| | (3) | immediately after giving effect to the transaction on a pro forma basis, HRG or the resulting surviving or transferee Person would be in compliance with the covenants set forth under “—Certain Covenants—Maintenance of Liquidity,” and “—Certain Covenants—Maintenance of Collateral Coverage” (calculated as if the date of the transaction was a date on which such covenant is required to be tested under “—Maintenance of Collateral Coverage”); and |
| | (4) | HRG delivers to the trustee an officers’ certificate and an opinion of counsel, each stating that the consolidation, merger or transfer and the supplemental indenture (if any) comply with the Indenture; |
provided, that clauses (2) and (3) do not apply (i) to the consolidation or merger of HRG with or into a Wholly Owned Subsidiary or the consolidation or merger of a Wholly Owned Subsidiary with or into HRG or (ii) if, in the good faith determination of the Board of Directors of HRG, whose determination is evidenced by a Resolution of HRG’s Board of Directors, the sole purpose of the transaction is to change the jurisdiction of incorporation of HRG.
| | (b) | HRG shall not lease all or substantially all of its assets, whether in one transaction or a series of transactions, to one or more other Persons. |
| | (c) | The foregoing clauses (a) and (b) shall not apply to (i) any transfer of assets by HRG to any Guarantor, (ii) any transfer of assets among Guarantors or (iii) any transfer of assets by a Subsidiary that is not a Guarantor to (x) another Subsidiary that is not a Guarantor or (y) HRG or any Guarantor. |
| | (d) | Upon the consummation of any transaction effected in accordance with these provisions, if HRG is not the continuing Person, the resulting, surviving or transferee Person will succeed to, and be substituted for, and may exercise every right and power of, HRG under the Indenture and the notes with the same effect as if such successor Person had been named as HRG in the Indenture. Upon such substitution, except in the case of a sale, conveyance, transfer or disposition of less than all its assets, HRG will be released from its obligations under the Indenture and the notes. |
Guarantors No Guarantor may:
| | • | consolidate with or merge with or into any Person, or |
| | • | sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person, or |
| | • | permit any Person to merge with or into the Guarantor unless: |
| | (A) | the other Person is HRG or any Subsidiary that is Guarantor or becomes a Guarantor concurrently with the transaction; or |
| | (B) | (1) either (x) the Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes by supplemental indenture all of the obligations of the Guarantor under its Note Guaranty; and (2) immediately after giving effect to the transaction, no Default has occurred and is continuing; or |
| | (C) | the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (in each case other than to HRG or a Subsidiary) otherwise permitted by the Indenture. |
Default and Remedies Events of Default An “Event of Default” occurs if
| | (1) | HRG defaults in the payment of the principal of any note when the same becomes due and payable at maturity, upon acceleration or redemption, or otherwise (other than pursuant to an Offer to Purchase); |
| | (2) | HRG defaults in the payment of interest (including any Additional Interest) on any note when the same becomes due and payable, and the default continues for a period of 30 days; |
| | (3) | HRG fails to make an Offer to Purchase and thereafter accept and pay for notes tendered when and as required pursuant to “—Certain Covenants—Repurchase of Notes Upon a Change of Control” or “—Certain Covenants—Limitation on Asset Sales”, or HRG or any Guarantor fails to comply with “—Consolidation, Merger or Sale of Assets”; |
| | (4) | HRG defaults in the performance of or breaches the covenants set forth under “—Certain Covenants—Maintenance of Liquidity,” or “—Certain Covenants—Maintenance of Collateral Coverage” and such default or breach is not cured within (i) 45 days after the date of default under clause (a) of “—Certain Covenants—Maintenance of Collateral Coverage” or (ii) 15 days after the date of any default under “—Certain Covenants—Maintenance of Liquidity,” or clauses (b) or (c) of “—Certain Covenants—Maintenance of Collateral |
|
