Common use of Borrower May Consolidate, etc., Only on Certain Terms Clause in Contracts

Borrower May Consolidate, etc., Only on Certain Terms. The Borrower will not consolidate or merge with or into any other Person or, except as provided in the Titling Trust Agreement and the other Basic Documents, transfer all or substantially all of its properties and assets to any other Person unless: (a) the Person (if other than the Borrower) formed by or surviving such consolidation or merger or acquiring such properties and assets, as the case may be (i) is organized and existing under the laws of the United States or any State and (ii) assumes, by a supplement to this Agreement, executed and delivered to the Administrative Agent, in form satisfactory to the Administrative Agent, the due and punctual payment of the principal of and interest on all of the Secured Obligations and the performance or observance of every agreement and covenant of this Agreement to be performed or observed by the Borrower, all as provided in this Agreement; (b) immediately after giving effect to such consolidation or merger, no Lending Facility Default or Exchange Note Default will have occurred and be continuing; (c) the Borrower has received an Opinion of Counsel (and has delivered copies of such Opinion of Counsel to the Administrative Agent) substantially to the effect that such consolidation, merger or transfer will not cause any Exchange Note to be deemed sold or exchanged for purposes of Section 1001 of the Code; (d) the Borrower has received an Opinion of Counsel (and has delivered copies of such Opinion of Counsel to the Administrative Agent) substantially to the effect that such consolidation, merger or transfer will not cause any Borrower to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (e) any action that is necessary to maintain the security interest granted under this Agreement has been taken; and (f) the Borrower has delivered to the Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation or merger and such amendment comply with this Article V and that all conditions precedent in this Agreement relating to such consolidation or merger have been complied with (including any filing required by the Securities Exchange Act of 1934).

Borrower May Consolidate, etc., Only on Certain Terms. The Borrower will not shall not, in a single transaction or a series of related transactions, (i) consolidate or merge into Xxxxx 0 or permit Level 3 to consolidate with or merge into the Borrower or (ii) except to the extent permitted under Section 6.03, directly or indirectly, transfer, sell, lease, convey or otherwise dispose of all or substantially all its assets to Level 3. Additionally, the Borrower shall not, in a single transaction or a series of related transactions, (i) consolidate with or merge into any other Person oror Persons or permit any other Person to consolidate with or merge into the Borrower or (ii) (other than, except to the extent permitted under Section 6.03, to a Restricted Subsidiary that is or becomes a Guarantor and a Loan Proceeds Note Guarantor or to Level 3 so long as provided Level 3 is a Guarantor) directly or indirectly, transfer, sell, lease, convey or otherwise dispose of all or substantially all its assets to any other Person or Persons, unless: (1) in a transaction in which the Titling Trust Agreement and Borrower is not the other Basic Documentssurviving Person or in which the Borrower transfers, transfer sells, leases, conveys or otherwise disposes of all or substantially all of its properties and assets to any other Person unless: (a) Person, the Person (if other than the Borrower) formed by or surviving such consolidation or merger or acquiring such properties and assets, as the case may be (i) successor entity is organized and existing under the laws of the United States of America or any State thereof or the District of Columbia and (ii) assumes, by shall expressly assume all of the Borrower’s Obligations under the Loan and the Loan Documents in a supplement to this Agreement, executed and delivered to the Administrative Agent, in form satisfactory to the Administrative Agent, the due and punctual payment of the principal of and interest on all of the Secured Obligations and the performance or observance of every agreement and covenant of this Agreement to be performed or observed by the Borrower, all as provided in this Agreement; (b2) immediately before and after giving effect to such consolidation transaction and treating any Indebtedness which becomes an obligation of the Borrower (or mergerthe successor entity) or a Borrower Restricted Subsidiary as a result of such transaction as having been Incurred by the Borrower or such Borrower Restricted Subsidiary at the time of the transaction, no Lending Facility Default or Exchange Note Event of Default will shall have occurred and be continuing; (c3) immediately after giving effect to such transaction and treating any Indebtedness which becomes an obligation of the Borrower has received an Opinion of Counsel (and has delivered copies or the successor entity) or a Borrower Restricted Subsidiary as a result of such Opinion transaction as having been Incurred by the Borrower or such Borrower Restricted Subsidiary at the time of Counsel the transaction, the Borrower (or the successor entity) could Incur at least $1.00 of additional Indebtedness pursuant to the Administrative Agentparagraph (a) substantially to the effect that such consolidation, merger or transfer will not cause any Exchange Note to be deemed sold or exchanged for purposes of Section 1001 of the Code6.02; (d4) in the Borrower has received an Opinion case of Counsel (and has delivered copies a transfer, sale, lease, conveyance or other disposition of all or substantially all of the assets of the Borrower, such Opinion of Counsel to the Administrative Agent) substantially to the effect that such consolidation, merger or transfer will not cause any Borrower to be treated assets shall have been transferred as an association entirety or publicly traded partnership taxable virtually as a corporation for U.S. federal income tax purposes; (e) any action that is necessary an entirety to maintain one Person and such Person shall have complied with all the security interest granted under provisions of this Agreement has been takenparagraph; and (f5) Level 3 and the Borrower has have delivered to the Administrative Agent an Officer’s Officers’ Certificate and an Opinion of Counsel, each in form and substance reasonably satisfactory to the Administrative Agent, stating that such consolidation consolidation, merger, transfer, sale, lease, conveyance or merger other disposition and the assumption by such amendment comply Person of the Obligations under the Loan Documents complies with this Article V and that all conditions precedent in this Agreement herein provided for relating to such consolidation or merger transaction have been complied with (including any filing required by the Securities Exchange Act of 1934)with.

Borrower May Consolidate, etc., Only on Certain Terms. The Borrower will not shall not, in a single transaction or a series of related transactions, (i) consolidate or merge into Xxxxx 0 or permit Level 3 to consolidate with or merge into the Borrower or (ii) except to the extent permitted under Section 6.03, directly or indirectly, transfer, sell, lease, convey or otherwise dispose of all or substantially all its assets to Level 3. Additionally, the Borrower shall not, in a single transaction or a series of related transactions, (i) consolidate with or merge into any other Person oror Persons or permit any other Person to consolidate with or merge into the Borrower or (ii) (other than, except to the extent permitted under Section 6.03, to a Restricted Subsidiary that is or becomes a Guarantor and a Loan Proceeds Note Guarantor or to Level 3 so long as provided Level 3 is a Guarantor) directly or indirectly, transfer, sell, lease, convey or otherwise dispose of all or substantially all its assets to any other Person or Persons, unless: (1) in a transaction in which the Titling Trust Agreement and Borrower is not the other Basic Documentssurviving Person or in which the Borrower transfers, transfer sells, leases, conveys or otherwise disposes of all or substantially all of its properties and assets to any other Person unless: (a) Person, the Person (if other than the Borrower) formed by or surviving such consolidation or merger or acquiring such properties and assets, as the case may be (i) successor entity is organized and existing under the laws of the United States of America or any State thereof or the District of Columbia and (ii) assumes, by shall expressly assume all of the Borrower’s Obligations under the Loan and the Loan Documents in a supplement to this Agreement, executed and delivered to the Administrative Agent, in form satisfactory to the Administrative Agent, the due and punctual payment of the principal of and interest on all of the Secured Obligations and the performance or observance of every agreement and covenant of this Agreement to be performed or observed by the Borrower, all as provided in this Agreement; (b2) immediately before and after giving effect to such consolidation transaction and treating any Indebtedness which becomes an obligation of the Borrower (or mergerthe successor entity) or a Borrower Restricted Subsidiary as a result of such transaction as having been Incurred by the Borrower or such Borrower Restricted Subsidiary at the time of the transaction, no Lending Facility Default or Exchange Note Event of Default will shall have occurred and be continuing; (c3) immediately after giving effect to such transaction, the Consolidated Net Worth of the Borrower has received an Opinion (or the successor entity) is equal to or greater than that of Counsel (and has delivered copies of such Opinion of Counsel the Borrower immediately prior to the Administrative Agent) substantially to the effect that such consolidation, merger or transfer will not cause any Exchange Note to be deemed sold or exchanged for purposes of Section 1001 of the Codetransaction; (d4) immediately after giving effect to such transaction and treating any Indebtedness which becomes an obligation of the Borrower has received an Opinion of Counsel (and has delivered copies or the successor entity) or a Borrower Restricted Subsidiary as a result of such Opinion transaction as having been Incurred by the Borrower or such Borrower Restricted Subsidiary at the time of Counsel the transaction, the Borrower (or the successor entity) could Incur at least $1.00 of additional Indebtedness pursuant to the Administrative Agentparagraph (a) substantially to the effect that such consolidation, merger or transfer will not cause any Borrower to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposesof Section 6.02; (e5) any action that is necessary in the case of a transfer, sale, lease, conveyance or other disposition of all or substantially all of the assets of the Borrower, such assets shall have been transferred as an entirety or virtually as an entirety to maintain one Person and such Person shall have complied with all the security interest granted under provisions of this Agreement has been takenparagraph; and (f6) Level 3 and the Borrower has have delivered to the Administrative Agent an Officer’s Officers’ Certificate and an Opinion of Counsel, each in form and substance reasonably satisfactory to the Administrative Agent, stating that such consolidation consolidation, merger, transfer, sale, lease, conveyance or merger other disposition and the assumption by such amendment comply Person of the Obligations under the Loan Documents complies with this Article V and that all conditions precedent in this Agreement herein provided for relating to such consolidation or merger transaction have been complied with, and, with respect to such Officers’ Certificate, setting forth the manner of determination of the Consolidated Net Worth, in accordance with clause (including any filing 3) of this subsection (c), of the Borrower or, if applicable, of the successor entity as required by pursuant to the Securities Exchange Act of 1934)foregoing.

Borrower May Consolidate, etc., Only on Certain Terms. The Borrower will not consolidate or merge with or into any other Person or, except as provided in the Titling Trust Agreement and the other Basic Documents, transfer all or substantially all of its properties and assets to any other Person unless, in either case: (a) the Person (if other than the Borrower) formed by or surviving such consolidation or merger or acquiring such properties and assets, as the case may be (i) is organized and existing under the laws of the United States or any State and (ii) assumes, by a supplement to this Agreement, executed and delivered to the Administrative Agent, in form satisfactory to the Administrative Agent, the due and punctual payment of the principal of and interest on all of the Secured Obligations and the performance or observance of every agreement and covenant of this Agreement to be performed or observed by the Borrower, all as provided in this Agreement; (b) immediately after giving effect to such consolidation or merger, no Lending Potential Facility Default, Facility Default, Potential Exchange Note Default or Exchange Note Default will have occurred and be continuing; (c) the Borrower has received an Opinion of Counsel (and has delivered copies of such Opinion of Counsel to the Administrative Agent) substantially to the effect that such consolidation, merger or transfer will not cause (i) any Exchange Note to be deemed sold or exchanged for purposes of Section 1001 of the Code; Code and (dii) the Borrower has received an Opinion of Counsel (and has delivered copies of such Opinion of Counsel to the Administrative Agent) substantially to the effect that such consolidation, merger or transfer will not cause any Borrower to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (ed) any action that is necessary to maintain the security interest granted under this Agreement has been taken; and (fe) the Borrower has delivered to the Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation or merger and such amendment comply with this Article V and that all conditions precedent provided for in this Agreement relating to such consolidation or merger have been complied with (including any filing required by the Securities Exchange Act of 1934Act).

Borrower May Consolidate, etc., Only on Certain Terms. The Borrower will not shall not, in a single transaction or a series of related transactions, (i) consolidate or merge into Xxxxx 0 or permit Level 3 to consolidate with or merge into the Borrower or (ii) except to the extent permitted under Section 6.03, directly or indirectly, transfer, sell, lease, convey or otherwise dispose of all or substantially all its assets to Level 3. Additionally, the Borrower shall not, in a single transaction or a series of related transactions, (i) consolidate with or merge into any other Person oror Persons or permit any other Person to consolidate with or merge into the Borrower or (ii) (other than, except to the extent permitted under Section 6.03, to a Restricted Subsidiary that is or becomes a Guarantor and a Loan Proceeds Note Guarantor or to Xxxxx 0 so long as provided Level 3 is a Guarantor) directly or indirectly, transfer, sell, lease, convey or otherwise dispose of all or substantially all its assets to any other Person or Persons, unless: (1) in a transaction in which the Titling Trust Agreement and Borrower is not the other Basic Documentssurviving Person or in which the Borrower transfers, transfer sells, leases, conveys or otherwise disposes of all or substantially all of its properties and assets to any other Person unless: (a) Person, the Person (if other than the Borrower) formed by or surviving such consolidation or merger or acquiring such properties and assets, as the case may be (i) successor entity is organized and existing under the laws of the United States of America or any State thereof or the District of Columbia and (ii) assumes, by shall expressly assume all of the Borrower’s Obligations under the Loan and the Loan Documents in a supplement to this Agreement, executed and delivered to the Administrative Agent, in form satisfactory to the Administrative Agent, the due and punctual payment of the principal of and interest on all of the Secured Obligations and the performance or observance of every agreement and covenant of this Agreement to be performed or observed by the Borrower, all as provided in this Agreement; (b2) immediately before and after giving effect to such consolidation transaction and treating any Indebtedness which becomes an obligation of the Borrower (or mergerthe successor entity) or a Borrower Restricted Subsidiary as a result of such transaction as having been Incurred by the Borrower or such Borrower Restricted Subsidiary at the time of the transaction, no Lending Facility Default or Exchange Note Event of Default will shall have occurred and be continuing; (c3) immediately after giving effect to such transaction and treating any Indebtedness which becomes an obligation of the Borrower has received an Opinion of Counsel (and has delivered copies or the successor entity) or a Borrower Restricted Subsidiary as a result of such Opinion transaction as having been Incurred by the Borrower or such Borrower Restricted Subsidiary at the time of Counsel the transaction, the Borrower (or the successor entity) could Incur at least $1.00 of additional Indebtedness pursuant to the Administrative Agentparagraph (a) substantially to the effect that such consolidation, merger or transfer will not cause any Exchange Note to be deemed sold or exchanged for purposes of Section 1001 of the Code6.02; (d4) in the Borrower has received an Opinion case of Counsel (and has delivered copies a transfer, sale, lease, conveyance or other disposition of all or substantially all of the assets of the Borrower, such Opinion of Counsel to the Administrative Agent) substantially to the effect that such consolidation, merger or transfer will not cause any Borrower to be treated assets shall have been transferred as an association entirety or publicly traded partnership taxable virtually as a corporation for U.S. federal income tax purposes; (e) any action that is necessary an entirety to maintain one Person and such Person shall have complied with all the security interest granted under provisions of this Agreement has been takenparagraph; and (f5) Level 3 and the Borrower has have delivered to the Administrative Agent an Officer’s Officers’ Certificate and an Opinion of Counsel, each in form and substance reasonably satisfactory to the Administrative Agent, stating that such consolidation consolidation, merger, transfer, sale, lease, conveyance or merger other disposition and the assumption by such amendment comply Person of the Obligations under the Loan Documents complies with this Article V and that all conditions precedent in this Agreement herein provided for relating to such consolidation or merger transaction have been complied with (including any filing required by the Securities Exchange Act of 1934)with.

Borrower May Consolidate, etc., Only on Certain Terms. (a) The Borrower will may not consolidate or merge with or into any other Person oror wind up into (whether or not the Borrower is the surviving corporation), except as provided in the Titling Trust Agreement and the other Basic Documentsor sell, transfer assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and or assets in one or more related transactions, to any other Person unless: (a1) the Borrower is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Borrower) formed by or surviving to which such consolidation sale, assignment, transfer, lease, conveyance or merger other disposition will have been made is a corporation organized or acquiring such properties and assets, as the case may be (i) is organized and existing under the laws of the United States States, any state thereof, the District of Columbia, or any State territory thereof (such Person, as the case may be, being herein called the “Successor Company”); (2) the Successor Company, if other than the Borrower, expressly assumes all the obligations of the Borrower under this Agreement and (ii) assumes, by a supplement the Loans pursuant to this Agreement, executed and delivered to the Administrative Agent, supplemental Agreements or other documents or instruments in form reasonably satisfactory to the Administrative Agent, the due and punctual payment of the principal of and interest on all of the Secured Obligations and the performance or observance of every agreement and covenant of this Agreement to be performed or observed by the Borrower, all as provided in this Agreement; (b3) immediately after such transaction no Default or Event of Default exists; (4) immediately after giving pro forma effect to such consolidation or mergertransaction, no Lending Facility Default or Exchange Note Default will have as if such transaction had occurred at the beginning of the applicable four-quarter period, (A) the Successor Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Debt to Adjusted EBITDA Ratio test set forth in Section 10.1(a) or (B) the Debt to Adjusted EBITDA Ratio for the Successor Company and the Restricted Subsidiaries would be continuingless than such ratio for the Borrower and the Restricted Subsidiaries immediately prior to such transaction; (c5) each Guarantor, unless it is the Borrower has received an Opinion of Counsel (and has delivered copies of such Opinion of Counsel other party to the Administrative Agenttransactions described above, in which case Section 10.12(1)(B) substantially below shall apply, shall have by joinder or otherwise confirmed that its Guarantee shall apply to the effect that such consolidation, merger or transfer will not cause any Exchange Note to be deemed sold or exchanged for purposes of Section 1001 of the Code; (d) the Borrower has received an Opinion of Counsel (and has delivered copies of such Opinion of Counsel to the Administrative Agent) substantially to the effect that such consolidation, merger or transfer will not cause any Borrower to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; (e) any action that is necessary to maintain the security interest granted Person’s obligations under this Agreement has been takenand the Loans; and (f6) the Borrower has shall have delivered to the Administrative Agent an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation consolidation, merger or merger transfer and such amendment supplemental Agreements, if any, comply with this Article V Agreement. (b) The Successor Company shall succeed to, and that all conditions precedent in be substituted for the Borrower under this Agreement relating and the Loans. Notwithstanding clauses (a)(3) and (a)(4) above, (1) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to such consolidation or merger have been complied the Borrower and (2) the Borrower may merge with (including any filing required by an Affiliate of the Securities Exchange Act Borrower solely for the purpose of 1934)reincorporating the Borrower in another State of the United States so long as the amount of Indebtedness of the Borrower and the Restricted Subsidiaries is not increased thereby.

Borrower May Consolidate, etc., Only on Certain Terms. The Borrower will not shall not, in a single transaction or a series of related transactions, (i) consolidate or merge into Level 3 or permit Level 3 to consolidate with or merge into the Borrower or (ii) except to the extent permitted under Section 6.03, directly or indirectly, transfer, sell, lease, convey or otherwise dispose of all or substantially all its assets to Level 3. Additionally, the Borrower shall not, in a single transaction or a series of related transactions, (i) consolidate with or merge into any other Person oror Persons or permit any other Person to consolidate with or merge into the Borrower or (ii) (other than, except to the extent permitted under Section 6.03, to a Restricted Subsidiary that is or becomes a Guarantor and a Loan Proceeds Note Guarantor or to Level 3 so long as provided Level 3 is a Guarantor) directly or indirectly, transfer, sell, lease, convey or otherwise dispose of all or substantially all its assets to any other Person or Persons, unless: (1) in a transaction in which the Titling Trust Agreement and Borrower is not the other Basic Documentssurviving Person or in which the Borrower transfers, transfer sells, leases, conveys or otherwise disposes of all or substantially all of its properties and assets to any other Person unless: (a) Person, the Person (if other than the Borrower) formed by or surviving such consolidation or merger or acquiring such properties and assets, as the case may be (i) successor entity is organized and existing under the laws of the United States of America or any State thereof or the District of Columbia and (ii) assumes, by shall expressly assume all of the Borrower’s Obligations under the Loan and the Loan Documents in a supplement to this Agreement, executed and delivered to the Administrative Agent, in form satisfactory to the Administrative Agent, the due and punctual payment of the principal of and interest on all of the Secured Obligations and the performance or observance of every agreement and covenant of this Agreement to be performed or observed by the Borrower, all as provided in this Agreement; (b2) immediately before and after giving effect to such consolidation transaction and treating any Indebtedness which becomes an obligation of the Borrower (or mergerthe successor entity) or a Borrower Restricted Subsidiary as a result of such transaction as having been Incurred by the Borrower or such Borrower Restricted Subsidiary at the time of the transaction, no Lending Facility Default or Exchange Note Event of Default will shall have occurred and be continuing; (c3) immediately after giving effect to such transaction and treating any Indebtedness which becomes an obligation of the Borrower has received an Opinion of Counsel (and has delivered copies or the successor entity) or a Borrower Restricted Subsidiary as a result of such Opinion transaction as having been Incurred by the Borrower or such Borrower Restricted Subsidiary at the time of Counsel the transaction, the Borrower (or the successor entity) could Incur at least $1.00 of additional Indebtedness pursuant to the Administrative Agentparagraph (a) substantially to the effect that such consolidation, merger or transfer will not cause any Exchange Note to be deemed sold or exchanged for purposes of Section 1001 of the Code6.02; (d4) in the Borrower has received an Opinion case of Counsel (and has delivered copies a transfer, sale, lease, conveyance or other disposition of all or substantially all of the assets of the Borrower, such Opinion of Counsel to the Administrative Agent) substantially to the effect that such consolidation, merger or transfer will not cause any Borrower to be treated assets shall have been transferred as an association entirety or publicly traded partnership taxable virtually as a corporation for U.S. federal income tax purposes; (e) any action that is necessary an entirety to maintain one Person and such Person shall have complied with all the security interest granted under provisions of this Agreement has been takenparagraph; and (f5) Level 3 and the Borrower has have delivered to the Administrative Agent an Officer’s Officers’ Certificate and an Opinion of Counsel, each in form and substance reasonably satisfactory to the Administrative Agent, stating that such consolidation consolidation, merger, transfer, sale, lease, conveyance or merger other disposition and the assumption by such amendment comply Person of the Obligations under the Loan Documents complies with this Article V and that all conditions precedent in this Agreement herein provided for relating to such consolidation or merger transaction have been complied with (including any filing required by the Securities Exchange Act of 1934)with.