Common use of The Issuers Clause in Contracts

The Issuers. Neither Issuer nor the Parent will consolidate with or merge with or into, or assign, convey, transfer, lease or otherwise dispose of all or substantially all of its assets, in one transaction or a series of related transactions to, any Person, unless: (i) the resulting, surviving or transferee Person (the “Successor Company”) will be a Person organized and existing under the laws of any member state of the European Union, the United Kingdom or the United States of America, any State of the United States or the District of Columbia, Canada or any province or territory of Canada, Norway or Switzerland and the Successor Company (if other than such Issuer or the Parent) will expressly assume, (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of such Issuer under the Notes and this Indenture and (b) all obligations of such Issuer under the Security Documents (and, to the extent required, by the Intercreditor Agreement, the ABL Intercreditor Agreement or any Additional Intercreditor Agreement); (ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any Subsidiary of the Successor Company as a result of such transaction as having been Incurred by the Successor Company or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; (iii) immediately after giving effect to such transaction, only to the extent it involves the Parent, either (1) the Successor Company would be able to Incur at least an additional $1.00 of Indebtedness pursuant to the Fixed Charge Coverage Ratio contained in Section 4.01(a) or (2) the Fixed Charge Coverage Ratio of the Successor Company and its consolidated Subsidiaries would not be less than the Fixed Charge Coverage Ratio of the Parent and its Restricted Subsidiaries immediately prior to giving effect to such transaction; and (iv) such Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Company (in each case, in form and substance reasonably satisfactory to the Trustee); provided that in giving ​ ​ an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact. Any Indebtedness that becomes an obligation of the Parent or any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Section 5.01, and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Section 4.01. For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of an Issuer, which properties and assets, if held by such Issuer instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Issuer on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Issuer. The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, such Issuer under this Indenture but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes. The foregoing provisions of this Section 5.01(a) (other than Section 5.01(a)(ii)) shall not apply to (i) any transactions which constitute an Asset Disposition if the Issuers have complied with Section 4.05 or (ii) the creation of a new subsidiary as a Restricted Subsidiary.