Time to Update Your Loan Documents Due To New Delaware “Divisive Merger” Law

Published: January 29, 2019

Effective August 1, 2018, Delaware’s limited liability company act was amended to add new Section 18-217 (the “Amendment”). This Amendment permits a Delaware limited liability company (an “LLC”) to divide into two or more LLCs. In order to do so, the original (or dividing) LLC must adopt a plan of division (a “Plan”), which does not need to be made public, and file a Certificate of Division with the Delaware Secretary of State.

Under the Plan, the assets and rights as well as the debts and liabilities of the dividing company are allocated among the divided (or resulting) LLCs according to the Plan. The dividing LLC may continue in existence or be dissolved. Absent a court determination that the Plan constituted a fraudulent transfer, each resulting LLC is responsible only for those debts and liabilities allocated to it under the Plan and only owns those assets allocated to it under the Plan. By the Amendment, any lien on property of a dividing LLC shall be preserved if that property is allocated to a resulting LLC, but unless the related debt is also allocated to that resulting LLC, the debt becomes non–recourse to the resulting LLC that owns the collateral asset.

The Amendment added a safe harbor provision for any Delaware LLC that entered into an agreement before August 1, 2018 (a “Pre-Existing Agreement”). For any Pre-Existing Agreement (such as a loan agreement or a guaranty) that restricts, prohibits or conditions a merger or consolidation or a transfer of assets, the Amendment provides that such restriction, prohibition or condition shall apply to a division as if it were a merger, consolidation or asset transfer.

You may be thinking that your current loan documents already include restrictions or prohibitions on mergers, reorganizations, consolidations and transfers of all or substantially all assets (each as “Transfer Restriction”) and that these Transfer Restriction covenants should be sufficient to protect your bank from any division of a borrower or guarantor (each an “obligor”). However, given the way the Amendment is written and the ingenuity of opposing counsel in disputes, your current Transfer Restriction may not be sufficient to protect your bank from a division of an obligor under state laws that permit them. In light of the Amendment (which has similar counterparts in Arizona, Texas and Pennsylvania), you should update your loan agreements and guaranties and your loan closing processes to better protect your bank.

Delaware and other states will continue to update their company/LLC laws to add flexibility in managing company affairs. In doing so, it can create loopholes that adversely affect your standard loan documents. Staying vigilant in examining state law changes and updating your documents to address potential loopholes will help protect your bank against the consequences of these changes in state law

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