Common use of Mergers, Sale of Assets, etc Clause in Contracts

Mergers, Sale of Assets, etc. (a) The Company may not consolidate or merge with or into or wind up into (whether or not the Company is the surviving entity), 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 any Person unless (i) the Company is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership or limited liability company organized or existing under the laws of the Xxxxxx Xxxxxx, any state thereof, the District of Columbia, or any territory thereof (the Company or such Person, as the case may be, being herein called the "Successor Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction no Default or Event of Default shall have occurred and be continuing; (iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either (A) the Successor Company (if other than CapCo II) 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 sentence of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Notwithstanding the foregoing clauses (iii) and (iv), but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary and (b) the Company may merge with or transfer all of its properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries immediately thereafter does not exceed the amount permitted under Section 4.04 (it being understood that after such transfer of such property and assets in connection with an IPO Reorganization, the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the Securities.

Mergers, Sale of Assets, etc. (a) The Company may shall not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving entity)Surviving Person) any other entity and the Company shall not and shall not cause or permit any Restricted Subsidiary to, or sell, convey, assign, transfer, lease, convey lease or otherwise dispose of all or substantially all of its the Company's and the Restricted Subsidiaries' properties and assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any entity in a single transaction or assets in one or more series of related transactions, to any Person unless unless: (i1) either (A) the Company is shall be the surviving entity Surviving Person or (B) the Surviving 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 will have been made is shall be a corporation, partnership or limited liability company corporation organized or and validly existing under the laws of the Xxxxxx Xxxxxx, United States of America or any state thereof, State thereof or the District of Columbia, or and shall, in any territory thereof (such case, expressly assume by a supplemental indenture, the Company or such Persondue and punctual payment of the principal of, as the case may bepremium, being herein called the "Successor Company"); (ii) the Successor Company (if other than the Company) expressly assumes any, and interest on all the obligations Notes and the performance and observance of the Company under every covenant of this Indenture and the Securities pursuant Registration Rights Agreement to a supplemental indenture be performed or other documents or instruments in form reasonably satisfactory to observed on the Trusteepart of the Company; (iii2) immediately thereafter, on a pro forma basis after giving effect to such transaction as if it had occurred at the beginning of the four quarter period immediately preceding such transaction for which consolidated financial statements of the Company are available, no Default or Event of Default shall have occurred and be continuing; (iv3) immediately after giving effect to any such transaction including the Incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and treating any Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), the Surviving Person could Incur, on a pro forma basis after giving effect to such transaction, transaction as if such transaction it had occurred at the beginning of the applicable four-four quarter periodperiod immediately preceding such transaction for which consolidated financial statements of the Company are available, either (A) the Successor Company (if other than CapCo II) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) under the Fixed Charge Consolidated Coverage Ratio test set forth in of the first sentence paragraph of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.04; and (v4) the Company shall will have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Notwithstanding the foregoing clauses clause (iii3) and (iv)of the immediately preceding paragraph, but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company Company. For purposes of the foregoing, the transfer (by lease, assignment, sale or to another Restricted Subsidiary and (botherwise, in a single transaction or series of transactions) of all or substantially all the Company may merge with or transfer all of its properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as of one or more Restricted Subsidiaries the amount Equity Interests of Indebtedness which constitute all or substantially all the properties and assets of the Company and its Restricted Subsidiaries immediately thereafter does not exceed shall be deemed to be the amount permitted under Section 4.04 (it being understood that after such transfer of such property all or substantially all the properties and assets in connection with an IPO Reorganization, of the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the SecuritiesCompany.

Mergers, Sale of Assets, etc. (a) The Company may shall not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving entity)Surviving Person) any other entity and the Company shall not and shall not cause or permit any Restricted Subsidiary to, or sell, convey, assign, transfer, lease, convey lease or otherwise dispose of all or substantially all of its the Company's and the Restricted Subsidiaries' properties and assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any entity in a single transaction or assets in one or more series of related transactions, to any Person unless unless: (i) either (x) the Company is shall be the surviving entity Surviving Person or (y) the Surviving 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 will have been made is shall be a corporation, partnership or limited liability company corporation organized or and validly existing under the laws of the Xxxxxx Xxxxxx, United States of America or any state thereof, State thereof or the District of Columbia, and shall, in any such case, expressly assume by a supplemental indenture, the due and punctual payment of the principal of, premium, if any, and interest on the Securities and the performance and observance of every covenant of this Indenture and the Exchange and Registration Rights Agreement to be performed or any territory thereof (observed on the Company or such Person, as part of the case may be, being herein called the "Successor Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture immediately thereafter, no Default has occurred and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trusteeis continuing; and (iii) immediately after giving effect to any such transaction no Default including the Incurrence by the Company or Event any Restricted Subsidiary, directly or indirectly, of Default shall have occurred additional Indebtedness (and be continuing; (iv) immediately treating any Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), the Surviving Person could Incur, on a pro forma basis after giving pro forma effect to such transaction, transaction as if such transaction it had occurred at the beginning of the applicable four-four quarter periodperiod immediately preceding such transaction for which consolidated financial statements of the Company are available, either (A) the Successor Company (if other than CapCo II) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to (other 48 -42- than Permitted Indebtedness) under the Fixed Charge Coverage Consolidated Operating Cash Flow Ratio test set forth in of the first sentence paragraph of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture4.04. Notwithstanding the foregoing clauses clause (iii) and (iv)of the immediately preceding paragraph, but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another a Restricted Subsidiary and Subsidiary. For purposes of the foregoing, the transfer (bby lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all the Company may merge with or transfer all of its properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as of one or more Restricted Subsidiaries the amount Equity Interests of Indebtedness which constitute all or substantially all the properties and assets of the Company and its Restricted Subsidiaries immediately thereafter does not exceed shall be deemed to be the amount permitted under Section 4.04 (it being understood that after such transfer of such property all or substantially all the properties and assets in of the Company. In connection with an IPO Reorganizationany consolidation, merger, transfer, lease, assignment or other disposition contemplated hereby, the Company may dissolve). The Successor Company will succeed toshall deliver, or cause to be delivered, to the Trustee, in form and be substituted forsubstance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, transfer, lease, assignment or other disposition and the Company supplemental indentures in respect thereof comply with the requirements under this Indenture and the SecuritiesIndenture.

Mergers, Sale of Assets, etc. (a) The Company may shall not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving entity)Surviving Person) any other entity and the Company shall not and shall not cause or permit any Restricted Subsidiary to, or sell, convey, assign, transfer, lease, convey lease or otherwise dispose of all or substantially all of its the Company's properties and assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any entity in a single transaction or assets in one or more series of related transactions, to any Person unless unless: (i) either (x) the Company is shall be the surviving entity Surviving Person or (y) the Surviving 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 will have been made is shall be a corporation, partnership or limited liability company corporation organized or and validly existing under the laws of the Xxxxxx Xxxxxx, United States of America or any state thereof, State thereof or the District of ColumbiaColumbia or, if any such Restricted Subsidiary was a Foreign Restricted Subsidiary, under the laws of the United States of America or any territory state thereof (or the Company District of Columbia or the jurisdiction under which such PersonForeign Restricted Subsidiary was organized, as and shall, in any such case, expressly assume by a supplemental indenture, the case may bedue and punctual payment of the principal of, being herein called premium, if any, and interest on all the "Successor Securities and the performance and observance of every covenant of this Indenture and the Registration Rights Agreement to be performed or observed on the part of the Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction thereafter, no Default or Event of Default shall have occurred and be continuing; and (iviii) immediately after giving effect to any such transaction involving the Incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and treating any Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), the Surviving Person (A) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (B)could Incur, on a pro forma basis after giving effect to such transaction, transaction as if such transaction it had occurred at the beginning of the applicable four-four quarter periodperiod immediately preceding such transaction for which consolidated financial statements of the Company are available, either (A) the Successor Company (if other than CapCo II) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) under the Fixed Charge Consolidated Coverage Ratio test set forth in of the first sentence paragraph of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture4.04. Notwithstanding the foregoing clauses clause (iii) and (iv)of the immediately preceding paragraph, but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another any Restricted Subsidiary and that is a Guarantor. For purposes of the foregoing, the transfer (bby lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all the Company may merge with or transfer all of its properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as of one or more Restricted Subsidiaries the amount Equity Interests of Indebtedness which constitutes all or substantially all the properties and assets of the Company and its Restricted Subsidiaries immediately thereafter does not exceed shall be deemed to be the amount permitted under Section 4.04 (it being understood that after such transfer of such property all or substantially all the properties and assets in connection with an IPO Reorganization, of the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the SecuritiesCompany.

Mergers, Sale of Assets, etc. (a) The Company may shall not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving entity)Surviving Person) any other entity and the Company shall not and shall not cause or permit any Restricted Subsidiary to, or sell, convey, assign, transfer, lease, convey lease or otherwise dispose of all or substantially all of its the Company's properties and assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any entity in a single transaction or assets in one or more series of related transactions, to any Person unless unless: (i) either (x) the Company is shall be the surviving entity Surviving Person or (y) the Surviving 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 will have been made is shall be a corporation, partnership or limited liability company corporation organized or and validly existing under the laws of the Xxxxxx Xxxxxx, United States of America or any state thereof, State thereof or the District of ColumbiaColumbia or, if any such Restricted Subsidiary was a Foreign Restricted Subsidiary, under the laws of the United States of America or any territory state thereof (or the Company District of Columbia or the jurisdiction under which such PersonForeign Restricted Subsidiary was organized, as and shall, in any such case, expressly assume by a supplemental indenture, the case may bedue and punctual payment of the principal of, being herein called premium, if any, and interest on all the "Successor Securities and the performance and observance of every covenant of this Indenture and the Registration Rights Agreement to be performed or observed on the part of the Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction thereafter, no Default or Event of Default shall have occurred and be continuing; and (iviii) immediately after giving effect to any such transaction involving the Incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and treating any Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), the Surviving Person (A) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (B) could Incur, on a pro forma basis after giving effect to such transaction, transaction as if such transaction it had occurred at the beginning of the applicable four-four quarter periodperiod immediately preceding such transaction for which consolidated financial statements of the Company are available, either (A) the Successor Company (if other than CapCo II) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) under the Fixed Charge Consolidated Coverage Ratio test set forth in of the first sentence paragraph of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture4.04. Notwithstanding the foregoing clauses clause (iii) and (iv)of the immediately preceding paragraph, but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another any Restricted Subsidiary and that is a Guarantor. For purposes of the foregoing, the transfer (bby lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all the Company may merge with or transfer all of its properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as of one or more Restricted Subsidiaries the amount Equity Interests of Indebtedness which constitutes all or substantially all the properties and assets of the Company and its Restricted Subsidiaries immediately thereafter does not exceed shall be deemed to be the amount permitted under Section 4.04 (it being understood that after such transfer of such property all or substantially all the properties and assets in connection with an IPO Reorganization, of the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the SecuritiesCompany.

Mergers, Sale of Assets, etc. (a) The Company may shall not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving entity)Surviving Person) any other Person and the Company shall not directly or indirectly sell, or sellconvey, assign, transfer, lease, convey lease or otherwise dispose of all or substantially all of its the Company's and the Restricted Subsidiaries' properties and assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any entity in a single transaction or assets in one or more series of related transactions, to any Person unless unless: (i) either (x) the Company is shall be the surviving entity Surviving Person or (y) the Surviving 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 will have been made is shall be a corporation, partnership or limited liability company Person organized or and validly existing under the laws of the Xxxxxx Xxxxxx, United States of America or any state thereof, State thereof or the District of Columbia, and shall expressly assume by a supplemental indenture, the due and punctual payment of the principal of, premium, if any, and interest on all the Securities and the performance and observance of every covenant of the Indenture and the Exchange Registration Rights Agreement to be performed or any territory thereof (observed on the Company or such Person, as part of the case may be, being herein called the "Successor Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction thereafter, no Default or Event of Default shall have occurred and be continuing; (iviii) immediately after giving effect to any such transaction including the Incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and treating any Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), the Surviving Person could Incur, on a pro forma basis after giving effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either (A) the Successor Company (if other than CapCo II) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) under the Fixed Charge Consolidated Coverage Ratio test set forth in the first sentence of Section 4.04 4.04; (iv) immediately after giving effect to such transaction, the Surviving Person will have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Company shall will have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Notwithstanding the foregoing clauses (iii) and (iv)) of the immediately preceding paragraph, but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary Company. In addition, at any time, and (b) notwithstanding the Company provisions of the immediately preceding paragraph, Acquisition Co. may merge with and into the Company; provided, that, immediately prior to such merger, neither corporation has any Indebtedness outstanding. For purposes of the foregoing, the transfer (by lease, assignment, sale or transfer otherwise, in a single transaction or series of transactions) of all of its or substantially all the properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as of one or more Restricted Subsidiaries the amount Equity Interests of Indebtedness which constitute all or substantially all the properties and assets of the Company and its Restricted Subsidiaries immediately thereafter does not exceed shall be deemed to be the amount permitted under Section 4.04 (it being understood that after such transfer of such property all or substantially all the properties and assets in connection with an IPO Reorganization, of the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the SecuritiesCompany.

Mergers, Sale of Assets, etc. (a) The Company may shall not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving entity)Surviving Person) any other entity and the Company shall not, and shall not cause or permit any Restricted Subsidiary to, sell, convey, assign, transfer, lease, convey lease or otherwise dispose of all or substantially all of its the Company's and the Restricted Subsidiaries' properties or and assets in one or more related transactions, (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any Person unless entity in a single transaction or series of related transactions (including by way of consolidation or merger), unless: (i) either (x) the Company is shall be the surviving entity Surviving Person or (y) the Surviving 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 will have been made is shall be a corporation, partnership or limited liability company corporation organized or and validly existing under the laws of the Xxxxxx Xxxxxx, United States of America or any state thereof, State thereof or the District of ColumbiaColumbia or, if any such transaction involves a Disposition by a Foreign Restricted Subsidiary, under the laws of the United States of America or any territory state thereof (or the Company District of Columbia or the jurisdiction under which such PersonForeign Restricted Subsidiary was organized, as and shall, in any such case, expressly assume the case may bedue and punctual payment of the principal of, being herein called premium, if any, and interest on all the "Successor Notes and the performance and observance of every covenant of the Notes to be performed or observed on the part of the Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction thereafter, no Default or Event of Default shall have occurred and be continuing; and (iviii) immediately after giving effect to any such transaction involving the Incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and treating any Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), the Surviving Person could Incur, on a pro forma basis after giving effect to such transaction, transaction as if such transaction it had occurred at the beginning of the applicable four-four quarter periodperiod immediately preceding such transaction for which consolidated financial statements of the Company are available, either (A) the Successor Company (if other than CapCo II) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) under the Fixed Charge Consolidated Coverage Ratio test set forth in of the first sentence paragraph of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture7. Notwithstanding the foregoing clauses clause (iii) and (iv), but subject to of the foregoing clauses (i)immediately preceding paragraph, (ii) and (v), (ax) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another any Restricted Subsidiary that is a Guarantor and (by) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another domestic United States jurisdiction to realize tax or other benefits. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all of its or substantially all the properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as of one or more Restricted Subsidiaries the amount Equity Interests of Indebtedness which constitutes all or substantially all the properties and assets of the Company and its Restricted Subsidiaries immediately thereafter does not exceed shall be deemed to be the amount permitted under Section 4.04 (it being understood that after such transfer of such property all or substantially all the properties and assets in connection with an IPO Reorganization, of the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the SecuritiesCompany.

Mergers, Sale of Assets, etc. (a) The Company may shall not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving entity)Surviving Person) any other entity and the Company shall not, and shall not cause or permit any Restricted Subsidiary to, sell, convey, assign, transfer, lease, convey lease or otherwise dispose of all or substantially all of its the Company's and the Restricted Subsidiaries' properties or and assets in one or more related transactions, (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any Person unless entity in a single transaction or series of related transactions (including by way of consolidation or merger), unless: (i) either (x) the Company is shall be the surviving entity Surviving Person or (y) the Surviving 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 will have been made is shall be a corporation, partnership or limited liability company corporation organized or and validly existing under the laws of the Xxxxxx Xxxxxx, United States of America or any state thereof, State thereof or the District of ColumbiaColumbia or, if any such transaction involves a Disposition by a Foreign Restricted Subsidiary, under the laws of the United States of America or any territory state thereof (or the Company District of Columbia or the jurisdiction under which such PersonForeign Restricted Subsidiary was organized, as and shall, in any such case, expressly assume by a supplemental indenture, the case may bedue and punctual payment of the principal of, being herein called premium, if any, and interest on all the "Successor Securities and the performance and observance of every covenant of this Indenture and the Registration Rights Agreement to be performed or observed on the part of the Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction thereafter, no Default or Event of Default shall have occurred and be continuing; and (iviii) immediately after giving effect to any such transaction involving the Incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and treating any Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), the Surviving Person could Incur, on a pro forma basis after giving effect to such transaction, transaction as if such transaction it had occurred at the beginning of the applicable four-four quarter periodperiod immediately preceding such transaction for which consolidated financial statements of the Company are available, either (A) the Successor Company (if other than CapCo II) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) under the Fixed Charge Consolidated Coverage Ratio test set forth in of the first sentence paragraph of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture4.04. Notwithstanding the foregoing clauses clause (iii) and (iv), but subject to of the foregoing clauses (i)immediately preceding paragraph, (ii) and (v), (ax) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another any Restricted Subsidiary that is a Guarantor and (by) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another domestic United States jurisdiction to realize tax or other benefits. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all of its or substantially all the properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as of one or more Restricted Subsidiaries the amount Equity Interests of Indebtedness which constitutes all or substantially all the properties and assets of the Company and its Restricted Subsidiaries immediately thereafter does not exceed shall be deemed to be the amount permitted under Section 4.04 (it being understood that after such transfer of such property all or substantially all the properties and assets in connection with an IPO Reorganization, of the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the SecuritiesCompany.

Mergers, Sale of Assets, etc. (a) The Company may shall not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving entity)Surviving Person) any other Person and the Company shall not and shall not cause or permit any Restricted Subsidiary to, or sell, convey, assign, transfer, lease, convey lease or otherwise dispose of all or substantially all of its the Company's and the Restricted Subsidiaries' properties and assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any Person in a single transaction or assets in one or more series of related transactions, to any Person unless unless: (i) either (x) the Company is shall be the surviving entity Surviving Person or (y) the Surviving 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 will have been made is shall be a corporation, partnership or limited liability company corporation organized or and validly existing under the laws of the Xxxxxx Xxxxxx, United States of America or any state thereof, State thereof or the District of Columbia, and shall, in any such case, expressly assume by a supplemental indenture, the due and punctual payment of the principal of, premium, if any, and interest on all the Securities and the performance and observance of every covenant of this Indenture and the Registration Rights Agreement to be performed or any territory thereof (observed on the Company or such Person, as part of the case may be, being herein called the "Successor Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction thereafter, no Default or Event of Default shall have occurred and be continuing; (iviii) immediately after giving effect to any such transaction including the Incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and treating any Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), the Surviving Person could Incur, on a pro forma basis after giving effect to such transaction, transaction as if such transaction it had occurred at the beginning of the applicable four-four quarter periodperiod immediately preceding such transaction for which consolidated financial statements of the Company are available, either (A) the Successor Company (if other than CapCo II) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) under the Fixed Charge Consolidated Coverage Ratio test set forth in of the first sentence paragraph of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.04; and (viv) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Notwithstanding the foregoing clauses clause (iii) and (iv)of the immediately preceding paragraph, but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company Company. For purposes of the foregoing, the transfer (by lease, assignment, sale or to another Restricted Subsidiary and (botherwise, in a single transaction or series of transactions) of all or substantially all the Company may merge with or transfer all of its properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as of one or more Restricted Subsidiaries the amount Equity Interests of Indebtedness which constitute all or substantially all the properties and assets of the Company and its Restricted Subsidiaries immediately thereafter does not exceed shall be deemed to be the amount permitted under Section 4.04 (it being understood that after such transfer of such property all or substantially all the properties and assets in connection with an IPO Reorganization, of the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the SecuritiesCompany.

Mergers, Sale of Assets, etc. (a) The Company may not consolidate or merge with or into or wind up into (whether or not the Company is the surviving entity), 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 any Person unless (i) the Company is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership or limited liability company organized or existing under the laws of the Xxxxxx XxxxxxUnited States, any state thereof, the District of Columbia, or any territory thereof (the Company or such Person, as the case may be, being herein called the "Successor Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction no Default or Event of Default shall have occurred and be continuing; (iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either (A) the Successor Company (if other than CapCo III) 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 sentence of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo III) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Notwithstanding the foregoing clauses (iii) and (iv), but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary and (b) the Company may merge with or transfer all of its properties and assets to an Affiliate (including, without limitation, CapCo III) in connection with an IPO Reorganization so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries immediately thereafter does not exceed the amount permitted under Section 4.04 (it being understood that after such transfer of such property and assets in connection with an IPO Reorganization, the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the Securities.

Mergers, Sale of Assets, etc. Merge or consolidate with, or sell, ---------------------------- assign, lease or otherwise dispose of or voluntarily part with the control of (awhether in one transaction or in a series of transactions) The a material portion of its assets (whether now owned or hereinafter acquired) or sell, assign or otherwise dispose of (whether in one transaction or in a series of transactions) any of its accounts receivable (whether now in existence or hereinafter created) at a discount or with recourse, to, any Person, or permit any Subsidiary to do any of the foregoing, except for sales or other dispositions of assets in the ordinary course of business and except that (1) any Subsidiary may merge into or consolidate with or transfer assets to any other Subsidiary, (2) any Subsidiary may merge into or transfer assets to the Company, (3) the Company may not consolidate merge any Person into it or merge with or into or wind up into (whether or not otherwise acquire such Person as long as the Company is the surviving entity), such merger or acquisition does not result in the violation of any of the provisions of this Agreement and no such violation exists at the time of such merger or acquisition, and, provided that such merger or acquisition does not result in the issuance (in one or more transactions) of shares of the voting stock of the Company representing in the aggregate more than twenty percent (20%) of the total outstanding voting stock of the Company, on a fully diluted basis, immediately following the issuance thereof, (4) the Company may sell fixed assets up to two percent (2%) (based upon its then net book value) of its consolidated net fixed assets in any period of twelve (12) consecutive months and (5) the Company may sell, assign, transfer, lease, convey transfer all or a portion of, control of, enter into a joint venture pertaining to, or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless (i) the Company is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership or limited liability company organized or existing under the laws of the Xxxxxx Xxxxxx, any state thereof, the District of Columbia, or any territory thereof (the Company or such Personso-called "South Quay" project, as described in its Annual Report, provided that any disposition is for not less than its fair market value as reasonably determined by the case may be, being herein called the "Successor Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations Board of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction no Default or Event of Default shall have occurred and be continuing; (iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either (A) the Successor Company (if other than CapCo II) 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 sentence of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Notwithstanding the foregoing clauses (iii) and (iv), but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary and (b) the Company may merge with or transfer all of its properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as the amount of Indebtedness Directors of the Company and its Restricted Subsidiaries immediately thereafter does not exceed further provided that, if any distribution is made to the amount permitted under Section 4.04 (it being understood that after such transfer holders of such property and assets Common Stock of the Company in connection with an IPO Reorganizationwith, or as a result of, such disposition, a similar distribution shall be made to the Company may dissolve). The Successor Company will succeed toholders of the Warrants, and be substituted for, calculated as if such Warrants had been exercised in their entirety as of the Company under this Indenture and the Securitiesrecord or payment date for such distribution.

Mergers, Sale of Assets, etc. (a) The Company may not not, in a single transaction or a series of related transactions, consolidate with or merge with or into or wind up into (whether or not the Company is the surviving entity)into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties assets to, another Person or assets in one or more related transactions, to any Person adopt a plan of liquidation unless (i) either (1) the Company is the surviving entity or continuing Person or (2) the Person formed by or surviving any such consolidation or merger (if other than the Company) formed by such consolidation or into which the Company is merged or the person that acquires by conveyance, transfer or lease the properties and assets of the Company substantially as an entirety or in the case of a plan of liquidation, the Person to which such sale, assignment, transfer, lease, conveyance or other disposition will assets of the Company have been made is transferred, shall be a corporation, partnership or partnership, limited liability company or trust organized or and existing under the laws of the Xxxxxx Xxxxxx, United States or any state thereof, State thereof or the District of Columbia, or any territory thereof (the Company or such Person, as the case may be, being herein called the "Successor Company"); (ii) the Successor Company (if other than the Company) expressly assumes such surviving person shall assume all of the obligations of the Company under the Securities and this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in a form reasonably satisfactory to the Trustee; (iii) immediately after giving effect to such transaction and the use of the proceeds therefrom (on a pro forma basis, including giving effect to any Indebtedness incurred or anticipated to be incurred in connection with such transaction), the Company (in the case of clause (1) of the foregoing clause (i)) or such Person (in the case of clause (2) of the foregoing clause (i)) shall be able to incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.04; (iv) immediately after giving effect to such transactions, no Default or Event of Default shall have occurred and or be continuing; (iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either (A) the Successor Company (if other than CapCo II) 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 sentence of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Company shall have has delivered to the Trustee prior to the consummation of the proposed transaction an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply complies with this Indenture. Notwithstanding the foregoing clauses (iii) and (iv), but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary and (b) the Company may merge with or transfer all of its properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries immediately thereafter does not exceed the amount permitted under Section 4.04 (it being understood that after such transfer of such property and assets in connection with an IPO Reorganization, the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the Securitiesthat all conditions precedent in this Indenture relating to such transaction have been satisfied.

Mergers, Sale of Assets, etc. (a) The Company may shall not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving entity)Surviving Person) any other entity and the Company shall not and shall not cause or permit any Restricted Subsidiary to, or sell, convey, assign, transfer, lease, convey lease or otherwise dispose of all or substantially all of its the Company's properties and assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any entity in a single transaction or assets in one or more series of related transactions, to any Person unless unless: (i) either (x) the Company is shall be the surviving entity Surviving Person or (y) the Surviving 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 will have been made is shall be a corporation, partnership or limited liability company corporation organized or and validly existing under the laws of the Xxxxxx Xxxxxx, United States of America or any state thereof, State thereof or the District of Columbia, and shall, in any such case, expressly assume by a supplemental indenture, the due and punctual payment of the principal of, premium, if any, and interest on all the Securities and the per- formance and observance of every covenant of this Indenture and the Registration Rights Agreement to be performed or any territory thereof (observed on the Company or such Person, as part of the case may be, being herein called the "Successor Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction thereafter, no Default or Event of Default shall have occurred and be continuing; and (iviii) immediately after giving pro forma effect to any such transaction involving the Incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and treating any Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), the Surviving Person could Incur, on a PRO FORMA basis after giving effect to such transaction, transaction as if such transaction it had occurred at the beginning of the applicable four-four quarter periodperiod immediately preceding such transaction for which consolidated financial statements of the Company are available, either (A) the Successor Company (if other than CapCo II) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) under the Fixed Charge Consolidated Coverage Ratio test set forth in of the first sentence paragraph of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture4.04. Notwithstanding the foregoing clauses clause (iii) and (iv)of the immediately preceding paragraph, but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company Company. For purposes of the foregoing, the transfer (by lease, assignment, sale or to another Restricted Subsidiary and (botherwise, in a single transaction or series of transactions) of all or substantially all the Company may merge with or transfer all of its properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as of one or more Restricted Subsidiaries the amount Equity Interests of Indebtedness which constitutes all or substantially all the properties and assets of the Company and its Restricted Subsidiaries immediately thereafter does not exceed shall be deemed to be the amount permitted under Section 4.04 (it being understood that after such transfer of such property all or substantially all the properties and assets in connection with an IPO Reorganization, of the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the SecuritiesCompany.

Mergers, Sale of Assets, etc. (a) The Company may not Neither of the Issuers shall consolidate with or merge with or into or wind up into (whether or not any other entity and the Company is the surviving entity)shall not, and shall not cause or permit any Restricted Subsidiary to, sell, convey, assign, transfer, lease, convey lease or otherwise dispose of all or substantially all of its the Company's and the Restricted Subsidiaries' properties and assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any entity in a single transaction or assets in one or more series of related transactions, to any Person unless unless: (i) either (x) the Company is shall be the surviving entity Surviving Person or (y) the Surviving 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 will have been made is shall be a corporation, partnership corporation or limited liability company organized or and validly existing under the laws of the Xxxxxx Xxxxxx, United States of America or any state thereof, State thereof or the District of ColumbiaColumbia or, if any such Restricted Subsidiary was a Foreign Restricted Subsidiary, under the laws of the United States of America or any territory state thereof (or the Company District of Columbia or the jurisdiction under which such PersonForeign Restricted Subsidiary was organized, as and shall, in any such case, expressly assume by a supplemental indenture, the case may bedue and punctual payment of the principal of, being herein called premium, if any, and interest on all the "Successor Securities and the performance and observance of every covenant of this Indenture and the Registration Rights Agreement to be performed or observed on the part of the Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction thereafter, no Default or Event of Default shall have occurred and be continuing; and (iviii) immediately after giving pro forma effect to any such transaction involving the Incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and treating any Indebtedness not previously an obligation of -45- the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), as if such transaction had occurred at the beginning of the applicable four-quarter period, either (A) the Successor Company (if other than CapCo II) would be permitted to incur Surviving Person could Incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) under the Fixed Charge Consolidated Coverage Ratio test set forth in of the first sentence paragraph of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Notwithstanding the foregoing clauses (iii) and (iv), but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary and (b) the Company may merge with or transfer all of its properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries immediately thereafter does not exceed the amount permitted under Section 4.04 (it being understood that after such transfer of such property and assets in connection with an IPO Reorganization, the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the Securities4.04.

Mergers, Sale of Assets, etc. (a) The Company may shall not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving entityperson (the "Surviving Person")) any other Person and the Company shall not and shall not cause or permit any Restricted Subsidiary to, or sell, convey, assign, transfer, lease, convey lease or otherwise dispose of all or substantially all of its the Company's and the Restricted Subsidiaries' properties and assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any Person in a single transaction or assets in one or more series of related transactions, to any Person unless unless: (i) either (x) the Company is shall be the surviving entity Surviving Person or (y) the Surviving 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 will have been made is shall be a corporation, partnership or limited liability company corporation organized or and validly existing under the laws of the Xxxxxx Xxxxxx, United States of America or any state thereof, State thereof or the District of Columbia, and shall, in any such case, expressly assume by a supplemental indenture, the due and punctual payment of the principal of, premium, if any, and interest on all the Securities and the performance and observance of every covenant of this Indenture and the Registration Rights Agreement to be performed or any territory thereof (observed on the Company or such Person, as part of the case may be, being herein called the "Successor Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction thereafter, no Default or Event of Default shall have occurred and be continuing; (iviii) immediately after giving effect to any such transaction including the Incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and treating any Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), the Surviving Person could Incur, on a pro forma basis after giving effect to such transaction, transaction as if such transaction it had occurred at the beginning of the applicable four-four quarter periodperiod immediately preceding such transaction for which consolidated financial statements of the Company are available, either (A) the Successor Company (if other than CapCo II) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) under the Fixed Charge Consolidated Coverage Ratio test set forth in of the first sentence paragraph of Section 4.04 of this Indenture or (B) the Fixed Charge Coverage Ratio for the Successor Company (if other than CapCo II) and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.04; and (viv) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Notwithstanding the foregoing clauses clause (iii) and (iv)of the immediately preceding paragraph, but subject to the foregoing clauses (i), (ii) and (v), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another Restricted any Subsidiary and Guarantor. For purposes of the foregoing, the transfer (bby lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all the Company may merge with or transfer all of its properties and assets to an Affiliate (including, without limitation, CapCo II) in connection with an IPO Reorganization so long as the amount of Indebtedness of the Company and its one or more Restricted Subsidiaries immediately thereafter does not exceed the amount permitted under Section 4.04 (it being understood that after such transfer Equity Interests of such property and assets in connection with an IPO Reorganization, the Company may dissolve). The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the Securities.which