- Nov 9, 2003
- 16,512
- 5,865
Since the talk of merger, UCT, ICT, etc., have emerged again I thought I'd post the exact language from the ATSB loan document. When reading this keep in mind that "the borrower" is US Airways, Inc. (mainline) and that US Airways Group and other divisions are "quarantors".
Jim
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SECTION 6.9. MERGER OR CONSOLIDATION. Neither Group nor the Borrower will consolidate with or merge with any other Person or convey, lease or transfer its properties and assets substantially as an entirety to any Person, unless: (i) (a) in the case of a consolidation or merger involving the Borrower, (I) the outstanding principal amount of the Loan at the time the transaction is consummated does not exceed $500,000,000 and (II) the Borrower is the surviving entity or if the Borrower is not the surviving entity, such surviving entity or the Person that acquires by conveyance, lease or transfer the properties and assets of the Borrower substantially as an entirety, shall be a corporation organized and existing under the laws of the United States of America or any State thereof or the District of Columbia and can make the representations contained in Section 4.1(B), and shall expressly assume, by an agreement executed and delivered to the Agent and the Board in form reasonably satisfactory to the Agent and the Board, Borrower's obligations to repay the Loan and all other obligations of the Borrower under the Loan Documents, or
(B) in the case of a consolidation or merger involving Group, Group is the surviving entity or if Group is not the surviving entity, such surviving entity or the Person that acquires by conveyance, lease or transfer the properties and assets of Group substantially as an entirety, shall be a corporation organized and existing under the laws of the United States of America or any State thereof or the District of Columbia, and shall expressly assume, by an agreement executed and delivered to the Agent and the Board, in form reasonably satisfactory to the Agent and the Board, all of Group's obligations under each Loan Document to which it is a party; (ii) immediately before and after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing and immediately after giving effect to such transaction, Group or if applicable, its successor, shall be in compliance, on a Pro Forma Basis, with Section 6.4 (in the case of Sections
6.4(B) and ©, based on Consolidated EBITDAR for the four quarters ended as of the end of the most recently ended fiscal quarter); (iii) immediately following such transaction, neither the Borrower's nor Group's (or if applicable, their successor(s)) credit rating is lower than immediately prior thereto; and (iv) the Borrower has delivered to the Agent an Officer's Certificate and an opinion of counsel from counsel reasonably satisfactory to the Agent, in form and substance reasonably satisfactory to the Agent, stating that such consolidation, merger, conveyance, lease or transfer and such agreement comply with this Section 6.9 and that all conditions precedent herein provided for relating to such transaction have been complied with and addressing such other matters as may be reasonably requested by the Board and the Agent. Notwithstanding anything to the contrary contained in this Section
6.9, (i) any Obligor may merge or consolidate with any other Obligor, provided, that in the case of each such merger or consolidation involving Group and/or the Borrower, Group and/or the Borrower (as applicable) shall be the continuing or surviving Person and (ii) any Obligor (other than Group or the Borrower) may convey, lease or transfer its properties and assets substantially as an entirety to any other Obligor.
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Jim
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SECTION 6.9. MERGER OR CONSOLIDATION. Neither Group nor the Borrower will consolidate with or merge with any other Person or convey, lease or transfer its properties and assets substantially as an entirety to any Person, unless: (i) (a) in the case of a consolidation or merger involving the Borrower, (I) the outstanding principal amount of the Loan at the time the transaction is consummated does not exceed $500,000,000 and (II) the Borrower is the surviving entity or if the Borrower is not the surviving entity, such surviving entity or the Person that acquires by conveyance, lease or transfer the properties and assets of the Borrower substantially as an entirety, shall be a corporation organized and existing under the laws of the United States of America or any State thereof or the District of Columbia and can make the representations contained in Section 4.1(B), and shall expressly assume, by an agreement executed and delivered to the Agent and the Board in form reasonably satisfactory to the Agent and the Board, Borrower's obligations to repay the Loan and all other obligations of the Borrower under the Loan Documents, or
(B) in the case of a consolidation or merger involving Group, Group is the surviving entity or if Group is not the surviving entity, such surviving entity or the Person that acquires by conveyance, lease or transfer the properties and assets of Group substantially as an entirety, shall be a corporation organized and existing under the laws of the United States of America or any State thereof or the District of Columbia, and shall expressly assume, by an agreement executed and delivered to the Agent and the Board, in form reasonably satisfactory to the Agent and the Board, all of Group's obligations under each Loan Document to which it is a party; (ii) immediately before and after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing and immediately after giving effect to such transaction, Group or if applicable, its successor, shall be in compliance, on a Pro Forma Basis, with Section 6.4 (in the case of Sections
6.4(B) and ©, based on Consolidated EBITDAR for the four quarters ended as of the end of the most recently ended fiscal quarter); (iii) immediately following such transaction, neither the Borrower's nor Group's (or if applicable, their successor(s)) credit rating is lower than immediately prior thereto; and (iv) the Borrower has delivered to the Agent an Officer's Certificate and an opinion of counsel from counsel reasonably satisfactory to the Agent, in form and substance reasonably satisfactory to the Agent, stating that such consolidation, merger, conveyance, lease or transfer and such agreement comply with this Section 6.9 and that all conditions precedent herein provided for relating to such transaction have been complied with and addressing such other matters as may be reasonably requested by the Board and the Agent. Notwithstanding anything to the contrary contained in this Section
6.9, (i) any Obligor may merge or consolidate with any other Obligor, provided, that in the case of each such merger or consolidation involving Group and/or the Borrower, Group and/or the Borrower (as applicable) shall be the continuing or surviving Person and (ii) any Obligor (other than Group or the Borrower) may convey, lease or transfer its properties and assets substantially as an entirety to any other Obligor.
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