Person or permit any other Person to become a successor to the Contributor's business, unless (w) immediately after giving effect to such transaction, no representation or warranty made pursuant to Section 2.4 shall have been breached (for purposes hereof, such representations and warranties shall speak effective as of the date Effective Time, hereby absolutely, unconditionally and irrevocably waives any right to and releases and forever discharges NYMEX Holdings, NYMEX, CME Group, Merger Sub, the CME Group Subsidiaries and each of their respective Affiliates, shareholders, related organizations, agents, employees, officers, directors, advisors, successors and assigns (collectively, the “Released Parties”) from any and all manner of causes of action, damages, liabilities, obligations, promises, judgments, claims and demands of any nature whatsoever, in law or in equity, of every kind and description, whether known or unknown, suspected, absolute or contingent (“Actions”), which such Releasing Parties (in any capacity whatsoever, including, without limitation, their capacities as stockholders of NYMEX Holdings) ever had, now have or hereafter can, shall or may have against any Released Party, including, without limitation, those Actions arising out of (i) the form and structure of the consummation of such transaction) and no event that, after notice or lapse of time, or both, would become an Event of Default or a Servicer Termination Event shall have occurred and be continuingtransactions relating to the Membership Rights Payments, (xii) the Contributor shall have delivered to amount and form of consideration received by any Releasing Party in connection with the Issuer and the Trustee a certificate of a Responsible Officer of the Contributor and an Opinion of Counsel each stating that such consolidation, merger or succession and such agreement of assumption comply with this Section 6.2 and that all conditions precedent, if any, provided for in this Agreement relating to such transaction have been complied withMembership Rights Payments, (yiii) the Contributor shall have delivered to transactions entered into in contemplation of or in connection with the Issuer and Membership Rights Payments, including, without limitation, the Trustee an Opinion of Counsel, stating that, in the opinion of such counsel, either (A) all financing statements and continuation statements and amendments thereto have been executed and filed that are necessary to preserve and protect the interest of the Issuer in the Trust Assets and reciting the details of the filings or (B) no such action shall be necessary to preserve and protect such interestMerger, and (ziv) any such Releasing Parties’ ownership of the Class A Memberships, including, without limitation, any and all rights any Releasing Party may have under Section 311G of the Bylaws of NYMEX (the “Bylaws”); provided, however, that this waiver and release shall not apply to the respective rights and obligations of the Releasing Parties to receive the Merger Consideration, if applicable, to enforce their rights to receive the Membership Rights Payments under the Merger Agreement and to enforce their rights as provided under Section (C) of Article IV and under the second sentence of Article IX of the Certificate of Incorporation of NYMEX. Annex L FORM OF WAIVER AND RELEASE Capitalized terms used but not otherwise defined herein shall have the meaning ascribed thereto in the Merger Agreement. By executing this Waiver and Release, and effective upon acceptance of the Membership Rights Payment, the Class A Member, for itself and its past, present, and future direct and indirect subsidiaries, shareholders, members, equityholders, Affiliates, and its and their respective successors and assigns and, if the Class A Member is a natural person, for himself or herself, the Class A Member’s spouse, heirs, administrators, children, representatives, executors, successors and assigns, and any other person (natural or otherwise) acting or purporting to act on behalf of any of the foregoing (“Releasing Parties”), effective as of the Effective Time, hereby absolutely, unconditionally and irrevocably waives any right to and releases and forever discharges NYMEX Holdings, NYMEX, CME Group, Merger Sub, the CME Group Subsidiaries and each of their respective Affiliates, shareholders, related organizations, agents, employees, officers, directors, advisors, successors and assigns (collectively, the “Released Parties”) from any and all manner of causes of action, damages, liabilities, obligations, promises, judgments, claims and demands of any nature whatsoever, in law or in equity, of every kind and description, whether known or unknown, suspected, absolute or contingent (“Actions”), which such Releasing Parties (in any capacity whatsoever, including, without limitation, their capacities as stockholders of NYMEX Holdings) ever had, now have or hereafter can, shall or may have against any Released Party, including, without limitation, those Actions arising out of (i) the Rating Agency Condition form and structure of the transactions relating to the Membership Rights Payments, (ii) the amount and form of consideration received by any Releasing Party in connection with the Membership Rights Payments, (iii) the transactions entered into in contemplation of or in connection with the Membership Rights Payments, including, without limitation, the Merger, and (iv) any such Releasing Parties’ ownership of the Class A Memberships, including, without limitation, any and all rights any Releasing Party may have under Section 311G of the Bylaws of NYMEX (the “Bylaws”); provided, however, that this waiver and release shall have been satisfiednot apply to the respective rights and obligations of the Releasing Parties to receive the Merger Consideration, if applicable, to enforce their rights to receive the Membership Rights Payments under the Merger Agreement and to enforce their rights as provided under Section (C) of Article IV and under the second sentence of Article IX of the Certificate of Incorporation of NYMEX.