<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 26, 1994
REGISTRATION NO. 33-54243
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AMERICA WEST AIRLINES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 4511 86-0418245
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
MARTIN J. WHALEN
SENIOR VICE PRESIDENT
AMERICA WEST AIRLINES, INC.
4000 EAST SKY HARBOR BOULEVARD 4000 EAST SKY HARBOR BOULEVARD
PHOENIX, ARIZONA 85034 PHOENIX, ARIZONA 85034
(602) 693-0800 (602) 693-0800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL INCLUDING AREA CODE, OF AGENT FOR SERVICE)
EXECUTIVE OFFICES)
</TABLE>
_________________________
With Copies to:
DAVID J. GRAHAM
ANDREWS & KURTH L.L.P.
4200 TEXAS COMMERCE TOWER
600 TRAVIS STREET
HOUSTON, TEXAS 77002
(713) 220-4200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
_________________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective, which time is to be
determined by the Selling Securityholders. All of the Securities offered hereby
are offered for the account of the Selling Securityholders.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. /X/
_________________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
EXPLANATORY NOTE
America West Airlines, Inc. has prepared this Amendment No. 1 for the
purpose of filing with the Securities and Exchange Commission certain exhibits
to the Registration Statement. Amendment No. 1 does not modify any provision of
the Prospectus included in the Registration Statement; accordingly, the related
Cross-Reference Sheet and such Prospectus have not been included herein.
<PAGE> 3
PART II
INFORMATION REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the issuance and distribution of the securities being registered hereby:
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Securities and Exchange Commission Filing Fee.............................. $84,286
NYSE Listing Fee........................................................... *
Blue Sky Filing Fees and Expenses.......................................... *
Printing and Engraving Costs............................................... *
Legal Fees and Expenses.................................................... *
Accounting Fees and Expenses............................................... *
Trustee's Fees and Expenses................................................ *
Transfer Agent Fees........................................................ *
Miscellaneous.............................................................. *
-------
Total............................................................ $ *
=======
</TABLE>
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* To be supplied by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") authorizes,
inter alia, a corporation generally to indemnify any person ("indemnitee") who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding (other than an action by or in the right
of the corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation, in a similar position with another corporation or
entity, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. With respect to actions or
suits by or in the right of the corporation; however, an indemnitee who acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation is generally limited to attorneys' fees and
other expenses, and no indemnification shall be made if such person is adjudged
liable to the corporation unless and only to the extent that a court of
competent jurisdiction determines that indemnification is appropriate. Section
145 further provides that any indemnification shall be made by the corporation
only as authorized in each specific case upon a determination by the (i)
stockholders, (ii) board of directors by a majority vote of a quorum of
disinterested directors so directs, that indemnification of the indemnitee is
proper because he has met the applicable standard of conduct. Section 145
provides that indemnification pursuant to its provisions is not exclusive of
other rights of indemnification to which a person may be entitled under any
by-law agreement, vote of stockholders or disinterested directors or otherwise.
Section 8.02 of the Company's By-laws, a copy of which is filed as Exhibit
3.2 to this Registration Statement provides, in substance, that directors,
officers, employees and agents shall be indemnified to the fullest extent
permitted by Section 145 of the DGCL.
Article 12.0 of the Company's Restated Certificate of Incorporation, a copy
of which is filed as Exhibit 3.1 to this Registration Statement, limits the
liability of directors of the Company to the Company or its stockholders (in
their capacity as directors but not in their capacity as officers) to the
fullest extent permitted by the DGCL. Specifically, directors of the Company
will not be personally liable for monetary damages for
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<PAGE> 4
breach of a director's fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchase or redemptions as provided in
section 174 of the DGCL or (iv) for any transaction from which the director
derived an improper personal benefit. The Restated Certificate of Incorporation
also provides that if the DGCL is amended after the approval of the Restated
Certificate of Incorporation to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Company will be eliminated or limited to the full extent
permitted by the DGCL, as so amended.
The form of the Third Revised Investment Agreement filed as Exhibit 10.1 to
this Registration Statement contains certain provisions for indemnification of
directors and officers of the Company and the Selling Securityholder against
civil liabilities under the Securities Act.
The Company intends to enter into indemnification agreements with certain
of its directors providing for indemnification to the fullest extent permitted
by the laws of the State of Delaware. These agreements provide for specific
procedures to better assure the directors' rights to indemnification, including
procedures for directors to submit claims, for determination of directors
entitled to indemnification (including the allocation of the burden of proof and
selection of a reviewing party) and for enforcement of directors'
indemnification rights.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
The following summarizes transactions occurring within the last three years
in which the Company has sold securities without registration under the
Securities Act.
On February 15, 1991, the Company sold 253,422 shares of its common stock
to Transpacific Enterprises, Inc. for $1,393,821, or $5.50 per share, in
reliance upon the exemption set forth in Section 4(2) of the Securities Act.
On the Effective Date, the Company will issue the following securities in
connection with its Reorganization:
1. The Company will issue shares of Class B Common Stock to
holders of approximately $ million of allowed, general unsecured
prepetition claims against the Company in satisfaction of such claims in
reliance upon the exemption set forth in Section 1145 of the Bankruptcy
Code.
2. The Company will issue shares of Class B Common Stock
( of which shares are to be issued in exchange for cash,
aggregating $ , provided by such equity holders upon the exercise
of rights to subscribe for such shares at a price of $8.889 per share) and
6,230,769 Warrants to the holders of pre-existing equity interests in the
Company in consideration of cancellation of such pre-existing equity
interests in reliance upon the exemption set forth in Section 1145 of the
Bankruptcy Code.
3. The Company issued 900,000 shares of Class B Common Stock and
1,384,615 Warrants to Guiness Peat Aviation and its affiliates ("GPA") in
satisfaction of claims of GPA against the Company in reliance upon the
exemption set forth in Section 1145 of the Bankruptcy Code.
4. The Company issued the following securities to AmWest (or to Lehman
Brothers Inc. or funds managed or advised by Fidelity Management Trust
Company, in each case as assignees of AmWest's rights to acquire such
securities) for new consideration paid to the Company in accordance with
the Company's Plan: (i) 1,200,000 shares of Class A Common Stock for $7.467
per share; (ii) shares of Class B Common Stock for $7.467 per
share and shares of Class B Common Stock for $8.889 per share;
(iii) $100 million principal amount of Senior Notes for $100 million in
cash; and (iv) 2,769,231 Warrants, separate consideration for which was not
specified. The Company relied upon the exemption set forth in Section 4(2)
of the Securities Act.
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<PAGE> 5
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed as part of this Registration
Statement:
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<CAPTION>
EXHIBIT
NUMBER TITLE
_______ _____
<S> <C>
*2.1 -- The Company's Plan of Reorganization under Chapter 11 of the Bankruptcy
Code.
*3.1 -- Form of Restated Certificate of Incorporation of America West Airlines,
Inc.
*3.2 -- Form of Restated By-laws of America West Airlines, Inc.
*4.1 -- Form of Form of Indenture for $100,000,000 % Senior Notes due 2001
dated 1994, of America West Airlines, Inc. and ,
as trustee.
*4.2 -- Form of Senior Note (included as Exhibit A to Exhibit 4.1 above).
*4.3 -- Form of Warrant Agreement dated , 1994 between America West
Airlines, Inc. and , as Warrant Agent.
*4.4 -- Form of Warrant (included as Exhibit A to Exhibit 4.3 above).
*4.5 -- Form of Stockholders' Agreement for America West Airlines, Inc. dated
, 1994 among America West Airlines, Inc., AmWest Partners,
L.P., GPA Group plc and certain other Stockholder Representatives.
*4.6 -- Form of Registration Rights Agreement dated , 1994 among America
West Airlines, Inc., AmWest Partners, L.P. and other holders.
*4.7 -- Article 4.0 of the Company's Restated Certificate of Incorporation
(included in Exhibit 3.1 above).
**5.1 -- Opinion of Andrews & Kurth L.L.P.
10.1 -- Third Revised Investment Agreement dated April 21, 1994 between America
West Airlines, Inc. and AmWest Partners, L.P. -- Incorporated by reference
to Exhibit 10.A to the Company's Quarterly Report on Form 10-Q for the
period ended March 31, 1994.
10.11 -- Third Revised Interim Procedures Agreement dated April 21, 1994 between
America West Airlines and AmWest Partners, L.P. -- Incorporated by
reference to the Company's Annual Report on Form 10-K for the year ended
December 31, 1993.
**10.12 -- Alliance Agreement dated , 1994 between America West Airlines,
Inc. and Continental Airlines, Inc., including the Bilateral Cargo Prorate
Agreement, the Club Usage Agreement, the Code-Sharing Agreement, the
Master Technology Cooperation Agreement, the Frequent Flyer Program
Exchange and the Ground Handling Agreements.
**10.13 -- Alliance Agreement dated , 1994 between America West Airlines,
Inc. and Mesa Airlines.
**10.14 -- The GPA Settlement Agreement dated , 1994 between America West
Airlines, Inc. and GPA Group plc.
10.15 -- Voting Agreement dated , 1994 between AmWest Partners and GPA
Group plc.
10.16 -- Airbus A320 Purchase Agreement (including exhibits thereto), dated as of
September 28, 1990 between AVSA, S.A.R.L. ("AVSA") and the Company,
together with Letter Agreement Nos. 1-10, inclusive -- Incorporated by
reference to Exhibit 10-(D)(1) to the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 1990.
10.17 -- Loan Agreement, dated as of September 28, 1990, among the Company, AVSA
and AVSA, as agent -- Incorporated by reference to Exhibit 10-(D)(2) to
the Company's Quarterly Report on Form 10-Q for the period ended September
30, 1990.
</TABLE>
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<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER TITLE
_______ _____
<S> <C>
**10.18 -- AVSA, S.A.R.L. Settlement Agreement dated , 1994 between the
Company and Airbus.
10.19 -- V2500 Support Contract Between the Company and IAE International Aero
Engines AG ("IAE"), dated September 28, 1990, together with Side Letters
Nos. 1-4, inclusive -- Incorporated by reference to Exhibit 10-(D)(3) to
the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1990.
10.20 -- Cash Management Agreement, dated September 28, 1991, among the Company, BT
and First Interstate of Arizona, N.A. -- Incorporated by reference to
Exhibit 10-D(21) to the Company's Annual Report on Form 10-K for the year
ended December 31, 1991.
10.21 -- First Amendment to Cash Management Agreement, dated December 1, 1991,
among the Company, BT and First Interstate of Arizona,
N.A. -- Incorporated by reference to Exhibit 10-D(22) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1991.
10.22 -- Second Amendment to Cash Management Agreement, dated September 1, 1992,
among the Company, BT and First Interstate of Arizona,
N.A. -- Incorporated by reference to Exhibit 10-O(3) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1992.
10.23 -- Restructuring Agreement, dated December 1, 1991 between the Company and
Kawasaki -- Incorporated by reference to Exhibit 10-D(24) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1991.
10.24 -- A320 Put Agreement, dated December 1, 1991 between the Company and
Kawasaki -- Incorporated by reference to Exhibit 10-D(25) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1991.
10.25 -- First Amendment to A320 Put Agreement, dated September 1,
1992 -- Incorporated by reference to Exhibit 10-R(2) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1992.
10.26 -- A320 Put Agreement, dated as of June 25, 1991 between the Company and GPA
Group plc -- Incorporated by reference to Exhibit 10-D(26) to the
Company's Annual Report on Form 10-K for the year ended December 31, 1991.
10.27 -- First Amendment to A320 Put Agreement, dated as of September 1, 1992 --
Incorporated by reference to Exhibit 10-S(2) to the Company's Annual
Report on Form 10-K for the year ended December 31, 1992.
10.28 -- Restructuring Agreement, dated as of June 25, 1991 among GPA Group plc,
GPA Leasing USA I, Inc. GPA Leasing USA Sub I, and the
Company -- Incorporated by reference to Exhibit 10-D(27) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1991.
10.29 -- Official Statement dated August 11, 1986 for the $54,000,000 Variable Rate
Airport Facility Revenue Bonds -- Incorporated by reference to Exhibit
10.e to the Company's Quarterly Report on Form 10-Q for the period ended
September 30, 1986.
10.30 -- Airport Use Agreement dated July 1, 1989 (the "Airport Use Agreement")
among the City of Phoenix, The Industrial Development Authority of the
City of Phoenix, Arizona and the Company -- Incorporated by reference to
Exhibit 10-D(9) to the Company's Annual Report on Form 10-K for the year
ended December 31, 1989.
10.31 -- First Amendment dated August 1, 1990 to Airport Use
Agreement -- Incorporated by reference to Exhibit 10-(D)(9) to the
Company's Quarterly Report on Form 10-Q for the period ended September 30,
1990.
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER TITLE
_______ _____
<S> <C>
10.32 -- Revolving Loan Agreement dated April 17, 1990, by and among the Company,
the Bank signatories thereto, and Bank of America National Trust and
Savings Association, as Agent for the Banks (the "Revolving Loan
Agreement") -- Incorporated by reference to Exhibit 10-1 to the Company's
Quarterly Report on Form 10-Q for the period ended March 31, 1990.
10.33 -- First Amendment dated April 17, 1990 to Revolving Loan
Agreement -- Incorporated by reference to Exhibit 10-(D)(10) to the
Company's Quarterly Report on Form 10-Q for the period ended September 30,
1990.
10.34 -- Second Amendment dated September 28, 1990 to the Revolving Loan
Agreement -- Incorporated by reference to Exhibit 10-(D)(11) to the
Company's Quarterly Report on Form 10-Q for the period ended September 30,
1990.
10.35 -- Third Amendment dated as of January 14, 1991 to the Revolving Loan
Agreement -- Incorporated by reference to Exhibit 10-(D)(13) to the
Company's Annual Report on Form 10-K for the year ended December 31, 1990.
10.36 -- Spares Credit Agreement, dated as of September 28, 1990, between the
Company and IAE -- Incorporated by reference to Exhibit 10-(D)(4) to the
Company's Quarterly Report on Form 10-Q for the period ended September 30,
1990.
10.37 -- Master Credit Modification Agreement date as of October 1, 1992, among the
Company, IAE International Aero Engines AG, Intlaero (Phoenix A320) Inc.,
Intlaero (Phoenix B737) Inc., CAE Electronics Ltd., and Hughes Rediffusion
Simulation Limited -- Incorporated by reference to Exhibit 10-L to the
Company's Annual Report on Form 10-K for the year ended December 31, 1992.
10.38 -- Credit Agreement, dated as of September 28, 1990 between the Company and
IAE -- Incorporated by reference to Exhibit 10-(D)(5) to the Company's
Quarterly Report on Form 10-Q for the period ended September 30, 1990.
10.39 -- Amendment No. 1 to the Credit Agreement, dated March 1,
1991 -- Incorporated by reference to Exhibit 10-(M)(2) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1992.
10.40 -- Amendment No. 2 to the Credit Agreement, dated May 15,
1991 -- Incorporated by reference to Exhibit 10-(M)(3) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1992.
10.41 -- Amendment No. 3 to the Credit Agreement, dated October 1,
1992 -- Incorporated by reference to Exhibit 10-(M)(4) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1992.
10.42 -- Form of Third Amended and Restated Credit Agreement dated September 30,
1993, among the Company, various lenders, and BT Commercial Corp. as
Administrative Agent (without exhibits) -- Incorporated by reference to
Exhibit 10-(N)(1) to the Company's Annual Report on Form 10-K for the year
ended December 31, 1993.
**10.43 -- Form of Amended and Restated Management Letter Agreement, dated as of
September 30, 1993 from the Company to the Lenders.
**10.44 -- Form of Amendment to Amended and Restated Management Letter Agreement;
Consent to Amendment of By-laws dated February 8, 1994 from the Company to
the Lenders.
**10.45 -- Subscription Agreement between Amwest Partners, L.P and Lehman Brothers
Inc. dated , 1994
***11.1 -- Statement re: computation of net income (loss) per common share.
***12.1 -- Statement re: computation of ratio of earnings to fixed charges.
**23.1 -- Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1 above).
</TABLE>
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<TABLE>
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EXHIBIT
NUMBER TITLE
_______ _____
<S> <C>
***23.2 -- Consent of KPMG Peat Marwick (independent auditors) -- Included at page
S-1.
*24.1 -- Power of Attorney (included on the signature pages of this Registration
Statement.
</TABLE>
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* Filed herewith.
** To be filed by amendment.
*** Previously filed.
(b) Financial Statement Schedules:
The following financial statement schedules are filed as part of this
Registration Statement, but not included in the Prospectus.
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SCHEDULES PAGE
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Independent Auditors' Report on Schedules and Consent................. S-1
Schedule V -- Property, Plant and Equipment........................... S-2
Schedule VI -- Accumulated Depreciation, Depletion and Amortization of
Property, Plant and Equipment.......................... S-3
Schedule VIII -- Valuation and Qualifying Accounts.................... S-4
Schedule X -- Supplementary Income Statement Information.............. S-5
</TABLE>
All other schedules for which provision is made in Regulation S-X of the
Commission are not required under the related instructions or are
inapplicable or the required information is included in the financial
statements or notes thereto and, therefore, have been omitted.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes: (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement: (i) to include any prospectus required by section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement; (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 1 to the Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized in the
City of Phoenix, State of Arizona on the 26th day of July, 1994.
AMERICA WEST AIRLINES, INC.
*
By:__________________________________
William A. Franke,
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No.1 to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
_________ _____ ____
<S> <C> <C>
* Chairman of the Board and Chief July 26, 1994
_______________________________________ Executive Officer (Principal
William A. Franke Executive Officer)
* President, Chief Operating July 26, 1994
_______________________________________ Officer and Director
A. Maurice Myers
* Vice President and Controller July 26, 1994
_______________________________________ (Principal Financial and
Raymond T. Nakano Accounting Officer)
* Director July 26, 1994
_______________________________________
O. Mark DeMichele
* Director July 26, 1994
_______________________________________
Frederick W. Bradley
Director
_______________________________________
Samuel L. Eichenfield
* Director July 26, 1994
_______________________________________
Richard C. Kraemer
Director
_______________________________________
James T. McMillan
* Director July 26, 1994
_______________________________________
John R. Norton III
[/R]
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
_________ _____ ____
<S> <C> <C>
* Director July 26, 1994
_________________________________________
John F. Tierney
Director
_________________________________________
Declan Treacy
* By: /s/ MARTIN J. WHALEN
____________________________________
Martin J. Whalen
Attorney-in-Fact
</TABLE>
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<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NUMBERED
NUMBER TITLE PAGE
_______ _____ __________
<S> <C> <C>
*2.1 -- The Company's Plan of Reorganization under Chapter 11 of the
Bankruptcy Code.
*3.1 -- Form of Restated Certificate of Incorporation of America West
Airlines, Inc.
*3.2 -- Form of Restated By-laws of America West Airlines, Inc.
*4.1 -- Form of Form of Indenture for $100,000,000 % Senior Notes
due 2001 dated 1994, between America West Airlines, Inc. and
, as trustee.
*4.2 -- Form of Form of Senior Note (Included as Exhibit A in Exhibit
4.1 filed herewith).
*4.3 -- Form of Warrant Agreement dated , 1994 between
America West Airlines, Inc. and , as
Warrant Agent.
*4.4 -- Form of Form of Warrant (Included as Exhibit A in Exhibit 4.3
filed herewith).
*4.5 -- Form of Stockholders' Agreement for America West Airlines, Inc.
dated , 1994 among America West Airlines, Inc.,
AmWest Partners, L.P., GPA Group plc and certain other
Stockholder Representatives.
*4.6 -- Form of Registration Rights Agreement dated , 1994
among America West Airlines, Inc., AmWest Partners, L.P. and
other holders.
*4.7 -- Article 4.0 of the Company's Restated Certificate of
Incorporation incorporated by reference to Exhibit 3.1 filed
herewith.
**5.1 -- Opinion of Andrews & Kurth L.L.P.
10.1 -- Third Revised Investment Agreement dated April 21, 1994 between
America West Airlines, Inc. and AmWest Partners,
L.P. -- Incorporated by reference to Exhibit 10.A to the
Company's Quarterly Report on Form 10-Q for the period ended
March 31, 1994.
10.11 -- Third Revised Interim Procedures Agreement dated April 21, 1994
between America West Airlines and AmWest Partners,
L.P. -- Incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1993.
**10.12 -- Alliance Agreement dated , 1994 between America
West Airlines, Inc. and Continental Airlines, Inc., including
the Bilateral Cargo Prorate Agreement, the Club Usage
Agreement, the Code-Sharing Agreement, the Master Technology
Cooperation Agreement, the Frequent Flyer Program Exchange and
the Ground Handling Agreements.
**10.13 -- Alliance Agreement dated , 1994 between America
West Airlines, Inc. and Mesa Airlines.
**10.14 -- The GPA Settlement Agreement dated , 1994 between
America West Airlines, Inc. and GPA Group plc.
10.15 -- Voting Agreement dated , 1994 between AmWest
Partners and GPA Group plc.
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NUMBERED
NUMBER TITLE PAGE
_______ _____ ___________
<S> <C> <C>
10.16 -- Airbus A320 Purchase Agreement (including exhibits thereto),
dated as of September 28, 1990 between AVSA, S.A.R.L. ("AVSA")
and the Company, together with Letter Agreement Nos. 1-10,
inclusive -- Incorporated by reference to Exhibit 10-(D)(1) to
the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1990.
10.17 -- Loan Agreement, dated as of September 28, 1990, among the
Company, AVSA and AVSA, as agent -- Incorporated by reference
to Exhibit 10-(D)(2) to the Company's Quarterly Report on Form
10-Q for the period ended September 30, 1990.
**10.18 -- AVSA, S.A.R.L. Settlement Agreement dated , 1994
between the Company and Airbus.
10.19 -- V2500 Support Contract Between the Company and IAE
International Aero Engines AG ("IAE"), dated September 28,
1990, together with Side Letters Nos. 1-4,
inclusive -- Incorporated by reference to Exhibit 10-(D)(3) to
the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1990.
10.20 -- Cash Management Agreement, dated September 28, 1991, among the
Company, BT and First Interstate of Arizona,
N.A. -- Incorporated by reference to Exhibit 10-D(21) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1991.
10.21 -- First Amendment to Cash Management Agreement, dated December 1,
1991, among the Company, BT and First Interstate of Arizona,
N.A. -- Incorporated by reference to Exhibit 10-D(22) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1991.
10.22 -- Second Amendment to Cash Management Agreement, dated September
1, 1992, among the Company, BT and First Interstate of Arizona,
N.A. -- Incorporated by reference to Exhibit 10-O(3) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1992.
10.23 -- Restructuring Agreement, dated December 1, 1991 between the
Company and Kawasaki -- Incorporated by reference to Exhibit
10-D(24) to the Company's Annual Report on Form 10-K for the
year ended December 31, 1991.
10.24 -- A320 Put Agreement, dated December 1, 1991 between the Company
and Kawasaki -- Incorporated by reference to Exhibit 10-D(25)
to the Company's Annual Report on Form 10-K for the year ended
December 31, 1991.
10.25 -- First Amendment to A320 Put Agreement, dated September 1,
1992 -- Incorporated by reference to Exhibit 10-R(2) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1992.
10.26 -- A320 Put Agreement, dated as of June 25, 1991 between the
Company and GPA Group plc -- Incorporated by reference to
Exhibit 10-D(26) to the Company's Annual Report on Form 10-K
for the year ended December 31, 1991.
10.27 -- First Amendment to A320 Put Agreement, dated as of September 1,
1992 -- Incorporated by reference to Exhibit 10-S(2) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1992.
</TABLE>
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EXHIBIT NUMBERED
NUMBER TITLE PAGE
_______ _____ __________
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10.28 -- Restructuring Agreement, dated as of June 25, 1991 among GPA
Group plc, GPA Leasing USA I, Inc. GPA Leasing USA Sub I, and
the Company -- Incorporated by reference to Exhibit 10-D(27) to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1991.
10.29 -- Official Statement dated August 11, 1986 for the $54,000,000
Variable Rate Airport Facility Revenue Bonds -- Incorporated by
reference to Exhibit 10.e to the Company's Quarterly Report on
Form 10-Q for the period ended September 30, 1986.
10.30 -- Airport Use Agreement dated July 1, 1989 (the "Airport Use
Agreement") among the City of Phoenix, The Industrial
Development Authority of the City of Phoenix, Arizona and the
Company -- Incorporated by reference to Exhibit 10-D(9) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1989.
10.31 -- First Amendment dated August 1, 1990 to Airport Use
Agreement -- Incorporated by reference to Exhibit 10-(D)(9) to
the Company's Quarterly Report on Form 10-Q for the period
ended September 30, 1990.
10.32 -- Revolving Loan Agreement dated April 17, 1990, by and among the
Company, the Bank signatories thereto, and Bank of America
National Trust and Savings Association, as Agent for the Banks
(the "Revolving Loan Agreement") -- Incorporated by reference
to Exhibit 10-1 to the Company's Quarterly Report on Form 10-Q
for the period ended March 31, 1990.
10.33 -- First Amendment dated April 17, 1990 to Revolving Loan
Agreement -- Incorporated by reference to Exhibit 10-(D)(10) to
the Company's Quarterly Report on Form 10-Q for the period
ended September 30, 1990.
10.34 -- Second Amendment dated September 28, 1990 to the Revolving Loan
Agreement -- Incorporated by reference to Exhibit 10-(D)(11) to
the Company's Quarterly Report on Form 10-Q for the period
ended September 30, 1990.
10.35 -- Third Amendment dated as of January 14, 1991 to the Revolving
Loan Agreement -- Incorporated by reference to Exhibit
10-(D)(13) to the Company's Annual Report on Form 10-K for the
year ended December 31, 1990.
10.36 -- Spares Credit Agreement, dated as of September 28, 1990,
between the Company and IAE -- Incorporated by reference to
Exhibit 10-(D)(4) to the Company's Quarterly Report on Form
10-Q for the period ended September 30, 1990.
10.37 -- Master Credit Modification Agreement date as of October 1,
1992, among the Company, IAE International Aero Engines AG,
Intlaero (Phoenix A320) Inc., Intlaero (Phoenix B737) Inc., CAE
Electronics Ltd., and Hughes Rediffusion Simulation
Limited -- Incorporated by reference to Exhibit 10-L to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1992.
10.38 -- Credit Agreement, dated as of September 28, 1990 between the
Company and IAE -- Incorporated by reference to Exhibit
10-(D)(5) to the Company's Quarterly Report on Form 10-Q for
the period ended September 30, 1990.
</TABLE>
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NUMBER TITLE PAGE
_______ _____ _________
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10.39 -- Amendment No. 1 to the Credit Agreement, dated March 1, 1991 --
Incorporated by reference to Exhibit 10-(M)(2) to the Company's
Annual Report on Form 10-K for the year ended December 31,
1992.
10.40 -- Amendment No. 2 to the Credit Agreement, dated May 15, 1991 --
Incorporated by reference to Exhibit 10-(M)(3) to the Company's
Annual Report on Form 10-K for the year ended December 31,
1992.
10.41 -- Amendment No. 3 to the Credit Agreement, dated October 1,
1992 -- Incorporated by reference to Exhibit 10-(M)(4) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1992.
10.42 -- Form of Third Amended and Restated Credit Agreement dated
September 30, 1993, among the Company, various lenders, and BT
Commercial Corp. as Administrative Agent (without exhibits) --
Incorporated by reference to Exhibit 10-(N)(1) to the Company's
Annual Report on Form 10-K for the year ended December 31,
1993.
**10.43 -- Form of Amended and Restated Management Letter Agreement, dated
as of September 30, 1993 from the Company to the Lenders.
**10.44 -- Form of Amendment to Amended and Restated Management Letter
Agreement; Consent to Amendment of By-laws dated February 8,
1994 from the Company to the Lenders.
**10.45 -- Subscription Agreement between Amwest Partners, L.P and Lehman
Brothers Inc. dated , 1994
***11.1 -- Statement re: computation of net income (loss) per common
share.
***12.1 -- Statement re: computation of ratio of earnings to fixed
charges.
**23.1 -- Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1
above).
***23.2 -- Consent of KPMG Peat Marwick (independent auditors) -- Included
at page S-1.
*24.1 -- Power of Attorney (included on the signature pages of this
Registration Statement.
</TABLE>
- ---------------
* Filed herewith.
** To be filed by amendment.
*** Previously filed.
<PAGE> 1
EXHIBIT 2.1
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ARIZONA
IN RE
AMERICA WEST AIRLINES, INC., |
| CASE NO.
| 91-07505-PHX-RGM
| CHAPTER 11
Debtor. |
PLAN OF REORGANIZATION UNDER CHAPTER 11
OF THE UNITED STATES BANKRUPTCY CODE
AMERICA WEST AIRLINES, INC. ARNOLD & PORTER
Martin J. Whalen, Esq. 1200 New Hampshire Avenue, N.W.
4000 East Sky Harbor Blvd. Washington, D.C. 20036
Phoenix, Arizona 85034 (202) 872-6700
LEBOEUF, LAMB, GREENE & MACRAE Of Counsel:
633 17th Street, Suite 2800 Richard P. Schifter
Denver, Colorado Samuel A. Flax
(303) 291-2600 Brian P. Leitch
Of Counsel: Counsel to AmWest Partners,
Carl A. Eklund L.P., Co-Proponent of this
John Edward Maas Plan of Reorganization
GALLAGHER & KENNEDY
2600 North Central Avenue
Phoenix, Arizona 85004
(602) 530-8000
Of Counsel:
Charles R. Sterbach
Co-Counsel to the Debtor and
Debtor In Possession,
Co-Proponent of this
Plan of Reorganization
Dated: Phoenix, Arizona
June 28, 1994
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS.............................................................................
ARTICLE 2
TREATMENT OF UNCLASSIFIED CLAIMS........................................................ 9
2.1. Treatment of Post-Petition Agreement Claims................................ 9
2.2. Treatment of Administrative Claims......................................... 9
2.3. Allowed Priority Tax Claims................................................ 10
ARTICLE 3
DESIGNATION OF AND PROVISIONS FOR TREATMENT OF CLASSES
OF CLAIMS AND EQUITY INTERESTS.......................................................... 10
3.1. Class 1 -- Allowed Priority Wage Claims.................................... 10
3.2. Class 2 -- Allowed Priority Benefit Plan Contribution Claims............... 10
3.3. Class 3 -- Allowed Secured Claims.......................................... 10
3.4. Class 4 -- Allowed Convenience Claims...................................... 12
3.5. Class 5 -- Allowed General Unsecured Claims................................ 13
3.6. Class 6 -- Preferred and Common Stock...................................... 13
3.7. Class 7 -- Certain Other Claims and AWA Warrants, Options
and Other Equity Interests................................................. 14
ARTICLE 4
PROVISIONS OF NEWAWA SECURITIES ISSUED PURSUANT TO THE PLAN............................. 15
4.1. NewAWA Class A Common Stock................................................ 15
4.2. NewAWA Class B Common Stock................................................ 15
4.3. NewAWA Warrants............................................................ 15
4.4. NewAWA Senior Unsecured Notes.............................................. 16
ARTICLE 5
EXECUTORY CONTRACTS AND UNEXPIRED LEASES................................................ 16
5.1. Assumption of Certain Executory Contracts and Unexpired Leases............. 16
5.2. Rejection of Certain Executory Contracts and Unexpired Leases.............. 17
5.3. Claims Based on Rejection of Contracts or Unexpired Leases................. 17
ARTICLE 6
IDENTIFICATION OF CLASSES OF CLAIMS NOT IMPAIRED BY THE PLAN AND THE CLASS OF CLAIMS AND
EQUITY INTERESTS DEEMED TO HAVE REJECTED THE PLAN.....................................
17
6.1. Unimpaired Classes......................................................... 17
6.2. Class Deemed to Have Rejected the Plan..................................... 17
6.3. Other Impaired Classes..................................................... 18
ARTICLE 7
ACCEPTANCE OR REJECTION OF THE PLAN; EFFECT OF REJECTION BY
ONE OR MORE CLASSES..................................................................... 18
7.1. Impaired Classes to Vote................................................... 18
7.2. Acceptance by Class of Holders of Claims or Equity Interests............... 18
7.3. Cramdown................................................................... 18
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ARTICLE 8
MEANS FOR IMPLEMENTATION OF THE PLAN.................................................... 18
8.1. Investment Agreement....................................................... 18
8.2. Stockholders' and Registration Rights Agreements........................... 18
8.3. Delivery of Alliance Agreements............................................ 18
8.4. GPA Settlement............................................................. 18
8.5. Corporate Governance....................................................... 19
8.6. Release of Certain Claims and Actions...................................... 19
8.7. Indemnification Obligations................................................ 19
8.8. Exemption from Certain Taxes............................................... 20
8.9. Directors and Officers..................................................... 20
8.10. Revesting of Assets; No Further Supervision................................ 20
8.11. Implementation............................................................. 20
8.12. Cancellation of Securities................................................. 20
ARTICLE 9
CONDITIONS PRECEDENT TO THE EFFECTIVE DATE.............................................. 21
9.1. Effectiveness of the Plan.................................................. 21
ARTICLE 10
PROVISIONS COVERING DISTRIBUTIONS AND PAYMENTS.......................................... 21
10.1. Making of Distributions and Payments....................................... 21
10.2. Distributions by the Distribution Agent.................................... 21
10.3. Service of Indenture Trustee............................................... 23
10.4. Reserves for Distributions for Disputed Claims and Disputed Equity
Interests.................................................................. 25
10.5. Fractional Interests; Odd Lots; De Minimis Distributions................... 26
10.6. Delivery of Distributions; Unclaimed Property.............................. 26
10.7. Method of Payment.......................................................... 27
10.8. Payment Dates.............................................................. 27
10.9. Compliance with Tax Requirements........................................... 27
ARTICLE 11
PROCEDURES FOR RESOLVING DISPUTED CLAIMS OR EQUITY INTERESTS............................ 27
11.1. Filing of Objections to Claims or Equity Interests......................... 27
11.2. Settlement of Objections to Claims or Equity Interests After Effective
Date....................................................................... 27
11.3. Payment or Distribution to Holders of Disputed Claims or Equity
Interests.................................................................. 27
11.4. Reserves for Disputed Claims and Disputed Equity Interests................. 28
ARTICLE 12
MISCELLANEOUS PROVISIONS................................................................ 28
12.1. Modification of Payment Terms.............................................. 28
12.2. Discharge of Debtor........................................................ 28
12.3. Termination of Subordination Rights........................................ 28
12.4. Termination of the Creditors and Equity Committees......................... 28
12.5. Setoffs.................................................................... 29
12.6. Opt-Out.................................................................... 29
12.7. Section Headings........................................................... 29
12.8. Severability............................................................... 29
12.9. Computation of Time........................................................ 29
12.10. Governing Law.............................................................. 29
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ARTICLE 13
PROVISIONS FOR EXECUTION AND SUPERVISION OF THIS PLAN................................... 30
13.1. Retention of Jurisdiction.................................................. 30
13.2. Amendment of Plan.......................................................... 31
13.3. Post-Effective Date Notice................................................. 31
13.4. Revocation of Plan......................................................... 31
LIST OF EXHIBITS
Exhibit A -- Investment Agreement
Exhibit B -- Stockholders' Agreement
Exhibit C -- GPA Term Sheet
LIST OF SCHEDULES
Schedule 1 -- Section 1110 Stipulations
Schedule 2 -- Certain Final Orders Related to Settlements
Schedule 3 -- Certain Assumed Agreements
</TABLE>
iii
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<PAGE> 7
PLAN OF REORGANIZATION UNDER CHAPTER 11
OF THE UNITED STATES BANKRUPTCY CODE
AMERICA WEST AIRLINES, INC., the Debtor and Debtor in Possession in the
above-captioned Chapter 11 Case, and AMWEST PARTNERS, L.P., as co-proponents
hereof, hereby jointly propose the following Plan of Reorganization pursuant to
Section 1121(a), Title 11, United States Code for the resolution of the Debtor's
outstanding creditor claims and equity interests. Reference is made to the
Debtor's Disclosure Statement, filed contemporaneously with the Plan of
Reorganization, for a discussion of the Debtor's history, business, properties,
results of operations and projections for future operations and for a summary
and analysis of the Plan of Reorganization and certain related matters.
ALL HOLDERS OF CLAIMS AGAINST AND EQUITY INTERESTS IN THE DEBTOR ARE
ENCOURAGED TO READ THE PLAN OF REORGANIZATION AND THE DISCLOSURE STATEMENT IN
THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE PLAN.
ARTICLE 1
DEFINITIONS
As used in the Plan, the following terms shall have the respective meanings
specified below:
1.1. Administrative Claim: A Claim for any cost or expense of
administration of the Chapter 11 Case allowed under Section 503(b), Section
507(b), Section 546(c)(2) or Section 1114(e)(2) of the Bankruptcy Code and
entitled to priority under Section 507(a)(1) of the Bankruptcy Code, including,
without limitation, fees payable pursuant to Section 1930 of Title 28 of the
United States Code, but not including the Post-Petition Agreement Claims. To the
extent that a Claim is allowed as an administrative claim pursuant to Section
365(d)(3) of the Bankruptcy Code, such Claim shall also be deemed an
Administrative Claim under this Section.
1.2. Allowed Claim and Allowed . . . Claim: Any Claim against the Debtor
(i) proof of which, request for payment of which or application for allowance of
which was filed or deemed to be filed on or before the Bar Date for filing
proofs of claim or requests for payment for Claims of such type against the
Debtor, (ii) if no proof of claim is filed, which has been or hereafter is
listed by the Debtor in the Schedules as liquidated in amount and not disputed
or contingent, or (iii) a Claim that is allowed in any contract, instrument,
indenture or other agreement entered into in connection with the Plan and, in
any case, a Claim as to which no objection to the allowance thereof has been
interposed within the applicable period of limitation fixed by the Plan, the
Bankruptcy Code, the Bankruptcy Rules or the Bankruptcy Court. A Disputed Claim
shall be an Allowed Claim if, and only to the extent that, such Disputed Claim
has been Allowed by a Final Order or otherwise pursuant to Section 11.2. The
term "Allowed," when used to modify a reference in the Plan to any Claim or
class of Claims, shall mean a Claim (or any Claim in any such class) that is so
Allowed, e.g., an Allowed Secured Claim is a Claim that has been Allowed to the
extent of the value, as determined by the Bankruptcy Court pursuant to Section
506(a) of the Bankruptcy Code, of any interest in property of the estate of the
Debtor securing such Claim. Unless otherwise specified in the Plan, the
Confirmation Order or in the Final Order of the Bankruptcy Court allowing such
Claim, "Allowed Claim" shall not include interest on the amount of such Claim
from and after the Petition Date.
1.3. AmWest: AmWest Partners, L.P., a Texas limited partnership, and, as
the context requires, parties purchasing NewAWA Securities as a part of the
AmWest investment in NewAWA, even though such parties may or may not actually be
partners or investors in AmWest itself.
1.4. Assumed Agreement: Each executory contract and unexpired lease of the
Debtor which (i) has been assumed during the Chapter 11 Case prior to the
Confirmation Date pursuant to Section 365 of the Bankruptcy Code, (ii) is the
subject of a motion to assume pending on the Confirmation Date, or (iii) is
listed on Schedule 3 hereto in accordance with Section 5.1.1, either without
amendment, or with such amendments thereto as shall be agreed upon between the
Debtor and the other parties thereto.
<PAGE> 8
1.5. Avoidance Litigation: The Debtor's interest in any and all claims,
rights and causes of action which have been or may be commenced by or on behalf
of the Debtor to avoid and recover any transfers of property determined to be
preferential, fraudulent or otherwise avoidable pursuant to Sections 544, 545,
547, 548, 549, 553(b) or 550 of the Bankruptcy Code.
1.6. AWA: America West Airlines, Inc., a Delaware corporation, as the
Debtor and Debtor in Possession in the Chapter 11 Case, or, as the context may
require, NewAWA.
1.7. AWA Common Stock: The duly authorized and validly issued shares of
common stock of AWA, $.25 par value, which are outstanding immediately prior to
the Effective Date.
1.8. AWA Debenture Claims: All Claims of the holders of AWA Debentures and
the Indenture Trustee as of the Distribution Record Date for (i) payment,
pursuant to the Indentures, of principal in the face amount of the AWA
Debentures, plus interest accrued as of the Petition Date or (ii) the fees,
costs and expenses of the Indenture Trustee pursuant to the Indentures, but
excluding any Claims for damages in excess of the face amount of the AWA
Debentures arising from the purchase or sale of such AWA Debentures, and
excluding any Claims for equitable relief.
1.9. AWA Debentures: Collectively, the AWA 11 1/2% Convertible Subordinated
Debentures, the AWA 7 3/4% Convertible Subordinated Debentures, and the AWA
7 1/2% Convertible Subordinated Debentures.
1.10. AWA 11 1/2% Convertible Subordinated Debentures: The 11 1/2%
Convertible Subordinated Debentures due 2009, issued by AWA pursuant to the AWA
11 1/2% Subordinated Indenture and outstanding immediately prior to the
Effective Date.
1.11. AWA 11 1/2% Subordinated Indenture: The Indenture of Trust dated
December 15, 1986 between AWA and First Interstate Bank of Arizona, N.A.
1.12. AWA Preferred Stock: The duly authorized and validly issued shares of
Series C 9 3/4% Convertible Preferred Stock of AWA, $.25 par value, outstanding
immediately prior to the Effective Date.
1.13. AWA 7 1/2% Convertible Subordinated Debentures: The 7 1/2%
Convertible Subordinated Debentures due 2011, issued by AWA pursuant to the AWA
7 1/2% Subordinated Indenture and outstanding immediately prior to the Effective
Date.
1.14. AWA 7 1/2% Subordinated Indenture: The Indenture of Trust dated March
15, 1986 between AWA and First Interstate Bank of Arizona, N.A.
1.15. AWA 7 3/4% Convertible Subordinated Debentures: The 7 3/4%
Convertible Subordinated Debentures due 2010, issued by AWA pursuant to the AWA
7 3/4% Subordinated Indenture and outstanding immediately prior to the Effective
Date.
1.16. AWA 7 3/4% Subordinated Indenture: The Indenture of Trust dated
August 1, 1985 between AWA and First Interstate Bank of Arizona, N.A.
1.17. AWA Warrants, Options and Other Equity Interests: All Equity
Interests in AWA outstanding immediately prior to the Effective Date, except for
the AWA Common Stock and the AWA Preferred Stock, but including without
limitation all rights, options or warrants, authorized, adopted or distributed
to holders of Equity Interests or officers, directors or employees of AWA,
whether under one or more contracts or plans, to sell, purchase, grant or
otherwise transfer any issued and outstanding or authorized but unissued Equity
Interests of AWA under any and all applicable terms and conditions.
1.18. Ballot: The form for (i) acceptance or rejection of the Plan
distributed to those holders of Claims or Equity Interests entitled to vote on
the Plan and (ii) the election of (a) the option to purchase Equity Subscription
Stock and Over-Subscription Stock and (b) the option to become an Electing
Unsecured Creditor, as such form may be approved by the Bankruptcy Court and
which shall otherwise comply with the requirements of Bankruptcy Rule 3018(c).
1.19. Bankruptcy Code: The Bankruptcy Reform Act of 1978, Title 11, United
States Code, as applicable to the Chapter 11 Case, as now in effect or hereafter
amended.
2
<PAGE> 9
1.20. Bankruptcy Court: The unit of the United States District Court for
the District of Arizona having jurisdiction over the Chapter 11 Case.
1.21. Bankruptcy Rules: Collectively, the Federal Rules of Bankruptcy
Procedure and the local rules of the Bankruptcy Court, as applicable to the
Chapter 11 Case, as now in effect or hereinafter amended.
1.22. Bar Date: In the case of Claims other than Administrative Claims,
February 28, 1992, and in the case of Administrative Claims (other than
Preserved Ordinary Course Administrative Claims and Professional Fees), July 1,
1994.
1.23. Business Day: Any day other than a Saturday, Sunday or other day on
which commercial banks in New York or Arizona are authorized or required by law
to close.
1.24. Cash: Currency, checks and wire transfers of immediately available
funds.
1.25. Chapter 11 Case: The case under Chapter 11 of the Bankruptcy Code in
which AWA is the Debtor pending in the Bankruptcy Court with Case No.
91-07505-PHX-RGM, including all adversary proceedings pending in connection
therewith.
1.26. Claim: Any right to payment from the Debtor, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured
arising at any time before the Effective Date or relating to any event that
occurred before the Effective Date; or any right to an equitable remedy for
breach of performance if such breach gives rise to a right of payment from the
Debtor, whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured, unmatured, disputed, undisputed, secured or
unsecured. Any alleged right to payment which is listed by the Debtor on the
Schedules as disputed, unliquidated or contingent will not be a Claim hereunder
if the holder thereof has not filed a timely proof of claim with regard thereto.
1.27. Class: A category of holders of Claims or Equity Interests as
classified in the Plan.
1.28. Confirmation: The entry by the Bankruptcy Court of the Confirmation
Order.
1.29. Confirmation Date: The date upon which the Bankruptcy Court enters
the Confirmation Order.
1.30. Confirmation Hearing: The duly noticed hearing held by the Bankruptcy
Court on Confirmation of the Plan pursuant to Section 1128 of the Bankruptcy
Code. The Confirmation Hearing may be adjourned by the Bankruptcy Court from
time to time without further notice other than the announcement of the adjourned
date at the Confirmation Hearing.
1.31. Confirmation Order: An order of the Bankruptcy Court, in form and
substance satisfactory to the Debtor and AmWest, confirming the Plan.
1.32. Contingent Claim: A Claim which is either contingent or unliquidated
on or immediately before the Confirmation Date.
1.33. Convenience Claims: All Allowed General Unsecured Claims which are in
an amount of five hundred dollars ($500) or less.
1.34. Creditors' Committee: The Official Committee of Unsecured Creditors
appointed by the United States Trustee in the Chapter 11 Case pursuant to
Section 1102(a)(1) of the Bankruptcy Code.
1.35. Debt Instrument: A debenture, promissory note or other transferable
instrument evidencing a payment obligation.
1.36. Debtor and Debtor in Possession: AWA, as a debtor in possession in
the Chapter 11 Case pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
1.37. DIP Credit Agreement: The Third Amended and Restated Credit Agreement
dated as of September 30, 1993, between AWA and the DIP Lenders, as approved by
Final Order of the Bankruptcy Court dated September 29, 1993, together with all
integrally related documents, schedules and exhibits, as
3
<PAGE> 10
such agreement and such integrally related documents, schedules and exhibits may
be amended or amended and restated from time to time.
1.38. DIP Lenders: BT Commercial Corp., as Administrative Agent, GPA
Leasing USA I, Inc., GPA Leasing USA Sub I, Inc., Kawasaki Leasing
International, Inc., B&B Holdings, Inc. d/b/a Phoenix Cardinals, Bank of America
Arizona, Bank One Arizona, N.A., Commerce and Economic Development Division, The
Dial Corp., DMB Holding Limited Partnership, El Dorado Investment Company, First
Interstate Bank of Arizona, N.A., Phelps Dodge Corporation, Phoenix Newspapers,
Inc., and Phoenix Suns, Ltd. Partnership and each substitute or additional
lender under any permitted assignment, amendment or amendment and restatement of
the DIP Credit Agreement.
1.39. DIP Loan Claims: Any and all Claims, whether a Secured Claim or an
Unsecured Claim, of the DIP Lenders, arising under the DIP Credit Agreement.
1.40. Disclosure Statement: The Disclosure Statement dated as of June 28,
1994, including exhibits and any supplements, amendments or modifications
thereto, prepared pursuant to Sections 1125(a) and 1126(b) of the Bankruptcy
Code, and Bankruptcy Rule 3018(b), as approved by the Bankruptcy Court.
1.41. Disputed Claim and Disputed . . . Claim: A Claim which is (i) the
subject of a timely objection interposed by the Debtor, NewAWA or any party in
interest (including the Creditors' Committee and the Equity Committee) in the
Chapter 11 Case, if at such time such objection remains unresolved, (ii) a Claim
that is listed by the Debtor as disputed, unliquidated or contingent in the
Schedules or (iii) if no objection has been timely filed, a Claim which has been
asserted in a timely filed proof of claim in an amount greater than or in a
class different than that listed by the Debtor in the Schedules as liquidated in
amount and not disputed or contingent; provided, however, that the Bankruptcy
Court may estimate a Disputed Claim for purposes of allowance pursuant to
Section 502(c) of the Bankruptcy Code. The term "Disputed," when used to modify
a reference in the Plan to any Claim or class of Claims, shall mean a Claim (or
any Claim in such class) that is a Disputed Claim as defined herein. In the
event there is a dispute as to classification or priority of a Claim, it shall
be considered a Disputed Claim in its entirety. Until such time as a Contingent
Claim becomes fixed and absolute, such Claim shall be treated as a Disputed
Claim and not an Allowed Claim for purposes related to allocations and
distributions under the Plan.
1.42. Disputed Equity Interest: An Equity Interest which is the subject of
a timely objection interposed by the Debtor, NewAWA or any party in interest
(including the Equity Committee) in the Chapter 11 Case, if at such time such
objection remains unresolved.
1.43. Distribution Agent: NewAWA or such disbursing agent(s) as NewAWA
shall from time to time employ at its expense for the purpose of making
distributions under the Plan.
1.44. Distribution Agent Charges: Any Taxes imposed upon or with respect to
(i) the Distribution Agent in its capacity as such, or (ii) the assets held by
the Distribution Agent in its capacity as such or any income realized thereon.
1.45. Distribution Date: With respect to any Allowed Claim or Equity
Interest, each date on which a payment is made with respect to such Allowed
Claim or Equity Interest.
1.46. Distribution Record Date: For the purposes under Bankruptcy Rules
3001 and 3021 for any distribution under the Plan to the holders of Claims or
Equity Interests and for the determination of which Claims or Equity Interests
may be disallowed, the Effective Date.
1.47. Effective Date: The last to occur of (i) the first Business Day that
is at least eleven (11) days after the Confirmation Date and on which no stay of
the Confirmation Order is in effect, and (ii) the Business Day on which all of
the conditions set forth in Section 9.1 shall have been satisfied.
1.48. Electing Creditor Cash: The Cash to be received by Electing Unsecured
Creditors in accordance with Section 3.5.
1.49. Electing Creditor Stock: The NewAWA Class B Common Stock to be
distributed under certain circumstances to Electing Unsecured Creditors pursuant
to Section 3.5.
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1.50. Electing Unsecured Creditors: Holders of General Unsecured Claims who
elect to receive Electing Creditor Cash instead of NewAWA Class B Common Stock
in accordance with Section 3.5.
1.51. Employee Stock Purchase Notes: Any and all Debt Instruments executed
and delivered by any current or former director, officer or employee of AWA
under the Employee Stock Purchase Plan.
1.52. Employee Stock Purchase Plan: Any and all of the Debtor's stock
purchase plan(s) whereby directors, officers or employees of AWA were authorized
(whether on a mandatory or optional basis) to acquire or finance the purchase of
AWA Common Stock on certain terms and conditions and subject to certain
repayment obligations.
1.53. Equity Committee: The Official Committee of Equity Security Holders
of AWA appointed in the Chapter 11 Case pursuant to Section 1102(a)(2) of the
Bankruptcy Code.
1.54. Equity Interest: Any interest in the Debtor represented by any class
or series of common or preferred stock issued by the Debtor and any warrants,
options or rights to purchase any such common or preferred stock. Equity
Interests include, without limitation, all AWA Common Stock, AWA Preferred Stock
and AWA Warrants, Options and Other Equity Interests.
1.55. Equity Interests Stock: The 2,250,000 shares of NewAWA Class B Common
Stock to be issued to holders of AWA Common Stock as provided in Section 3.6.2.
1.56. Equity Interests Warrants: The NewAWA Warrants to purchase 6,230,769
shares of NewAWA Class B Common Stock to be issued to holders of AWA Common
Stock as provided in Section 3.6.2.
1.57. Equity Subscription Stock: The up to 1,615,179 shares of NewAWA Class
B Common Stock of which each holder of AWA Common Stock is entitled to purchase
up to its Pro Rata Share as provided in Section 3.6.2.
1.58. ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
1.59. Escrow Agent: The bank, trust company or other organization
independent of NewAWA, selected by AWA or NewAWA and retained pursuant to an
agreement approved by order of the Bankruptcy Court, designated to act as escrow
agent with respect to the Reserves as provided in Section 10.4, which entity may
be the Distribution Agent, if the Distribution Agent is not affiliated with
NewAWA.
1.60. Fidelity: Fidelity Management Trust Company, its affiliates and funds
and accounts managed by it and its affiliates.
1.61. Final Distribution Date: The Distribution Date for a Class after
which the Reserve Amount for such Class will be zero.
1.62. Final Order: An order or judgment which has not been reversed,
stayed, modified or amended and is no longer subject to appeal, certiorari
proceeding or other proceeding for review or rehearing, and as to which no
appeal, certiorari proceeding, or other proceeding for review or rehearing shall
then be pending.
1.63. General Unsecured Claim: Any Unsecured Claim other than a
Post-Petition Agreement Claim, an Administrative Claim, a Priority Wage Claim, a
Priority Benefit Plan Contribution Claim, a Priority Tax Claim, a Convenience
Claim or a Claim treated in accordance with Section 3.7 of the Plan.
1.64. GPA: GPA Group plc and affiliates thereof.
1.65. Indenture Trustee: Texas Commerce Bank, National Association (f/k/a
Ameritrust Company of New York), as Successor Trustee to First Interstate Bank
of Arizona, N.A., or any successor under the Indentures.
1.66. Indentures: Collectively, the AWA 11 1/2% Subordinated Indenture, the
AWA 7 1/2% Subordinated Indenture and the AWA 7 3/4% Subordinated Indenture.
1.67. Interim Procedures Agreement. The Third Revised Interim Procedures
Agreement dated April 21, 1994 between AWA and AmWest, as amended from time to
time.
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1.68. Investment Agreement: The Third Revised Investment Agreement, dated
April 21, 1994, as amended from time to time, between AWA and AmWest, in the
form of Exhibit A hereto, which is incorporated herein by reference.
1.69. IRS: The Internal Revenue Service.
1.70. Lehman: Lehman Brothers, Inc.
1.71. Net Proceeds: The gross proceeds received from the sale, lease,
disposition, liquidation and collection of assets, less amounts actually
incurred for (i) necessary and reasonable costs and expenses in connection with
such sale, lease, disposition, liquidation or collection, including, but not
limited to, attorneys' fees related thereto, and (ii) all liabilities, charges,
Taxes, offsets and encumbrances required to be discharged with respect to such
assets and in connection with the sale, lease, disposition, liquidation and
collection thereof.
1.72. NewAWA: AWA on and after the Effective Date.
1.73. NewAWA By-laws: The Restated By-laws of NewAWA.
1.74. NewAWA Charter: The Restated Certificate of Incorporation of NewAWA.
1.75. NewAWA Class A Common Stock: The Class A Common Stock, par value $.01
per share, of NewAWA which NewAWA shall be authorized to issue on and after the
Effective Date.
1.76. NewAWA Class B Common Stock: The Class B Common Stock, par value $.01
per share, of NewAWA which NewAWA shall be authorized to issue on and after the
Effective Date.
1.77. NewAWA Common Stock: Collectively, the NewAWA Class A Common Stock
and the NewAWA Class B Common Stock.
1.78. NewAWA Securities: Collectively, the NewAWA Common Stock, NewAWA
Warrants and NewAWA Senior Unsecured Notes.
1.79. NewAWA Senior Unsecured Notes: The Senior Unsecured Notes which
NewAWA shall be authorized to issue on or after the Effective Date.
1.80. NewAWA Warrants: The warrants to purchase shares of NewAWA Class B
Common Stock which NewAWA shall be authorized to issue on or after the Effective
Date.
1.81. Non-Electing Creditor Stock: The NewAWA Class B Common Stock to be
distributed to Non-Electing Unsecured Creditors in accordance with Section
3.5.2.
1.82. Non-Electing Unsecured Creditors: Holders of General Unsecured Claims
that do not elect to be Electing Unsecured Creditors in accordance with Section
3.5.
1.83. Notice and a Hearing: This phrase shall have the same meaning as
provided for in Section 102(1) of the Bankruptcy Code.
1.84. Official Service List: The then-current Official Service List in the
Chapter 11 Case, as required by the Bankruptcy Court's "Order Establishing
Notice Requirements With Respect to All Matters Herein" entered on June 28,
1991, and "Order Modifying Noticing Procedures and Requirements" entered on
October 21, 1991.
1.85. Over-Subscription Stock: The shares of NewAWA Class B Common Stock
which were available for purchase as Equity Subscription Stock and which were
not so purchased. Over-Subscription Stock shall be available for sale to holders
of AWA Preferred Stock in accordance with Section 3.6.1 and, if there are more
than 250,000 such shares or if holders of AWA Preferred Stock subscribe for
fewer shares than they are entitled to subscribe for, to Purchasing Stockholders
in accordance with Section 3.6.2.
1.86. Person: An individual, a corporation, a limited liability company, a
partnership, an association, a joint stock company, a joint venture, an estate,
a trust, an unincorporated organization or a government, governmental unit or
any subdivision thereof or any other entity.
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1.87. Petition Date: June 27, 1991, the date on which the Debtor filed a
voluntary petition commencing the Chapter 11 Case.
1.88. Plan: This Plan of Reorganization, either in its present form or as
it may be amended, supplemented or modified from time to time, including all
exhibits and schedules annexed hereto or referenced.
1.89. Plan Discount Rate: The rate of interest equal to eight percent (8%)
per annum.
1.90. Post-Petition Agreement Claim: Any Claim against the Debtor of the
type listed in Section 2.1 but not including an Administrative Claim arising as
a result of the assumption of an executory contract or lease listed on Schedule
3 hereto.
1.91. Present Value: As the context requires, the present value as of the
Effective Date of a stream of Cash payments computed using the Plan Discount
Rate.
1.92. Preserved Ordinary Course Administrative Claim: Administrative Claims
that are based on liabilities incurred in (a) AWA's purchase, lease or use of
goods and services in the ordinary course of its business or (b) AWA's sale or
provision of air transportation services (including the sale of tickets to
passengers) in the ordinary course of its business, including Administrative
Claims due on account of services provided to AWA after the Petition Date by its
employees.
1.93. Prime Rate: The rate of interest which under current practice is
listed as such under the heading "Money Rates" in the Eastern Edition of The
Wall Street Journal and if a range of rates is listed, the lowest such rate. In
the event that such a listing is not available, the Prime Rate shall be such
other measure of the prime rate generally in effect as is reasonably selected by
NewAWA. For purposes of the Plan and any notes or other instruments delivered
pursuant hereto, the Prime Rate shall be deemed to adjust on and only on the
last Business Day of each December, March, June and September to the Prime Rate
then in effect.
1.94. Priority Benefit Plan Contribution Claim: Any Claim entitled to
priority in payment under Section 507(a)(4) of the Bankruptcy Code.
1.95. Priority Tax Claim: Any Claim entitled to priority in payment under
Section 507(a)(7) of the Bankruptcy Code.
1.96. Priority Wage Claim: Any Claim entitled to priority in payment under
Section 507(a)(3) of the Bankruptcy Code.
1.97. Professional Fees: The Administrative Claims for compensation and
reimbursement submitted pursuant to Section 330, Section 331 or Section 503(b)
of the Bankruptcy Code by Persons (i) employed pursuant to an order of the
Bankruptcy Court under Section 327 or Section 1103 of the Bankruptcy Code or
(ii) for whom compensation and reimbursement has been allowed by the Bankruptcy
Court pursuant to Section 503(b) of the Bankruptcy Code.
1.98. Pro Rata Share: The ratio of an Allowed Claim or Equity Interest in a
particular Class to the aggregate amount of all Allowed Claims or Equity
Interests in that Class.
1.99. Purchasing Stockholder: A holder of AWA Common Stock who elects to
purchase Equity Subscription Stock or Over-Subscription Stock as provided in
Section 3.6.2.
1.100. Registration Rights Agreement: The Registration Rights Agreement to
be entered into by and among NewAWA, AmWest and certain other parties pertaining
to certain NewAWA Securities to be purchased or otherwise issued pursuant to the
Investment Agreement or the Plan.
1.101. Rejected Agreement: Each executory contract or unexpired lease of
Debtor that is rejected pursuant to Section 5.2.
1.102. Reserve: As to any Class, the amount held at any particular time by
the Escrow Agent, as provided in Section 10.4, including the Reserve Amounts at
such time, and any interest, dividends or other income earned upon investment of
the Reserve Amount.
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1.103. Reserve Amount: The NewAWA Securities and/or Cash reserved as of a
particular date for the Disputed Claims or Disputed Equity Interests of a
particular Class pursuant to Section 10.4.
1.104. Reserve Order: Any Final Order of the Bankruptcy Court establishing
the Reserve Amount for any Reserve, as established in Section 10.4.
1.105. Schedules: The schedules of assets and liabilities and any
amendments thereto filed by the Debtor with the Bankruptcy Court in accordance
with Section 521(1) of the Bankruptcy Code.
1.106. Secured Claim: A Claim to the extent of the value of any interest in
property of the Debtor's estate securing such Claim or to the extent of the
amount of such Claim subject to setoff in accordance with Section 553 of the
Bankruptcy Code, in either case as determined pursuant to Section 506(a) of the
Bankruptcy Code. To the extent that the value of such interest or setoff is less
than the amount of the Claim which has the benefit of such security or is
subject to such setoff, such Claim is an Unsecured Deficiency Claim unless, in
the case of a Claim secured by a lien on property of the Debtor's estate, the
Class of which such Claim is a part makes a valid election under Section 1111(b)
of the Bankruptcy Code no later than the Voting Deadline to have such Claim
treated as a Secured Claim to the extent allowed.
1.107. Securities Action: The presently uncertified class action lawsuit
pending in the Superior Court of the State of Arizona for the County of Maricopa
styled Clark v. Beauvais, Case No. CV 92-07197.
1.108. Stock Rescission or Damage Claim: Any Claim pursuant to Section
510(b) of the Bankruptcy Code (i) for rescission of the purchase or sale of AWA
Common Stock, (ii) for damages arising from the purchase or sale of AWA Common
Stock, or (iii) for reimbursement, contribution or indemnification on account of
such rescission or damage claim.
1.109. Stock Payment Escrow Account: The escrow account to be established
in accordance with Section 10.2.2 to receive payment for Equity Subscription
Stock and Over-Subscription Stock.
1.110. Stockholders' Agreement: The Stockholders' Agreement for America
West Airlines, Inc., to be dated as of the Effective Date, substantially in the
form of Exhibit B hereto, which is incorporated herein by reference.
1.111. Subordinated Claim: Any Claim or Equity Interest subordinated, for
purposes of distribution, pursuant to Section 510(c) of the Bankruptcy Code.
1.112. Taxes: All income, franchise, excise, sales, use, employment,
withholding, property, payroll or other taxes, assessments, or governmental
charges, together with any interest, penalties, additions to tax, fines, and
similar amounts relating thereto, imposed or collected by any federal, state,
local or foreign governmental authority.
1.113. Unsecured Claim: A Claim not secured by a charge against or interest
in property in which the Debtor's estate has an interest, including any
Unsecured Deficiency Claim.
1.114. Unsecured Deficiency Claim: A Claim by a holder of a Secured Claim
arising out of the same transaction as a Secured Claim to the extent that the
value of such holder's interest in property of the Debtor's estate securing such
Claim or subject to setoff is less than the amount of the Claim which has the
benefit of such security or setoff, as provided by Section 506(a) of the
Bankruptcy Code.
1.115. Voting Deadline: The deadline for filing Ballots, as fixed by the
Bankruptcy Court in the order approving the Disclosure Statement or otherwise.
1.116. Voting Record Date: June 8, 1994.
1.117. Other Definitions: Unless the context otherwise requires, any
capitalized term used and not defined herein or elsewhere in the Plan but that
is defined in the Bankruptcy Code or Bankruptcy Rules shall have the meaning set
forth therein. Wherever from the context it appears appropriate, each term
stated in either of the singular or the plural shall include the singular and
the plural, and pronouns stated in the masculine, feminine or neuter gender
shall include the masculine, the feminine and the neuter. The words
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"herein," "hereof," "hereto," "hereunder," and others of similar inference refer
to the Plan as a whole and not to any particular Article, Section, subsection,
or clause contained in the Plan.
ARTICLE 2
TREATMENT OF UNCLASSIFIED CLAIMS
The Claims against the Debtor covered in this Article 2 are not designated
as Classes pursuant to Section 1123(a)(1) of the Bankruptcy Code. The holders of
such Claims are not entitled to vote on the Plan.
2.1. Treatment of Post-Petition Agreement Claims. This Section 2.1 contains
provisions dealing with the Post-Petition Agreement Claims.
2.1.1. DIP Credit Agreement. The DIP Loan Claims will be paid in full,
in Cash, by AWA on the Effective Date or such later date as may be agreed by AWA
and the DIP Lenders, or shall be paid in such other manner as may be agreed to
by AWA and the DIP Lenders.
2.1.2. Kawasaki Priority Facility. Any and all Claims arising from
that certain Loan Restructuring Agreement, dated as of December 1, 1991, between
AWA and Kawasaki Leasing International, Inc., as amended and supplemented from
time to time, and as approved by Final Order of the Bankruptcy Court dated
December 12, 1991, will be treated exclusively in accordance with the terms and
conditions of such agreement or as otherwise agreed by the holder of such Claims
and the Debtor or NewAWA.
2.1.3. Section 1110 Stipulations. Any and all Claims arising from the
stipulations entered into pursuant to Section 1110 of the Bankruptcy Code
between AWA and other parties during the Chapter 11 Case including, without
limitation, the stipulations listed on Schedule 1 hereto, and as approved by
Final Order of the Bankruptcy Court, shall in each case be treated exclusively
in accordance with the terms and conditions of such stipulations and Final
Orders, and such terms and conditions shall be binding upon NewAWA.
2.1.4. Settlement Stipulations and Other Post-Petition Orders. Any and
all Claims arising from obligations of AWA which were or are the subject of
settlement or other agreements entered into between AWA and other parties,
whether prior to or after the Effective Date, which settlement or other
agreements were or are approved by Final Order of the Bankruptcy Court,
including, without limitation, those Final Orders listed on Schedule 2 hereto,
shall be treated exclusively in accordance with the terms and conditions of such
settlement and other agreements and Final Orders.
2.2. Treatment of Administrative Claims.
2.2.1. This Section 2.2 contains provisions dealing with the treatment
of Administrative Claims. Such treatment is consistent with the requirements of
Section 1129(a)(9)(A) of the Bankruptcy Code.
2.2.2. Each Allowed Administrative Claim, other than Preserved
Ordinary Course Administrative Claims, shall be paid in full in Cash (or
otherwise satisfied in accordance with its terms) by NewAWA at such time or
times as provided in Section 10.1 or as otherwise agreed by the holder of such
Allowed Administrative Claim and the Debtor or NewAWA. Each Preserved Ordinary
Course Administrative Claim shall be paid by NewAWA pursuant to the terms and
conditions under which such Claim arose, without further action by the holder of
such Claim.
2.2.3. All requests for payment of Administrative Claims, except for
Professional Fees and Preserved Ordinary Course Administrative Claims, must be
filed by the Bar Date or the holders thereof shall be forever barred from
asserting such Administrative Claims against the Debtor. All final applications
for allowance and disbursement of Professional Fees must be filed not later than
sixty (60) days after the Effective Date. All such applications must be in
compliance with all of the terms and provisions of any applicable order of the
Bankruptcy Court, including the Confirmation Order, and all orders governing
payment of Professional Fees. AWA will request the Bankruptcy Court to set the
hearing on final allowance of Professional Fees in the Confirmation Order. Such
applications may be later amended to include any fees and costs incurred after
the Confirmation Date but prior to the Effective Date, or hearing date, as the
case may be.
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2.3. Allowed Priority Tax Claims. Each Allowed Priority Tax Claim, if any,
will be paid in full in Cash by NewAWA at such time or times as provided in
Section 10.1 hereof; provided, however, that NewAWA may elect to pay such
Claims, in any such case, through deferred Cash payments over a period not
exceeding six (6) years after the date of assessment of such Claim, of a value
as of the Effective Date equal to the Allowed amount of such Claim, in each case
unless otherwise agreed between NewAWA and the holder of such Allowed Priority
Tax Claim. Such payments shall be made in equal annual installments of
principal, plus simple interest accruing from the Effective Date at 6% per annum
on the unpaid portion of Allowed Priority Tax Claim or such other rate as the
Bankruptcy Court may approve. The first such payment shall be payable on the
latest of: (i) the Effective Date; (ii) 60 days after the date on which an order
allowing such Claim becomes a Final Order; and (iii) such other time as is
agreed upon by the holder of such Claim and AWA or NewAWA; provided, however,
that NewAWA shall have the right to prepay any such Allowed Priority Tax Claim,
or any remaining balance of such Claim, in full or in part, at any time on or
after the Effective Date, without premium or penalty. The foregoing treatment of
Allowed Priority Tax Claims is consistent with the requirements of Section
1129(a)(9)(C) of the Bankruptcy Code.
ARTICLE 3
DESIGNATION OF AND PROVISIONS
FOR TREATMENT OF CLASSES OF
CLAIMS AND EQUITY INTERESTS
All Claims and Equity Interests, except Post-Petition Agreement Claims,
Administrative Claims and Priority Tax Claims are placed in the Classes
described below. A Claim or Equity Interest is classified in a particular Class
only to the extent that the Claim or Equity Interest qualifies within the
description of that Class and is classified in other Classes only to the extent
that any remainder of the Claim or Equity Interest qualifies within the
description of such other Classes. A Claim is also classified in a particular
Class only to the extent that such Claim is an Allowed Claim in that Class and
has not been paid, released or otherwise satisfied prior to the Effective Date.
3.1. Class 1 -- Allowed Priority Wage Claims. Each Allowed Priority Wage
Claim shall be paid in full in Cash by NewAWA at such time or times as provided
in Section 10.1 hereof. Class 1 is unimpaired under the Plan.
3.2. Class 2 -- Allowed Priority Benefit Plan Contribution Claims. All
Allowed Priority Benefit Plan Contribution Claims shall be paid in full in Cash
by NewAWA at such time or times as provided in Section 10.1 hereof. Class 2 is
unimpaired under the Plan.
3.3. Class 3 -- Allowed Secured Claims.
3.3.1. Class 3.1 -- U.S. Leasing (Ford) Ramp Equipment Loan. This
Class consists of any Secured Claims arising from that certain Promissory Note
dated December 13, 1988, between AWA and Ford Equipment Leasing Co., as amended
and supplemented from time to time and as in effect as of the Petition Date. The
principal collateral securing this Claim consists of certain group transport
support equipment and jetway equipment. On the Effective Date, the holder of the
Allowed Class 3.1 Claim will receive a promissory note in the amount of such
Allowed Claim, bearing interest at the Prime Rate plus 100 basis points per
annum payable over a term of five years in level monthly principal installments,
plus interest. The holder of such Claim will retain all of the liens securing
such Claim as such liens may exist as of the Effective Date to the extent of the
amount of the Note. Class 3.1 is impaired under the Plan.
3.3.2. Class 3.2 -- Bank of America Revolver. This Class consists of
any Secured Claims arising from that certain Revolving Loan Agreement dated
April 17, 1990, among AWA, Bank of America National Trust & Savings Association,
as Agent and for itself, First Interstate Bank of Arizona, the Industrial Bank
of Japan Limited, Los Angeles Agency, The Valley National Bank of Arizona and
First Hawaiian Bank, as amended and supplemented from time to time and as in
effect as of the Petition Date. The principal collateral securing this Claim
consists of Boeing 747 and 757 spare parts, certain expendable aircraft parts,
inventory and six spare Pratt & Whitney Model JT8D-9A engines. On the Effective
Date, the holder of the Allowed
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Class 3.2 Claim will receive a promissory note in the amount of such Allowed
Claim, bearing interest at the Prime Rate plus 100 basis points per annum,
payable over a term of four years in level quarterly principal installments,
plus interest. The holder of such Claim will retain all of the liens securing
such Claim as such liens may exist as of the Effective Date to the extent of the
amount of the Note. Class 3.2 is impaired under the Plan.
3.3.3. Class 3.3 -- Bank One of Arizona f/k/a Valley National
Bank -- Spare Parts Loan. This Class consists of any Secured Claims arising from
(a) that certain Master Reimbursement Agreement, dated as of April 15, 1989
between AWA and Valley National Bank of Arizona, a national banking association,
n/k/a Bank One of Arizona, N.A. ("BOAZ"), as amended and supplemented from time
to time and as in effect as of July 25, 1991, and (b) that certain Amended and
Restated Reimbursement Agreement, dated June 29, 1990 among AWA, BOAZ and Bank
of America National Trust and Savings Association, as amended and supplemented
from time to time and as in effect on the Petition Date. The principal
collateral securing these Claims consists of certain spare rotable nonconsumable
parts, accessories, appliances, equipment and other items that are appropriate
for installation or use on, in or with any Boeing model 737 aircraft or any part
thereof. On the Effective Date, the holder of such claim shall receive either
(i) a cash payment in an amount equal to the sum of (A) $21,212,953.98, if the
Effective Date occurs on June 10, 1994, $21,760,297.61, if the Effective Date
occurs on August 1, 1994, $22,099,874.80, if the Effective Date occurs on
September 1, 1994, $22,433,542.61, if the Effective Date occurs on November 1,
1994, provided that such amount shall be appropriately adjusted at an identical
compounded rate if the Effective Date occurs on any other date other than as set
forth above; plus (B) $65,000; plus (C) $1,976,000, if the Effective Date occurs
on June 10, 1994, $2,027,998.16, if the Effective Date occurs on August 1, 1994,
$2,059,645.79, if the Effective Date occurs on September 1, 1994, $2,090,742.69,
if the Effective Date occurs on October 1, 1994, $2,123,369.47, if the Effective
Date occurs on November 1, 1994, provided, that such amount shall be
appropriately adjusted at an identical compounded rate if the Effective Date
occurs on any other date other than as set forth above, and provided, further,
that if an unexpired letter of credit expires at any time prior to the Effective
Date, such amount shall be appropriately adjusted at an identical compounded
rate such that interest shall have ceased to accrue on the principal amount
represented by such expired letter of credit as of the date of such expiration;
minus (D) $1,976,000; plus (E) the principal amount drawn under any unexpired
letters of credit on or after June 10, 1994 and prior to the Effective Date; or
(ii) such other treatment as shall be agreed upon by the Debtor and the holders
of such Claims as is approved by the Bankruptcy Court. Class 3.3 is impaired
under the Plan.
3.3.4. Class 3.4 -- Hangar Facility Bonds. This Class consists of any
Secured Claims arising from that certain Indenture of Trust dated August 1,
1986, between the Industrial Development Authority of the City of Phoenix,
Arizona, and First Interstate Bank of Arizona, N.A., as Indenture Trustee, as
amended and supplemented from time to time and as in effect as of the Petition
Date and pursuant to which the Variable Rate Airport Facility Revenue Bonds
(America West Airlines, Inc. Project) Series 1986 were issued. The principal
collateral securing this Claim consists of the AWA maintenance and technical
support facility located at Phoenix Sky Harbor International Airport. On the
Effective Date, the holder of the Allowed Class 3.4 Claim will receive a
promissory note in the amount of such Allowed Claim, bearing interest at the
rate of 6% per annum, payable over a term of twelve years in level quarterly
principal installments plus interest. The holder of such Claim will retain all
of the liens securing such Claim as such liens may exist as of the Effective
Date to the extent of the amount of the Note. Class 3.4 is impaired under the
Plan.
3.3.5. Class 3.5 -- Lockheed Finance No. 2. This Class consists of any
Secured Claims arising from that certain Master Equipment Lease Agreement No.
0134 dated as of November 12, 1987, between AWA and Lockheed Finance
Corporation, as amended and supplemented from time to time and as in effect as
of the Petition Date. The principal collateral securing this Claim consists of
certain ground support equipment. On the Effective Date, the holder of the
Allowed Class 3.5 Claim will receive a promissory note in the amount of $750,000
bearing interest at the 30-day LIBOR rate (as provided for in such Master Lease
Agreement) plus 200 basis points per annum, payable over a term of five years in
level monthly principal installments, plus interest. The holder of such Claim
will have no Unsecured Deficiency Claim and will retain all of the liens
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securing such Claim as such liens may exist as of the Effective Date to the
extent of the amount of the Note. Class 3.5 is impaired under the Plan.
3.3.6. Class 3.6 -- Other Secured Claims. This Class consists of
Allowed Secured Claims not specifically provided for above. On the Effective
Date, as to such Allowed Secured Claim, at AWA's option either:
(a) the holder of such Claim shall be treated in accordance with
the terms and conditions of all documents respecting such Claim and the legal,
equitable or contractual rights to which each holder of such Claim is entitled
shall not otherwise be altered;
(b) (i) any default, other than a default of the kind specified
in Section 365(b)(2) of the Bankruptcy Code, shall be cured, provided that any
accrued and unpaid interest, if any, which the Debtor may be obligated to pay
with respect to such default shall be simple interest at the contract rate and
not at any default or penalty rate of interest;
(ii) the maturity of the Claim shall be reinstated as such
maturity existed before any default;
(iii) the holder of the Claim shall be compensated for any
actual damages incurred as a result of any reasonable reliance by the holder on
any contractual provision that entitled the holder to accelerate maturity of the
Claim; and
(iv) the other legal, equitable or contractual rights to
which the holder of the Claim is entitled shall not otherwise be altered;
provided, however, that as to any Allowed Secured Claim which is a nonrecourse
claim and exceeds the value of the collateral securing the Claim, the collateral
may be sold at a sale at which the holder of such Claim has an opportunity to
bid;
(c) on the Effective Date, or on such other date thereafter as
may be agreed to by the Debtor and the holder of such Claim, the Debtor shall
abandon the collateral securing such Claim to the holder thereof in full
satisfaction and release of such Claim;
(d) on the Effective Date, the holder of such Claim shall
receive, on account of such Claim, Cash equal to its Allowed Secured Claim, or
such lesser amount to which the holder of such Claim shall agree, in full
satisfaction and release of such Claim;
(e) the holder of such Claim shall retain the liens securing such
Claim and shall receive, on account of such Claim, deferred Cash payments,
pursuant to Section 1129(b)(2)(A)(i)(II) of the Bankruptcy Code, totalling at
least the Allowed amount of such Claim, of a Present Value, as of the Effective
Date, of at least the value of such holder's interest in the Debtor's interest
in the property securing such Claim;
(f) on the Effective Date, any property that is subject to the
liens securing such Claim shall be sold, subject to Section 363(k) of the
Bankruptcy Code, free and clear of such liens, with payment of the net proceeds
thereof to the holder of such Claim to the extent of the value of such holder's
respective interest in such property; or
(g) the holder of such Claim shall otherwise realize the
indubitable equivalent of such Claim.
Each holder of an Allowed Claim in Class 3.6 shall be considered to be in its
own separate subclass within Class 3.6, and each such subclass will be deemed to
be a separate Class for purposes of this Plan. In the event that AWA does not
make such designation, the holder of an Allowed Secured Claim shall, at any time
prior to the Effective Date, be entitled to petition the Bankruptcy Court for an
order requiring AWA to make such designation, but shall not be entitled to any
other relief or to exercise any other remedies, except in accordance with such
designation and any applicable Final Order(s) of the Bankruptcy Court.
3.4. Class 4 -- Allowed Convenience Claims. This Class consists of
Convenience Claims. Each Allowed Convenience Claim shall be paid by NewAWA Cash
in the amount of such Allowed Convenience Claim to be distributed as provided in
Section 10.1. Class 4 is not impaired under the Plan.
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<PAGE> 19
3.5. Class 5 -- Allowed General Unsecured Claims. This Class consists of
General Unsecured Claims.
3.5.1. Each holder of an Allowed General Unsecured Claim shall receive
its Pro Rata Share of 26,775,000 shares of NewAWA Class B Common Stock;
provided, however, that if the holder is an Electing Unsecured Creditor in
accordance with Section 3.5.2, such holder shall receive Electing Creditor Cash
equal to $8.889 for each share of NewAWA Class B Common Stock otherwise
allocable to it under this sentence.
3.5.2. A holder of an Allowed General Unsecured Claim may become an
Electing Unsecured Creditor only by providing notice of such election on the
Ballot which such holder submits. Any holder of a Disputed General Unsecured
Claim that wishes to become an Electing Unsecured Creditor must provide notice
to the Debtor of the exercise of such right by no later than the Voting
Deadline. Each such election by a holder of a General Unsecured Claim shall be
irrevocable and must pertain to the entire amount of such holder's General
Unsecured Claim. In the event that the aggregate amount of the Electing Creditor
Cash would be in excess of $100,000,000, then each Electing Unsecured Creditor
shall receive only its Pro Rata Share of $100,000,000 in Cash and shall also
receive a number of shares of Electing Creditor Stock equal to the number of
shares of NewAWA Class B Common Stock it would have received if it were a
Non-Electing Unsecured Creditor minus the result of dividing the Electing
Creditor Cash it receives by $8.889. For purposes of allocating Electing
Creditor Cash among Electing Unsecured Creditors, each Disputed General
Unsecured Claim held by an Electing Unsecured Creditor shall initially be valued
at its face amount; provided, however, in the event that the aggregate amount of
Electing Creditor Cash would exceed $100,000,000 and one or more holders of
Disputed General Unsecured Claims have become Electing Unsecured Creditors, then
any party in interest with regard thereto (including, without limitation, the
Creditors' Committee), may seek an order of the Bankruptcy Court estimating the
amount of any and all such Disputed General Unsecured Claims at a lower amount
and, then, regardless of the amount at which such Disputed General Unsecured
Claims are eventually Allowed, the holders thereof will be paid Electing
Creditor Cash in an amount which does not exceed the amount of Electing Creditor
Cash which would be payable for a Claim in the amount of such estimate and for
any amount of the Disputed Claim which is Allowed in excess of such estimate,
the holder shall receive Electing Creditor Stock in accordance with Section
10.4. NewAWA Class B Common Stock distributed to Non-Electing Unsecured
Creditors, Electing Creditor Stock and Electing Creditor Cash shall be
distributed in accordance with Section 10.2.
3.5.3. Any holder of an Unsecured Claim asserting that payment to any
other holder of an Unsecured Claim should be subordinated to such first holder
under Section 510(a) of the Bankruptcy Code, may only make such assertion by
filing an adversary proceeding in the Chapter 11 Case on or before the Voting
Deadline, or such other date as may be established by Final Order of the
Bankruptcy Court. Any such subordination of one Unsecured Claim to another
Unsecured Claim shall be made only upon Final Order of the Bankruptcy Court and
no distribution hereby to any holder of an Allowed Claim which is the subject of
such an adversary proceeding shall be delayed or withheld except upon Final
Order of the Bankruptcy Court. Any such adversary proceeding involving holders
of AWA Debenture Claims shall name as defendants the Debtor and on behalf of all
such holders, the Indenture Trustee.
3.5.4. Class 5 is impaired under the Plan.
3.6. Class 6 -- AWA Preferred and Common Stock.
3.6.1. Class 6.1 -- AWA Preferred Stock. This Class consists of AWA
Preferred Stock. Each holder of shares of AWA Preferred Stock shall receive its
Pro Rata Share of $500,000 in Cash plus the right to purchase as of the
Effective Date its Pro Rata Share of the first 250,000 shares of
Over-Subscription Stock at the price of $8.889 per share or such lesser amount
of Over-Subscription Stock as is available after the purchase of Equity
Subscription Stock in accordance with Section 3.6.2. Such Cash shall be
distributed in accordance with Section 10.1. Payment for such Over-Subscription
Stock shall be made no later than the Effective Date. Such Cash and rights shall
be deemed to be in full satisfaction for all Claims and Equity Interests arising
in connection with the AWA Preferred Stock including accrued and unpaid
dividends thereon. Class 6.1 is impaired under the Plan. All shares of AWA
Preferred Stock shall be deemed to be cancelled, annulled and extinguished on
the Effective Date.
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3.6.2. Class 6.2 -- AWA Common Stock.
(a) This Class consists of shares of AWA Common Stock other than
shares of AWA Common Stock which are pledged as collateral for Employee Stock
Purchase Notes. Each holder of such AWA Common Stock shall receive its Pro Rata
Share of (i) the Equity Interests Stock and (ii) the Equity Interests Warrants,
to be distributed in accordance with the procedure set forth in Section 10.2.
(b) Additionally, each such holder of AWA Common Stock other than
the holder of a Disputed Equity Interest shall have the right to purchase its
Pro Rata Share of the Equity Subscription Stock at the price of $8.889 per
share; provided, however, that for purposes of determining such Pro Rata Share
there shall be considered to be an aggregate of 22,100,000 shares of AWA Common
Stock outstanding. Such right is not transferrable and may only be exercised by
the beneficial holder of such AWA Common Stock as of the Voting Record Date by
the irrevocable indication thereof on the Ballot which such holder delivers or
causes to be delivered. Each such holder may also indicate on the Ballot that it
wishes to purchase Over-Subscription Stock, if available. The Over-Subscription
Stock available to Purchasing Stockholders shall consist of the Equity
Subscription Stock not subscribed for in accordance with the second preceding
sentence and less the Over-Subscription Stock sold to holders of AWA Preferred
Stock in accordance with Section 3.6.1. Each Purchasing Stockholder must
irrevocably indicate on the Ballot the maximum number of shares of Equity
Subscription Stock and Over-Subscription Stock which it desires to purchase. As
set forth more fully in Section 10.2, either full payment or a satisfactory
guarantee of payment for all Equity Subscription Stock and Over-Subscription
Stock must be delivered by the Voting Deadline. The procedure for allocating
Over-Subscription Stock is set forth in Section 10.2.
(c) Class 6.2 is impaired under the Plan. All shares of AWA
Common Stock will be cancelled, annulled and extinguished on the Effective Date.
3.7. Class 7 -- Certain Other Claims and AWA Warrants, Options and Other
Equity Interests.
3.7.1. Class 7.1 -- Employee Stock Purchase Note Claims and Certain
AWA Common Stock. This Class consists of Stock Rescission or Damage Claims
(including, without limitation, Claims by members of the putative plaintiff
class in the Securities Action) which are held by Persons who are obligated
under one or more Employee Stock Purchase Notes. This Class also includes AWA
Common Stock pledged as collateral for Employee Stock Purchase Notes. Each
holder of an Allowed Claim or Equity Interest in this Class shall receive in
exchange for and in consideration of the dismissal with prejudice and permanent
enjoinment of the Securities Actions, a release of any and all indebtedness
incurred under the Employee Stock Purchase Plan, including the forgiveness,
abandonment and cancellation of any liability under the Employee Stock Purchase
Notes, but shall receive no other distribution under the Plan. In addition, all
liens on AWA Common Stock securing Employee Stock Purchase Notes will be
released and such AWA Common Stock will be returned to AWA and cancelled,
annulled and extinguished as of the Effective Date and will not be entitled to
any distribution under Section 3.6.2. Pursuant to Sections 1123(a)(5)(E), (F)
and 1123(b)(3)(A) of the Bankruptcy Code, the treatment provided Class 7.1
Claims constitutes a compromise and settlement of the Securities Action and any
and all objections to such Claims. The Debtor will either file appropriate
pleadings seeking to effect the treatment provided Class 7.1 Claims in this
Section 3.7.1 as a compromise and settlement prior to the Confirmation Hearing
or request the Bankruptcy Court to approve this compromise and settlement at the
Confirmation Hearing as in the best interests of the Debtor and holders of
Claims and Equity Interests and fair, equitable and reasonable. Class 7.1 is
impaired under the Plan.
3.7.2. Certain AWA Warrants, Options and Other Equity Interests and
Other Claims. This Class consists of the following Claims and Equity Interests
(except to the extent they are included in Class 7.1): (i) AWA Warrants,
Options, and Other Equity Interests, (ii) Stock Rescission or Damage Claims,
(iii) Subordinated Claims and (iv) all Claims, if any, arising from the
cancellation or rejection (to the extent they constitute executory contracts) of
AWA Warrants, Options and Other Equity Interests. Holders of such Claims and
Equity Interests will not be entitled to receive or retain any property under
the Plan on account of such Claims or Equity Interests, and pursuant to Section
1126(g) of the Bankruptcy Code, are deemed not to have accepted the Plan. Class
7.2 is impaired under the Plan. All AWA Warrants, Options and Other Equity
Interests will be cancelled, annulled and extinguished on the Effective Date.
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ARTICLE 4
PROVISIONS OF NEWAWA SECURITIES
ISSUED PURSUANT TO THE PLAN
4.1. NewAWA Class A Common Stock. Principal provisions of the NewAWA Class
A Common Stock are summarized as follows:
(a) Authorization. The NewAWA Charter shall authorize the issuance of
1,200,000 shares of NewAWA Class A Common Stock.
(b) Par Value. The NewAWA Class A Common Stock shall have a par value
of $.01 per share.
(c) Rights. The NewAWA Class A Common Stock shall have such rights
with respect to dividends, liquidation, voting and other matters as are set
forth in the NewAWA Charter and as provided under applicable law,
including, without limitation, the right to fifty votes per share which
shall be voted together as a single class with the NewAWA Class B Common
Stock.
(d) Convertibility. Each share of NewAWA Class A Common Stock will be
convertible, at the option of the holder, into one share of NewAWA Class B
Common Stock.
4.2. NewAWA Class B Common Stock. Principal provisions of the NewAWA Class
B Common Stock are summarized as follows:
(a) Authorization. The NewAWA Charter shall authorize the issuance of
100,000,000 shares of NewAWA Class B Common Stock.
(b) Par Value. The NewAWA Class B Common Stock shall have a par value
of $.01 per share.
(c) Rights. The NewAWA Class B Common Stock shall have such rights
with respect to dividends, liquidation, voting and other matters as are set
forth in the NewAWA Charter and as provided under applicable law,
including, without limitation, the right to one vote per share which shall
be voted together as a single class with the NewAWA Class A Common Stock.
(d) Exchange Listing. NewAWA will seek a listing of the NewAWA Class B
Common Stock on a national securities exchange or automated quotation
system and will use its reasonable efforts to obtain such listing prior to
the distribution to holders of Allowed Claims and Equity Interests of
NewAWA Class B Common Stock.
4.3. NewAWA Warrants. Principal provisions of the NewAWA Warrants are as
follows:
(a) Authorization. The Plan hereby authorizes the issuance of NewAWA
Warrants to purchase 10,384,615 shares of NewAWA Class B Common Stock.
(b) Exercise Price. The proponents of the Plan will seek to have the
exercise price for the NewAWA Warrants determined in the Confirmation Order
or otherwise pursuant to a Final Order of the Bankruptcy Court to be issued
before the Effective Date or as soon thereafter as possible, which exercise
price shall equal the aggregate amount of Allowed General Unsecured Claims
on the date of such order plus the Bankruptcy Court's estimate of the
Disputed General Unsecured Claims which will become Allowed General
Unsecured Claims, which sum shall be multiplied by 1.1 and divided by
26,775,000.
(c) Exercise. The NewAWA Warrants will be exercisable by the holder
thereof at any time on or prior to the fifth anniversary of the Effective
Date.
(d) Rights. The NewAWA Warrants will not be redeemable. The number of
shares of NewAWA Class B Common Stock purchasable upon exercise of each
NewAWA Warrant will be adjusted upon (i) payment of a dividend payable in,
or other distribution of, NewAWA Class B Common Stock to all of the
then-current holders of NewAWA Class B Common Stock, (ii) a combination,
subdivision or a reclassification of NewAWA Class B Common Stock, and (iii)
a rights issuance. The holders of the NewAWA Warrants will not have any
voting rights in respect thereof.
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(e) Exchange Listing. NewAWA will seek a listing of the NewAWA
Warrants on the same securities exchange or automated quotation system as
the NewAWA Class B Common Stock is listed.
4.4. NewAWA Senior Unsecured Notes. Principal provisions of the NewAWA
Senior Unsecured Notes are as follows:
(a) Authorization. The Plan hereby authorizes the issuance of the
NewAWA Senior Unsecured Notes in a maximum principal amount of
$100,000,000.
(b) Maturity. The NewAWA Senior Unsecured Notes will mature seven
years from issuance.
(c) Interest Rate. The NewAWA Senior Unsecured Notes will bear
interest, payable semiannually, in arrears at a fixed rate equal to 425
basis points over the yield of seven-year United States Treasury Notes as
of the Effective Date, but not to exceed 11.5% per annum.
(d) Ranking. The NewAWA Senior Unsecured Notes will rank pari passu
with all existing and future senior unsecured indebtedness of NewAWA.
(e) Mandatory Redemption. If within three years after the Effective
Date, NewAWA completes an underwritten public offering of primary equity,
NewAWA shall use 50% of the Net Proceeds thereof to redeem up to
$20,000,000 in principal amount of the NewAWA Senior Unsecured Notes at
104% of the principal amount plus accrued interest, provided, however, that
in the event that at the time of such offering the unrestricted cash
balance of NewAWA is less than $100,000,000, then such redemption will be
at the option of NewAWA. Thereafter, the NewAWA Senior Unsecured Notes will
be redeemable at NewAWA's option, in whole or in part. The redemption price
will be equal to the following percentage of the principal amount redeemed
in each of the following years plus accrued interest:
<TABLE>
<S> <C>
Year 4:..................................................... 105.0%
Year 5:..................................................... 103.3%
Year 6:..................................................... 101.7%
Year 7 and thereafter:...................................... 100.0%
</TABLE>
(f) Special Redemption. During the first three years after the
Effective Date, the New AWA Senior Unsecured Notes will be callable by
NewAWA (i) as a whole, without regard to the source of funding, at 105% of
the principal amount redeemed plus accrued interest or (ii) in part, out of
the proceeds of a primary equity offering at 105% of the principal amount
plus accrued interest, less the $20 million in principal amount redeemed of
NewAWA Senior Unsecured Notes subject to Mandatory Redemption as described
above.
ARTICLE 5
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
5.1. Assumption of Certain Executory Contracts and Unexpired Leases.
5.1.1. Except as otherwise provided in the Plan or in any contract,
instrument, release, indenture or other agreement or document entered into in
connection with the Plan, on the Effective Date, pursuant to Section 365 of the
Bankruptcy Code, AWA shall assume or assume and assign, as indicated, each of
the Assumed Agreements including, without limitation, the executory contracts
and unexpired leases listed on Schedule 3 hereto; provided, however, that AWA or
NewAWA shall have the right, at any time prior to the Effective Date, to amend
Schedule 3: (a) unless indicated otherwise on Schedule 3, to delete any
executory contract or unexpired lease listed therein, thus providing for its
rejection pursuant to Section 5.2; or (b) to add any executory contract or
unexpired lease, thus providing for its assumption or assumption and assignment
pursuant to this Section 5.1.1. The Debtor or NewAWA shall provide notice of any
amendments to Schedule 3 to the parties to the executory contracts or unexpired
leases affected thereby and, if such amendments are made before the Effective
Date, to the parties on the Official Service List. Pursuant to Section
1123(b)(2) of the Bankruptcy Code, the Confirmation Order shall constitute an
order of the
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Bankruptcy Court approving the assumptions and assignments described
in this Section 5.1.1, pursuant to Section 365 of the Bankruptcy Code, as of the
Effective Date.
5.1.2. Unless otherwise agreed by AWA and the counterparty to any such
Assumed Agreement, (i) all cure payments which may be required by Section
365(b)(1) of the Bankruptcy Code under any Assumed Agreement, if not previously
made, shall be made on the Effective Date or promptly thereafter, and (ii) in
the event of a dispute regarding the amount or timing of any cure payments, the
ability of NewAWA to provide adequate assurance of future performance, or any
other matter pertaining to assumption or assignment, such dispute shall be
resolved by the Bankruptcy Court and NewAWA shall make such cure payments, if
any, or provide such assurance as may be required by the Final Order resolving
such dispute on the terms and conditions of such Final Order.
5.1.3. Except as otherwise provided in the Plan (including any such
provision on Schedule 3) or in any contract, instrument, release or indenture or
other agreement or document entered into in connection with the Plan, each
Assumed Agreement shall, at AWA's option, be assumed only to the extent that any
such contract or lease constitutes an executory contract or unexpired lease.
Listing a contract or lease on Schedule 3 shall not, in and of itself,
constitute an admission by the Debtor or NewAWA that such contract or lease is
an executory contract or unexpired lease or that the Debtor or NewAWA has any
liability thereunder. Contracts and leases which are within the definition of
Assumed Agreements and which are later determined to have not been in fact
executory contracts or unexpired leases, shall be treated in accordance with the
provisions in the Plan for the treatment of that type of Claim which properly
arises from the true nature of the legal relationship between the parties as
determined by the Bankruptcy Court or by settlement; provided, however, that
either the Debtor or NewAWA may in its sole discretion amend the Plan to provide
for different treatment of any such Claim after Notice and a Hearing.
5.1.4. Except as otherwise provided in the Plan (including any such
provision on Schedule 3) or in any contract, instrument, release or indenture or
other agreement or document entered into in connection with the Plan, all
assumptions of executory contracts and unexpired leases under the Plan shall be
without prejudice to the rights of the Debtor or NewAWA to assign later such
assumed executory contracts or unexpired leases, notwithstanding any prohibition
to the contrary in any such contract or lease.
5.2. Rejection of Certain Executory Contracts and Unexpired Leases. On the
Effective Date, except for every Assumed Agreement, each executory contract and
unexpired lease entered into by AWA prior to the Petition Date that has not
previously expired or terminated pursuant to its own terms and (to the extent
they are executory contracts) all AWA Warrants, Options and Other Equity
Interests shall be rejected pursuant to Sections 365 and 1123(b)(2) of the
Bankruptcy Code and considered a Rejected Agreement hereunder.
5.3. Claims Based on Rejection of Executory Contracts or Unexpired Leases.
All proofs of claim with respect to Claims arising from the rejection of any
Rejected Agreement shall be filed with the Bankruptcy Court within the later to
occur of thirty (30) days after the Effective Date. Any Claims not filed within
such time shall be forever barred from assertion against the Debtor, its estate
and property, or NewAWA.
ARTICLE 6
IDENTIFICATION OF CLASSES OF CLAIMS NOT IMPAIRED
BY THE PLAN AND THE CLASS OF CLAIMS AND EQUITY
INTERESTS DEEMED TO HAVE REJECTED THE PLAN
6.1. Unimpaired Classes. Claims in Classes 1, 2 and 4 are not impaired
under the Plan. Any Class not specifically designated in the Plan as unimpaired
is impaired under the Plan. Claims in unimpaired Classes are not entitled to
vote on the Plan.
6.2. Class Deemed to Have Rejected the Plan. Claims and Equity Interests in
Class 7.2 are not entitled to receive or retain any property under the Plan and
are therefore deemed not to have accepted the Plan, and such Class shall not be
entitled to vote on the Plan.
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<PAGE> 24
6.3. Other Impaired Classes. Claims in Classes 3.1, 3.2, 3.3, 3.4, 3.5,
3.6, 5, 6.1, 6.2 and 7.1 are impaired under the Plan and shall be entitled to
vote on the Plan.
ARTICLE 7
ACCEPTANCE OR REJECTION OF THE PLAN;
EFFECT OF REJECTION BY ONE OR MORE CLASSES
7.1. Impaired Classes to Vote. Except as otherwise required by the
Bankruptcy Code or the Bankruptcy Court, each holder of a Claim or Equity
Interest that is impaired under the Plan is entitled to vote to accept or reject
the Plan if, as of the Voting Record Date, (i) its Claim is an Allowed Claim,
(ii) its Claim has been temporarily allowed for voting purposes only by order of
the Bankruptcy Court pursuant to Bankruptcy Rule 3018 (in which case such Claim
may be voted in such temporarily allowed amount), (iii) its Claim has been
scheduled by the Debtor (but only if such Claim is not scheduled as disputed,
contingent or unliquidated) and no objection to such Claim has been filed, (iv)
it has filed a proof of claim on or before the Bar Date (or such later date as
the Bankruptcy Court may have established with respect to any particular Claim,
but not later than the date of the order approving such Disclosure Statement),
and such Claim is not a Disputed Claim, or (v) its Equity Interest is registered
on the stock ledger or equivalent of the Debtor. Notwithstanding the foregoing,
a holder of a Disputed Claim which has not been temporarily allowed as provided
above may nevertheless vote such Disputed Claim in an amount equal to the
portion, if any, of such Claim which is not disputed and is shown as fixed,
liquidated and undisputed in the Debtor's Schedules or such amount which the
Debtor concedes is Allowed in a filing made by the Debtor in the Bankruptcy
Court. Each holder of an AWA Debenture Claim, and not the Indenture Trustee with
respect to such Claim, shall have the right to vote to accept or reject the
Plan.
7.2. Acceptance by Class of Holders of Claims or Equity Interests. A Class
of holders of Claims shall have accepted the Plan if the Plan is accepted by at
least two-thirds in amount and more than one-half in number of the Allowed
Claims of such Class that have voted to accept or reject the Plan. A Class of
Equity Interests shall have accepted the Plan if acceptance is voted for by the
holders of at least two-thirds in amount of the Equity Interests of such Class
who have voted to accept or reject the Plan.
7.3. Cramdown. Inasmuch as Class 7.2 is deemed not to have accepted the
Plan in accordance with Section 1129(a) of the Bankruptcy Code, and in the event
that one or more other Classes of impaired Claims or Equity Interests does not
accept or is deemed not to have accepted the Plan, the Debtor requests that the
Bankruptcy Court confirm the Plan in accordance with Section 1129(b) of the
Bankruptcy Code. AWA and AmWest reserve the right to modify the Plan to the
extent, if any, that confirmation pursuant to Section 1129(b) of the Bankruptcy
Code requires or permits such modification.
ARTICLE 8
MEANS FOR IMPLEMENTATION OF THE PLAN
8.1. Investment Agreement. On the Effective Date, the investment and sale
of securities contemplated by the Investment Agreement shall be consummated in
accordance with such agreement. In the event of conflict between the terms of
the Plan and of the Investment Agreement, the terms of the Plan shall control.
8.2. Stockholders' and Registration Rights Agreements. On the Effective
Date, the Stockholders' Agreement and Registration Rights Agreement shall become
effective.
8.3. Delivery of Alliance Agreements. On or before the Effective Date, AWA,
Continental Airlines, Inc., and Mesa Airlines, Inc., as applicable, shall enter
into the Alliance Agreements, as such term is defined in the Investment
Agreement.
8.4. GPA Settlement. On the Effective Date, NewAWA and GPA will consummate
the transactions described in the term sheet attached hereto as Exhibit C and
incorporated herein by reference.
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<PAGE> 25
8.5. Corporate Governance. On or as of the Effective Date, the NewAWA
Charter shall be filed with the Secretary of State of the State of Delaware and
the NewAWA By-laws shall take effect, each containing such provisions as are
necessary to satisfy the terms of the Plan and Section 1123(a)(6) of the
Bankruptcy Code.
8.6. Release of Certain Claims and Actions.
8.6.1. On the Effective Date, in consideration for services rendered
in the Chapter 11 Case, the Debtor shall be deemed to have finally and
irrevocably waived, released and relinquished any and all claims and causes of
action, if any, that it has or may have against the Creditors' Committee, the
Equity Committee or any member thereof or against their respective professional
advisors arising out of or related to each such Person's actions or omissions to
act in all of such Person's capacities in connection with the Chapter 11 Case,
including the formulation, preparation, dissemination, implementation or
confirmation of the Plan or the Disclosure Statement or any contract,
instrument, release or other agreement or document created or entered into, or
any other act taken or omitted to be taken in connection therewith, and the
Debtor is enjoined from asserting any such claim or cause of action in any court
or forum; provided, however, that this provision shall not operate as a release,
waiver or relinquishment of, or injunction against asserting, any such claims or
causes of action (i) provided in or contemplated by the Plan or (ii) arising
from any actual fraud (but not constructive fraud) or willful misconduct of any
such Person.
8.6.2. On the Effective Date, in consideration for benefits realized
in the Chapter 11 Case, the Debtor shall be deemed to have finally and
irrevocably waived, released and relinquished any and all claims and causes of
action, if any, that it has or may have against AmWest, any of AmWest's
partners, Fidelity or Lehman or their respective partners, affiliates, employees
or professional advisors arising out of or related to such Person's actions or
omissions to act in connection with the Chapter 11 Case, including the
formulation, preparation, dissemination, implementation or confirmation of the
Plan or the Disclosure Statement or any contract, instrument, release or other
agreement or document created or entered into, or any other act taken or omitted
to be taken in connection therewith, and the Debtor is enjoined from asserting
any such claim or cause of action; provided, however, that this provision shall
not operate as a release, waiver or relinquishment of, or injunction against
asserting, any such claims or causes of action (i) provided in or contemplated
by the Plan, (ii) arising from any actual fraud (but not constructive fraud) or
willful misconduct of any such Person, and (iii) reserved to the Debtor pursuant
to the Investment Agreement or the Interim Procedures Agreement.
8.6.3. On the Effective Date, the Creditors' Committee and each member
thereof, the Equity Committee and each member thereof, AmWest and each of its
partners, Fidelity and Lehman shall be deemed to have finally and irrevocably
waived, released and relinquished any and all claims and causes of action, if
any, that any of them have or may have against the Debtor or its professional
advisors arising out of or related to such Person's actions or omissions to act
in connection with the Chapter 11 Case, including the formulation, preparation,
dissemination, implementation or confirmation of the Plan or the Disclosure
Statement or any contract, instrument, release or other agreement or document
created or entered into, or any other act taken or omitted to be taken in
connection therewith, and such Persons are enjoined from asserting any such
claims or causes of action; provided, however, that this provision shall not
operate as a release, waiver or relinquishment of, or injunction against
asserting any such claims or causes of action (i) provided in or contemplated by
the Plan, (ii) arising from any actual fraud (but not constructive fraud) or
willful misconduct of the Debtor, and (iii) reserved to AmWest and/or any of its
partners pursuant to the Investment Agreement or the Interim Procedures
Agreement; and, provided, further, this Section 8.6.3 shall not apply to any
claims made against the Debtor arising from third party claims against the
Creditors' Committee or any member thereof or the Equity Committee or any member
thereof. Any Person who as of the Effective Date is or was an officer or
director of AWA, shall be a beneficiary of the releases provided under Section
8.6.3 if such Person, no later than the Effective Date, delivers a release in
substantially the form of Sections 8.6.1 and 8.6.2.
8.7. Indemnification Obligations.
8.7.1. Upon, and at all times after the Effective Date, the NewAWA
Charter shall contain provisions which (i) eliminate the personal liability of
AWA's former, present and future directors for monetary damages resulting from
breaches of their fiduciary duties to the fullest extent permitted by
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<PAGE> 26
applicable law and (ii) require NewAWA, subject, to appropriate procedures, to
indemnify AWA's former, present and future directors and executive officers to
the fullest extent permitted by applicable law.
8.7.2. On or as of the Effective Date, NewAWA shall enter into written
agreements with each person who is a director or executive officer of AWA as of
the date of the Investment Agreement providing for similar indemnification of
such person and providing that no recourse or liability whatsoever with respect
to the Investment Agreement, the Plan or the consummation of the transactions
contemplated hereby or thereby shall be had, directly or indirectly, by or in
the right of AWA against such person.
8.7.3. For purposes of the Plan, except as limited hereinafter, any
obligations of the Debtor to indemnify its current and former directors,
officers, employees, and any officer, director or employee serving as a
fiduciary of any employee benefit plan or program of AWA, pursuant to charter,
by-laws, contract or applicable state law shall be deemed to be, and may be
treated as though they are, executory contracts that are Assumed Agreements
under the Plan, and such obligations (subject to any defenses thereto) shall
survive confirmation of the Plan and remain unaffected thereby, irrespective of
whether indemnification is owed in connection with a pre-Petition Date or
post-Petition Date occurrence; provided however, that the foregoing assumption
shall not affect any release of such obligations given to the Debtor before the
Effective Date or to NewAWA on or after the Effective Date.
8.8. Exemption from Certain Taxes. Pursuant to Section 1146(c) of the
Bankruptcy Code, none of the transactions contemplated to take place on the
Effective Date shall subject the Debtor or NewAWA to any state or local sales,
use, transfer, documentary, recording or gains tax.
8.9. Directors and Officers. A list of the initial post-Effective Date
directors and officers of NewAWA shall be filed by the Debtor with the
Bankruptcy Court prior to the Confirmation Date.
8.10. Revesting of Assets; No Further Supervision. The assets of the Debtor
and all property of the Debtor's estate (including without limitation, all
rights of the Debtor to recover property under Sections 542, 543, 550 and 553 of
the Bankruptcy Code, all Avoidance Litigation and all proceeds thereof) and any
property acquired by AWA or NewAWA under or in connection with the Plan shall
vest or revest in NewAWA, in each case free and clear of all Claims, liens,
charges, encumbrances or Equity Interests, other than as specifically set forth
in the Plan. The Plan does not contain any restrictions or prohibitions on the
conduct of the business of NewAWA and NewAWA shall have all of the powers of a
corporation under the Delaware General Corporation Law, consistent with its
obligations under the Stockholders' Agreement. From and after the Effective
Date, NewAWA may use, operate and deal with its assets, and may conduct and
change its business, without any supervision by the Bankruptcy Court or the
Office of the United States Trustee, and free of any restrictions imposed on the
Debtor by the Bankruptcy Code or by the Bankruptcy Court during the Chapter 11
Case. Nothing contained in this Section shall be construed to prohibit, limit,
restrict or condition the Debtor's authority in any lawful manner to sell or
otherwise dispose of any other assets.
8.11. Implementation. The Debtor and AmWest shall be authorized and are
directed to take all necessary steps, and perform all necessary acts, to
consummate the terms and conditions of the Plan, including, without limitation,
the Investment Agreement.
8.12. Cancellation of Securities. As of the Effective Date, all previously
issued and outstanding securities of the Debtor, including without limitation:
all AWA Common Stock, all AWA Preferred Stock, all AWA Warrants, Options and
Other Equity Interests and all AWA Debentures; any certificate or other
instrument evidencing any such security; except as otherwise specifically
provided in Section 10.3 hereof, any indenture relating to any of the foregoing;
and the Debtor's obligations thereunder shall be deemed void, cancelled, and of
no further force or effect, without any further action on the part of any
Person. Holders of Allowed Claims and Equity Interests represented by such
securities shall have such rights to receive distributions as are set forth in
the Plan.
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ARTICLE 9
CONDITIONS PRECEDENT TO THE EFFECTIVE DATE
9.1. Effectiveness of the Plan. The effectiveness of the Plan, and the
occurrence of the Effective Date, shall be subject to the satisfaction of the
following conditions precedent:
(a) The Confirmation Order shall have been entered and no stay of the
Confirmation Order shall be in effect;
(b) Each of the conditions precedent to the obligations of AmWest
under the Investment Agreement shall have been satisfied or waived by
AmWest and the purchase and sale of securities and the other transactions
contemplated by the Investment Agreement shall have been simultaneously
consummated; and
(c) Each of the conditions precedent to the obligations of the Debtor
under the Investment Agreement shall have been satisfied or waived by the
Debtor and the purchase and sale of securities and other transactions
contemplated by the Investment Agreement shall have been simultaneously
consummated.
ARTICLE 10
PROVISIONS COVERING DISTRIBUTIONS AND PAYMENTS
10.1. Making of Distributions and Payments. NewAWA, or a Distribution Agent
on its behalf, shall make the payments and distributions expressly required to
be made by it in respect of the Post-Petition Agreement Claims, Allowed
Administrative Claims (other than Preserved Ordinary Course Administrative
Claims), Allowed Priority Wage Claims, Allowed Priority Benefit Plan
Contribution Claims, Allowed Priority Tax Claims, Allowed Convenience Claims and
AWA Preferred Stock upon the latest of (i) the Effective Date, or as soon
thereafter as practicable, (ii) such date as may be fixed by the Bankruptcy
Court, or as soon thereafter as practicable, (iii) the fifth Business Day after
such Claim is Allowed, or as soon thereafter as practicable, and (iv) such date
as the holder of such Claim and NewAWA have agreed or shall agree.
10.2. Distributions by the Distribution Agent.
10.2.1. On the Effective Date, NewAWA will issue in the name of the
Distribution Agent, as trustee, the Non-Electing Creditor Stock for distribution
to Non-Electing Unsecured Creditors in accordance with Section 3.5, and the
Electing Creditor Stock for distribution to Electing Unsecured Creditors in
accordance with Section 3.5. Additionally, NewAWA will deliver to the
Distribution Agent the Electing Creditor Cash for distribution to Electing
Unsecured Creditors in accordance with Section 3.5. As promptly as practicable
after the issuance of such NewAWA Securities and delivery of Electing Creditor
Cash to the Distribution Agent, the Distribution Agent will distribute such
securities and Cash to the holders of Allowed Claims entitled thereto in
accordance with Section 3.5, but shall reserve from such distributions the
Reserve Amount as required by Section 10.4.
10.2.2. Not later than thirty (30) days after the Voting Deadline, the
Debtor shall allocate among the Purchasing Stockholders, the Equity Subscription
Stock and the Over-Subscription Stock in accordance with this Section 10.2.2 and
advise the Distribution Agent of such allocation. Each Purchasing Stockholder
shall be allocated initially the lesser of (i) the number of shares for which it
has made a valid purchase election on its Ballot and (ii) its Pro Rata Share of
the Equity Subscription Stock. Holders who hold shares of AWA Common Stock for
the account of others such as brokers, trustees or depositories may only
exercise the right to purchase Equity Subscription Stock and Over-Subscription
Stock upon receipt of instructions and appropriate payment or guarantee of
payment from the beneficial owners of such shares as of the Voting Record Date.
The shares of Equity Subscription Stock not allocated as above will be
considered Over-Subscription Stock and will be allocated first to holders of AWA
Preferred Stock in accordance with Section 3.6.1 and then to holders of AWA
Common Stock who have indicated on the Ballot that they wish to acquire more
than their Pro Rata Share of the Equity Subscription Stock. If sufficient shares
of Over-
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Subscription Stock are available, all subscriptions therefor will be honored in
full. If sufficient shares of Over-Subscription Stock are not available to honor
all such subscriptions, the available shares of Over-Subscription Stock will be
allocated among those who subscribed based on their proportional number of
shares of AWA Common Stock. The allocation process may involve a series of
allocations in order to assure that the total number of shares of
Over-Subscription Stock is distributed on a Pro Rata Share basis. The right to
purchase Equity Subscription Stock and Over-Subscription Stock may be exercised
through a holder's broker, who may charge such holder a servicing fee in
connection with such exercise. No such fees shall be paid by the Debtor or
NewAWA. The Debtor shall establish the Stock Payment Escrow Account for the
purpose of receiving payment for Equity Subscription Stock and Over-Subscription
Stock, which shall be held by the Escrow Agent or another bank, trust company or
other organization independent of AWA and designated by the Debtor and approved
by the Bankruptcy Court. Purchasing Stockholders may choose one of the following
methods of payment:
(a) The Purchasing Stockholder may deliver full payment for the Equity
Subscription Stock and the Over-Subscription Stock, together with its
Ballot, with the check made payable to AWA Subscription Stock Escrow
Account, by no later than the Voting Deadline. The Debtor shall deposit all
such checks in the Stock Payment Escrow Account with any interest thereon
to accrue to the benefit of Debtor or NewAWA pending distribution of the
Equity Subscription Stock and Over-Subscription Stock; or
(b) The Purchasing Stockholder may deliver or cause to be delivered to
the Escrow Agent, by no later than the Voting Deadline, a notice of
guaranteed delivery by telegram or otherwise, from a bank or trust company
or a New York Stock Exchange member firm, guaranteeing delivery of payment
of the full price of the subscribed for Equity Subscription Stock and
Over-Subscription Stock. In such case, full payment for the Equity
Subscription Stock and the Over-Subscription Stock (as such amount may be
reduced as set forth below) must be received by the Escrow Agent by no
later than 5:00 p.m. on the fifth Business Day after the Confirmation Date.
Promptly after completing the allocation required by the first sentence of this
Section 10.2.2, a confirmation will be sent to each Purchasing Stockholder
showing the number of shares of Equity Subscription Stock and the number of
shares, if any, of Over-Subscription Stock allocated to such holder. In the
event that such number of shares of Over-Subscription Stock is less than the
number of shares of Over-Subscription Stock for which such holder has either
paid for or guaranteed payment for, such notice shall also state such fact and
if full payment shall have already been made for such stock, such notice shall
also include a check representing the excess payment. Whichever of the two above
methods of payment is used, issuance and delivery of the Equity Subscription
Stock, the Over-Subscription Stock and any refunds of payments therefor shall be
subject to collection of checks and actual payment pursuant to any notice of
guaranteed delivery. All offers to purchase Equity Subscription Stock and
Over-Subscription Stock shall be irrevocable. In the event that the Effective
Date has not occurred by the date the Interim Procedures Agreement is
terminated, all amounts in the Stock Payment Escrow Account (other than interest
accrued thereon) shall be returned to the Purchasing Stockholders who have made
payment for the Equity Subscription Stock and/or Over-Subscription Stock.
10.2.3. On the Effective Date, NewAWA will issue in the name of the
Distribution Agent, as trustee, (i) the number of shares of Equity Subscription
Stock and Over-Subscription Stock to be issued to Purchasing Stockholders and
holders of AWA Preferred Stock in accordance with Sections 3.6.1, 3.6.2 and
10.2.2, and (ii) the Equity Interests Stock and the Equity Interests Warrants
for distribution to holders of AWA Common Stock as provided in Section 3.6.2. As
promptly as practicable after the Effective Date, but in any event within
fifteen (15) Business Days, the Distribution Agent will distribute (i) to each
holder of AWA Preferred Stock, the number of shares of Over-Subscription Stock
purchased in accordance with Section 3.6.1, (ii) to each Purchasing Stockholder,
the number of shares of Equity Subscription Stock and Over-Subscription Stock
purchased by such Purchasing Stockholder pursuant to Section 3.6.2 and (iii) to
each holder of AWA Common Stock as of the Distribution Record Date other than
the holder of a Disputed Equity Interest, such holder's Pro Rata Share of the
Equity Interests Stock and of the Equity Interests Warrants, less any Reserve
Amount required pursuant to Section 10.4; provided, however, that holders of AWA
Common Stock whose stock is held of record by Cede or by any other depository or
nominee on their behalf or their
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broker-dealer's behalf will have their NewAWA Securities credited to the account
of Cede or such other depository or nominee.
10.2.4. The Distribution Agent in its capacity as trustee holding
issued but undistributed NewAWA Securities and Electing Creditor Cash shall (i)
similarly hold in trust for distribution pursuant to this Section 10.2 any
dividend or distribution made thereon, and (ii) whenever any matter (including
election of directors) is presented for a vote by holders of such NewAWA
Securities, vote all of the NewAWA Securities so held by it in trust in the same
manner and proportion as the shares of NewAWA Class B Common Stock are voted.
10.2.5. If, after the Effective Date, NewAWA (i) pays a dividend or
makes a distribution on the outstanding NewAWA Securities held by the
Distribution Agent, (ii) subdivides the outstanding shares of NewAWA Securities
held by the Distribution Agent into a greater number of shares or units, (iii)
combines the outstanding shares or units of NewAWA Securities held by the
Distribution Agent into a smaller number of shares or units, (iv) issues by
reclassification of the outstanding NewAWA Securities held by the Distribution
Agent any shares of its capital stock, or (v) is a party to a consolidation,
merger or transfer of assets providing for any change in or exchange of the
outstanding NewAWA Securities held by the Distribution Agent, then the
Distribution Agent's obligation to distribute NewAWA Securities to any holder of
an Allowed Claim or Equity Interest arising after the record date in the case of
a dividend or distribution and after the Effective Date of any of the other
foregoing transactions shall be adjusted so as to take into account such
dividend, distribution or other event. Any such distribution shall be made net
of any Distribution Agent Charges incurred in connection with such event.
10.2.6. The duties of the Distribution Agent (including its duties as
trustee pursuant to this Section 10.2) are expressly limited to the ministerial
functions set forth in this Article 10. The Distribution Agent shall incur no
liability for its actions (or failure to act) or conduct as Distribution Agent,
or as trustee holding issued but undistributed NewAWA Securities or Cash except
to the extent attributable to the gross negligence or willful misconduct of the
Distribution Agent. The Distribution Agent shall at all times maintain a
segregated account for any Cash being held in trust, and shall deposit or invest
all such Cash in (i) direct obligations of the United States of America or
obligations for which the full faith and credit of the United States of America
is pledged, (ii) certificates of deposit and interest bearing deposits with
banks having a long-term bond rating of AA or better and capital, surplus and
undivided profits of not less than $100,000,000, or (iii) commercial paper
having one of the two highest ratings by Standard & Poor's, Inc. or Moody's
Investor Services, Inc., except as otherwise authorized by the Bankruptcy Court;
provided, however, that no such deposit or investment shall have a maturity of
more than 90 days. All Distribution Agent Charges shall be deducted from the
applicable NewAWA Securities or Cash held by the Distribution Agent. All Cash
and NewAWA Securities held by or transferred to the Distribution Agent for
distribution to holders of Allowed Claims or Equity Interests pursuant to the
Plan shall be held by the Distribution Agent (including NewAWA in its capacity
as Distribution Agent) solely as trustee of an express trust and shall not be or
constitute property of the Distribution Agent (including NewAWA as Distribution
Agent) for any purpose whatsoever, and the Distribution Agent shall not have any
right or interest to any such Cash or stock for its own account, except as
expressly provided in the Plan.
10.2.7. AWA shall deliver to the Distribution Agent its stock ledger
for the AWA Common Stock or provide access thereto, which ledger shall reflect
the cancellation of certain AWA Common Stock in accordance with Section 3.7.1.
The Distribution Agent shall cause a register for the transfer of Allowed Claims
(other than Allowed AWA Debenture Claims) and of AWA Common Stock to be
maintained. Transfers after the Distribution Record Date shall be registered
only (i) upon Final Order of the Bankruptcy Court directing such transfer or
(ii) in the event of a transfer by operation of law.
10.3. Service of Indenture Trustee.
10.3.1. Subject to the right of the Indenture Trustee to resign and
terminate an Indenture as set forth in Section 10.3.2, the Indenture Trustee
shall receive and act as disbursing agent for all distributions to each holder
of record of an Allowed AWA Debenture Claim. Unless terminated pursuant to
Section 10.3.2 below, the Indentures shall continue in effect after the
Effective Date for the sole purpose of allowing the
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Indenture Trustee to make the distributions to be made on account of such
Allowed AWA Debenture Claims under the Plan and for defending any subordination
action brought under Section 3.5. AWA and NewAWA shall be required to reimburse
the Indenture Trustee solely for fees, costs and expenses (including reasonable
costs of counsel associated therewith) in connection with activities required
under this Section 10.3.1. Any fees, costs, or expenses incurred by the
Indenture Trustee for any other activities it may undertake shall be collectible
solely from the holders of AWA Debentures. Notwithstanding anything to the
contrary herein, the Indenture Trustee shall retain any and all charging liens
or similar rights provided in the Indentures for so long as it is Indenture
Trustee.
10.3.2. Notwithstanding the foregoing, the Indenture Trustee may at
any time terminate any or all of the AWA Indentures and all of the Indenture
Trustee's duties and obligations and authority to act thereunder, with or
without cause, by giving fifteen (15) days written notice of termination to
NewAWA and the Distribution Agent and by turning over to the Distribution Agent
a list of record holders of Debentures under such Indenture as of the
Distribution Record Date, together with such other information and documents as
may be reasonably necessary in order to permit the Distribution Agent to make
distributions to holders of Allowed AWA Debenture Claims arising out of the AWA
Debentures issued pursuant to such Indenture. If distributions under the Plan
have not been completed at the time of termination of such Indenture, the
Distribution Agent shall thereafter act in place of such Indenture Trustee, and
all references in the Plan to the Indenture Trustee for purposes of making
distributions under the Plan with regard to such Indenture shall be deemed to
apply to such Distribution Agent. Any actions taken by the Indenture Trustee not
for a purpose authorized in the Plan shall be of no force or effect.
10.3.3. For purposes of any distributions under the Plan to holders of
AWA Debenture Claims, the Indenture Trustee (or if the Indenture Trustee has
resigned in accordance with Section 10.3.2, the Distribution Agent as its
successor) shall be deemed to be the sole holder of all AWA Debenture Claims
evidenced by the AWA Debentures issued under each Indenture. Accordingly, all
distributions provided for in the Plan on account of Allowed AWA Debenture
Claims shall be distributed to the Indenture Trustee as disbursing agent or, if
the Indenture Trustee has resigned pursuant to Section 10.3.2, to the
Distribution Agent as its successor, for further distribution to individual
holders of Allowed AWA Debenture Claims pursuant to the Plan. The transfer books
of the Indenture Trustee for the Debentures shall close as of the Distribution
Record Date and no further transfers shall be recognized.
10.3.4. Any provision of the Plan to the contrary notwithstanding, no
distribution under the Plan shall be required to be made by the Indenture
Trustee or the Distribution Agent to any holder of an AWA Debenture Claim until
such time as the certificate representing the AWA Debenture in respect of which
such AWA Debenture Claim is made shall have been surrendered in accordance with
Section 10.3.5. Notwithstanding any provision of this Section 10.3.4 to the
contrary, any holder of an AWA Debenture Claim based on a certificate
representing an AWA Debenture that has been lost, stolen, mutilated or destroyed
may, in lieu of surrendering such certificate as provided in this Section 10.3,
deliver to the Indenture Trustee, or if the Indenture Trustee has resigned, to
the Distribution Agent as its successor, (i) evidence satisfactory to the
Indenture Trustee or the Distribution Agent, as the case may be, of the loss,
theft, mutilation or destruction of such certificate and (ii) such security or
indemnity as may reasonably be required by the Indenture Trustee or the
Distribution Agent, as the case may be, to save the Indenture Trustee or the
Distribution Agent, as the case may be, harmless with respect thereto, and upon
providing such evidence and such security or indemnity the holder of such AWA
Debenture Claim shall, for all purposes under the Plan, be deemed to have
surrendered such certificate.
10.3.5. A holder of record on the Distribution Record Date of a
certificate relating to an AWA Debenture Claim shall surrender such holder's
certificate representing such AWA Debenture Claim to the Indenture Trustee, or
if the Indenture Trustee has resigned in accordance with Section 10.3.2, to the
Distribution Agent as its successor, in accordance with written instructions
given not more than thirty (30) days after the Effective Date to such holder by
the Indenture Trustee or the Distribution Agent, as the case may be. Upon
receipt of any certificate relating to such AWA Debenture Claim, the Indenture
Trustee or the Distribution Agent shall cancel such certificate and deliver such
canceled certificate to such Person as the Distribution Agent shall designate.
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10.3.6. On the Final Distribution Date, all rights under the Plan of
any holder of an Allowed AWA Debenture Claim which has not surrendered its
certificate representing such AWA Debenture Claim in accordance with this
Section 10.3 shall lapse and be automatically terminated without any further
action and the Indenture Trustee or the Distribution Agent as its successor
shall at such time return to the Distribution Agent any funds or property it
then holds in respect of such unsurrendered certificate to be treated as
unclaimed property pursuant to Section 10.6 and, upon such return, the Indenture
Trustee or the Distribution Agent as its successor shall have no further
obligation in respect of such funds or property.
10.4. Reserves for Distributions for Disputed Claims and Disputed Equity
Interests.
10.4.1. Except as may be otherwise agreed with respect to any Disputed
Claim or Disputed Equity Interest and as approved by the Bankruptcy Court, no
distributions shall be made with respect to all or any portion of a Disputed
Claim or Disputed Equity Interest unless and until such Disputed Claim or
Disputed Equity Interest (or portion thereof) shall have become an Allowed Claim
or Equity Interest and such Allowed Claim or Equity Interest is otherwise
entitled to distributions hereunder.
10.4.2. Prior to making any distribution to holders of Allowed Claims
or Equity Interests in Class 5 or Class 6.2 in accordance with Section 10.2, the
Distribution Agent shall deposit in a Reserve established separately for each
such Class an amount of NewAWA Securities and/or Cash equal to the amount of
such distribution that would have been distributed to holders of Disputed Claims
or Disputed Equity Interests in such Class if such Disputed Claims or Equity
Interests were Allowed Claims or Equity Interests in their full face amount at
the time of the calculation of such distribution. A separate Reserve shall be
established and thereafter maintained for each Class as to which any Claims or
Equity Interests remain Disputed as of the Effective Date. The Distribution
Agent shall at all times until any Disputed Claim or Disputed Equity Interest is
resolved by Final Order, retain in the Reserve all amounts that would have been
distributed to the holder of such Disputed Claim or Disputed Equity Interest had
such Claim or Equity Interest been an Allowed Claim or Equity Interest in its
full face amount on the Effective Date. Notwithstanding the foregoing, upon
motion by the Debtor or NewAWA, the Bankruptcy Court may enter a Reserve Order,
establishing a Reserve Amount to be escrowed in the Reserve for any Class which
may be less than the amount otherwise required hereunder, which amount shall
reflect the Bankruptcy Court's estimate of the level of Reserves for a
particular Class reasonably required to protect the legitimate rights and
interests of holders of Disputed Claims or Disputed Equity Interests in such
Class. In the event a Reserve Order is entered, the Distribution Agent shall
deposit or retain in the Reserve with respect to any Class subject to such order
only the Reserve Amount required by such Reserve Order. Any amount not so
deposited or retained shall be distributed to all holders of Allowed Claims or
Equity Interests in the Class for which such Reserve Amount was established as
provided for in the Plan. The date of each such distribution shall be a
Distribution Date.
10.4.3. As soon as practicable after a Disputed Claim or Disputed
Equity Interest, or portion thereof, becomes an Allowed Claim or Equity
Interest, the Distribution Agent shall make a distribution to the holder of such
Allowed Claim or Equity Interest from the Reserve in the amount of (i) the
portion of the NewAWA Securities or Cash in the Reserve that should be
distributed pursuant to the terms of the Plan in view of the amount of the
Allowed Claim or Equity Interest; plus (ii) the proportional share of any
interest, earnings or dividends actually earned and received on such Reserve;
less (iii) the proportional share of any Distribution Agent Charges incurred on
account of such escrowed assets. To the extent that sufficient New AWA
Securities or Cash are not available to make the full distribution required by
the preceding sentence, in view of the then-appearing rights of the holders of
other Disputed Claims and Disputed Equity Interests, the Distribution Agent
shall make such lesser distribution as shall then be ordered by the Bankruptcy
Court. No holder of a Disputed Claim or Disputed Equity Interest shall have any
claim against the Reserve for the Class in which such Disputed Claim or Disputed
Equity Interest is included until such Disputed Claim or Disputed Equity
Interest shall become an Allowed Claim or Equity Interest. In no event shall any
holder of any Disputed Claim or Disputed Equity Interest have any recourse
against or be entitled to receive (under the Plan or otherwise) or recover from
the Debtor, NewAWA, the Distribution Agent or any Reserve, any payment (in Cash,
NewAWA Securities or other property) in the event that the Reserve therefor is
insufficient to pay an Allowed Claim or Equity Interest in full. In no event
shall the Distribution Agent, the Debtor or NewAWA have any responsibility or
liability for any loss to or of any Reserve.
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10.4.4. The Reserve for a Class shall be terminated when all Disputed
Claims and Disputed Equity Interests are finally resolved in such Class. All
remaining assets, if any, in the Reserve shall be distributed, first, to
holders, if any, who received less than a proportionate distribution pursuant to
order of the Bankruptcy Court under Section 10.4.3 and thereafter to all holders
of Allowed Claims or Equity Interests in the Class for which such Reserve was
established, on a pro rata basis. The date of such distribution shall be the
Final Distribution Date with regard to such Class.
10.5. Fractional Interests; Odd Lots; De Minimis Distributions.
10.5.1. Fractional shares or units of NewAWA Securities shall not be
issued or distributed and no Cash payments shall be made in respect thereof. All
holders of Allowed Claims or Equity Interests in such Class which would
otherwise be entitled to a fractional interest in such NewAWA Security shall be
placed on a list in descending order according to the size of the fractional
interest in the NewAWA Security to be distributed. For purposes of the preceding
sentence, Electing Unsecured Creditors and Non-Electing Unsecured Creditors
shall be placed on separate lists. In the event that two or more holders of
Allowed Claims or Equity Interests are entitled to the same fractional portion
(rounded to six decimal places) in such NewAWA Security, their relative ranking
on any such list shall be determined by lot. The fractional shares or units
which each such holder would have received will be aggregated. Then, one share
or unit, as applicable, will be distributed to each of the holders on such list
in descending order until the total amount of aggregated shares or units is
exhausted.
10.5.2. In the event that any holder of an Allowed Claim or Equity
Interest would receive fewer than ten (10) shares or units of NewAWA Securities
in a distribution made under this Article 10, the Distribution Agent may instead
sell such NewAWA Securities on behalf of any or all of such holders and they
distribute to each such holder its pro rata share of the Net Proceeds of such
sale. Such sale may be either a private sale or through a securities exchange or
automated quotation system on which such NewAWA Securities are listed and absent
manifest error or intentional wrongdoing on the part of the Distribution Agent
in connection with such sale, the Net Proceeds realized from such sale shall be
conclusively determined to be reasonable. The distribution of a pro rata share
of such Net Proceeds to each such holder shall be deemed to be in full
satisfaction of the payment to be made to such holder of Allowed Claims or
Equity Interests in such distribution. These procedures are intended to result
in the affected holders receiving appropriate distributions while saving
expenses in the administration of the Debtor's estate that would be associated
with maintaining such holders as stockholders of NewAWA.
10.6. Delivery of Distributions; Unclaimed Property. Distributions and
deliveries to holders of (i) Allowed General Unsecured Claims shall be made at
the addresses set forth on the proofs of claim filed by such holders (or at the
last known addresses of such holders if no proof of claim is filed or if NewAWA
has been notified of a change of address), (ii) AWA Debenture Claims shall be
made at the address contained in the records of the Indenture Trustee (or, if
the Indenture Trustee has resigned pursuant to Section 10.3.2 of the Plan, in
such records it has delivered to the Distribution Agent as its successor) and
(iii) Equity Interests shall be made to the address shown on the stock ledger of
AWA. If any holder's distribution is returned as undeliverable, no further
distributions to such holder shall be made unless and until the Distribution
Agent, NewAWA or the Indenture Trustee is notified in writing of such holder's
then-current address, at which time all missed distributions shall be made to
such holder without interest (except to the extent that such missed
distributions have become unclaimed property). Amounts in respect of
undeliverable distributions made through the Distribution Agent or through the
Indenture Trustee, shall be returned to NewAWA until such distributions are
claimed. All claims for undeliverable distributions shall be made on or before
the second (2nd) anniversary of the applicable Distribution Date, and after such
date, such undeliverable distributions shall be unclaimed property. All
unclaimed property attributable to any Claim or Equity Interest shall revert to
the Reserve, if any, then existing with regard to Claims or Equity Interests of
such Class and, if none exists, to NewAWA, and the Claim of any holder with
respect to such property shall be discharged and forever barred and shall no
longer be deemed an Allowed Claim or Equity Interest.
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10.7. Method of Payment. Payments of Cash required to be made pursuant to
the Plan shall be made by check drawn on a domestic bank or by wire transfer
from a domestic bank at the election of the Person making such payment.
10.8. Payment Dates. Whenever any payment or distribution to be made under
the Plan shall be due on a day other than a Business Day, such payment or
distribution shall instead be made, without interest, on the immediately
following Business Day.
10.9. Compliance with Tax Requirements. In connection with the Plan, to the
extent applicable, the Distribution Agent and the Indenture Trustee shall comply
with all tax withholding and reporting requirements imposed on it by any
governmental unit, and all distributions pursuant to the Plan shall be subject
to such withholding and reporting requirements. The Distribution Agent and
Indenture Trustee shall be authorized to take any and all actions that may be
necessary or appropriate to comply with such withholding and reporting
requirements. Notwithstanding any other provision of the Plan, (i) each Person
(including holders of Allowed Claims and Equity Interests) receiving a
distribution of Cash or NewAWA Securities pursuant to the Plan shall have sole
and exclusive responsibility for the satisfaction and payment of any tax
obligations imposed by any governmental unit, including income, withholding and
other tax obligations, on account of such distribution and (ii) at the option of
NewAWA, no distribution pursuant to the Plan shall be made to or on behalf of
such entity unless and until such entity has made arrangements satisfactory to
NewAWA for the satisfaction and payment of such tax obligations. At the option
of NewAWA, any Cash or NewAWA Securities to be distributed pursuant to the Plan
shall, pending the implementation of such arrangements, be treated as an
undeliverable distribution pursuant to Section 10.6 above.
ARTICLE 11
PROCEDURES FOR RESOLVING DISPUTED
CLAIMS OR EQUITY INTERESTS
11.1. Filing of Objections to Claims or Equity Interests. After the
Effective Date, objections to Claims or Equity Interests shall be made and
objections to Claims or Equity Interests made previous thereto shall be pursued
only by NewAWA and, upon leave of the Bankruptcy Court for good cause shown, the
Creditors' Committee (if it is then still in existence). Any objections made by
NewAWA or the Creditors' Committee after the Effective Date shall be served and
filed not later than 180 days after the Effective Date; provided, however, that
such period may be extended by order of the Bankruptcy Court for good cause
shown.
11.2. Settlement of Objections to Claims or Equity Interests After
Effective Date. From and after the Effective Date, NewAWA may litigate to
judgment, propose settlements of, or withdraw objections to, all pending or
filed Disputed Claims or Disputed Equity Interests, and NewAWA may settle or
compromise any Disputed Claim or Disputed Equity Interest, without notice and a
hearing and without approval of the Bankruptcy Court; provided, however, notice
of any settlement or compromise involving the allowance of a General Unsecured
Claim in excess of $100,000 shall be provided to the Indenture Trustee (if the
AWA Indentures have not been previously terminated) and to the Creditors'
Committee (if still then in existence), who shall each have ten (10) days to
object to such settlement or compromise and in such case, such settlement or
compromise must be approved by the Bankruptcy Court.
11.3. Payment or Distribution to Holders of Disputed Claims or Equity
Interests. Except as the Debtor or NewAWA, as applicable, may otherwise agree
with respect to any Disputed Claim or Disputed Equity Interest, no payments or
distributions shall be made with respect to any portion of a Disputed Claim or
Disputed Equity Interest unless and until all objections to such Disputed Claim
or Disputed Equity Interest have been settled or determined by a Final Order of
the Bankruptcy Court. Payments and distributions to each holder of a Disputed
Claim or Disputed Equity Interest to the extent that it ultimately becomes an
Allowed Claim or Equity Interest shall be made in accordance with Section 10.4.
A Disputed Claim or Disputed Equity Interest that is estimated for purposes of
allowance and distribution pursuant to Section 502(c) of the Bankruptcy Code and
which is estimated and Allowed at a fixed amount by Final Order of the
Bankruptcy
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Court shall thereupon be an Allowed Claim or Equity Interest for all purposes in
the amount so estimated and Allowed.
11.4. Reserves for Disputed Claims and Disputed Equity Interests.
Appropriate Reserves for Disputed Claims and Disputed Equity Interests shall be
established and maintained as provided in Section 10.4.
ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1. Modification of Payment Terms. NewAWA reserves the right to modify
the treatment of any Allowed Claim in any manner adverse only to the holder of
such Claim at any time after the Effective Date upon the consent of the holder
whose Allowed Claim treatment is being adversely affected.
12.2. Discharge of Debtor. The rights afforded and the treatment of Claims
and Equity Interests under the Plan shall be in exchange for and in complete
satisfaction, discharge, release and termination of all Claims of any nature
whatsoever against the Debtor or any of its assets or properties and all Equity
Interests in the Debtor; and upon the Effective Date (i) the Debtor shall be
deemed discharged and released pursuant to Section 1141(d)(1)(A) of the
Bankruptcy Code from any and all Claims, including but not limited to demands
and liabilities that arose before the Effective Date, all debts of the kind
specified in Section 502(g), 502(h) or 502(i) of the Bankruptcy Code, whether or
not (a) a proof of claim based upon such debt is filed or deemed filed under
Section 501 of the Bankruptcy Code, (b) a Claim based upon such debt is allowed
under Section 502 of the Bankruptcy Code or (c) the holder of a Claim based upon
such debt has accepted the Plan; and (ii) all rights and interests of holders of
Equity Interests in the Debtor shall be terminated pursuant to Section
1141(d)(1)(B) of the Bankruptcy Code. The Confirmation Order shall be a judicial
determination of discharge and termination of all liabilities of and all Claims
against, and all Equity Interests in, the Debtor, except as otherwise
specifically provided in the Plan. On the Effective Date, as to every discharged
debt, Claim and Equity Interest, the holder of such debt, Claim or Equity
Interest shall be permanently enjoined and precluded from asserting against
NewAWA or against its assets or properties or any transferee thereof, any other
or further Claim or Equity Interest based upon any document, instrument or act,
omission, transaction or other activity of any kind or nature that occurred
prior to the Effective Date, except as expressly set forth in the Plan or the
Confirmation Order.
12.3. Termination of Subordination Rights. Except as specifically provided
elsewhere herein, on the Confirmation Date, all contractual, legal or equitable
subordination rights that a holder of a Claim or Equity Interest may have with
respect to any distribution to be made pursuant to the Plan shall be discharged
and terminated, and all actions related to the enforcement of such subordination
rights shall be permanently enjoined. Accordingly, distributions pursuant to the
Plan to holders of Allowed Claims and Equity Interests shall not be subject to
payment to a beneficiary of such terminated subordination rights, or to levy,
garnishment, attachment or other legal process by any beneficiary of such
terminated subordination rights. Pursuant to Bankruptcy Rule 9019 and in
consideration for the distribution and other benefits provided under the Plan,
the provisions of this Section 12.3 shall constitute a good faith compromise and
settlement of all claims or controversies relating to the termination of all
contractual, legal and equitable subordination rights that a holder of a Claim
or Equity Interest may have with respect to any Allowed Claim or Equity
Interest, or any distribution to be made on account of such Allowed Claim or
Allowed Equity Interest.
12.4. Termination of the Creditors' and Equity Committees.
12.4.1. The Creditors' Committee shall, unless theretofore terminated,
terminate on the Effective Date and shall thereafter have no further
responsibilities in respect of the Chapter 11 Case except (i) with respect to
preparation and filing of applications for compensation and reimbursement of
expenses in accordance with Section 2.2.3, (ii) with respect to any contested
matter or adversary proceeding commenced prior to the Effective Date in which
the Creditors' Committee is an indispensable litigant or any appeal of an order
in the Chapter 11 Case in which the Creditors' Committee is an indispensable
litigant and if, in each case, the Creditors' Committee's participation in such
proceeding is consistent with the orders of the Bankruptcy Court establishing
the Creditors' Committee and with Section 1103 of the Bankruptcy Code, and
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(iii) with respect to monitoring and participating in matters and proceedings
which could give rise to General Unsecured Claims (including, without
limitation, Avoidance Litigation, rejection of executory contracts and unexpired
leases and resolution of Unsecured Deficiency Claims and Disputed General
Unsecured Claims) for a period of five months after the Effective Date, unless
such period is extended by the Bankruptcy Court for good cause shown. In
connection with such activities, the Creditors' Committee may continue the
retention of its counsel, its local counsel and its accountants and may replace
one or more of such professional advisors, if necessary, but shall not retain
additional professional advisors. NewAWA shall pay the reasonable fees and
expenses of the Creditors' Committee incurred in connection with such
activities, provided, however, that the aggregate fees related to matters and
proceedings which could give rise to General Unsecured Claims shall not exceed
an average of $75,000 per month for the first two months after the Effective
Date and an average of $50,000 per month for any subsequent month. All such fees
and expenses shall be paid only in accordance with the fee and expense
guidelines promulgated by the Debtor in the Bankruptcy Case and shall be paid by
NewAWA within thirty (30) days of receipt of invoice therefor, except in the
case of an objection to any such fees and expenses, which, if not resolved by
NewAWA and the Creditors' Committee, may be noticed by either such entity for a
hearing before the Bankruptcy Court. Notwithstanding anything to the contrary in
this Section 12.4.1, all such activities shall cease when the aggregate amount
of Disputed Claims is less than $3,000,000 or one year after the Effective Date,
whichever occurs first, except in a case where the Creditors' Committee is an
indispensable litigant as contemplated by clause (ii) above.
12.4.2. The Equity Committee shall, unless theretofore terminated,
terminate on the Effective Date and shall thereafter have no further
responsibilities in respect of the Chapter 11 Case except (i) with respect to
preparation and filing of a final application for compensation and reimbursement
of expenses in accordance with Section 2.2.3 and (ii) with respect to any
contested matter or adversary proceeding commenced prior to the Effective Date
in which the Equity Committee is an indispensable litigant or any appeal of an
order in the Chapter 11 Case in which the Equity Committee is an indispensable
litigant and, in each case, if the Equity Committee's participation in such
proceeding is consistent with the orders of the Bankruptcy Court establishing
the Equity Committee and with Section 1103 of the Bankruptcy Code.
12.5. Setoffs. The Debtor and NewAWA may, but shall not be required to, set
off or recoup against any Claim and the payments or other distributions to be
made pursuant to the Plan in respect of such Claim, claims of any nature
whatsoever which the Debtor or NewAWA may have against the holder of such Claim
to the extent such Claim may be set off or recouped under applicable law, but
neither the failure to do so nor the allowance of any Claim hereunder shall
constitute a waiver or release by the Debtor or NewAWA, of any such claim that
it may have against such holder.
12.6. Opt-Out. Pursuant to Section 203(b)(3) of the Delaware General
Corporation Law, AWA elects, as of the Effective Date, that it will no longer be
governed by the provisions of Section 203 of the Delaware General Corporation
Law.
12.7. Section Headings. The Section headings contained in the Plan are for
reference purposes only and shall not affect in any way the meaning or
interpretation of the Plan.
12.8. Severability. If any provision of the Plan is found by the Bankruptcy
Court to be invalid, illegal or unenforceable, then, at the option of the Debtor
or NewAWA, such provision shall not affect the validity or legality of any other
provisions of the Plan which shall remain effective.
12.9. Computation of Time. In computing any period of time prescribed or
allowed by the Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.
12.10. Governing Law. Except to the extent that the Bankruptcy Code, the
Bankruptcy Rules or any other statutes, rules or regulations of the United
States are applicable, and subject to the provisions of any contract,
instrument, release, indenture or other agreement or document entered into in
connection with the Plan, the rights and obligations arising under the Plan
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Arizona, without giving effect to the principles of conflicts of
law thereof. Notwithstanding anything to the contrary herein, the laws of
escheat and abandoned property of no state shall be applicable to any property
distributed or abandoned hereunder.
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ARTICLE 13
PROVISIONS FOR EXECUTION AND
SUPERVISION OF THE PLAN
13.1. Retention of Jurisdiction. Except as otherwise provided herein, from
and after the Effective Date, the Bankruptcy Court shall retain and have
exclusive jurisdiction over the Chapter 11 Case for all legally permissible
purposes, including, without limitation, the following purposes:
(a) to determine any and all objections to the allowance of Claims;
(b) to resolve any and all matters related to the rejection,
assumption, or assumption and assignment, as the case may be, of executory
contracts or unexpired leases to which the Debtor is a party or with
respect to which the Debtor may be liable, and to hear and determine, and
if need be to liquidate, any and all Claims arising therefrom;
(c) to determine any and all applications for the determination of any
priority of any Claim including without limitation Claims arising from any
event that occurred prior to the Petition Date or from the Petition Date
through the Effective Date and for payment of any alleged Administrative
Claim, Priority Tax Claim, Priority Benefit Plan Contribution Claim or
Priority Wage Claim;
(d) to determine any and all applications, motions, adversary
proceedings and contested or litigated matters that may be pending on the
Effective Date;
(e) to determine all controversies, suits and disputes that may arise
in connection with the interpretation, enforcement or consummation of the
Plan or in connection with the obligations of the Debtor, NewAWA or AmWest
under the Plan, or in connection with the performance by any Distribution
Agent of its duties hereunder, and to enter such orders as may be necessary
or appropriate to implement any distributions to holders of Allowed General
Unsecured Claims;
(f) to consider any modification, remedy any defect or omission, or
reconcile any inconsistency in the Plan or any order of the Bankruptcy
Court, including the Confirmation Order, all to the extent authorized by
the Bankruptcy Code;
(g) to issue such orders in aid of execution of the Plan to the extent
authorized by Section 1142 of the Bankruptcy Code;
(h) to determine such other matters as may be set forth in the
Confirmation Order or as may arise in connection with the Plan or the
Confirmation Order;
(i) to determine any suit or proceeding brought by NewAWA on behalf of
the Debtor's estate to recover property under Section 542, 543 or 553 of
the Bankruptcy Code or any Avoidance Litigation;
(j) to consider and act on the compromise and settlement of any Claim
against or cause of action by or against the Debtor's estate;
(k) to estimate Claims for purposes of allowance pursuant to Section
502(c) of the Bankruptcy Code;
(l) to hear and determine any dispute or controversy relating to any
Allowed Claim or any Claim alleged or asserted by any Person to be an
Allowed Claim;
(m) to determine any and all applications for allowances of
compensation and reimbursement of expenses and any other fees and expenses
authorized to be paid or reimbursed under the Bankruptcy Code or the Plan;
(n) to determine any issues arising in connection with elections made
on a Ballot by a holder of a Claim or Equity Interest;
(o) to determine the appropriate Reserve Amounts;
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(p) to determine whether the payment of any Claims hereunder should be
subordinated to the payment of other Claims;
(q) to hear and determine any tax disputes concerning AWA, including
the amount and preservation of AWA's tax attributes, to determine and
declare any tax effects under the Plan, and to determine any Taxes which
the Debtor's bankruptcy estate may incur as a result of the transactions
contemplated herein, pursuant to Sections 346, 505 and 1146 of the
Bankruptcy Code; and
(r) to enter a final decree closing the Chapter 11 Case.
13.2. Amendment of Plan. The Plan may be amended by the Debtor before the
Effective Date and by NewAWA thereafter as provided in Section 1127 of the
Bankruptcy Code.
13.3. Post-Effective Date Notice. From and after the Effective Date, any
notice to be provided under the Plan shall be sufficient if provided to (i) the
Official Service List as contained in the records of the Bankruptcy Court on the
Effective Date; or (ii) all parties whose rights may be affected by the action
which is the subject of the notice; or (iii) in any case, such notice as is
approved as sufficient by order of the Bankruptcy Court.
13.4. Revocation of Plan. Subject to the approval of AmWest as required by
the Investment Agreement, the Debtor reserves the right to revoke and withdraw
the Plan prior to entry of the Confirmation Order. If the Debtor revokes or
withdraws the Plan, then the Plan shall be deemed null and void and nothing
contained herein shall be deemed to constitute a waiver or release of any Claims
by or against the Debtor or any other person or to prejudice in any manner the
rights of the Debtor or any Person in any further proceedings involving the
Debtor.
Dated: Phoenix, Arizona
June 28, 1994
Respectfully submitted,
AMERICA WEST AIRLINES, INC.
By: /s/ WILLIAM A. FRANKE
____________________________
William A. Franke
Chairman of the Board and
Chief Executive Officer
AMWEST PARTNERS, L.P.
By: AMWEST GENPAR, INC.,
its general partner
By: /s/ JAMES G. COULTER
________________________
James G. Coulter
Vice President
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<PAGE> 39
PLAN OF REORGANIZATION
EXHIBIT A
INVESTMENT AGREEMENT
[EXHIBITS TO INVESTMENT AGREEMENT OMITTED]
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[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 41
EXHIBIT A
[Certain terms of the following Investment Agreement have been modified by
the Plan of Reorganization to which this Exhibit A is attached.]
THIRD REVISED INVESTMENT AGREEMENT
April 21, 1994
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Attention: William A. Franke
Chairman of the Board
Gentlemen:
This letter agreement (this "Agreement") sets forth the agreement between
America West Airlines, Inc., a Delaware corporation (including, on or after the
effective date of the Plan, as defined herein, its successors, as reorganized
pursuant to the Bankruptcy Code, as defined herein) (the "Company"), and AmWest
Partners, L.P., a Texas limited partnership ("Investor").
The Company will issue and sell to Investor, and Investor hereby agrees and
commits to purchase from the Company, a package of securities of the Company for
$244,857,000 in cash (subject to adjustment as herein provided), consisting of
(i) shares of Class A Common Stock of the Company ("Class A Common"), (ii)
shares of Class B Common Stock of the Company ("Class B Common" and, together
with the Class A Common, "Common Stock"), (iii) senior unsecured notes of the
Company ("Notes") and (iv) warrants to purchase shares of Class B Common
("Warrants"), all on the terms and subject to the terms and conditions
hereinafter set forth.
Investor's purchase of the securities referred to above (the "Investment")
will be made in connection with and as part of the transactions to be
consummated pursuant to a joint Plan of Reorganization of the Company (the
"Plan") and an order (the "Confirmation Order") confirming the Plan issued by
the Bankruptcy Court, as defined herein. The Plan will contain provisions called
for by, or otherwise consistent with, this Agreement.
In consideration of the agreements of Investor hereunder, and as a
precondition and inducement to the execution of this Agreement by Investor, the
Company has entered into the Third Revised Interim Procedures Agreement with
Investor, dated the date hereof (the "Procedures Agreement").
SECTION 1. Definitions. For purposes of this Agreement, except as
expressly provided herein or unless the context otherwise requires, the
following terms shall have the following respective meanings:
"Affiliate" shall mean (i) when used with reference to any
partnership, any Person that, directly or indirectly, owns or controls 10%
or more of either the capital or profit interests of such partnership or is
a partner of such partnership or is a Person in which such partnership has
a 10% or greater direct or indirect equity interest and (ii) when used with
reference to any corporation, any Person that, directly or indirectly, owns
or controls 10% or more of the outstanding voting securities of such
corporation or is a Person in which such corporation has a 10% or greater
direct or indirect equity interest. In addition, the term "Affiliate," when
used with reference to any Person, shall also mean any other Person that,
directly or indirectly, controls or is controlled by or is under common
control with such Person. As used in the preceding sentence, (A) the term
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the entity
referred to, whether through ownership of voting securities, by contract or
otherwise and (B) the terms "controlling" and "controls" shall have
meanings correlative to the foregoing. Notwithstanding the foregoing, the
Company will be deemed not to be an Affiliate of Investor or any of its
partners or assignees.
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"Alliance Agreements" shall have the meaning specified in Section 5.
"Approvals" shall have the meaning specified in Section 8(b).
"Bankruptcy Code" shall mean Chapter 11 of the United States
Bankruptcy Code.
"Bankruptcy Court" shall mean the United States Bankruptcy Court for
the District of Arizona.
"Business Combination" means:
(i) any merger or consolidation of the Company with or into
Investor or any Affiliate of Investor;
(ii) any sale, lease, exchange, transfer or other disposition of
all or any substantial part of the assets of the Company to Investor
or any Affiliate of Investor;
(iii) any transaction with or involving the Company as a result
of which Investor or any of Investor's Affiliates will, as a result
of issuances of voting securities by the Company (or any other
securities convertible into or exchangeable for such voting
securities) acquire an increased percentage ownership of such voting
securities, except pursuant to a transaction open on a pro rata basis
to all holders of Class B Common; or
(iv) any related series or combination of transactions having or
which will have, directly or indirectly, the same effect as any of
the foregoing.
"Class A Common" shall have the meaning specified in the second
paragraph of this Agreement.
"Class B Common" shall have the meaning specified in the second
paragraph of this Agreement.
"Common Stock" shall have the meaning specified in the second
paragraph of this Agreement.
"Company" shall have the meaning specified in the first paragraph of
this Agreement.
"Confirmation Date" shall mean the date on which the Confirmation
Order is entered by the Bankruptcy Court.
"Confirmation Order" shall have the meaning specified in the third
paragraph of this Agreement.
"Continental" shall mean Continental Airlines, Inc.
"Creditors' Committee" shall mean the Official Committee of the
Unsecured Creditors of America West Airlines, Inc. appointed in the
Company's Chapter 11 case pending in the Bankruptcy Court.
"Disclosure Statement" shall mean a disclosure statement with respect
to the Plan.
"Effective Date" shall mean the effective date of the Plan; provided
that in no event shall the Effective Date be (a) earlier than 11 days after
the Bankruptcy Court approves and enters the Confirmation Order providing
for the confirmation of the Plan or (b) before all material Approvals are
obtained.
"Electing Party" shall have the meaning specified in Section
4(a)(2)(ii).
"Equity Committee" shall mean the Official Committee of Equity Holders
of America West Airlines, Inc. appointed in the Company's Chapter 11 case
pending in the Bankruptcy Court.
"Equity Holders" shall mean the Company's equity security holders
(including holders of common stock and preferred stock) of record as of the
applicable record date fixed by the Bankruptcy Court.
"Governance Agreements" shall have the meaning specified in Section 6.
"GPA" shall mean GPA Group plc or, if applicable, any direct or
indirect subsidiary thereof.
"GPA Put Agreement" shall have the meaning specified in Section 7(j).
"Independent Directors" shall have the meaning specified in Section
6(a).
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"Initial Order" shall have the meaning specified in Section 8(a).
"Investment" shall have the meaning specified in the third paragraph
of this Agreement.
"Investor" shall have the meaning specified in the first paragraph of
this Agreement.
"Mesa" shall mean Mesa Airlines, Inc.
"Monthly Targets" shall mean the amounts specified in the Monthly
Targets Schedule.
"Monthly Targets Schedule" shall mean the letter agreement between the
Company and Investor dated the date hereof.
"Notes" shall have the meaning specified in the second paragraph of
this Agreement. The Notes shall be subject to the terms and conditions set
forth in Exhibit B hereto.
"Outside Date" shall mean August 31, 1994; provided that Investor
shall have the right from time to time to irrevocably extend the Outside
Date to a date not later than November 30, 1994, but only if Investor gives
the Company prior written notice of its election to extend the then current
Outside Date (which notice shall specify the new Outside Date) and then
only if, at the time of the giving of such notice, Investor is not in
breach of any of its representations, warranties, covenants or obligations
under this Agreement, the Procedures Agreement or any Related Agreement
(excluding any breach by Investor which is not willful or intentional and
which is capable of being cured on or before the new Outside Date). Unless
waived by the Company, any notice given pursuant to this definition shall
be delivered to the Company not less than 15 days prior to the then current
Outside Date except that, in the event the Effective Date has not occurred
for any reason arising within such 15-day period not due to a breach by
Investor of any of its representations, warranties, covenants or agreements
hereunder, such notice shall be given as soon as practicable but in no
event later than the then current Outside Date.
"Person" means a natural person, a corporation, a partnership, a
trust, a joint venture, any Regulatory Authority or any other entity or
organization.
"Plan" shall have the meaning specified in the third paragraph of this
Agreement.
"Plan 9" means the Company's Plan Revision No. 9 which consists of the
Summary Pro Forma Financial Statements: June 1993 Through December 1994,
dated July 15, 1993.
"Plan R-2" shall mean the Company's Summary Pro Forma Financial
Statements, 5 Year Plan: 1994 Through 1998, Plan No. R-2, dated January 13,
1994.
"Procedures Agreement" shall have the meaning specified in the fourth
paragraph of this Agreement.
"Projections" shall mean the projections set forth in Plan 9 on pages
15 and 18 of Tab E and pages 7 and 8 of Tab F.
"Purchase Price" shall have the meaning specified in Section 2.
"Regulatory Approvals" shall mean all approvals, permits,
authorizations, consents, licenses, rulings, exemptions and agreements
required to be obtained from, or notices to or registrations or filings
with, any Regulatory Authority (including the expiration of all applicable
waiting periods, if any, under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended) that are necessary or reasonably appropriate to
permit the Investment and the other transactions contemplated hereby and by
the Related Agreements and to permit the Company to carry on its business
after the Investment in a manner consistent in all material respects with
the manner in which it was carried on prior to the Effective Date or
proposed to be carried on by the reorganized Company.
"Regulatory Authority" shall mean any authority, agency, commission,
official or other instrumentality of the United States, any foreign country
or any domestic or foreign state, county, city or other political
subdivision.
"Related Agreements" shall have the meaning specified in Section 3.
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"Securities" shall mean the securities of the Company issued to the
Unsecured Parties, Investor and its assigns and GPA under this Agreement.
The Securities are described in Section 4.
"Unsecured Creditors" shall mean, as of any date, the Persons holding
of record as of such date the allowed or allowable prepetition unsecured
claims without priority of the Company.
"Unsecured Parties" shall mean the Equity Holders and the Unsecured
Creditors.
"Warrants" shall have the meaning specified in the second paragraph of
this Agreement.
SECTION 2. Commitment to Make Investment. Subject to the terms and
conditions of this Agreement and the Procedures Agreement, on the Effective
Date, the Company shall issue and sell and Investor shall purchase Securities in
accordance with this Agreement and the Plan. Such Securities shall be issued,
sold and delivered to Investor, its designees and/or one or more third party
investors, and the $244,857,000 purchase price therefor, as such purchase price
may be adjusted pursuant hereto (the "Purchase Price"), shall be paid by wire
transfer of immediately available funds on the Effective Date.
SECTION 3. Related Agreements. The agreements necessary to effect the
Investment (the "Related Agreements," such term to include the Alliance
Agreements and the Governance Agreements) shall be in form and substance
reasonably satisfactory to Investor and the Company, and shall contain terms and
provisions, including representations, warranties, covenants, warranty
termination periods, materiality exceptions, cure opportunities, conditions
precedent, anti-dilution provisions (as appropriate), and indemnities, as are in
form and substance reasonably satisfactory to such parties; provided, however,
that the Related Agreements shall contain provisions called for by, or otherwise
consistent with, this Agreement.
SECTION 4. Capitalization. (a) Upon consummation of the Plan, the
capitalization of the Company shall be as follows:
(1) Class A Common. There shall be 1,200,000 shares of Class A
Common, all of which shares shall, in accordance with the Plan, be issued
to Investor. Investor shall pay $8,960,400 for the Class A Common. At the
option of the holders thereof, shares of Class A Common shall be
convertible into shares of Class B Common on a share for share basis.
(2) Class B Common. There shall be 43,800,000 shares of Class B
Common, all of which shares shall, in accordance with the Plan, be issued
as follows:
(i) Investor. Investor shall be issued 13,875,000 shares plus the
number of shares (if any) to be acquired by Investor pursuant to clause
(ii) below minus the number of shares, if any, purchased by the Equity
Holders pursuant to the second sentence of clause (iii) below. For each
share of Class B Common issued to it, Investor shall pay $7.467;
provided that (A) for each share acquired by Investor pursuant to clause
(ii) below and (B) for each share not purchased by the Equity Holders
pursuant to clause (iii) below, Investor shall pay $8.889.
(ii) Unsecured Creditors. The Unsecured Creditors (or a trust
created for their benefit) shall be issued 26,775,000 shares.
Notwithstanding the foregoing, each Unsecured Creditor shall have the
right to elect to receive cash equal to $8.889 for each share of Class B
Common otherwise allocable to it under this clause (ii). The election of
each such Person (the "Electing Party") must be made on or before the
date fixed by the Bankruptcy Court for voting with respect to the Plan;
provided, however, that in the event that such elections of all Electing
Parties aggregate to more than $100 million, then (A) the amount of cash
so paid shall be limited to $100 million and (B) the Electing Parties
shall each receive proportionate amounts of cash and Class B Common in
accordance with the Plan. Subject to the foregoing proviso, Investor
shall increase the Investment by the amount necessary to pay all
Electing Parties the cash amounts payable to them under this clause (ii)
in respect of the shares of Class B Common specified in their elections
and, upon payment of such amounts, such shares shall be issued to
Investor without further consideration. Notwithstanding the foregoing,
Investor's acquisition of shares of Class B Common pursuant to this
clause (ii) shall, if permitted by applicable securities and other laws,
be consummated immediately after the issuance of such shares to the
Electing Parties on the Effective Date. If such shares are not so
acquired post-
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consummation of the Plan, all shares of Class B Common acquired by
Investor pursuant to this clause (ii) shall, for all purposes hereof,
be deemed to be part of the Securities acquired by Investor hereunder.
(iii) Equity Holders. The Equity Holders (or a trust created for
their benefit) shall be issued 2,250,000 shares. In addition, the Equity
Holders shall have the right to purchase up to 1,615,179 shares
allocable to Investor pursuant to clause (i) above at $8.889 per share.
Such election must be made by each Equity Holder on or before the date
fixed by the Bankruptcy Court for voting with respect to the Plan. The
Plan shall set forth the terms and conditions on which the foregoing
rights may be exercised.
(iv) GPA. 900,000 shares shall be issued to GPA.
(3) Warrants. There shall be Warrants to purchase 10,384,615 shares
of Class B Common at the exercise price as specified in and subject to the
terms of Exhibit A hereto, and such Warrants shall, in accordance with the
Plan, be issued as follows:
(i) Warrants to purchase up to 2,769,231 shares of Class B Common
shall be issued to Investor; and
(ii) Warrants to purchase up to 6,230,769 shares of Class B Common
shall be issued to the Equity Holders or a trust or trusts created for
their benefit; and
(iii) Warrants to purchase up to 1,384,615 shares of Class B Common
shall be issued to GPA.
(4) Senior Unsecured Notes. Investor shall, in accordance with the
Plan and subject to the terms of Exhibit B hereto, be issued $100 million
principal amount of Notes against payment in cash of not less than 100% of
the principal amount thereof to the Company; provided, however, that the
Company shall have the right, exercised at any time prior to the date fixed
by the Bankruptcy Court for voting with respect to the Plan, to increase
the principal amount of the Notes to be so purchased by Investor to up to
$130 million. GPA shall, in accordance with the Plan, be issued $30,525,000
principal amount of Notes; provided, however, that GPA shall have the right
to elect to receive cash in lieu of all or any portion of the Notes
otherwise issuable to it under this paragraph (4), such election to be made
on or before the date fixed by the Bankruptcy Court for voting with respect
to the Plan.
(b) Holders of the Class A Common shall have fifty votes per share. Holders
of Class B Common shall have one vote per share. Holders of Class A Common and
holders of Class B Common shall vote together as a single class except as
otherwise required by law or the provisions of this Agreement. Investor may
elect, with respect to any shares of Class B Common held by it, to suspend the
voting rights relating to such shares by giving prior written notice to the
Company, which notice shall describe such shares in reasonable detail and state
whether or not the voting suspension is permanent or temporary and, if
temporary, specify the period thereof.
(c) Neither Investor nor any Affiliate of Investor or of any partner of
Investor will transfer or otherwise dispose of any Common Stock (other than to
an Affiliate of the transferor) if, after giving effect thereto and to any
concurrent transaction, the total number of shares of Class B Common
beneficially owned by the transferor is less than 200% of the total number of
shares of Class A Common beneficially owned by the transferor; provided,
however, than nothing in this paragraph (c) shall prohibit any Person from
transferring or otherwise disposing, in a single transaction or a series of
concurrent transactions, of all shares of Common Stock owned by such Person.
SECTION 5. Business Alliance Agreements. Continental and the Company
shall enter into mutually acceptable business alliance agreements on the
Effective Date, which agreements may include, but shall not be limited to,
agreements to share ticket counter space, ground handling agreements, agreements
to link frequent flier programs, and combined purchasing agreements, and
schedule coordination and code sharing agreements. On the Effective Date, Mesa
shall enter into agreements with the Company extending the existing contractual
arrangements between the Company and Mesa for five years from the Effective Date
and
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modifying the termination provisions thereof consistent with such extension.
Such agreements with Continental and Mesa are herein collectively referred to as
the "Alliance Agreements".
SECTION 6. Governance Agreements. On the Effective Date, the Company,
Investor and Investor's partners (other than any such partner holding shares of
Class B Common the voting rights with respect to which have been suspended as
contemplated by Section 4(b)) shall enter into one or more written agreements
(the "Governance Agreements") effectively providing as follows:
(a) At all times during the three-year period commencing on the
Effective Date, the Company's board of directors shall consist of 15
members designated as follows:
(i) nine members (at least 8 of whom are U.S. citizens) shall be
designated by Investor, with certain of the partners of Investor having
the right to designate certain of Investor's designated directors;
(ii) three members (at least two of whom are U.S. citizens) shall
be designated by the Creditors Committee; provided that each such member
shall be reasonably acceptable to Investor at the time of his or her
initial designation;
(iii) one member shall be designated by the Equity Committee;
provided that such member shall be a U.S. citizen reasonably acceptable
to Investor at the time of his or her initial designation;
(iv) one member shall be designated by the Company's board of
directors as constituted on the date preceding the Effective Date;
provided that such member shall be a U.S. citizen reasonably acceptable
to Investor at the time of his or her initial designation; and
(v) one member shall be designated by GPA for so long as GPA shall
own at least 2% of the voting equity securities of the Company; provided
that such member shall be reasonably acceptable to Investor at the time
of his or her initial designation.
The directors (and their successors) referred to in clauses (ii), (iii) and
(iv) above are hereinafter referred to collectively as the "Independent
Directors."
(b) In the case of the death, resignation, removal or disability of an
Independent Director after the Effective Date, his or her successor shall
be designated by the Stockholder Representatives, except that if such
Independent Director was initially designated by the Creditors' Committee
or the Equity Committee and if, at the time of such Independent Director's
death, resignation, removal or disability (as the case may be), the
Creditors' Committee or the Equity Committee (as the case may be) remains
in effect, the successor to such Independent Director shall be designated
by the Creditors' Committee or the Equity Committee (as the case may be).
As used herein, "Stockholder Representatives" shall mean, collectively, (A)
one individual who, on the date hereof, is serving as a director of the
Company, (B) one individual who, on the date hereof, is serving as a member
of the Creditors' Committee and (C) one individual who, on the date hereof,
is serving as a member of the Equity Committee. The initial Stockholder
Representatives shall be selected on or before the Effective Date (x) by
the Company's board of directors in the case of the individual referred to
in clause (A) above, (y) by the Creditors' Committee in the case of the
individual referred to in clause (B) above and (z) by the Equity Committee
in the case of the individual referred to in clause (C) above. In case of
the death, resignation, removal or disability of a Stockholder
Representative after the Effective Date, his or her successor shall be
designated by the remaining Stockholder Representatives.
(c) Until the third anniversary of the Effective Date, Investor will
vote and cause to be voted all shares of Common Stock (other than those the
voting rights of which have been suspended) owned by Investor or any of its
partners or by the assignees or transferees of all or substantially all of
the Common Stock owned by Investor or any of its partners (other than a
Person who acquires such stock pursuant to a tender or exchange offer open
to all stockholders of the Company) in favor of the election as directors
of any and all individuals designated for such election as contemplated by
clauses (ii), (iii), (iv) and (v) of paragraph (a) above.
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(d) No director nominated by Investor shall be an officer or employee
of Continental. All Company directors, if any, who are selected by, or who
are directors of, Continental shall recuse themselves from voting on, or
otherwise receiving any confidential Company information regarding, matters
in connection with negotiations between Continental and the Company
(including, without limitation, those relating to the Alliance Agreements)
and matters in connection with any action involving direct competition
between Continental and the Company. All Company directors, if any, who are
selected by, or who are directors, officers or employees of, Mesa shall
recuse themselves from voting on, or otherwise receiving any confidential
Company information regarding, matters in connection with negotiations
between Mesa and the Company (including, without limitation, those relating
to the Alliance Agreements) and matters in connection with any action
involving direct competition between Mesa and the Company.
(e) During the three-year period commencing on the Effective Date, the
Company will not consummate any Business Combination unless such
transaction shall be approved in advance by at least three Independent
Directors or by a majority of the stock voted at the meeting held to
consider such transaction which is owned by stockholders of the Company
other than Investor or any of its Affiliates; provided, however, that
neither Mesa nor any fund or account managed or advised by Fidelity
Management Trust Company or its Affiliates (or any of their non-Affiliated
transferees) will be deemed an Affiliate of Investor for purposes of voting
on any Business Combination involving Continental.
SECTION 7. Plan of Reorganization. The Plan shall (i) be proposed jointly
by the Company and Investor, (ii) contain terms and conditions reasonably
satisfactory to Investor and the Company, and (iii) include the following
provisions; provided that Investor and the Company may, by mutual agreement,
modify the Plan or otherwise restructure the Investment in a manner consistent
with the contemplated economic consequences to the Company, Investor, the
Unsecured Parties and GPA in order to enable the Company, as reorganized, to
more fully utilize its existing tax attributes:
(a) Debtor-in-Possession Financing. The Company's
debtor-in-possession financing shall be repaid in full in cash on the
Effective Date.
(b) Administrative Claims. All allowed administrative claims shall be
paid as required pursuant to Section 1129(a) of the Bankruptcy Code,
provided that such claims do not exceed the amount set forth in Plan R-2
plus $15 million, and provided further that payment of such claims in
excess of those set forth in Plan R-2 would not, if payment was to be made
in the month immediately preceding the Effective Date, cause the Company to
fail to meet any of the Monthly Targets for such month.
(c) Tax Claims. All priority tax claims shall be paid over the
maximum term permitted by the Bankruptcy Code, as determined by the
Bankruptcy Court, with interest accruing at a rate determined by the
Bankruptcy Court, provided that such claims do not exceed the amounts set
forth in Plan R-2 plus $8.5 million, and provided further that payment of
such claims in excess of those set forth in Plan R-2 would not, if payment
was to be made in the month immediately preceding the Effective Date, cause
the Company to fail to meet any of the Monthly Targets for such month.
(d) Nontax Priority Claims. All nontax priority claims shall be paid
as required pursuant to Section 507 of the Bankruptcy Code, provided that
such claims do not exceed the amounts set forth in Plan R-2.
(e) Secured Claims. Secured debt claims shall be treated as provided
in Plan R-2 subject to (i) modification based on updated appraisals of
collateral values to be conducted by the Company and consistent with the
applicable provisions of the Bankruptcy Code, or (ii) such other terms as
shall be reasonably satisfactory to the Company and Investor.
(f) Unsecured Creditors. In consideration for the shares and cash
issued or paid, as the case may be, to the Unsecured Creditors pursuant to
Section 4(a)(2)(ii), the unsecured claims of the Unsecured Creditors shall
be cancelled as specified in the Plan.
(g) Equity Holders. In consideration for (A) the right to purchase
shares pursuant to Section 4(a)(2)(iii), (B) the shares issued to the
Equity Holders pursuant to Section 4(a)(2)(iii), and (C) the
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Warrants issued to the Equity Holders pursuant to Section 4(a)(3)(ii), the
equity interests of the Equity Holders shall be cancelled as specified in
the Plan.
(h) Leases. All aircraft leases which have been assumed prior to the
date hereof will be honored by the Company in accordance with their terms
and without reduction of rentals thereunder, provided that with the consent
of the Company, Investor and any applicable lessor, any such lease may be
amended to reduce the rentals payable thereunder, it being understood that,
in consideration of any such amendment and with the consent of the
Creditors' Committee, securities of the Company may be issued to such
lessors from securities otherwise allocable to the Unsecured Parties to the
extent consistent with any agreement in writing entered into by Investor
and the Equity Committee on or before the date hereof.
(i) Kawasaki. The contractual right of Kawasaki Leasing International
Inc. ("Kawasaki") to require the Company to lease certain aircraft and
aircraft engines shall be modified on terms satisfactory to the Company,
Investor and Kawasaki or, in the absence of such modification, honored.
(j) GPA. In consideration for (A) the shares issued to GPA pursuant
to Section 4(a)(2)(iv), (B) the Warrants issued to GPA pursuant to Section
4(a)(3)(iii), (C) the Notes and cash issued or paid, as the case may be, to
GPA pursuant to Section 4(a)(4) and (D) the granting to GPA on the
Effective Date of the right (the "New GPA Put") to require the Company to
lease from GPA on or prior to June 30, 1999, up to eight aircraft of types
consistent with the fleet currently operated by the Company, GPA shall, as
specified in the Plan, cancel and waive all rights to put any aircraft to
the Company which it may have pursuant to the Put Agreement between GPA and
the Company, dated as of June 25, 1991 (the "GPA Put Agreement") and/or the
related Agreement Regarding Rights of First Refusal for A320 Aircraft,
dated as of September 1, 1992 (the "First Refusal Agreement") and all other
claims of any kind or nature arising out of or in connection with the GPA
Put Agreement and/or the First Refusal Agreement (other than claims for
reimbursement of expenses incurred by GPA in connection therewith). Each
such lease shall provide for the payment by the Company of a fair market
rental (determined at or about the time of delivery of the related aircraft
to the Company on the basis of rentals then prevailing in the marketplace
for comparable leases of comparable aircraft to lessees of comparable
creditworthiness); and each such lease shall have such other terms and
provisions and be in such form as is agreed upon by the Company and GPA
with the approval of Investor (which approval shall not be unreasonably
withheld or delayed) and attached to the agreement pursuant to which GPA is
granted the New GPA Put.
(k) Prepetition Aircraft Purchase Contracts. The prepetition contract
for the purchase of aircraft between the Company and The Boeing Company
shall either be modified on terms satisfactory to Investor, the Company and
The Boeing Company or, in the absence of such agreement, rejected. The
Company's aircraft purchase contract with AVSA, S.A.R.L. ("Airbus") shall
be amended on terms consistent with the provisions of the AmWest-A320 Term
Sheet, dated as of February 23, 1994 by and between Investor and Airbus.
(l) Employees. The Company shall have the right to release employees
from all currently existing obligations to the Company in respect of shares
of Company stock purchased by such employees pursuant to the Company's
stock purchase plan, such release to be in consideration for the
cancellation of such shares.
(m) Exculpation. The Plan will contain customary exculpation
provisions for the benefit of the Creditors' Committee and the Equity
Committee and their respective professionals.
SECTION 8. Conditions to Investor's Obligations Relating to the
Investment. The obligations of Investor to consummate the Investment and the
other transactions contemplated herein shall be subject to the satisfaction, or
the written waiver by Investor, of the following conditions:
(a) an initial order approving the Procedures Agreement, which order
shall be in form and substance reasonably satisfactory to Investor (the
"Initial Order"), shall have been entered by the Bankruptcy Court on or
prior to May 6, 1994 and, once entered, shall be in effect and shall not be
modified in any material respect or stayed;
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(b) subject to Section 10(b), the Company and Investor, as applicable,
shall have received all Regulatory Approvals, which shall have become final
and nonappealable or any period of objection by Regulatory Authorities
shall have expired, as applicable, and all other material approvals,
permits, authorizations, consents, licenses and agreements from other third
parties that are necessary or appropriate to permit the Investment and the
other transactions contemplated hereby and by the Related Agreements and to
permit the Company to carry on its business after the Effective Date in a
manner consistent in all material respects with the manner in which it was
carried on prior to the Effective Date (collectively with Regulatory
Approvals, the "Approvals"), which Approvals shall not contain any
condition or restriction that, in Investor's reasonable judgment,
materially impairs the Company's ability to carry on its business in a
manner consistent in all material respects with prior practice or as
proposed to be carried on by the reorganized Company;
(c) the certificate of incorporation and bylaws of the Company shall
contain the terms contemplated by this Agreement and shall otherwise be
reasonably satisfactory to Investor;
(d) there shall be in effect no injunction, stay, restraining order or
decree issued by any court of competent jurisdiction, whether foreign or
domestic, staying the effectiveness of any of the Approvals, the Initial
Order or the Confirmation Order, and there shall not be pending any request
or motion for any such injunction, stay, restraining order or decree;
provided, however, that the foregoing condition shall not apply to any such
injunction, stay, order or decree requested, initiated or supported by
Investor or any of its partners or other Affiliates or to any such request
or motion made, initiated or supported by Investor or any its partners or
other Affiliates;
(e) there shall not be threatened or pending any suit, action,
investigation, inquiry or other proceeding (collectively, "Proceedings") by
or before any court of competent jurisdiction or Regulatory Authority
(excluding the Company's bankruptcy case, but including adversary
proceedings and contested matters in such bankruptcy case, and excluding
any such Proceedings fully and accurately disclosed by the Company in
Schedule I hereto), or any adverse development occurring since December 31,
1993 in any such Proceedings, which Proceedings or development, singly or
in the aggregate, in the good faith judgment of Investor, are reasonably
likely to have a material adverse effect on the Company's ability to carry
on its business in a manner consistent in all material respects with prior
practices or are reasonably likely to impair in any material respect
Investor's ability to realize the intended benefits and value of this
Agreement, the Procedures Agreement or any Related Agreement; provided,
however, that the foregoing condition shall not apply to any such
Proceeding or development requested, initiated or supported by Investor or
any of its partners or other Affiliates;
(f) the Company shall have delivered to Investor appropriate closing
documents, including the instruments evidencing the Securities being issued
to Investor, certifications of the Company officers (including, but not
limited to, incumbency certificates, and certificates as to the truth and
correctness of statements made in the Disclosure Statement or any other
offering document distributed in connection with any securities issued in
respect of this Agreement or the Related Agreements) and opinions of legal
counsel, all of which shall be reasonably satisfactory to Investor;
(g) by no later than March 31, 1994, the Company shall have delivered
to Investor audited financial statements as of December 31, 1993, and for
the year then ended, which statements shall reflect a financial performance
and a financial position of the Company consistent in all material respects
with the unaudited results previously announced by the Company for such
year, and, if requested by Investor, the Company shall have discussed such
financial statements with Investor and provided an opportunity for Investor
to discuss such financial statements with the Company's auditors;
(h) since December 31, 1993, except for the matters disclosed in
Schedule I hereto, no material adverse change in the Company's condition
(financial or otherwise), business, assets, properties, operations or
relations with employees or labor unions shall have occurred and no matter
(except for the matters disclosed in Schedule I hereto) shall have occurred
or come to the attention of Investor that, in the reasonable judgment of
Investor, is likely to have any such material adverse effect;
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(i) the following shall be true in all material respects (in each case
based on the Company's actual monthly or daily financial statements, which
shall be prepared by the Company in a manner consistent in all material
respects with its historical monthly and daily financial statements
previously furnished to Investor): (A) the Company's actual monthly
Operating Cash Flow (as defined on the Monthly Targets Schedule) shall not,
in any month, be less than the minimum amount therefor established as part
of the Monthly Targets, (B) the Company's actual 4 month Rolling Cash Flow
(as defined on the Monthly Targets Schedule) shall not be less, as of the
end of any four calendar month period, than the minimum amount therefor
established as part of the Monthly Targets, (C) the Company's actual end of
month Reported Cash Balance (as defined in the Monthly Targets Schedule)
shall not, as of the end of any calendar month, be less than the minimum
amount therefor established as part of the Monthly Targets, (D) the
Company's actual five-day average Minimum Cash Balance (as defined in the
Monthly Targets Schedule) shall not be, as of the end of any five day
period, less than the minimum amount therefor established as part of the
Monthly Targets; (E) the Company shall not have taken any actions which the
Company knew or reasonably should have known would likely impair or hinder
in any material respect the Company's ability to achieve the Projections;
(F) the amount and nature of the obligations and liabilities (including,
without limitation, tax liabilities and administrative expense claims)
required to be paid by the Company on the Effective Date or to be paid by
the Company following the Effective Date pursuant to obligations assumed by
the Company during the course of its bankruptcy proceedings shall not be in
excess of the amounts reflected in Plan R-2 plus any additional allowances
provided in Section 7 (as reduced by any repayments of the existing
debtor-in-possession loan made on or prior to the Effective Date) and shall
not be materially different in nature than those specified in Plan R-2
(except with respect to administrative claims not known to the Company when
Plan R-2 was developed); and (G) the Company shall have paid all fees and
expenses due Investor under the Procedures Agreement;
(j) since the date hereof, there shall have occurred no outbreak or
escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions or other
adverse change in the financial markets that impairs (or could reasonably
be expected to impair) in any material respect the Company's ability to
carry on its business in a manner consistent in all material respects with
prior practice or impairs (or could reasonably be expected to impair) in
any material respect Investor's ability to realize the intended benefits
and value of this Agreement or any Related Agreement;
(k) the Related Agreements, including all Alliance Agreements, to be
executed by the Company shall have been executed by the Company on or
before the Effective Date and, once executed, shall not have been modified
without the consent of Investor, shall be in effect and shall not have been
stayed;
(l) the Company shall have performed in all material respects all
obligations on its part required to be performed on or before the Effective
Date under this Agreement, the Procedures Agreement and the Related
Agreements and all orders of the Bankruptcy Court in respect thereof that
are consistent with the provisions of such instruments;
(m) all representations and warranties of the Company under this
Agreement, the Procedures Agreement and the Related Agreements shall be
true in all material respects as of the Effective Date;
(n) the Plan and Disclosure Statement each shall have been filed by
the Company on or prior to May 15, 1994, and, once filed, shall have been
served by the Company on all appropriate parties and, once served, shall
not have been modified in any material respect without the prior consent of
Investor (which consent shall not be unreasonably withheld), withdrawn by
the Company or dismissed;
(o) the Disclosure Statement (in the form approved by the Bankruptcy
Court and as amended or supplemented, if applicable) shall have been true
and correct in all material respects as of the date first mailed to
Unsecured Parties and as of the date fixed by the Bankruptcy Court for
voting on the Plan and such Disclosure Statement shall not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein (taken as a whole),
in light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing
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condition shall not apply to statements or other information furnished or
provided by Investor or any of its Affiliates for use in the Disclosure
Statement;
(p) the order approving the Disclosure Statement shall have been
entered by the Bankruptcy Court on or prior to June 30, 1994, and, once
entered, shall not have been modified in any material respect, shall be in
effect and shall not have been stayed;
(q) the Plan (including all securities of the Company to be issued
pursuant thereto and all contracts, instruments, agreements and other
documents to be entered into in connection therewith), the Disclosure
Statement and the Confirmation Order shall be consistent with the terms of
this Agreement and otherwise reasonably satisfactory in form and substance
to Investor;
(r) the Confirmation Order shall have been entered by the Bankruptcy
Court in form reasonably satisfactory to Investor on or before August 15,
1994, and, once entered, shall not have been modified in any material
respect, shall be in effect and shall not have been stayed and shall not be
subject to any appeal;
(s) the Effective Date shall have occurred on or prior to the Outside
Date unless the reason therefor shall be attributable to the breach by
Investor or its Affiliates of any of their respective representations,
warranties, covenants or obligations contained herein or in the Procedures
Agreement or any Related Agreement;.
(t) either pursuant to the Confirmation Order or otherwise, the
Bankruptcy Court shall have established one or more bar dates for
administrative expense claims pursuant to an order reasonably acceptable to
Investor, which bar date or dates shall occur on or before dates reasonably
acceptable to Investor; and
(u) the Securities and Exchange Commission shall have declared
effective a shelf registration statement with respect to the Securities
issuable to Investor.
In the event any of the conditions set forth in clause (a)-(n), (p) or (r) is
not satisfied by the date specified in such clause (the "Deadline"), then, on
the 15th day following the then current Deadline, the Deadline shall be
automatically extended on a day-to-day basis unless the Company and Investor
otherwise agree in writing or unless Investor gives a notice of termination to
the Company pursuant to Section 20(b) of the Procedures Agreement within such
15-day period. If any Deadline is automatically extended as aforesaid, Investor
may thereafter establish a new Deadline by giving notice to the Company
specifying the new Deadline, provided that the new Deadline may not be sooner
than 30 days after the date of such notice.
SECTION 9. Conditions to Company's Obligations Relating to
Investment. The Company's obligations to consummate or to cause the
consummation of the issuance and sale of the Securities and the other
transactions contemplated by this Agreement shall be subject to the
satisfaction, or to the effective written waiver by the Company, of the
condition described in Section 8(b) and the following additional conditions:
(a) payment of the Purchase Price;
(b) Investor shall have delivered to the Company appropriate closing
documents, including, but not limited to, executed counterparts of the
Related Agreements and certifications of officers, and opinions of legal
counsel, all of which shall be reasonably satisfactory to the Company;
(c) there shall be in effect no injunction, stay, restraining order or
decree issued by any court of competent jurisdiction, whether foreign or
domestic, staying the effectiveness of any of the Approvals, the Initial
Order or the Confirmation Order, and there shall not be pending any request
or motion for any such injunction, stay, restraining order or decree;
provided, however, that the foregoing condition shall not apply to any such
injunction, stay, order or decree requested, initiated or supported by the
Company or to any such request or motion made, initiated or supported by
the Company;
(d) the Related Agreements to be executed by Investor or any of its
partners shall have been executed by such parties on or before the
Effective Date and, once executed, shall not have been modified without the
consent of the Company, shall be in effect and shall not have been stayed;
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(e) Investor, Continental and Mesa shall have performed in all
material respects all obligations on their part required to be performed on
or before the Effective Date under this Agreement, the Procedures Agreement
and the Related Agreements and all orders of the Bankruptcy Court in
respect thereof that are consistent with the provisions of such
instruments;
(f) all representations and warranties of Investor, Continental and
Mesa under this Agreement, the Procedures Agreement and the Related
Agreements shall be true and correct in all material respects as of the
Effective Date;
(g) the Company shall be reasonably satisfied that the Alliance
Agreements, when fully implemented, shall result in an increase to the
Company's pretax income of not less than $40 million per year; provided,
however, that Investor shall have no liability for any failure of the
Company to achieve any such increase in net income except to the extent
such failure results from a default by Investor or its partners pursuant to
the terms of such Alliance Agreements;
(h) since the date hereof, there shall have occurred (A) no outbreak
or escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions or other
adverse change in the financial markets or (B) any adverse change in the
condition (financial or otherwise), business, assets, properties or
prospects of Continental or Mesa, in each case that materially impairs the
ability of either Continental or Mesa to perform its obligations under the
Alliance Agreements or the Company's ability to realize the intended
benefits and value of this Agreement, the Alliance Agreements (as
contemplated by clause (g) above) or the other Related Agreements;
(i) since the time of their initial filing by the Company, neither the
Plan nor the Disclosure Statement shall have been modified in any material
respect without the prior consent of the Company (which consent shall not
be unreasonably withheld or delayed), withdrawn by Investor or dismissed;
(j) the certificate of incorporation and bylaws of the Company shall
contain the terms contemplated by this Agreement and shall otherwise be
reasonably satisfactory to the Company;
(k) the Plan (including all Securities to be issued pursuant thereto
and all contracts, instruments, agreements and other documents to be
entered into in connection therewith), the Disclosure Statement and the
Confirmation Order shall be consistent with the terms of this Agreement and
otherwise reasonably satisfactory in form and substance to the Company;
(l) the Confirmation Order shall have been entered by the Bankruptcy
Court in form reasonably acceptable to the Company and, once entered, shall
not have been modified in any material respect, shall be in effect and
shall not have been stayed and shall not be subject to any appeal; and
(m) the Effective Date shall have occurred on or prior to the Outside
Date unless the reason therefor shall be attributable to the breach by the
Company of any of its representations, warranties, covenants or obligations
contained herein or in the Procedures Agreement or any Related Agreement.
SECTION 10. Cooperation. (a) The Company and Investor will cooperate in a
commercially reasonable manner, and will use their respective commercially
reasonable efforts, to consummate the transactions contemplated hereby,
including all commercially reasonable efforts to satisfy the conditions
specified in this Agreement. The Company will use commercially reasonable
efforts, and Investor will cooperate in a commercially reasonable manner in
seeking, to obtain all Approvals.
(b) Notwithstanding anything in Section 8 or 9 to the contrary, if prior to
the Outside Date, the Department of Justice or any other Regulatory Authority
raises any antitrust objection to the consummation of the Investment or the
implementation of any Alliance Agreement, which objection has not been resolved
on or before the Outside Date, Investor nevertheless shall be required to
consummate the Investment and, to that end, agrees to timely make such
adjustment to the composition of its partnership and to the Alliance Agreements
as required to resolve such antitrust objection; provided, however, that nothing
in this paragraph (b) shall affect the rights of the Company under Section 9(g)
or obligate the Company to enter into or approve any adjustment or modification
of the Alliance Agreements which, in the Company's reasonable judgment, is
prejudicial to the Company or the Unsecured Parties in any material respect and
which, if
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<PAGE> 53
entered into or approved, would materially impair the Company's ability to
realize the reasonably anticipated benefits of such Alliance Agreements.
SECTION 11. Registration Rights Agreement. Investor and the Company will
enter into a registration rights agreement on terms acceptable to Investor and
the Company. The registration rights agreement will reflect the understanding of
the parties with respect to their registration rights and obligations and will
provide that Investor, its partners and any assignees and transferees, shall
have the right to cause the Company to (i) include the Securities issuable to
Investor pursuant to the Plan (including any such Securities issued or issuable
in respect of the Warrants or by way of any stock dividend or stock split or in
connection with any combination of shares, merger, consolidation or similar
transaction), on customary terms, in "piggyback" underwritings and registrations
and (ii) to effect, on customary terms, one demand registration under the
Securities Act for the public offering and sale of the Securities issued to
Investor under the Plan at any time after the third anniversary of the Effective
Date.
SECTION 12. Applicable Provisions of Law and Regulations. It is
understood and agreed that this Agreement shall not create any obligation of, or
restriction upon, the Company or Investor or the partners of Investor that would
violate applicable provisions of law or regulation relating to ownership or
control of a U.S. air carrier. At all times after the Effective Date, the
certificate of incorporation of the Company shall provide that, in the event
persons who are not U.S. citizens shall own (beneficially or of record) or have
voting control over shares of Common Stock, the voting rights of such persons
shall be subject to automatic suspension as required to ensure that the Company
is in compliance with applicable provisions of law or regulation relating to
ownership or control of a U.S. air carrier.
SECTION 13. Representations and Warranties of the Company. The Company
represents and warrants to Investor as follows:
(a) The Company has complied in all material respects with the terms
of all orders of the Bankruptcy Court in respect of the Investment, this
Agreement and the Procedures Agreement.
(b) The Company has delivered to Investor copies of the audited
balance sheets of the Company as of December 31, 1992 and the statements of
income, stockholders equity and cash flows for the years then ended,
together with the notes thereto. Such financial statements, and when
delivered to Investor the financial statements of the Company referred to
in Section 8(g) will, present fairly, in accordance with generally accepted
accounting principles (applied on a consistent basis except as disclosed in
the footnotes thereto), the financial position and results of operations of
the Company as of the dates and for the periods therein set forth.
(c) When delivered to Investor, the unaudited financial statements of
the Company referred to in Section 15(b)(ii) will (i) present fairly, in
accordance with generally accepted accounting principles (applied on a
consistent basis except as disclosed therein and subject to normal year-end
audit adjustments), the financial position and results of operations of the
Company as of the date and for the period therein set forth, it being
understood and agreed, however, that the foregoing representation relating
to conformity with generally accepted accounting principles is being made
only to the extent such principles are applicable to interim unaudited
reports and (ii) reflect a financial position and results of operations not
materially worse than those set forth in the pro forma financial statements
contained in Plan 9.
(d) The Projections and the Monthly Targets were prepared in good
faith on a reasonable basis, and when prepared represented the Company's
best judgment as to the matters set forth therein, taking into account all
relevant facts and circumstances known to the Company. Nothing has come to
the Company's attention since the dates on which the Projections and the
Monthly Targets, respectively, were prepared which causes the Company to
believe that any of the projections and other information contained therein
were misleading or inaccurate in any material respect as of such dates. It
is specifically understood and agreed that the delivery of the Projections
and the Monthly Targets shall not be regarded as a representation, warranty
or guarantee that the particular results reflected therein will in fact be
achieved or are likely to be achieved.
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<PAGE> 54
(e) No written statement, memorandum, certificate, schedule or other
written information provided (or to be provided) to Investor or any of its
representatives by or on behalf of the Company in connection with the
transactions contemplated hereby, when viewed together with all other
written statements and information provided to Investor and its
representatives by or on behalf of the Company, in light of the
circumstances under which they were made, (i) contains or will contain any
materially misleading statement or (ii) omits or will omit to state any
material fact necessary to make the statements therein not misleading.
(f) The board of directors of the Company has approved the Investment
and Investor's acquisition of Securities hereunder for purposes of, and in
accordance with the provisions and requirements of, Section 203(a)(1) of
the General Corporation Law of the State of Delaware and, as a consequence,
Investor will not be subject to the provisions of such Section with respect
to any "business combination" between Investor and the Company (as such
term is defined in said Section 203).
SECTION 14. Representations and Warranties of Investor. Investor
represents and warrants to the Company as follows:
(a) The general and limited partners of Investor (other than one such
partner which will elect to suspend the voting rights of its Securities as
contemplated by Section 4(b)) are U.S. citizens within the meaning of
Section 101(16) of the Federal Aviation Act of 1958, as amended.
(b) Investor has, or has commitments for, sufficient funds to pay the
Purchase Price and otherwise perform its obligations under this Agreement.
(c) No written statement, memorandum, certificate, schedule or other
written information provided (or to be provided) to the Company or any of
its representatives by or on behalf of Investor in connection with the
transactions contemplated by the Alliance Agreements, when viewed together
with all other written statements and information provided to the Company
and its representatives by or on behalf of Investor, in light of the
circumstances under which they were made, (i) contains or will contain any
materially misleading statement or (ii) omits or will omit to state any
material fact necessary to make the statements therein not misleading.
SECTION 15. Covenants. (a) Investor covenants (i) to support, subject to
management's recommendation, increases in employee compensation through 1995 at
least equal to those set forth in Plan R-2 and (ii) after the Effective Date, to
cause the board of directors of the Company to consider implementation of a
broad based employee incentive compensation plan and a management stock
incentive plan.
(b) The Company covenants (i) to use commercially reasonable efforts to
cause the shelf registration statement referred to in Section 8(u) to remain
effective for three years following its effective date and (ii) as soon as
available, to deliver to Investor a copy of the unaudited balance sheet of the
Company as of the end of each fiscal quarter of the Company prior to the
Effective Date and the unaudited statements of income and cash flows for the
periods then ended.
SECTION 16. Certain Taxes. The Company shall bear and pay all transfer,
stamp or other similar taxes (if any are not exempted under Section 1146 of the
Bankruptcy Code) imposed in connection with the issuance and sale of the
Securities.
SECTION 17. Administrative Expense. All amounts owed to Investor or its
assignees by the Company under this Agreement, the Related Agreements, the
Procedures Agreement and all orders of the Bankruptcy Court in respect thereof
shall be treated as an allowed administrative expense priority claim under
Section 507(a)(1) of the Bankruptcy Code.
SECTION 18. Incorporation by Reference. The provisions set forth in the
Procedures Agreement, including, but not limited to, the provisions regarding
confidentiality, liability indemnity and termination, are hereby incorporated by
reference and such provisions shall have the same force and effect herein as if
they were expressly set forth herein in full.
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<PAGE> 55
SECTION 19. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) or by prepaid express courier to the parties at the following addresses
or facsimile numbers:
<TABLE>
<C> <S>
If to the Company: America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
Fax Number: (602) 693-5904
with a copy to: LeBoeuf, Lamb, Greene & MacRae
633 17th Street, Suite 2800
Denver, Colorado 80202
Attention: Carl A. Eklund
Fax Number: (303) 297-0422
and a copy to: Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: David G. Elkins
Fax Number: (713) 220-4285
and a copy to: Murphy, Weir & Butler
101 California Street, 39th Floor
San Francisco, California 94111
Attention: Patrick A. Murphy
Fax Number: (415) 421-7879
and a copy to: Lord, Bissell and Brook
115 South LaSalle Street
Chicago, IL 60603
Attention: Benjamin Waisbren
Fax Number: (312) 443-0336
If to Investor: AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax Number: (817) 871-4010
with a copy to: Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Attention: Richard P. Schifter
Fax Number: (202) 872-6720
and a copy to: Jones, Day, Reavis & Pogue
North Point 901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Fax Number: (216) 586-7864
</TABLE>
A-15
<PAGE> 56
<TABLE>
<C> <S>
and a copy to: Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
Attention: Laura Hodges Taylor, P.C.
Fax Number: (617) 523-1231
and a copy to: Murphy, Weir & Butler
101 California Street, 39th Floor
San Francisco, California 94111
Attention: Patrick A. Murphy
Fax Number: (415) 421-7879
and a copy to: Lord, Bissell and Brook
115 South LaSalle Street
Chicago, IL 60603
Attention: Benjamin Waisbren
Fax Number: (312) 443-0336
</TABLE>
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail or by express courier in the manner described above to the address as
provided in this Section, be deemed given upon receipt (in each case regardless
of whether such notice is received by any other person to whom a copy of such
notice, request or other communication is to be delivered pursuant to this
Section). Either party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other party hereto.
SECTION 20. Governing Law. Except to the extent inconsistent with the
Bankruptcy Code, this Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of Arizona, without reference
to principles of conflicts or choice of law under which the law of any other
jurisdiction would apply.
SECTION 21. Amendment. This Agreement may only be amended, waived,
supplemented or modified by a written instrument signed by authorized
representatives of Investor and the Company. Investor may extend the time for
satisfaction of the conditions set forth in Section 8 (prior to or after the
relevant date) by notifying the Company in writing. The Company may extend the
time for satisfaction of the conditions set forth in Section 9 (prior to or
after the relevant date) by notifying Investor in writing.
SECTION 22. No Third Party Beneficiary. This Agreement and the Procedures
Agreement are made solely for the benefit of the Company and Investor and their
respective permitted assigns, and no other Person (including, without
limitation, employees, stockholders and creditors of the Company) shall have any
right, claim or cause of action under or by virtue of this Agreement or the
Procedures Agreement, except to the extent such Person is entitled to protection
as contemplated by Section 28(b) or to expense reimbursement pursuant to the
Procedures Agreement or may assert a claim for indemnity pursuant to the
Procedures Agreement.
SECTION 23. Assignment. Except as otherwise provided herein, Investor may
assign all or part of its rights under this Agreement to any of its partners
(each of whom may assign all or part to its Affiliates) or to any fund or
account managed or advised by Fidelity Management Trust Company or any of its
Affiliates and may assign any Securities (or the right to purchase any
Securities) to any lawfully qualified Person or Persons, and the Company may
assign this Agreement to any Person with which it may be merged or consolidated
or to whom substantially all of its assets may be transferred in facilitation of
the consummation of the Plan and the effectuation of the issuance and sale of
the Securities as contemplated hereby or by the Related Agreements. None of such
assignments shall relieve the Company or Investor of any obligations hereunder,
under the Procedures Agreement or under the Related Agreements.
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<PAGE> 57
SECTION 24. Counterparts. This Agreement may be executed by the parties
hereto in counterparts and by telecopy, each of which shall be deemed to
constitute an original and all of which together shall constitute one and the
same instrument. With respect to signatures transmitted by telecopy, upon
request by either party to the other party, an original signature of such other
party shall promptly be substituted for its facsimile.
SECTION 25. Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future laws,
rules or regulations, and if the rights or obligations of Investor and the
Company under this Agreement will not be materially and adversely affected
thereby, (a) such provision will be fully severable, (b) this Agreement will be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, (c) the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid or unenforceable provision or by its severance herefrom, and
(d) in lieu of such illegal, invalid or unenforceable provision, there will be
added automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible. If the rights and obligations of Investor or the
Company will be materially and adversely affected by any such provision held to
be illegal, invalid or unenforceable, then unless such provision is waived in
writing by the affected party in its sole discretion, this Agreement shall be
null and void.
SECTION 26. Tagalong Rights. On the Effective Date, Investor shall enter
into a written agreement for the benefit of all holders of Class B Common (other
than Investor and its Affiliates) whereby Investor shall agree, for a period of
three years after the Effective Date, not to sell, in a single transaction or
related series of transactions, shares of Common Stock representing 51% or more
of the combined voting power of all shares of Common Stock then outstanding
unless such holders shall have been given a reasonable opportunity to
participate therein on a pro rata basis and at the same price per share and on
the same economic terms and conditions applicable to Investor; provided,
however, that such obligation of Investor shall not apply to any sale of shares
of Common Stock made by Investor (i) to any Affiliate of Investor, (ii) to any
Affiliate of Investor's partners, (iii) pursuant to a bankruptcy or insolvency
proceeding, (iv) pursuant to judicial order, legal process, execution or
attachment, (v) in a widespread distribution registered under the Securities Act
of 1933, as amended ("Securities Act") or (vi) in compliance with the volume
limitations of Rule 144 (or any successor to such Rule) under the Securities
Act.
SECTION 27. Stock Legend. All securities issued to Investor pursuant to
the Plan shall be conspicuously endorsed with an appropriate legend to the
effect that such securities may not be sold, transferred or otherwise disposed
of except in compliance with (i) Section 26 and (ii) applicable securities laws.
SECTION 28. Directors' Liability and Indemnification. (a) Upon, and at
all times after, consummation of the Plan, the certificate of incorporation of
the Company shall contain provisions which (i) eliminate the personal liability
of the Company's former, present and future directors for monetary damages
resulting from breaches of their fiduciary duties to the fullest extent
permitted by applicable law and (ii) require the Company, subject to appropriate
procedures, to indemnify the Company's former, present and future directors and
executive officers to the fullest extent permitted by applicable law. In
addition, upon consummation of the Plan, the Company shall enter into written
agreements with each person who is a director or executive officer of the
Company on the date hereof providing for similar indemnification of such person
and providing that no recourse or liability whatsoever with respect to this
Agreement, the Procedures Agreement, the Related Agreements, the Plan or the
consummation of the transactions contemplated hereby or thereby shall be had,
directly or indirectly, by or in the right of the Company against such person.
Notwithstanding anything contained herein to the contrary, the provisions of
this Section 28(a) shall not be applicable to any person who ceased being a
director of the Company at any time prior to March 1, 1994.
(b) Investor agrees, on behalf of itself and its partners, that no recourse
or liability whatsoever (except as provided by applicable law for intentional
fraud, bad faith or willful misconduct) shall be had, directly or indirectly,
against any person who is a director or executive officer of the Company on the
date hereof with respect to this Agreement, the Procedures Agreement, the
Related Agreements, the Plan or the consumma-
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<PAGE> 58
tion of the transactions contemplated hereby or thereby, such recourse and
liability, if any, being expressly waived and released by Investor and its
partners as a condition of, and in consideration for, the execution and delivery
of this Agreement.
SECTION 29. Jurisdiction of Bankruptcy Court. The parties agree that the
Bankruptcy Court shall have and retain exclusive jurisdiction to enforce and
construe the provisions of this Agreement.
SECTION 30. Interpretation. In this Agreement, unless a contrary
intention appears, (i) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision and (ii) reference to any Section means
such Section hereof. The Section headings herein are for convenience only and
shall not affect the construction hereof. No provision of this Agreement shall
be interpreted or construed against either party solely because such party or
its legal representative drafted such provision.
SECTION 31. Termination. This Agreement shall terminate concurrently with
the termination of the Procedures Agreement.
SECTION 32. Entire Agreement. The Agreement supersedes any and all other
agreements (oral or written) between the parties in respect to the subject
matter hereof other than the Procedures Agreement.
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.,
its General Partner
By: _______________________________
Title:_____________________________
Accepted and Agreed to
this 21st day of April, 1994.
AMERICA WEST AIRLINES, INC.
as Debtor and Debtor-in-Possession
By:_____________________________________
Title:__________________________________
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<PAGE> 59
PLAN OF REORGANIZATION
EXHIBIT B
STOCKHOLDERS' AGREEMENT
<PAGE> 60
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 61
STOCKHOLDERS' AGREEMENT FOR
AMERICA WEST AIRLINES, INC.
THIS STOCKHOLDERS' AGREEMENT FOR AMERICA WEST AIRLINES, INC. (this
"Agreement") is entered into as of this day of , 1994 by and
among AmWest Partners, L.P., a Texas limited partnership ("AmWest"), GPA Group
plc, a corporation organized under the laws of Ireland ("GPA"),
, and (collectively,
the "Stockholder Representatives"), and America West Airlines, Inc., a Delaware
corporation (the "Company").
RECITALS:
WHEREAS, on June 27, 1991, the Company filed a case seeking relief under
Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the
District of Arizona (the "Bankruptcy Court"); and
WHEREAS, on December 8, 1993, the Bankruptcy Court entered an Order on
Motion to Establish Procedures for Submission of Investment Proposals (the
"Procedures Order"); and
WHEREAS, pursuant to the Procedures Order, AmWest and the Company have
entered into that certain Third Revised Investment Agreement dated April 21,
1994 (the "Investment Agreement"), contemplating an investment by AmWest in the
Company (the "Investment") and providing for the consummation of the Company's
Plan of Reorganization (the "Plan"); and
WHEREAS, on , 1994, the Bankruptcy Court entered an order
confirming the Plan; and
WHEREAS, in consideration of the Investment, the Company has issued common
stock of the Company ("Common Stock") consisting of Class A Common Stock ("Class
A Common") and Class B Common Stock ("Class B Common") and warrants to purchase
Class B Common to AmWest; and
WHEREAS, in exchange for the release and modification of certain agreements
and claims, the Company has issued shares of Class B Common and warrants to
purchase Class B Common to GPA; and
WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the Official
Committee of Equity Holders of America West Airlines, Inc., appointed in the
Company's Chapter 11 case (the "Equity Committee") has appointed
as a Stockholder Representative; and
WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the Official
Committee of Unsecured Creditors of America West Airlines, Inc., appointed in
the Company's Chapter 11 case (the "Creditors' Committee") has appointed
as a Stockholder Representative; and
WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the Board of
Directors of the Company, as constituted prior to consummation of the Plan, has
appointed as a Stockholder Representative; and
WHEREAS, the parties hereto have agreed to enter into this Agreement
pursuant to Section 218(c) of Title 8 of the Delaware Code (the "General
Corporation Law").
NOW, THEREFORE, in consideration of the premises herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
"Affiliate" shall mean (i) when used with reference to any partnership, any
person or entity that, directly or indirectly, owns or controls ten percent
(10%) or more of either the capital or profit interests of such partnership or
is a partner of such partnership or is a person or entity in which such
partnership has a ten percent (10%) or greater direct or indirect equity
interest and (ii) when used with reference to any corporation, any person or
entity that, directly or indirectly, owns or controls ten percent (10%) or more
of the outstanding voting securities of such corporation or is a person or
entity in which such corporation has a ten percent (10%) or greater direct or
indirect equity interest. In addition, the term "Affiliate," when used with
B-1
<PAGE> 62
reference to any person or entity, shall also mean any other person or entity
that, directly or indirectly, controls or is controlled by or is under common
control with such person or entity. As used in the preceding sentence, (A) the
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the entity
referred to, whether through ownership of voting securities, by contract or
otherwise and (B) the terms "controlling" and "controls" shall have meanings
correlative to the foregoing. Notwithstanding the foregoing, neither the Company
nor any Fidelity Fund will be deemed to be an Affiliate of AmWest or any of its
partners.
"Alliance Agreements" shall have the meaning set forth in the Investment
Agreement.
"AmWest Director" shall mean a director of the Company designated by AmWest
pursuant to Section 2.1(a).
"Annual Meeting" shall mean an annual meeting of the shareholders of the
Company.
"Board" shall mean the Company's Board of Directors.
"Bylaws" shall mean the Restated Bylaws adopted by the Company in
accordance with Section 303 of the General Corporation Law pursuant to the Plan.
"Citizens of the United States" shall have the meaning set forth in Section
1301, Title 49, United States Code, as now in effect or as it may hereafter from
time to time be amended.
"Continental" shall mean Continental Airlines, Inc. or any successor.
"Creditors' Committee Director" shall mean a director of the Company
designated by the Creditors' Committee or otherwise pursuant to Section 2.1(b).
"Effective Date" shall mean the date upon which the Restated Certificate of
Incorporation becomes effective in accordance with the Plan and the General
Corporation Law.
"Equity Committee Director" shall mean a director of the Company designated
by the Equity Committee or otherwise pursuant to Section 2.1(b).
"Fidelity Fund" shall mean a fund or account managed or advised by Fidelity
Management Trust Company or any of its Affiliates or successor(s).
"GPA Director" shall mean a director of the Company designated by GPA
pursuant to Section 2.1(c).
"Independent Company Director" shall mean a director of the Company
designated pursuant to Section 2.1(b).
"Independent Directors" shall mean, collectively, the Creditors' Committee
Directors, the Equity Committee Director, and the Independent Company Director.
"Mesa" shall mean Mesa Airlines, Inc. or any successor.
"Public Offering" shall have the meaning set forth in Section 4.2.
"Restated Certificate of Incorporation" shall mean the Restated Certificate
of Incorporation adopted by the Company in accordance with Section 303 of the
General Corporation Law pursuant to the Plan.
"Stockholder Representatives" shall mean the persons identified as such in
the recitals set forth above; provided that in the case of the death,
resignation, removal or disability of a Stockholder Representative, his or her
successor shall be designated by the remaining Stockholder Representatives, and
upon providing a written acknowledgment to such effect to all other parties
hereto and agreeing to be bound and subject to the terms hereof, shall become a
Stockholder Representative.
"Third Annual Meeting" shall mean the first Annual Meeting after the third
anniversary of the Effective Date.
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<PAGE> 63
2. DESIGNATION AND VOTING FOR COMPANY DIRECTORS.
2.1 Until the Third Annual Meeting, subject to the exception set forth in
Section 4.7(a), the Board shall consist of up to fifteen (15) persons, of whom
nine (9) persons shall be AmWest Directors, five (5) persons shall be
Independent Directors and up to one (1) person shall be a GPA Director, all
designated in accordance with the following procedure:
(a) The AmWest Directors designated on Exhibit A hereto shall serve
until the first Annual Meeting following the Effective Date and until the
successor to each such director shall be duly elected and qualified, or
until their death, disability, removal or resignation. No less than thirty
(30) days in advance of each Annual Meeting prior to (but not including)
the Third Annual Meeting, and no less than five (5) days in advance of any
other meeting of the Board at which a director will be elected to sit on
the Board in a seat vacated by an AmWest Director because of death,
disability, removal, resignation, or otherwise, AmWest shall give written
notice to the other parties hereto designating the individual or
individuals to serve as AmWest Directors. For so long as AmWest and/or its
Affiliates holds at least five percent (5%) of the voting equity securities
of the Company, GPA agrees to vote the Common Stock held and controlled by
it and to cause the GPA Director to vote or provide written consents in
favor of such designees and to take any other action necessary to elect
such designees. The Stockholder Representatives agree to recommend to the
Independent Directors to vote or provide written consents in favor of such
designees and to take any other action necessary to elect such designees.
(b) Three (3) Creditors' Committee Directors, one (1) Equity Committee
Director, and one (1) Independent Company Director, each as designated on
Exhibit A hereto, shall serve until the first Annual Meeting following the
Effective Date and until the successor to each such director shall be duly
elected and qualified, or until their death, disability, removal or
resignation. Until the Third Annual Meeting, the Company shall nominate for
reelection, and AmWest and GPA shall vote the Common Stock held and
controlled by them in favor of, each Independent Director designated on
Exhibit A for so long as he or she continues to serve on the Board. No less
than five (5) days in advance of any meeting of the Board at which a
director will be elected to sit on the Board in a seat vacated by an
Independent Director because of death, disability, removal, resignation or
otherwise (a "Successor Independent Director"), and no less than thirty
(30) days in advance of an Annual Meeting prior to (but not including) the
Third Annual Meeting at which the term of any Successor Independent
Director will expire, the Stockholder Representatives shall give written
notice to the other parties hereto designating the individuals to serve as
Independent Directors; except that if the Creditors' Committee or the
Equity Committee remain in effect, they shall have the right to designate
the Creditors' Committee Directors and the Equity Committee Director,
respectively, or the individuals to fill vacancies thereof, by giving
written notice to the other parties hereto in accordance with the terms set
forth above and provided that the Stockholder Representatives shall select
any Successor Independent Director to replace the Independent Company
Director from among the executive officers of the Company. Each of AmWest
and GPA agrees to vote the Common Stock held and controlled by them and to
cause the AmWest Directors and the GPA Director, respectively, to vote or
provide written consents in favor of such designees and to take any other
action necessary to elect such designees; provided that each Independent
Director shall be reasonably acceptable to AmWest at the time of his or her
initial designation.
(c) The GPA Director designated on Exhibit A hereto shall serve until
the first Annual Meeting following the Effective Date and until the
successor to such director shall be duly elected and qualified or until his
or her death, disability, removal, or resignation. No less than thirty (30)
days in advance of each Annual Meeting prior to (but not including) the
Third Annual Meeting, and no less than five (5) days in advance of any
other meeting of the Board at which a director will be elected to sit on
the Board in a seat vacated by the GPA Director because of death,
disability, removal, resignation or otherwise, GPA shall give written
notice to the other parties hereto designating the individual to serve as
GPA Director. Unless the rights of GPA hereunder have been terminated
pursuant to Section 6.2, AmWest agrees to vote the Common Stock held and
controlled by it, and to cause the AmWest Directors, and the Stockholder
Representatives agree to recommend to the Independent Directors, to vote or
provide written consents in
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favor of such designee and to take any other action necessary to elect such
designee; provided that the GPA Director shall be reasonably acceptable to
AmWest at the time of his or her initial designation.
(d) Except as otherwise provided herein, each of AmWest, the
Stockholder Representatives, and GPA agrees to nominate or cause the
nomination of the AmWest Directors, the Independent Directors, and the GPA
Director, respectively, in accordance with the Bylaws.
(e) Notwithstanding the foregoing, no party hereto shall be obligated
to vote any shares for which the voting rights have been suspended, whether
voluntarily or involuntarily.
(f) In the event that AmWest, the Creditors' Committee or Equity
Committee (for so long as each is in existence and has the ability to
designate a director as herein provided), the Stockholder Representatives,
or GPA shall fail or refuse to designate a nominee to the Board for a
position allocated to and to be filled by such group or entity as herein
provided, such position shall not be filled and shall remain vacant unless
and until such designation shall be made as herein provided.
(g) In the event that the rights and obligations of GPA with respect
to this Agreement are terminated in accordance with Section 6.2, GPA agrees
to cause the resignation of, or provide notice to the other parties hereto
as provided in subsection (h)(i) below requesting removal of the GPA
Director, at which time the Board shall be reduced to fourteen (14)
persons.
(h) The parties hereto agree to (i) vote the Common Stock held and
controlled by them in favor of the removal from the Board, upon notice by
the group or entity having the right to designate such director under this
Section 2.1 and requesting such removal, of any person or persons
designated to the Board by such group or entity, and (ii) to vote the
Common Stock held and controlled by them (other than stock held
individually by any Stockholder Representative) and to cause (or in the
case of the Stockholder Representatives, recommend to) the directors
designated by them to vote or take such action as may be required under the
General Corporation Law or otherwise to implement the provisions of this
Agreement. The group or entity who has nominated any director in accordance
with this Agreement shall have the exclusive right to remove or replace
such director by written notice as herein provided; except that nothing in
this agreement shall be construed to limit or prohibit the removal of any
director for cause.
2.2 Until the Third Annual Meeting, at least eight of the AmWest Directors,
at least two of the Creditors' Committee Directors, the Equity Committee
Director, and the Independent Company Director shall each be Citizens of the
United States.
2.3 AmWest agrees that no AmWest Director shall be an officer or employee
of Continental.
3. VOTING ON CERTAIN MATTERS.
3.1 Any Director who is selected by, or who is a director of, Continental
shall recuse himself or herself from voting on, or otherwise receiving any
confidential information regarding, matters in connection with negotiations
between Continental and the Company (including, without limitation, negotiation
between Continental and the Company of the Alliance Agreements) and matters in
connection with any action involving direct competition between Continental and
the Company. Any Director who is selected by, or who is a director, officer or
employee of, Mesa shall recuse himself or herself from voting on, or otherwise
receiving any confidential information regarding, matters in connection with
negotiations between Mesa and the Company (including, without limitation,
negotiation between Mesa and the Company of the Alliance Agreements) and matters
in connection with any action involving direct competition between Mesa and the
Company.
3.2 Until the Third Annual Meeting, the affirmative vote of the holders of
a majority of the voting power of the outstanding shares of each class of common
stock of the Company entitled to vote (excluding any shares owned by AmWest or
any of its Affiliates, but not, however, excluding shares owned, controlled or
voted by Mesa or any of its transferees that are not otherwise Affiliates of
AmWest), voting as a single class, shall be required to approve, adopt or
authorize:
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(a) Any merger or consolidation of the Company with or into AmWest or
any Affiliate of AmWest;
(b) Any sale, lease, exchange, transfer, or other disposition by the
Company of all or any substantial part of the assets of the Company to
AmWest or any Affiliate of AmWest;
(c) Any transaction with or involving the Company as a result of which
AmWest or any of AmWest's Affiliates will, as a result of issuances of
voting securities by the Company (or any other securities convertible into
or exchangeable for such voting securities), acquire an increased
percentage ownership of such voting securities, except for (i) the exercise
of Warrants issued under the Plan, (ii) the conversion of Class A Common
held by it to Class B Common, or (iii) otherwise pursuant to a transaction
in which all holders of Class B Common may participate on a pro rata basis
at the same price per share and on the same economic terms, including,
without limitation, (A) a tender or exchange offer for all shares of the
Common Stock and (B) a Public Offering; or
(d) Any related series or combination of transactions having or which
will have, directly or indirectly, the same effect as any of the foregoing.
At the request of any party proposing such a transaction and subject to
approval by the Board, the Company agrees to put to a vote of the shareholders
the approval of any transaction referred to in subparagraphs (a) through (d)
above (excluding the excepted transactions referred to in clauses (i), (ii), and
(iii) of subparagraph (c)) at the next regular or any duly convened special
meeting of the shareholders of the Company. The voting requirements specified
above shall not be applicable to a proposed action which has been approved or
recommended by at least three Independent Directors.
4. FURTHER COVENANTS.
4.1 Neither AmWest nor any partner or Affiliate of AmWest or of any partner
of AmWest shall sell or otherwise transfer any Common Stock (other than to an
Affiliate of the transferor) if, after giving effect thereto and to any related
transaction, the total number of shares of Class B Common beneficially owned by
the transferor is less than twice the total number of shares of Class A Common
beneficially owned by the transferor; provided, however, that nothing contained
in this Section 4.1 shall prohibit any owner of Common Stock from selling or
otherwise transferring, in a single transaction or related series of
transactions, all shares of Common Stock owned by it, subject to the remaining
provisions of this Agreement.
4.2 AmWest agrees that its constituent documents shall at all times require
that this Agreement be binding upon all general and limited partners of AmWest
and any Affiliate of AmWest or such partners who hold or receive shares of the
Company for their own account or direct the voting of any shares held by AmWest
and upon any assignees or transferees in a single transaction or a related
series of transactions of all or substantially all of the Common Stock owned by
AmWest or any of its partners or Affiliates of AmWest or any of their partners;
except any assignment or transfer made contemporaneous with the consummation of
the Plan to any Fidelity Fund or Funds; and except any assignee or transferee
who acquires such Common Stock pursuant to (i) a tender or exchange offer open
to all shareholders of the Company on a pro rata basis at the same price per
share and on the same economic terms, (ii) a distribution registered under the
Securities Act of 1933 (as amended, the "Securities Act") (a "Public Offering"),
or (iii) a transfer made pursuant to Rule 144 (as amended, "Rule 144") under the
Securities Act. AmWest shall not sell or transfer (including upon dissolution of
AmWest) any Common Stock held by it to any of its general or limited partners,
to any Fidelity Fund, or to any Affiliate of AmWest or such partners and AmWest
shall not sell or transfer all or substantially all of the Common Stock held by
it in a single transaction or a related series of transactions, except in
accordance with clauses (i), (ii) or (iii), above, unless and until it causes
any assignee or transferee to provide a written acknowledgment to the other
parties hereto that it accepts and is bound and subject to the terms of this
Agreement.
4.3 AmWest covenants and agrees that it shall not sell, in a single
transaction or a related series of transactions, shares of Common Stock
representing fifty one percent (51%) or more of the combined voting power of all
shares of Common Stock then outstanding, other than (i) pursuant to or in
connection with a tender or exchange offer for all shares of Common Stock and
for the benefit of all holders of Class B Common
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<PAGE> 66
on a pro rata basis at the same price per share and on the same economic terms,
(ii) to any Affiliate of AmWest, (iii) to any Affiliate of AmWest's partners,
(iv) pursuant to a bankruptcy or insolvency proceeding, (v) pursuant to a
judicial order, legal process, execution or attachment, or (vi) in a Public
Offering.
4.4 Within ten (10) days of the Effective Date, AmWest shall file with the
Securities and Exchange Commission, a Schedule 13D pursuant to Regulation 13D-G
("Regulation 13D-G") under the Securities Exchange Act of 1934 (as amended, the
"Exchange Act"), and shall amend such filing as required by Regulation 13D-G.
Each other party hereto covered by such filing covenants and agrees to promptly
provide to AmWest all information pertaining to such party and necessary to make
such amendments and to notify AmWest of any changes in facts or circumstances
pertaining to such party that would require any amendments under Regulation
13D-G.
4.5 AmWest agrees that it shall not cause any amendment to the provisions
of the Restated Certificate of Incorporation or the Bylaws or otherwise take any
action that supersedes or materially adversely affects or impairs the rights and
obligations of the parties under this Agreement or is contrary to the provisions
of this Agreement.
4.6 (a) Each certificate evidencing shares of Common Stock issued to AmWest
or any of its partners, GPA and any of their respective Affiliates, and any
assignee or transferee bound by the terms hereof, including shares of Common
Stock issued in connection with the exercise of any warrant, so long as such
Common Stock is held by them and prior to the termination or expiration of this
Agreement, shall be conspicuously stamped or marked with a legend including
substantially as follows:
THE RIGHTS AND OBLIGATIONS OF THE HOLDER OF THIS CERTIFICATE SHALL BE
SUBJECT TO THE TERMS AND PROVISIONS OF THAT CERTAIN STOCKHOLDERS' AGREEMENT
DATED , 1994, COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL
OFFICE OF AMERICA WEST AIRLINES, INC.
and each such certificate, for so long as such certificate is held by AmWest or
any of its partners and any of their respective Affiliates and any assignee or
transferee bound by the terms hereof and prior to the termination or expiration
of this Agreement, shall include in such legend the following:
THIS CERTIFICATE AND ANY INTEREST HEREIN MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE AFORESAID STOCKHOLDERS'
AGREEMENT.
(b) All certificates evidencing shares of Common Stock and warrants of the
Company that have not been registered pursuant to the Securities Act of 1933, as
amended, and that are not exempt from registration under Section 1145 of the
Bankruptcy Code, shall at all times be conspicuously stamped or marked with a
legend including substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS
THEREUNDER (THE "SECURITIES ACT") OR UNDER THE SECURITIES LAWS OF ANY
STATE; AND SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED OTHER THAN IN
ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR AN
EXEMPTION THEREFROM AND FROM ANY APPLICABLE STATE SECURITIES LAWS.
(c) Upon the termination of this Agreement, the Company shall, without
charge and upon surrender of certificates by the holders thereof and written
request cancel all certificates evidencing shares of Common Stock bearing the
legend described in subparagraph (a) above and issue to the holders thereof
replacement certificates that do not bear such a legend for an equal number of
shares held by such holders. Upon the transfer of any Common Stock bearing the
legend described in subparagraph (a) above to a party not bound and subject to
by this Agreement, the Company shall, without charge and upon the surrender of
certificates by
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<PAGE> 67
the holders thereof and written request cancel all certificates evidencing such
shares of Common Stock and issue to the transferee thereof replacement
certificates that do not bear such a legend.
4.7 During the term of this Agreement, AmWest shall not cause the issuance
of any preferred stock that would (a) increase the number of directors in excess
of the number provided in Section 2.1 (except for increases caused by a
provision allowing holders of preferred stock to elect additional directors in
the event of nonpayment of dividends) or (b) eliminate or reduce the number of
Creditors' Committee Directors, Equity Committee Director, Independent Company
Director, or GPA Director.
5. RIGHTS UPON BREACH.
5.1 Each party hereto recognizes and agrees that a violation of any term,
provision, or condition of this Agreement may cause irreparable damage to the
other parties which is difficult or impossible to quantify or ascertain and that
the award of any sum of damages may not be adequate relief to such other
parties. Each party hereto therefore agrees that in the event of any breach of
this Agreement, the other party or parties shall, in addition to any remedies at
law which may be available, have the right to obtain appropriate equitable
(including, but not limited to, injunctive) relief. All remedies hereunder shall
be cumulative and not exclusive.
5.2 In addition to any other remedies available at law or in equity, each
party hereto agrees that the Company shall have the right (a) to withhold
transfer, and to instruct any transfer agent for securities of the Company to
withhold transfer, of any certificates evidencing shares of Common Stock held by
AmWest or any partner or Affiliate of AmWest or transferee if the Company
reasonably believes that such transfer would not be in material compliance with
the terms and provisions of this Agreement, unless the transferee provides to
the Company an opinion of legal counsel reasonably acceptable to the Company
that such transfer will be in material compliance with the terms and provisions
hereof, and (b) to require any person requesting such transfer to provide such
information as may reasonably be requested by the Company regarding ownership of
securities, affiliations, if any, between AmWest and the transferee and such
other matters pertaining to the transfer as may be appropriate to enable the
Company to determine the compliance of the proposed transfer of securities with
the terms and provisions of this Agreement.
6. TERMINATION.
6.1 This Agreement shall automatically terminate without any action by any
party on the day immediately preceding the Third Annual Meeting and shall not be
extended except in accordance with Section 7.3. Upon such termination, the
rights and obligations of each party hereunder shall terminate and the
provisions of this Agreement shall be of no force and effect; provided that no
such termination shall relieve any person or entity from liability for breach or
default of this Agreement prior to such termination.
6.2 GPA's rights and obligations under this Agreement (other than its
obligations under Section 2.1(g)) shall terminate immediately and without notice
upon the earlier of (a) termination of this Agreement under Section 6.1, (b) the
sale or transfer by GPA of equity securities of the Company resulting in the
holding by GPA of less than two percent (2%) of the voting equity securities of
the Company (on a fully diluted basis), or (c) any occurrence, other than as
described in clause (b) above, resulting in the holding by GPA of less than two
percent (2%) of the voting equity securities of the Company (on a fully diluted
basis) if (i) the Company files a Form 10-Q under the Exchange Act, or other
written report or statement, that is delivered to GPA and a copy to the party
designated in Section 7.1, reflecting information as to the Company's total
issued and capital stock from which GPA can determine whether it holds less than
two percent (2%) of the voting equity securities of the Company (on a fully
diluted basis) and (ii) GPA continues to hold less than two percent (2%) of the
voting equity securities (on a fully diluted basis) for greater than thirty-five
(35) days after delivery of such Form 10-Q, or provision of such report or
statement to GPA. GPA acknowledges that the Company's continuing with its
existing procedures for the distribution of Form-10-Qs constitutes delivery to
GPA within the meaning of this Section 6.2.
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7. MISCELLANEOUS.
7.1 All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or mailed (first class postage prepaid) or by
prepaid express courier at the following addresses or facsimile numbers:
<TABLE>
<S> <C>
If to AmWest: AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax Number: (817) 871-4010
with a copy to: Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Attention: Richard P. Schifter
Fax Number: (202) 872-6720
and a copy to: Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Fax Number: (216) 586-7864
If to GPA: GPA Group plc
GPA House
Shannon, Ireland
Attention: Patrick H. Blaney
Fax Number: 353 61 360220
with a copy to: Paul, Hastings, Janofsky & Walker
399 Park Avenue, 31st Floor
New York, New York 10022
Attention: Marguerite R. Kahn
Fax Number: (212) 319-4090
If to____________:
If to____________:
If to____________:
If to the Company: America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: General Counsel
Fax Number: (602) 693-5904
with a copy to: Andrews & Kurth, L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: David G. Elkins
Fax Number: (713) 220-4285
</TABLE>
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 7.1, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 7.1, be deemed given upon receipt, and (iii) if
delivered by mail or by express courier in the manner described above to the
address as provided in this Section 7.1, be deemed given upon receipt (in each
case regardless of whether such notice is received by any other person to whom a
copy of
B-8
<PAGE> 69
such notice, request or other communication is to be delivered pursuant to this
Section 7.1). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice as provided in this Section 7.1 specifying such change to the other
parties hereto. Nothing in this Section 7.1 shall be deemed or construed to
alter the notice provisions contained in the Bylaws.
7.2 This Agreement shall in all respects be governed by and construed in
accordance with the laws of the State of Delaware without reference to
principles of conflicts or choice of law under which the law of any other
jurisdiction would apply.
7.3 This Agreement may only be amended, waived, supplemented, modified or
extended by a written instrument signed by authorized representatives of each
party hereto.
7.4 This Agreement shall inure to the benefit of and be binding upon each
of the parties hereto and their respective successors and permitted assigns.
7.5 This Agreement may be executed by the parties hereto in counterparts
and by telecopy, each of which shall be deemed to constitute an original and all
of which together shall constitute one and the same instrument.
7.6 If any term or provision of this Agreement shall be found by a court
of competent jurisdiction to be illegal, invalid or unenforceable to any extent,
the remainder of this Agreement shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
7.7 The parties hereto intend that in the case of any conflict or
inconsistency between this Agreement and the Restated Certificate of
Incorporation or the Bylaws, that this Agreement shall control, and therefore in
the event that any term or provision of this Agreement is rendered invalid,
illegal or unenforceable by the Restated Certificate of Incorporation or the
Bylaws, the parties agree to amend the Restated Certificate of Incorporation or
the Bylaws (as the case may be) so as to render such term or provision valid,
legal and enforceable, if and to the extent possible.
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<PAGE> 70
IN WITNESS WHEREOF, the parties hereto, by their respective officers
thereunto duly authorized, have executed this Agreement as of the date first
written above.
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.,
its General Partner
By:_____________________________
Name:
Title:
GPA GROUP PLC
By: ____________________________
Name:
Title:
________________________________
[Stockholder Representative]
________________________________
[Stockholder Representative]
________________________________
[Stockholder Representative]
AMERICA WEST AIRLINES, INC.
By: ____________________________
Name:
Title:
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<PAGE> 71
PLAN OF REORGANIZATION
EXHIBIT C
GPA TERM SHEET
<PAGE> 72
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 73
GPA TERM SHEET
This Term Sheet, dated as of June 13, 1994, sets forth the principal terms
and conditions (the "Terms and Conditions") of the treatment to be afforded to
the claims and interests of GPA Group plc and its affiliates (individually and
collectively, "GPA") pursuant to a joint plan of reorganization (the "Plan") of
America West Airlines, Inc. (the "Company") to be proposed and sponsored by the
Company in conjunction with AmWest Partners, L.P. ("AmWest") under and in
accordance with the Third Revised Investment Agreement, dated as of April 21,
1994, between the Company and AmWest (the "Investment Agreement") and the Third
Revised Interim Procedures Agreement, dated as of April 21, 1994, between the
Company and AmWest (the "Interim Procedures Agreement"). Except as otherwise
defined herein, capitalized terms used herein have the meanings stated in the
Investment Agreement.
Termination of
Put Agreement............ On the Effective Date, GPA shall (i) cancel all
rights of GPA to put any aircraft to the Company
pursuant to the A320 Put Agreement, dated as of
June 25, 1991, between the Company and GPA, as
amended by the First Amendment thereto, dated as of
September 1, 1992 (as so amended, the "Put
Agreement") and the related Agreement Regarding
Rights of First Refusal for A320 Aircraft, dated as
of September 1, 1992 (the "First Refusal
Agreement"), among the Company, GPA and Kawasaki
Leasing International Inc., and (ii) waive, and
covenant not to seek or assert, any and all claims
of any kind or nature arising out of or in
connection with the Put Agreement and/or the First
Refusal Agreement, other than claims for
reimbursement of expenses incurred by GPA in
connection therewith. As of the date of this Term
Sheet, GPA has been fully reimbursed by the Company
for all expenses incurred by GPA in connection with
the Put Agreement and the First Refusal Agreement.
Aircraft and Engine
Subleases.................. On the Effective Date, the Company shall ratify
(without modification or amendment) all of its
obligations (including, without limitation, rental
obligations) under and in connection with (i) the
sixteen separate Aircraft Sublease Agreements
between the Company and GPA, and (ii) the three
separate Engine Sublease Agreements between the
Company and GPA (in each case, as such Sublease
Agreement is more fully described on Schedule I to
the Put Agreement and, in each case, as such
Sublease Agreement was assumed by the Company
pursuant to Section 365 of the Bankruptcy Code).
DIP Financing.............. On the Effective Date, all amounts due and owing by
the Company under the debtor-in-possession
financing provided to the Company by GPA and other
debtor-in-possession lenders shall be paid in full
(it being understood that, upon receipt of such
amounts, GPA shall take all such actions as are
required to be taken by GPA pursuant to the
documents relating to such financing to cause and
evidence the release of all liens securing such
financing and the termination of the transactions
relating to such financing).
Common Stock............... On the Effective Date, GPA shall receive 900,000
shares of the Class B Common Stock of the Company
(the "Class B Common Stock"), which shares shall
represent two percent of the total amount of the
Common Stock of the Company (without giving effect
to exercise of the warrants described below and in
the Investment Agreement) and which Class B Common
Stock shall have the terms and provisions
contemplated in the Investment Agreement.
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<PAGE> 74
Warrants................... On the Effective Date, GPA shall receive warrants
to purchase up to 1,384,615 shares of Class B
Common Stock, which shares shall represent 2.5% of
the Common Stock of the Company on a fully diluted
basis and which warrants shall be exercisable at a
price determined in accordance with, and have such
other terms and provisions as are described in, the
Plan.
Cash....................... On the Effective Date, GPA shall receive
$30,525,000 in cash.
Board Seat................. Pursuant to and in accordance with the terms,
provisions and conditions to be contained in a
Stockholders' Agreement to be entered into among
the reorganized Company, AmWest, GPA and certain
other parties, and for so long as GPA owns at least
two percent of the voting equity securities of the
Company (on a fully diluted basis), GPA shall be
allocated one seat, out of a total of fifteen
seats, on the Board of Directors of the reorganized
Company. The member of the Board of Directors of
the reorganized Company designated by GPA shall be
reasonably acceptable to AmWest at the time of his
or her initial designation (it being understood
that each of the persons currently serving as
"independent directors" of AWA, Patrick Blaney,
John Tierney and Declan Traecy shall be acceptable
to AmWest for such purposes). AmWest and GPA will
execute a voting agreement or similar arrangement
pursuant to which (i) AmWest will agree to vote in
favor of GPA's nominee to the Board of Directors of
the reorganized Company, and (ii) GPA will agree to
vote in favor of AmWest's nine nominees to the
Board of Directors of the reorganized Company, in
each case, for so long as (a) AmWest owns at least
five percent of the voting equity securities of the
Company (on a fully diluted basis), and (b) GPA
owns at least two percent of the voting equity
securities of the Company (on a fully diluted
basis).
New Puts................... GPA will be granted the right to deliver or put to
the Company, and the Company will be obligated to
lease from GPA, during the period beginning not
later than June 30, 1995 and ending on June 30,
1999 (the "New Put Period"), up to eight new or
used aircraft of types consistent with the
Company's fleet plan and requirements (such right
being referred to herein as the "New Put Right").
Each lease entered into by the Company in
connection with the exercise by GPA of the New Put
Right shall provide for the payment by the Company
of a fair market rental for the related aircraft,
taking into consideration whether the related
aircraft is new or used, the specifications and
condition of the related aircraft and all
provisions of such lease that are relevant to the
overall cost to the Company of the related
aircraft, and determined at or about the time of
delivery of such aircraft to the Company on the
basis of operating lease rentals then prevailing in
the marketplace for comparable operating leases of
comparable aircraft to airlines of comparable
creditworthiness to the Company (at or about the
time of delivery of such aircraft to the Company
and without regard to the prior pendency of the
Case); each such lease will be for a lease term
determined as hereinafter described; and each such
lease shall have such other terms and provisions
and be in such form as is agreed upon by the
Company and GPA and attached to the agreement
between the Company and GPA pursuant to which GPA
is granted the New Put
C-2
<PAGE> 75
Right (such agreement being referred to herein as
the "New Put Agreement").
The specific number, types and delivery dates for
the aircraft which GPA will be entitled to deliver
to the Company (and which the Company will be
obligated to lease from GPA) in a particular year
during the New Put Period (as well as whether such
aircraft will be new or used aircraft) will be
determined on the basis of mutual agreement by the
Company and GPA, taking into account the Company's
fleet requirements for such year, the availability
to GPA for purposes of the New Put Agreement (in
light of applicable commercial constraints) of
aircraft during such year and the number of
aircraft theretofore delivered and thereafter
remaining to be delivered by GPA to the Company
under the New Put Agreement; provided, however,
that if, on or prior to the Mutual Agreement
Deadline (as such term is hereinafter defined) for
a particular year, the Company and GPA shall not
have mutually agreed upon the specific number,
types and delivery dates for the aircraft which GPA
will be entitled to deliver to the Company (and
which the Company will be obligated to lease from
GPA) during such year (as well as whether such
aircraft will be new or used aircraft), GPA will
have the right to put to the Company (and the
Company will be obligated to lease from GPA without
any necessity for further agreement of the Company)
up to the Maximum Number (as such term is
hereinafter defined) of aircraft for such year,
with (i) the specific types of such aircraft being
selected by GPA from among the Eligible Types (as
such term is hereinafter defined), (ii) such
aircraft being new or used aircraft as selected by
GPA, and (iii) the specific delivery dates for such
aircraft being selected by GPA, in each case, upon
at least 150 days' prior written notice by GPA to
the Company; and provided further, however, that,
unless GPA and the Company shall otherwise agree in
writing (whether by reason of mutual agreement
relevant to a particular year or otherwise), GPA
will not have the right to put to the Company more
than five used aircraft during the New Put Period.
As used herein, the term "Mutual Agreement
Deadline" means (i) with respect to each of 1995
and 1996, January 31, 1995, and (ii) with respect
to each ensuing year during the New Put Period,
January 1st of the preceding year. As used herein,
the term "Maximum Number" means (i) with respect to
1995, two, and (ii) with respect to each ensuing
year during the New Put Period, three. As used
herein, and unless GPA and the Company shall
otherwise agree in writing, the term "Eligible
Types" means, with respect to the types of aircraft
which GPA will be entitled to put to the Company
without the necessity for further agreement of the
Company, Boeing 737-300 aircraft, Boeing 757
aircraft and Airbus A320 aircraft.
The aircraft which GPA will be entitled to deliver
or put to the Company (and which the Company will
be obligated to lease from GPA) may be new or used
aircraft; provided, however, that unless GPA and
the Company shall otherwise agree in writing, GPA
will not have the right to deliver or put to the
Company more than five used aircraft during the New
Put Period; and provided further, however, that any
such aircraft which is an Airbus A320 aircraft will
(i) be new ex factory or like-new having no greater
than 100 flight hours of commercial service, (ii)
have IAE V2500A-5 engines if (a) the Company has or
is scheduled to have IAE V2500A-5 engines in its
fleet on the delivery date for such aircraft,
C-3
<PAGE> 76
(b) the Company is scheduled to have IAE
V2500A-5 engines in its fleet within 24 months of
the delivery date for such aircraft, or (c) if new
A320 aircraft powered with IAE V2500A-1 engines
are not or are not scheduled to be generally
available from the airframe and engine
manufacturers on the delivery date for such
aircraft, or have IAE V2500A-1 Engines (upgraded
to maximum performance) if any of the conditions
described in the preceding clauses (a), (b) and
(c) is not fulfilled, and (iii) have such other
specifications (including configuration) as are
substantially the same as those of other A320
aircraft in the Company's fleet or as are
otherwise mutually agreed upon by GPA and the
Company and, in either case, incorporated in the
New Put Agreement; and provided further, however,
that any such aircraft which is not an A320
aircraft will have such specifications (including
configuration and engines) as are substantially
the same as those of other aircraft of the same
type in the Company's fleet or as are otherwise
mutually agreed upon by GPA and the Company and,
in either case, incorporated in the New Put
Agreement; and provided further, however, that any
such aircraft which is a used aircraft will (i) be
fresh from (or have no more than 150 flight hours
beyond) "C" or annual check, (ii) if maintained
under a program involving block "D" check, be in
at least half-time condition or if maintained
under a program involving segmentation of "D"
check, be no more than 12 months from next
scheduled major check on airframe and engines, and
(iii) be in such other condition (consistent with
operating lease return conditions currently
prevailing in the operating lease marketplace) as
is mutually agreed upon by GPA and the Company and
incorporated in the New Put Agreement.
The lease term shall be (i) not more than eighteen
years and not less than (a) ten years for any new
A320 aircraft, or (b) seven years for any other new
aircraft, and (ii) not more than seven years and
not less than three years for any used aircraft.
Unless otherwise mutually agreed in writing by the
Company and GPA, (i) the lease term for a new
aircraft shall be the minimum term applicable to
such aircraft, and (ii) the lease term for a used
aircraft shall be five years.
Conditions................. The obligation of GPA to consummate the
transactions contemplated by this Term Sheet
(including, without limitation, the cancellation of
GPA's rights and claims under and in respect of the
Put Agreement and the First Refusal Agreement)
shall be subject to the satisfaction of the
following conditions: (i) the Plan shall provide
for, and be consummated in accordance with, all of
the Terms and Conditions (it being understood that
all of the Terms and Conditions are integral to the
treatment of GPA's claims and interests and that no
one Term or Condition is of greater significance
than any other Term or Condition); (ii) the Plan
shall provide for, and be consummated with, the
capital structure of the reorganized Company being
as described in the Investment Agreement, the
consideration distributed pursuant to the Plan
being as described in the Investment Agreement
(except for changes approved in writing by GPA and
Permitted Reallocations (as such term is
hereinafter defined), and the economic interests of
GPA not being diluted from those contained in the
Investment Agreement and this Term Sheet; (iii) the
Company shall have paid or reimbursed GPA for all
expenses reasonably incurred by GPA in connection
with the transactions contemplated by this Term
Sheet, including, without limitation, the
reasonable fees and
C-4
<PAGE> 77
expenses of GPA's counsel and financial advisor
(other than the fees of such financial advisor
that are in the nature of "success fees"); (iv)
there shall have been executed and delivered, in
form and substance reasonably satisfactory to GPA,
all such definitive documentation as is necessary
or reasonably advisable to implement the
transactions contemplated by this Term Sheet
(including, without limitation, documentation
providing to GPA such registration rights as are
reasonably acceptable to GPA with respect to the
securities of the reorganized Company that are
acquired by GPA in the transactions contemplated
by this Term Sheet); and (v) the Board of
Directors of GPA (or an appropriate committee
thereof) shall have approved the execution and
delivery by GPA of the aforesaid definitive
documentation (it being understood that, within
ten business days following the date of this Term
Sheet, GPA shall deliver to AmWest and the Company
a certified copy of a resolution evidencing the
approval by the Board of Directors of GPA (or an
appropriate committee thereof) of this Term Sheet
and the transactions contemplated hereby). As used
herein, the term "Permitted Reallocation" shall
mean changes in the allocation among the Unsecured
Creditors, AmWest (and its Affiliates) and the
Equity Holders of the aggregate consideration
payable to such persons and entities as set forth
in the Investment Agreement, without (i) increase
or decrease in the aggregate amount thereof, or
(ii) change in the terms and conditions of such
consideration from those set forth in the
Investment Agreement unless, in any such case,
AmWest shall have obtained the prior written
consent of GPA.
The obligations of the Company and AmWest to
consummate the transactions contemplated by this
Term Sheet shall be subject to the satisfaction of
the following conditions: (i) the transactions
contemplated by the Investment Agreement (other
than those contemplated by this Term Sheet) shall
have been consummated; (ii) there shall have been
executed and delivered, in form and substance
reasonably satisfactory to the Company and AmWest,
all such definitive documentation as is necessary
or reasonably advisable to implement the
transactions contemplated by this Term Sheet; and
(iii) there shall have been delivered to the
Company and AmWest a certified copy of a resolution
evidencing the approval by the Board of Directors
of GPA (or an appropriate committee thereof) of
this Term Sheet and the transactions contemplated
hereby.
Other...................... Nothing contained in this Term Sheet shall limit,
restrict or impair in any manner or to any extent
the treatment afforded by the Plan to any allowed
administrative claim of GPA arising from the
fulfillment by GPA of its deficiency guarantee
obligations to General Electric Capital Corporation
with respect to aircraft formerly leased by the
Company from General Electric Capital Corporation
(it being acknowledged that such treatment shall be
in accordance with Section 1129(a)(9)(A) of the
Bankruptcy Code).
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<PAGE> 78
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<PAGE> 79
PLAN OF REORGANIZATION
SCHEDULE 1
SECTION 1110 STIPULATIONS
<PAGE> 80
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 81
SECTION 1110 STIPULATIONS
I. Leased Aircraft And Engines. The leases of the following aircraft and
engines have been assumed as modified pursuant to the stipulations set
forth opposite the aircraft or engine:
<TABLE>
<C> <S> <C>
1. N137AW Stipulation Regarding Aircraft Lease With Bay Air Lease
II approved September 6, 1991, as modified by
Supplemental Stipulation approved September 11, 1992, and
as further modified by Order dated June 3, 1993.
2. N138AW Joint Stipulation With Respect to Bankruptcy Code
N141AW Section 1110 and Related Matters Between America West
N189AW Airlines, Inc., CIT and Certain Other Parties With
Respect to Certain Aircraft, Engines and Equipment, Also
Concerning Related Lease Modifications and Lease
Assumption approved September 10, 1991 [Stipulation also
covers N144AW and N304AW], as modified by Supplemental
Stipulation (N138AW, N141AW, N189AW, N144AW) approved
September 11, 1992 [Also covers N144AW].
3. N147AW Letter Agreement approved October 9, 1991, as modified by
a Stipulation approved September 11, 1992.
4. N150AW Stipulation and Order Regarding Aircraft Lease With
Respect to One Boeing 737-300, FAA Reg. No. N150AW,
Assuming Lease and Providing For Adequate Protection and
Section 1110 Compliance approved September 12, 1991, as
modified by Supplemental Stipulation (N150AW) approved
September 11, 1992.
5. N151AW Stipulation and Order Regarding Aircraft Lease With
Respect to One Boeing 737-300, FAA Reg. No. N151AW,
Assuming Lease and Providing For Adequate Protection and
Section 1110 Compliance approved September 12, 1991, as
modified by Supplemental Stipulation (N151AW) approved
September 11, 1992.
6. N164AW Stipulation Regarding Aircraft Leases with Ansett
N165AW Worldwide Aviation (USA) approved September 6, 1991, as
N166AW modified by Supplemental Stipulation approved September
N167AW 11, 1992 [Supplemental Stipulation also covers 509DC].
N168AW
N169AW
N172AW
N173AW
N174AW
N175AW
7. 509DC Stipulation Regarding Aircraft Lease With Ansett
Worldwide Aviation (USA) approved September 6, 1991 as
modified by Supplemental Stipulation approved September
11, 1992 [Supplemental Stipulation also covers other
aircraft].
</TABLE>
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<PAGE> 82
<TABLE>
<C> <S> <C>
8. N178AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreement Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc. and
Certain Other Parties With Respect to One Boeing 737-277,
FAA Reg. No. N178AW and Related Engines and Equipment,
Also Concerning Related Lease Modification approved
September 6, 1991, as modified by Joint Supplemental
Stipulation With Respect to Modification of Previously
Authorized Stipulation Under Bankruptcy Code Section 1110
and Related Matters, Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N178AW and Related Engines and Equipment, Also Concerning
Related Lease Modifications.
9. N188AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreement Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc. and
Certain Other Parties With Respect to One Boeing 737-277,
FAA Reg. No. N188AW and Related Engines and Equipment,
Also Concerning Related Lease Modification approved
September 6, 1991, as modified by Joint Supplemental
Stipulation With Respect to Modification of Previously
Authorized Stipulation Under Bankruptcy Code Section 1110
and Related Matters, Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N188AW and Related Engines and Equipment, Also Concerning
Related Lease Modifications.
10. N180AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreement Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc. and
Certain Other Parties With Respect to One Boeing 737-277,
FAA Reg. No. N180AW and Related Engines and Equipment,
Also Concerning Related Lease Modification approved
September 6, 1991, as modified by Joint Supplemental
Stipulation With Respect to Modification of Previously
Authorized Stipulation Under Bankruptcy Code Section 1110
and Related Matters, Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N180AW and Related Engines and Equipment, Also Concerning
Related Lease Modifications.
</TABLE>
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<PAGE> 83
<TABLE>
<C> <S> <C>
11. N182AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreement Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc. and
Certain Other Parties With Respect to One Boeing 737-277,
FAA Reg. No. N182AW and Related Engines and Equipment,
Also Concerning Related Lease Modification approved
September 6, 1991, as modified by Joint Supplemental
Stipulation With Respect to Modification of Previously
Authorized Stipulation Under Bankruptcy Code Section 1110
and Related Matters, Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N182AW and Related Engines and Equipment, Also Concerning
Related Lease Modifications.
12. N186AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreement Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc. and
Certain Other Parties With Respect to One Boeing 737-277,
FAA Reg. No. N186AW and Related Engines and Equipment,
Also Concerning Related Lease Modification approved
September 6, 1991, as modified by Joint Supplemental
Stipulation With Respect to Modification of Previously
Authorized Stipulation Under Bankruptcy Code Section 1110
and Related Matters, Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N186AW and Related Engines and Equipment, Also Concerning
Related Lease Modifications.
13. N187AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreement Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc. and
Certain Other Parties With Respect to One Boeing 737-277,
FAA Reg. No. N187AW and Related Engines and Equipment,
Also Concerning Related Lease Modification approved
September 6, 1991, as modified by Joint Supplemental
Stipulation With Respect to Modification of Previously
Authorized Stipulation Under Bankruptcy Code Section 1110
and Related Matters, Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N187AW and Related Engines and Equipment, Also Concerning
Related Lease Modifications.
</TABLE>
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<PAGE> 84
<TABLE>
<C> <S> <C>
14. N181AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreements Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc.,
and Certain Other Parties With Respect to One Boeing
737-277, FAA Reg. No. N181AW and Related Engines and
Equipment, Also Concerning Related Lease Modification
approved September 6, 1991, as modified by Supplemental
Stipulation (N181AW) approved September 11, 1992.
15. N185AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreements Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc.,
and Certain Other Parties With Respect to One Boeing
737-277, FAA Reg. No. N185AW and Related Engines and
Equipment, Also Concerning Related Lease Modification
approved September 6, 1991, as modified by Supplemental
Stipulation (N185AW) approved September 11, 1992.
16. N302AW Stipulation Regarding Aircraft Lease With Meridian Trust
Company, as Owner Trustee, Providing for Section 1110
Compliance and Assumption of Lease (N302AW) approved
September 6, 1991, as modified by Supplemental
Stipulation (N302AW) approved September 11, 1992.
17. N303AW Stipulation Regarding Aircraft Lease With Meridian Trust
Company, as Owner Trustee, Providing for Section 1110
Compliance and Assumption of Lease (N303AW) approved
September 10, 1991, as modified by Supplemental
Stipulation (N303AW) approved September 11, 1992.
18. N304AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Between America West Airlines,
Inc., CIT and Certain Other Parties With Respect to
Certain Aircraft, and Related Engines and Equipment, Also
Concerning Related Lease Modification and Lease
Assumption approved September 11, 1991 [also covered
certain other aircraft], as modified by Supplemental
Stipulation (N304AW) approved September 11, 1992.
19. N305AW Joint Stipulation and Related Matters, With Respect to
Bankruptcy Code Section 1110 Including Assumption of
Agreements Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc.,
and Certain Other Parties With Respect to One Boeing
737-3G7, FAA Reg. No. N305AW and Related Engines and
Equipment, Also Concerning Related Lease Modifications
approved September 6, 1991, as modified by Supplemental
Stipulation (N305AW) approved September 11, 1992.
</TABLE>
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<PAGE> 85
<TABLE>
<C> <S> <C>
20. N313AW Joint Stipulation With Respect to Bankruptcy Code Section
N314AW 1110 And Related Matters, Including Assumption of
N315AW Agreement Pursuant to Bankruptcy Code Section 365 and
N316AW Modification of Automatic Stay Pursuant to Bankruptcy
and spare Code Section 362, Between America West Airlines, Inc.,
engines And Certain Other Parties With Respect to Four Boeing
737-3s3 Aircraft, FAA Reg. Nos. N313AW, N314AW, N315AW,
and N316AW and Related Engines and Equipment, And Also
Concerning Related Lease Modification approved September
6, 1991, as modified by Supplemental Stipulation approved
September 11, 1992.
21. N620AW Stipulation Regarding Aircraft Leases and/or Agreements
N621AW with GPA Group plc, GPA Leasing USA I, Inc., GPA Leasing
N622AW USA SUB I, Inc. and Industrial Bank of Japan and Order
N624AW approved September 5, 1991.
N625AW
N626AW
N627AW
N628AW
N629AW
N631AW
N632AW
N633AW
N634AW
N635AW
N636AW
N637AW
IAE Engine MSN V0025
IAE Engine MSN V0049
IAE Engine MSN V0019
22. N901AW Stipulation of America West and The Boeing Company as to
N902AW the Assumption of Six (6) Boeing Aircraft Subleases
N903AW approved September 12, 1991, as modified by a
N904AW Supplemental Stipulation Relating to Six (6) Boeing
N905AW Aircraft Subleases approved September 11, 1992.
N906AW
23. N910AW Joint Stipulation With Respect to Bankruptcy Code
Section 1110 and Related Matters, Including Assumption of
Agreements Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc.,
and Certain Other Parties With Respect to One Boeing
757-2G7, FAA Reg. No. N910AW and Related Engines and
Equipment, Also Concerning Related Lease Modification
approved September 6, 1991, as modified by Supplemental
Stipulation (N910AW) approved March 17, 1993.
24. Rolls Royce Stipulation with PLM Equipment Growth Fund V and First
RB211-535 Security Bank of Utah, N.A. approved January 22, 1992.
EX Engine
Serial No.
30668
</TABLE>
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<PAGE> 86
<TABLE>
<C> <S> <C>
25. One CFM56 Stipulation Regarding Aircraft and Engine Leases with
-3-B1 Progress Potomac Capital Ventures approved January 29,
One CFM56 1992.
-3-B2 Engine
(serial nos.
720-955 and
722-127)
26. Rolls Royce Joint Stipulation and Order with Respect to Assumption of
RB211-535E Engine Lease and Compliance with Bankruptcy Code Section
Engine 1110 and Engine, Related Matters Between America West
Serial No. Airlines, Inc., and Certain Other Parties with Respect to
30764 One Rolls-Royce RB211-535E4 Gas Turbine Engine, Serial
No. 30764 approved September 25, 1991.
27. One CFM Stipulation Authorizing Assumption of Unexpired Equipment
56-331 Leases and the Debtor to Enter Into Transactions Other
Engine Than In the Ordinary Course of Business approved
(Serial No. September 26, 1991.
724-700),
Three JT8D-
15A Engines
(Serial Nos.
655150, 687314
and 708313),
and Three
JT8D-9A Engines
(Serial Nos.
674267, 674452
and 674623)
28. N126AW(C-GCPW) Aircraft sublease agreements between America West
N127AW(C-GAPW) Airlines, Inc. and Canadian Airlines International Ltd.
N128AW(C-GBPW) dated May 1, 1989, as assumed and modified by Stipulation
Regarding Aircraft Subleases with Canadian Airlines
International Ltd. approved September 6, 1991, and by
Supplemental Stipulation approved September 11, 1992.
Such subleases were extended, as modified, by Extension
Agreement dated April 1, 1994, and approved May 5, 1994.
</TABLE>
II. Financed Aircraft And Spare Parts. The financings of the following aircraft
and spare parts have been assumed as modified pursuant to the listed
stipulations:
<TABLE>
<C> <S> <C>
1. N149AW Stipulation approved September 6, 1991 as modified by
Supplemental Stipulation approved September 11, 1992.
2. N160AW Joint Stipulation With Respect to Bankruptcy Code
Section 1110 and Related Matters Including Modification
of the Automatic Stay Pursuant to Bankruptcy Code
Section 362, Between America West Airlines, Inc., and
Certain Other Parties With Respect to One Boeing 737-3G7,
FAA Reg. No. N160AW, and Related Engines and Equipment,
and Modification of Related Agreements approved September
6, 1991, as modified by Supplemental Stipulation (N160AW)
approved September 11, 1992.
</TABLE>
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<PAGE> 87
<TABLE>
<C> <S> <C>
3. N154AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N154AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N154AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
4. N155AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N155AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N155AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
5. N156AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N156AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N156AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
</TABLE>
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<PAGE> 88
<TABLE>
<C> <S> <C>
6. N157AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N157AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N157AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
7. N158AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N158AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N158AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
8. N306AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N306AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N306AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
</TABLE>
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<PAGE> 89
<TABLE>
<C> <S> <C>
9. N307AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N307AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N307AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
10. N308AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N308AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N308AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
11. N309AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N309AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N309AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
</TABLE>
1-9
<PAGE> 90
<TABLE>
<C> <S> <C>
12. N311AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N311AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N311AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
13. N179AW Joint Stipulation With Respect to Bankruptcy Code Section
N184AW 1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to Two Boeing 737-277's, FAA Reg.
Nos. N179AW and N184AW, and Related Engines and
Equipment, and Modification of Related Agreements
approved September 6, 1991, as modified by Joint
Supplemental Stipulation With Respect to Modification of
Previously Authorized Stipulations Under Bankruptcy Code
Section 1110 and Related Matters Including Modification
of the Automatic Stay Pursuant to Bankruptcy Code Section
362, Between America West Airlines, Inc., and Certain
Other Parties With Respect to Three Boeing 737-277's, FAA
Reg. Nos. N179AW, N183AW and N184AW, and Related Engines
and Equipment approved September 11, 1992. [Supplemental
Stipulation also covers other aircraft.]
14. N183AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N183AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation With
Respect to Modification of Previously Authorized
Stipulations Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to Three Boeing 737-277's, FAA Reg. Nos.
N179AW, N183AW and N184AW, and Related Engines and
Equipment approved September 11, 1992. [Supplemental
Stipulation also covers other aircraft.]
</TABLE>
1-10
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<TABLE>
<C> <S> <C>
15. N908AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Between America West Airlines,
Inc., and Certain Other Parties With Respect to One
Boeing 757-2G7 Aircraft, FAA Reg. No. N908AW and Related
Engine and Equipment, and Modification of Related
Agreements approved September 6, 1991, as modified by
Supplemental Stipulation approved September 11, 1992.
16. N909AW Stipulation Regarding Leases, Aircraft Mortgages and/or
Security Agreements With The Industrial Bank of Japan,
Limited, Los Angeles Agency, II Wing Leasing
International Co., Ltd., JJ Wing Leasing International
Co., Ltd., KK Wing Leasing International Co., Ltd., LL
Wing Leasing International Co., Ltd., MM Wing Leasing
International Co., Ltd. and NN Wing Leasing International
Co., Ltd. approved September 6, 1991, as modified by
Supplemental Stipulation approved September 11, 1992.
</TABLE>
III. Financed Spare Parts. The financings of the following spare parts shall be
performed in accordance with the following stipulations:
<TABLE>
<C> <S> <C>
1. AIFS/ASCO Stipulation and Order Regarding Rights Under Section 1110
of the Bankruptcy Code of Airbus Industry Financial
Services ("AIFS") and Airbus Service Company, Inc.
("ASCO") dated August 30, 1992, regarding that certain
Amended and Restated Loan Agreement and that certain
Security Agreement, both dated as of November 27, 1990
and between AIFS and America West Airlines, Inc. ("AWA")
and Letter Agreement No. 1, dated as of September 28,
1990, between AWA and AVSA, S.A.R.L. ("AVSA") as assigned
and assumed by ASCO pursuant to that certain Assignment
and Assumption Agreement, dated as of December 3, 1990,
between AVSA and ASCO.
</TABLE>
1-11
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[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 93
PLAN OF REORGANIZATION
SCHEDULE 2
CERTAIN FINAL ORDERS ON
SETTLEMENT AGREEMENTS
<PAGE> 94
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 95
CERTAIN FINAL ORDERS ON
SETTLEMENT AGREEMENTS
1. Motion for Authority to Compromise controversies with GE Entities filed
September 13, 1993 and Order granting same filed October 8, 1993.
2. Motion for Authorization to Compromise Controversy with McDonnell
Douglas Finance Corporation filed March 11, 1993 and order granting same filed
March 31, 1993.
3. Motion for Authorization to Compromise controversies with Household
Commercial of California and Seventh HFC Leasing filed July 6, 1993 and order
granting same filed August 25, 1993.
4. Motion for Authority to Compromise Controversies with Citicorp North
America, Inc. filed December 23, 1993 and order granting same filed January 19,
1994; Motion for Authority to Amend Settlement Agreement between America West
and Citicorp filed March 18, 1994 and order granting same filed on March 30,
1994.
5. Motion for Authority to Compromise Controversies with Export Development
Corporation and Gilman Montrose Timber and Leasing Company filed December 22,
1993 and order granting same filed January 19, 1994.
6. Motion for Authorization to Compromise Controversy with the Internal
Revenue Service filed February 14, 1994 and order granting same filed March 16,
1994.
7. Motion for Authorization to Enter into Credit Card Processing Agreement
and Granting Security Interests and Modifying Agreements with First Interstate
Bank of Arizona, N.A. and Order granting same filed March 31, 1993.
8. Order Authorizing Debtor to Assume Caterair Agreement and Addendum filed
September 19, 1991.
2-1
<PAGE> 96
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 97
PLAN OF REORGANIZATION
SCHEDULE 3
CERTAIN ASSUMED AGREEMENTS
<PAGE> 98
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 99
CERTAIN ASSUMED AGREEMENTS
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
DELTA AIRLINES, INC. ................... Datas II Participating Carrier Agreement between
Delta Airlines, Inc. and AWA, Inc.
NORSTAN FINANCIAL SERVICES.............. Equipment Lease No. 1027-001 and 1027-002 dated
10/1/90 and 4/1/91 between Norstan Financial
Services Inc. and AWA, Inc.
AVSA S.A.R.L............................ Airbus A320 Purchase Agreement dated as of 9/28/90
between AVSA S.A.R.L. and AWA, Inc., as previously
amended and as modified pursuant to the terms
agreed to in the Term Sheet executed 2/24/94; such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan
AIR FRANCE.............................. Passenger Interline Agreement
BELL ATLANTIC SYSTEMS
LEASING............................... Communication Controllers Lease Agreement dated
2/1/91 between Pacific Atlantic Leasing (formerly
Bell Atlantic) and AWA, Inc.
BELL ATLANTIC SYSTEMS
LEASING............................... Communications Equipment Lease Agreement dated
6/1/91 between Pacific Atlantic Leasing (formerly
Bell Atlantic) and America West Airlines, Inc.
BELL ATLANTIC SYSTEMS
LEASING............................... B757-200 Flight Simulator Lease Agreement, dated
7/1/90 between Bell Atlantic Systems Leasing and
AWA, Inc.
COMPUTER SYSTEMS OF
AMERICA INC. ......................... Equipment Lease No. AZ-048-5093 dated 4/7/88
between Computer Systems of America, Inc. and AWA,
Inc.
COMPUTER SYSTEMS OF
AMERICA INC. ......................... Equipment Lease No. AZ-048-5092 dated 4/7/88
between Computer Systems of America, Inc. and AWA,
Inc.
COMPUTER SYSTEMS OF
AMERICA INC. ......................... IBM PS-2 Lan System Lease Agreement dated 12/1/90
between Computer Systems of America and AWA, Inc.
COMPUTER SYSTEMS OF
AMERICA INC. ......................... Equipment Lease No. NV-048-5090 dated 4/7/88
between Computer Systems of America, Inc. and AWA,
Inc.
COMPUTER SYSTEMS OF
AMERICA INC. ......................... Equipment Lease No. AZ 129-6447 dated 12/15/89 be-
tween Computer Systems of America, Inc. and AWA,
Inc.
FORSYTHE MCARTHUR
ASSOC INC. ........................... Equipment Lease No. F 15358 dated 11/14/90 between
Forsythe McArthur and AWA, Inc.
HONEYWELL INC. ......................... Madison I & II Security Equipment Lease dated
8/21/90 between Honeywell Protection Service and
AWA, Inc.
AIR BC.................................. Passenger Interline Agreement
AER LINGUS.............................. Employee Interline Agreement
</TABLE>
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<PAGE> 100
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
AER LINGUS.............................. Cargo Interline Agreement
AER LINGUS.............................. Passenger Interline Agreement
AERO CALIFORNIA......................... Passenger Interline Agreement
AERO MEXICO............................. Passenger Interline Agreement
AERO MEXICO............................. Cargo Interline Agreement
AERO MEXICO............................. Employee Travel Agreement
AERO PERU - EMPRESSA DE................. Passenger Interline Agreement
AEROLINEAS ARGENTINAS................... Cargo Interline Agreement
AIR BC.................................. Employee Travel Agreement
AIR CANADA.............................. Employee Travel Agreement
AIR CANADA.............................. Passenger Interline Agreement
AIR CHINA............................... Cargo Interline Agreement
AIR FRANCE.............................. Employee Travel Agreement
AIR INDIA............................... Employee Travel Agreement
AIR INDIA............................... Passenger Interline Agreement
AIR INTER............................... Passenger Interline Agreement
AIR JAMAICA............................. Employee Travel Agreement
AIR LANKA............................... Passenger Interline Agreement
AIR MIDWEST............................. Employee Travel Agreement
AIR MIDWEST............................. Passenger Interline Agreement
AIR NEVADA.............................. Employee Travel Agreement
AIR NEVADA.............................. Passenger Interline Agreement
AIR NEW ZEALAND......................... Employee Travel Agreement
AIR NEW ZEALAND......................... Cargo Interline Agreement
AIR NEW ZEALAND......................... Passenger Interline Agreement
AIR TAHITI.............................. Employee Travel Agreement
AIR TAHITI.............................. Passenger Interline Agreement
AIR WISCONSIN, INC. .................... Employee Travel Agreement
AIR WISCONSIN, INC. .................... Passenger Interline Agreement
ALASKA AIRLINES......................... Employee Travel Agreement
ALASKA AIRLINES......................... Cargo Interline Agreement
ALASKA AIRLINES......................... Passenger Interline Agreement
ALITALIA................................ Employee Travel Agreement
ALITALIA................................ Passenger Interline Agreement
ALL NIPPON AIRWAYS - ANA ............... Passenger Interline Agreement
ALM ANTILLEAN AIRLINES.................. Passenger Interline Agreement
ALOHA AIRLINES, INC. ................... Passenger Interline Agreement
ALOHA AIRLINES, INC. ................... Employee Travel Agreement
ALOHA ISLAND AIR........................ Employee Travel Agreement
ALOHA ISLAND AIR........................ Passenger Interline Agreement
ALPHA AIR............................... Employee Travel Agreement
</TABLE>
3-2
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
ALPHA AIR............................... Passenger Interline Agreement
AMERICAN AIRLINES, INC. ................ Employee Travel Agreement
AMERICAN AIRLINES, INC. ................ Passenger Interline Agreement
AMTRAK.................................. Passenger Interline Agreement
ANSETT OF AUSTRALIA..................... Employee Travel Agreement
ANSETT OF AUSTRALIA..................... Cargo Interline Agreement
ANSETT OF AUSTRALIA..................... Passenger Interline Agreement
ANSETT OF NEW ZEALAND................... Employee Travel Agreements
ANSETT OF NEW ZEALAND................... Passenger Interline Agreement
ARKIA (ARKIA-ISREALI
AIRLINES)............................. Passenger Interline Agreement
ASIANA AIRLINES......................... Cargo Interline Agreement
ASIANA AIRLINES......................... Passenger Interline Agreement
AUSTRALIAN AIRLINES..................... Passenger Interline Agreement
AUSTRIAN AIRLINES....................... Employee Travel Agreement
AUSTRIAN AIRLINES....................... Cargo Interline Agreement
AUSTRIAN AIRLINES....................... Passenger Interline Agreement
AVENSA.................................. Passenger Interline Agreement
AVIANCA................................. Passenger Interline Agreement
BAHAMASAIR.............................. Employee Travel Agreement
BAR HARBOR AIRLINES D/B/A/.............. Employee Travel Agreement
BIG SKY AIRLINES........................ Employee Travel Agreement
BIG SKY AIRLINES........................ Passenger Interline Agreement
BRITISH AIRWAYS, INC. .................. Employee Travel Agreement
BRITISH AIRWAYS, INC. .................. Cargo Interline Agreement
BRITISH AIRWAYS, INC. .................. Passenger Interline Agreement
BUSINESS EXPRESS........................ Passenger Interline Agreement
BUSINESS EXPRESS........................ Employee Travel Agreement
BWIA INTERNATIONAL
A (TRINIDAD).......................... Employee Travel Agreement
BWIA INTERNATIONAL
A (TRINIDAD).......................... Passenger Interline Agreement
CANADIAN AIRLINES....................... Passenger Interline Agreement
CANADIAN AIRLINES....................... Employee Travel Agreement
CANADIAN AIRLINES....................... Cargo Interline Agreement
CATHAY PACIFIC.......................... Cargo Interline Agreement
CATHAY PACIFIC.......................... Passenger Interline Agreement
CAYMAN AIRWAYS LTD. .................... Employee Travel Agreement
CAYMAN AIRWAYS LTD. .................... Passenger Interline Agreement
CHALK'S INTERNATIONAL
AIRLINES.............................. Employee Travel Agreement
CHINA AIRLINES.......................... Cargo Interline Agreement
</TABLE>
3-3
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
CHINA AIRLINES.......................... Passenger Interline Agreement
COMAIR, INC............................. Employee Travel Agreement
CONQUEST AIRLINES....................... Passenger Interline Agreement
CONTINENTAL AIRLINES, INC. ............. Cargo Interline Agreement
CONTINENTAL AIRLINES, INC. ............. Employee Travel Agreement
CONTINENTAL AIRLINES, INC. ............. Passenger Interline Agreement
CROSSAIR (CROSSAIR A.G.)................ Passenger Interline Agreement
DELTA AIRLINES, INC. ................... Employee Travel Agreement
DELTA AIRLINES, INC. ................... Passenger Interline Agreement
DRAGONAIR, 12/F, TOWER 6................ Passenger Interline Agreement
EAST WEST AIRLINES, LTD................. Employee Travel Agreement
EAST WEST AIRLINES, LTD. ............... Passenger Interline Agreement
EGYPTAIR................................ Employee Travel Agreement
EGYPTAIR................................ Passenger Interline Agreement
EL AL ISRAEL AIRLINES LTD. ............. Employee Travel Agreement
EL AL ISRAEL AIRLINES LTD. ............. Passenger Interline Agreement
EMPIRE AIRWAYS.......................... Passenger Interline Agreement
EQUITORIANA............................. Passenger Interline Agreement
ERA AVIATION............................ Employee Travel Agreement
ERA AVIATION............................ Passenger Interline Agreement
EXEC EXPRESS II, INC. .................. Passenger Interline Agreement
FINNAIR................................. Passenger Interline Agreement
FIRST AIR............................... Passenger Interline Agreement
FRONTIER FLYING SERVICE................. Employee Travel Agreement
GARUDA INDONESIA........................ Cargo Interline Agreement
GARUDA INDONESIA........................ Passenger Interline Agreement
GP EXPRESS.............................. Employee Travel Agreement
GP EXPRESS.............................. Passenger Interline Agreement
GRAND AIRWAYS........................... Passenger Interline Agreement
GREAT LAKES AVIATION LTD. .............. Employee Travel Agreement
GREAT LAKES AVIATION LTD. .............. Passenger Interline Agreement
HARBOR AIRLINES......................... Employee Travel Agreement
HARBOR AIRLINES......................... Passenger Interline Agreement
HAWAIIAN AIRLINES, INC. ................ Employee Travel Agreement
HAWAIIAN AIRLINES, INC. ................ Passenger Interline Agreement
HENSON AVIATION, INC. .................. Employee Travel Agreement
HORIZON AIRLINES ....................... Employee Travel Agreement
HORIZON AIRLINES ....................... Passenger Interline Agreement
HUB EXPRESS............................. Passenger Interline Agreement
IBERIA.................................. Passenger Interline Agreement
ICELANDER............................... Employee Travel Agreement
</TABLE>
3-4
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
ICELANDER (ICELANAIR)................... Passenger Interline Agreement
JAPAN AIR SYSTEM/DOMESTIC
TOA................................... Employee Travel Agreement
JAPAN AIR SYSTEM/DOMESTIC
TOA................................... Passenger Interline Agreement
JAPAN AIRLINES.......................... Cargo Interline Agreement
JAPAN AIRLINES.......................... Passenger Interline Agreement
JAPAN AIRLINES.......................... Employee Travel Agreement
JAPAN ASIA AIRWAYS...................... Employee Travel Agreement
JAPAN ASIA AIRWAYS...................... Passenger Interline Agreement
KLM ROYAL DUTCH AIRLINES................ Passenger Interline Agreement
KLM ROYAL DUTCH AIRLINES................ Employee Travel Agreement
KOREAN AIRLINES......................... Passenger Interline Agreement
KOREAN AIRLINES......................... Employee Travel Agreement
KUWAIT AIRWAYS.......................... Cargo Interline Agreement
LANCHILE................................ Passenger Interline Agreement
LAS VEGAS AIRLINES...................... Passenger Interline Agreement
LAUDA AIR LUFTFAHRT..................... Passenger Interline Agreement
LOT-POLISH AIRWAYS...................... Employee Travel Agreement
LOT-POLISH AIRWAYS...................... Passenger Interline Agreement
LTU..................................... Passenger Interline Agreement
LTU..................................... Employee Travel Agreement
LUFTHANSA............................... Passenger Interline Agreement
LUFTHANSA............................... Employee Travel Agreement
MALAYSIA AIRLINES....................... Passenger Interline Agreement
MALEV HUNGARIAN AIRLINES................ Passenger Interline Agreement
MALEV HUNGARIAN AIRLINES................ Employee Travel Agreement
MARKAIR, INC. .......................... Employee Travel Agreement
MARKAIR, INC. .......................... Passenger Interline Agreement
MARTINAIR HOLLAND....................... Passenger Interline Agreement
MESA AIRLINES SHUTTLE................... Employee Travel Agreement
MESA AIRLINES SHUTTLE................... Passenger Interline Agreement
MESABA AVIATION......................... Employee Travel Agreement
MESABA AVIATION......................... Passenger Interline Agreement
METRO AIRLINES.......................... Employee Travel Agreement
METRO AIRLINES.......................... Passenger Interline Agreement
MEXICANA AIRLINES....................... Passenger Interline Agreement
MEXICANA AIRLINES....................... Employee Travel Agreement
MEXICANA AIRLINES....................... Cargo Interline Agreement
MIDDLE EAST AIRLINES.................... Passenger Interline Agreement
MIDWEST EXPRESS AIRLINES,
INC. ................................. Employee Travel Agreement
</TABLE>
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
MILITARY AIRLIFT COMMAND................ Passenger Interline Agreement
N.P.A., INC. DBA UNITED EXPRESS......... Employee Travel Agreement
N.P.A., INC. DBA UNITED EXPRESS......... Passenger Interline Agreement
NIPPON CARGO AIRLINES
CO. LTD. ............................. Cargo Interline Agreement
NIPPON CARGO AIRLINES
CO. LTD. ............................. Passenger Interline Agreement
NORTHWEST AIRLINES, INC. ............... Employee Travel Agreement
NORTHWEST AIRLINES, INC. ............... Passenger Interline Agreement
OLYMPIC AIRWAYS......................... Passenger Interline Agreement
ONTARIO EXPRESS DBA..................... Employee Travel Agreement
PAKISTAN INTERNATIONAL
AIRWAYS............................... Passenger Interline Agreement
PHILIPPINE AIRLINES..................... Employee Travel Agreement
PHILIPPINE AIRLINES..................... Cargo Interline Agreement
PHILIPPINE AIRLINES..................... Passenger Interline Agreement
PLUNA (PRIMERAS LINEAS)................. Passenger Interline Agreement
QANTAS AIRWAYS.......................... Employee Travel Agreement
QANTAS AIRWAYS.......................... Cargo Interline Agreement
QANTAS AIRWAYS.......................... Passenger Interline Agreement
REEVE AIRWAYS........................... Employee Travel Agreement
REEVE AIRWAYS........................... Passenger Interline Agreement
ROCKY MOUNTAIN AIRWAYS.................. Employee Travel Agreement
ROYAL AIR MAROC......................... Passenger Interline Agreement
ROYAL JORDANIAN......................... Cargo Interline Agreement
ROYAL JORDANIAN......................... Passenger Interline Agreement
SABENA.................................. Cargo Interline Agreement
SABENA.................................. Employee Travel Agreement
SABENA.................................. Passenger Interline Agreement
SAUDI ARABIAN AIRLINES.................. Passenger Interline Agreement
SAUDI ARABIAN AIRLINES.................. Employee Travel Agreement
SCANDINAVIAN AIRLINES
SYSTEM................................ Employee Travel Agreement
SCANDINAVIAN AIRLINES
SYSTEM................................ Passenger Interline Agreement
SCENIC AIRLINES, INC. .................. Employee Travel Agreement
SCENIC AIRLINES, INC. .................. Passenger Interline Agreement
SIMMONS AIRLINES, INC. ................. Employee Travel Agreement
SINGAPORE AIRLINES...................... Passenger Interline Agreement
SINGAPORE AIRLINES...................... Employee Travel Agreement
SKYWEST AIRLINES INC. .................. Employee Travel Agreement
SKYWEST AIRLINES INC. .................. Passenger Interline Agreement
</TABLE>
3-6
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
SOUTH AFRICAN AIRLINES.................. Passenger Interline Agreement
SOUTHWEST AIRLINES...................... Employee Travel Agreement
SUNAIRE EXPRESS......................... Employee Travel Agreement
SUNAIRE EXPRESS......................... Passenger Interline Agreement
SWISSAIR................................ Employee Travel Agreement
SWISSAIR................................ Cargo Interline Agreement
SWISSAIR................................ Passenger Interline Agreement
TACA INTERNATIONAL...................... Passenger Interline Agreement
TAP AIR PORTUGAL........................ Employee Travel Agreement
TAP AIR PORTUGAL........................ Cargo Interline Agreement
TAP AIR PORTUGAL........................ Passenger Interline Agreement
THAI AIRWAYS............................ Employee Travel Agreement
THAI AIRWAYS............................ Cargo Interline Agreement
THAI AIRWAYS............................ Passenger Interline Agreement
TIME AIR................................ Passenger Interline Agreement
TIME AIR................................ Employee Travel Agreement
TOWER AIR............................... Passenger Interline Agreement
TOWER AIR............................... Employee Travel Agreement
TRANS WORLD AIRLINES, INC. ............. Cargo Interline Agreement
TRANS WORLD AIRLINES, INC. ............. Passenger Interline Agreement
TRANS WORLD AIRLINES, INC. ............. Employee Travel Agreement
UNITED AIRLINES, INC. .................. Passenger Interline Agreement
UNITED AIRLINES, INC. .................. Employee Interline Agreement
UNITED AIRLINES, INC. .................. Cargo Interline Agreement
US AIR INC. ............................ Employee Travel Agreement
US AIR INC. ............................ Passenger Interline Agreement
UTA FRENCH AIRLINES..................... Passenger Interline Agreement
UTA FRENCH AIRLINES..................... Employee Travel Agreement
VARIG BRAZILIAN AIRLINES................ Passenger Interline Agreement
VENEZOLANA INTL. DE
AVIACIO SC............................ Employee Travel Agreement
VIASA................................... Passenger Interline Agreement
VIRGIN ATLANTIC AIRWAYS................. Passenger Interline Agreement
VIRGIN ATLANTIC AIRWAYS................. Employee Travel Agreement
WESTAIR COMMUTER........................ Employee Travel Agreement
WESTAIR COMMUTER........................ Passenger Interline Agreement
WINGS WEST AIRLINES, INC. .............. Employee Travel Agreement
CARGOLUX AIRLINES INT'L................. Interline Agreement
</TABLE>
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<PAGE> 106
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
AIRPORT AUTH. OF WASHOE COUNTY.......... Airline Operat. Agrmnt & Terminal Bldng Lease dated
10/8/81 between Airport Authority of Washoe Cnty &
Frontier Airlines (as predecessor in interest to
AWA, Inc. which assumed the lease after Frontier's
bnkrptcy) as amended on 4/20/89, 6/22/89, &
10/10/91
AIRPORT REVENUE FUND;
STAPLETON INT......................... City and County of Denver Agreement and Lease at
Stapleton International Airport between the City
and County of Denver and AWA, Inc.
ALBUQUERQUE INTERNATIONAL............... Air Freight Facility Lease and Agreement by and
between the City of Albuquerque and AWA, Inc.
ALBUQUERQUE, CITY OF.................... Scheduled Airline Operating & Terminal Building
Lease dated 10/7/87 by and between the City of
Albuquerque and AWA, Inc.
AUSTIN, CITY OF......................... Austin Airport Use and Lease Agreement as amended
5/1/90 by and between the City of Austin and AWA,
Inc.
AVIATION DEPARTMENT..................... La Guardia Airport Agreements AGA-152, AGA-170,
AGA-187, AGA-217 and AGA-153
BOSTON LOGAN INTL. AIRPORT.............. Airport Lease Agreement between the Massachusetts
Port Authority and AWA, Inc.
BURBANK-GLENDALE-PASADENA............... Airport Use Agreement dated 9/1/84 by and between
Burbank-Glendale-Pasadena Airport Authority and
AWA, Inc.
CITY OF CHICAGO......................... Airport License and Agreement by and between the
City of Chicago and AWA, Inc.
CITY OF HOUSTON......................... Use and Lease Agreement dated 1/1/90 by and between
the City of Houston and AWA, Inc.
CITY OF KANSAS CITY..................... Kansas City International Airport Use and Lease
Agreement, dated 12/9/88 by and between Kansas
City, Missouri and AWA, Inc.
CITY OF LONG BEACH...................... Commercial Use Permit by and between the City of
Long Beach Airport Bureau and AWA, Inc.
CITY OF SAN JOSE........................ Operations Space Lease dated 7/25/88 by and between
the City of San Jose and AWA, Inc.
CITY OF ST. LOUIS....................... Lambert -- St. Louis International Airport
Preferential Use Gate Space Permit, dated 5/15/91
by and between the City of St. Louis and AWA, Inc.
CLARK COUNTY DEPT OF AVIAT.............. Scheduled Airline Operating Agreement and Terminal
Building Lease dated 9/11/87 between Clark County
and AWA, Inc.
COLORADO SPRINGS AIRPORT................ Lease Agreement dated 6/28/83 between City of
Colorado Springs and AWA, Inc.
COUNTY OF ORANGE........................ Certified Passenger Airline Lease dated 9/4/90 by
and between County of Orange and AWA, Inc. as
amended by First Amendment dated 6/1/91
DALLAS/FT. WORTH AIRPORT................ DFW Airport Board Permit No. 237633 dated 7/15/90
by and between the DFW Int'l Airport Board and AWA,
Inc.
</TABLE>
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<PAGE> 107
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
EL PASO INTERNATIONAL
AIRPORT............................... Certified Passenger Airline Lease dated 10/1/89 by
and between the City of El Paso and AWA, Inc.
LOS ANGELES, CITY OF.................... Lease Agreement covering premises in Terminal One,
LAX, by and between the City of Los Angeles and
AWA, Inc.
MARYLAND AVIATION ADMIN................. Lease Agreement dated 8/7/87 between State Aviation
Administration of the Maryland Dept. of
Transportation and AWA, Inc. as amended by
Supplement No. 1, dated 3/24/88
MCKENZIE PROPERTIES..................... Lease Agreement for Reservation Facilities at Reno
dated 6/1/87 between McKenzie Properties and AWA,
Inc.
METROPOLITAN WASHINGTON................. Airport Use Agreement and Premise Lease dated
2/27/90 by and between Metropolitan Washington
Airports Authority and AWA, Inc.
MINNEAPOLIS/ST PAUL INTL................ Terminal Building Agreement dated 5/15/88 by and
between Metropolitan Airport Commission and AWA,
Inc. as amended by 1989 Amendment to 1962 Airport
Bldng Lease dated 11/1/90, and amendments 1 through
8
NORTHWEST AIRLINES, INC. ............... Cargo Bldng Sublease dated 11/1/88 by and between
Northwest Airlines and AWA, Inc., for facilities
located at 2121 Air Cargo Road
NORTHWEST AIRLINES, INC. ............... Sublease Agreement for use of certain passenger
handling and aircraft servicing facilities located
at Minneapolis/St. Paul Int'l Airport dated 10/8/89
by and between Northwest Airlines, Inc. and AWA,
Inc.
NORTHWEST AIRLINES, INC. ............... Letter of Agreement for Concourse "E", O'Hare Int'l
Airport between Northwest Airlines, Inc. and AWA,
Inc.
NORTHWEST AIRLINES, INC. ............... O'Hare Int'l Airport Gate Use Agreement dated
4/1/90 by and between Northwest Airlines and AWA,
Inc.
NORTHWEST AIRLINES, INC. ............... Cargo Building Sublease at Salt Lake City dated
1/1/89 by and between Northwest Airlines, Inc. and
AWA, Inc.
OMAHA AIRPORT AUTHORITY................. Omaha Agreement & Lease for Scheduled Airline
Operations by and between Airport Authority of the
City of Omaha and AWA, Inc.
PORT AUTHORITY OF NY & NJ............... Newark Int'l Airport Agreements ANA-516, ANA-524,
ANA-473 and AWA-525
PORT AUTHORITY OF NY & NJ............... John F. Kennedy Int'l Airport Agreements AYC-018
and AYB-881
PORT OF OAKLAND......................... License and Concession Agreement dated 1/1/91 by
and between the Port of Oakland and AWA, Inc.
PORT OF PORTLAND........................ Passenger Airline Operating and Lease Agreement by
and between the Port of Portland and AWA, Inc.
PORT OF SEATTLE......................... Basic Airline Lease and Agreement No. M-06181-0-BAS
by and between the Port of Seattle and AWA, Inc.
SACRAMENTO, COUNTY OF................... Scheduled Airline Operating Agreement and Terminal
Building Lease dated 7/1/90 between the County of
Sacramento and AWA, Inc.
</TABLE>
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
SALT LAKE CITY TREASURER................ Airport Use Agreement dated 2/1/81 as assumed on
11/26/86 from Frontier Airlines by and between Salt
Lake City Corp. and AWA, Inc.
SAN DIEGO UNIFIED PORT DIST............. Rental Agreement and Landing Permit at San Diego
Int'l Airport by and between the San Diego Unified
Port District and AWA, Inc.
SAN FRANCISCO AIRPORT COMM.............. Airline Operating Permit #1874 dated 5/1/90 by and
between the City & County of San Francisco and AWA,
Inc. and Airport Commission City and County of San
Francisco, Space or Use Permit #1876, 1877, 1878,
and 2031, dated 5/1/90
TUCSON AIRPORT AUTHORITY................ Air Cargo Sublease dated 12/1/86 between the Tucson
Airport Authority and AWA, Inc.
TUCSON AIRPORT AUTHORITY................ Airport Use Agreement dated 11/1/84 by and between
the Tucson Airport Authority and AWA, Inc.
WICHITA AIRPORT AUTHORITY............... Airline Airport Agreement dated 4/1/85 by and
between the Wichita Airport Authority and AWA, Inc.
AIRCRAFT SERVICES INT'L................. Into-plane Service Agreement dated 10/87 for
Albuquerque, Burbank, Portland, and San Diego
ALLIED AVIATION SERV INTL., dba......... Into-plane Service Agreement for airports located
at Washington D.C., Dallas
OGDEN ALLIED............................ Forth Worth, Newark, Houston, JFK, La Guardia,
Kansas City, & St. Louis
AMOCO OIL CO............................ Fuel Purchase Agreement for airports located at
Columbus and Midway
AMR COMBS............................... Into-plane Service Agreement for Denver
ARCO PRODUCTS........................... Fueling Purchase Agreement dated 7/90 for Burbank,
Los Angeles, Portland, San Diego, Seattle, San
Jose, Orange County, and Tucson
ARIZONA FUELING......................... Cost Sharing Agreement dated 9/29/79 as amended on
9/1/82, 3/4/86 and 12/1/91 by and among Arizona
Fueling Facilities Corporation and America West
Airlines, Inc. and certain other airlines.
Option Agreement dated 12/14/90 by and between
Arizona Fueling Facilities Corporation and America
West Airlines, Inc.
ATLANTIC AVIATION....................... Into-plane Service Agreement for San Jose
CALNEV PIPE LINE CO..................... Pipeline Agreement dated 10/84
CHEVRON U.S.A., INC..................... Fuel Purchase Agreement for Long Beach, Orlando,
Oakland, Tampa, Reno, and Las Vegas
CITGO PETROLEUM CORP.................... Fuel Purchase Agreement for Newark and LaGuardia
COLORADO JET CENTER..................... Into-plane Service Agreement for Colorado Springs
CONOCO, INC............................. Fuel Purchase Agreement for Wichita, Kansas City,
Omaha, and Minneapolis
CONTRACTING AIRLINES AT................. Fuel Consortium Agreement for Minneapolis
</TABLE>
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
DIAMOND SHAMROCK REFNG & MKTG........... Fuel Purchase Agreement for Colorado Springs and
Denver
DYNAIR FUELING INC...................... Into-plane Service Agreement for Phoenix, Las
Vegas, Reno and Oakland
EXXON................................... Fuel Purchase Agreement for Atlanta
HUDSON GENERAL.......................... Into-plane Service Agreement for Boston, Los
Angeles, and Salt Lake City
KOCH REFINING........................... Fuel Purchase Agreement for Dallas-Forth Worth
LAGUARDIA FUEL FAC CORP................. La Guardia Airline Fuel Consortium Agreement
LASFUEL CORP............................ Las Vegas Airline Fuel Consortium Agreement
LOCKHEED AIR TERMINAL, INC.............. Into-plane Service Agreement for Ontario
MOBIL OIL CORPORATION................... Fuel Purchase Agreement for Boston, Baltimore,
Phoenix, and Atlanta
OAKLAND FUEL FACILITIES................. Oakland Airline Fuel Consortium Agreement
OASIS AVIATION INC...................... Into-plane Service Agreement for El Paso
ONTFUEL CORP............................ Ontario Airline Fuel Consortium Agreement
RENO FUELING FACILITIES
CORP.................................. Reno Airline Fuel Consortium Agreement
SALT LAKE CITY CORPORATION AND.......... Salt Lake City Airline Fuel Consortium Agreement
SHELL OIL COMPANY....................... Fuel Purchase Agreement for Washington DC, El Paso,
Houston, Milwaukee, Ontario, and St. Louis
SKY HARBOR AIR SERVICE.................. Into-plane Service Agreement for Omaha
SNAFUEL INC............................. Orange County Airline Fuel Consortium Agreement
TRANS WORLD AIRLINES, INC............... Into-plane Service Agreement for San Francisco
TUCSON AIRPORT AUTHORITY................ Into-plane Service Agreement for Tucson
VAN DUSEN AIRPORT SERVICES.............. Into-plane Service Agreement for Austin, Baltimore,
Milwaukee, Minneapolis, and Seattle
ABACUS DISTRIBUTION SYSTEMS............. Participating Carrier Agreement dated 1/1/90
between Abacus Distribution System PD LTD and AWA,
Inc.
AMADEUS MARKETING S.A.R.L............... Participating Carrier Agreement by and between
Amadeus Marketing S.A.R.L. and AWA, Inc.
GETS MARKETING CO....................... GETS Participation Agreement dated 9/28/90 between
GETS Marketing Company and America West Airlines,
Inc.
INFINI TRAVEL
INFORMATION INC....................... Infini Participating Carrier Agreement dated
12/1/90 between Infini Travel Information, Inc. and
AWA, Inc.
JAPAN AIRLINES.......................... Participation Agreement dated 12/1/90 between Japan
Airlines Company, Ltd. and AWA, Inc.
SABRE TRAVEL INFO. NETWORK.............. Sabre Participating Carrier Agreement dated 6/15/87
between American Airlines, Inc. and AWA, Inc.
SYSTEM ONE HOLDINGS INC................. System One Participating Airline Agreement dated
11/1/88 by and between System One Direct Access,
Inc. and AWA, Inc.
</TABLE>
3-11
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
WORLDSPAN, L.P. ........................ Worldspan Participating Carrier Agreement dated
February 1, 1991 between Worldspan L.P. and AWA,
Inc.
HONEYWELL INC........................... Credit Union Security Equipment Lease dated
11/22/89 between Honeywell Protection Services and
AWA, Inc.
HONEYWELL INC........................... Company Store Security Equipment Lease dated
11/22/89 between Honeywell Protection Services and
AWA, Inc.
PRO SERVE MARKETING, INC. .............. Advertising and Use Agreement dated 2/4/91 between
Pro Serve Marketing, Inc. and AWA, Inc. for scoring
and video system at McKale Center
GPA..................................... Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-1 (N620AW)], dated September
28, 1990, between GPA Leasing USA I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-1 (N620AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to Assignment of Sublease
[GPA 1989 BN-1 (N620AW)], dated as of September 21,
1990, between GPA Leasing USA I, Inc. and
Wilmington Trust Company (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-1 (N620AW)], dated as of September 21, 1990,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-2 (N622AW)], dated September
28, 1990, between GPA Leasing USA I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-2 (N622AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
</TABLE>
3-12
<PAGE> 111
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-2 (N622AW)], dated as of
September 21, 1990, between GPA Leasing USA I, Inc.
and Wilmington Trust Company (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-2 (N622AW)], dated as of September 21, 1990,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-3 (N621AW)], dated September
28, 1990, between GPA Leasing USA I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-3 (N621AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-3 (N621AW)], dated as of
September 21, 1990, between GPA Leasing USA I, Inc.
and Wilmington Trust Company (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-3 (N621AW)], dated as of September 21, 1990,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-4 (N625AW)], dated September
28, 1990, between GPA Leasing USA I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-4 (N625AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
</TABLE>
3-13
<PAGE> 112
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-4 (N625AW)], dated as of
September 21, 1990, between GPA Leasing USA I, Inc.
and Wilmington Trust Company (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-4 (N625AW)], dated as of September 21, 1990,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-5 (N624AW)], dated September
28, 1990, between GPA Leasing USA I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-5 (N624AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-5 (N624AW)], dated as of
September 21, 1990, between GPA Leasing USA I, Inc.
and Wilmington Trust Company (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublessee Consent and Agreement to Amendment No. 1
to Assignment of Sublease [GPA 1989 BN-5 (N624AW)]
by America West Airlines, Inc. relating to
Amendment No. 1 to Assignment of Sublease [GPA 1989
BN-5], dated as of October 1, 1991, between GPA
Leasing USA I, Inc. and Wilmington Trust Company
(such agreement not to be subject to the provisos
set forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-5 (N624AW)], dated as of September 21, 1990,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
</TABLE>
3-14
<PAGE> 113
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-6 (N626AW)], dated September
28, 1990, between GPA Leasing USA Sub I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-6 (N626AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-6 (N626AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublessee Consent and Agreement to Amendment No. 1
to Assignment of Sublease [GPA 1989 BN-6 (N626AW)]
by America West Airlines, Inc. relating to
Amendment No. 1 to Assignment of Sublease [GPA 1989
BN-6], dated as of October 1, 1991, between GPA
Leasing USA Sub I, Inc. and Wilmington Trust
Company (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-6 (N626AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-7 (N628AW)], dated September
28, 1990, between GPA Leasing USA Sub I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-7 (N628AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
</TABLE>
3-15
<PAGE> 114
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-7 (N628AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-7 (N628AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-8 (N627AW)], dated September
28, 1990, between GPA Leasing USA Sub I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-8 (N627AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-8 (N627AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-8 (N627AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-9 (N629AW)], dated September
28, 1990, between GPA Leasing USA Sub I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
</TABLE>
3-16
<PAGE> 115
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-9 (N629AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-9 (N629AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-9 (N629AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-10 (N631AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-10 (N631AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-10 (N631AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublessee Consent and Agreement to Amendment No. 1
to Assignment of Sublease [GPA 1989 BN-10 (N631AW)]
by America West Airlines, Inc. relating to
Amendment No. 1 to Assignment of Sublease [GPA 1989
BN-10], dated as of October 1, 1991, between GPA
Leasing USA Sub I, Inc. and Wilmington Trust
Company (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
</TABLE>
3-17
<PAGE> 116
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
Sublease Tax Indemnification Agreement [GPA 1989
BN-10 (N631AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-11 (N632AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-11 (N632AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-11 (N632AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-11 (N632AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-12 (N633AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-12 (N633AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
</TABLE>
3-18
<PAGE> 117
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-12 (N633AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-12 (N633AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1990 AWA-13 (N634AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1990 AWA-13 (N634AW)],
dated as of September 21, 1990, by America West
Airlines, Inc. and accepted and agreed to by GPA
Leasing USA Sub I, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1990 AWA-13 (N634AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1990
AWA-13 (N634AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1990 AWA-14 (N635AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
</TABLE>
3-19
<PAGE> 118
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1990 AWA-14 (N635AW)],
dated as of September 21, 1990, by America West
Airlines, Inc. and accepted and agreed to by GPA
Leasing USA Sub I, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1990 AWA-14 (N635AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1990
AWA-14 (N635AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1990 AWA-15 (N636AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1990 AWA-15 (N636AW)],
dated as of September 21, 1990, by America West
Airlines, Inc. and accepted and agreed to by GPA
Leasing USA Sub I, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1990 AWA-15 (N636AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1990
AWA-15 (N636AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
</TABLE>
3-20
<PAGE> 119
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1990 AWA-16 (N637AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1990 AWA-16 (N637AW)],
dated as of September 21, 1990, by America West
Airlines, Inc. and accepted and agreed to by GPA
Leasing USA Sub I, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1990 AWA-16 (N637AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1990
AWA-16 (N637AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Engine Sublease
Agreement [GPA 1990 AWA-E1 (MSN V0025)], dated
February 8, 1991, between GPA Leasing USA I, Inc.
and America West Airlines, Inc. (such agreement not
to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Engine Sublease
Agreement [GPA 1990 AWA-E1 (MSN V0025], dated as of
December 12, 1990, by America West Airlines, Inc.
and accepted and agreed to by GPA Leasing USA I,
Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1991 AWA-E1 (MSN V0025)], dated as of
March 15, 1991, between GPA Leasing USA I, Inc. and
Wilmington Trust Company (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
</TABLE>
3-21
<PAGE> 120
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
Sublease Tax Indemnification Agreement [GPA 1991
AWA-E1 (MSN V0025)], dated as of March 15, 1991,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Purchase Agreement Warranties Assignment [GPA 1991
AWA-E1 (MSN V0025)], dated March 17, 1991, among
GPA Leasing USA I, Inc., America West Airlines,
Inc. and Wilmington Trust Company and accepted by
IAE International Aero Engines, AG (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Supplement No. 1 to Engine Sublease
Agreement [GPA 1990 AWA-E2 (MSN V0049)], dated
February 8, 1991, between GPA Leasing USA I, Inc.
and America West Airlines, Inc. (such agreement not
to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Engine Sublease
Agreement [GPA 1990 AWA-E2 (MSN V0049)], dated as
of December 12, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1991 AWA-E2 (MSN V0049)], dated as of
March 15, 1991, between GPA Leasing USA I, Inc. and
Wilmington Trust Company (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1991
AWA-E2 (MSN V0049)], dated as of March 15, 1991,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Purchase Agreement Warranties Assignment [GPA 1991
AWA-E2 (V0049)], dated March 17, 1991, among GPA
Leasing USA I, Inc., America West Airlines, Inc.
and Wilmington Trust Company and accepted by IAE
International Aero Engines, AG (such agreement not
to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
</TABLE>
3-22
<PAGE> 121
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
Sublease Supplement No. 1 to Engine Sublease
Agreement [GPA 1990 AWA-E3 (MSN V0019)], dated
February 8, 1991, between GPA Leasing USA I, Inc.
and America West Airlines, Inc. (such agreement not
to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Engine Sublease
Agreement [GPA 1990 AWA-E3 (MSN V0019)], dated as
of December 12, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1991 AWA-E3 (MSN V0019)], dated as of
March 15, 1991, between GPA Leasing USA I, Inc. and
Wilmington Trust Company (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1991
AWA-E3 (MSN V0019)], dated as of March 15, 1991,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Purchase Agreement Warranties Assignment [GPA 1991
AWA-E3 (MSN V0019)], dated March 17, 1991, among
GPA Leasing USA I, Inc., America West Airlines,Inc.
and Wilmington Trust Company and accepted by IAE
International Aero Engines, AG (such agreement not
to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Letter Agreement, dated April 15, 1994, by America
West Airlines, Inc. and acknowledged, agreed and
accepted by GPA Leasing USA I, Inc. and GPA Leasing
USA Sub I, Inc. (such agreement not to be subject
to the provisos set forth in subsection 5.1.1 or
the provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
</TABLE>
3-23
<PAGE> 122
<TABLE>
<CAPTION>
VENDOR NAME TITLE
___________ _____
<S> <C>
Aircraft Finance Agreement dated as of August 25,
1990 between GPA Group plc and America West
Airlines, Inc., as amended by Amendment No. 1 to
Aircraft Finance Agreement dated as of September
21, 1990 between GPA Group plc and America West
Airlines, Inc., and as supplemented and modified by
Letter Agreement No. 1 dated August 25, 1990 from
GPA Group plc and accepted and acknowledged by
America West Airlines, Inc., Letter Agreement No. 2
dated August 25, 1990 from GPA Group plc and
accepted and acknowledged by America West Airlines,
Inc., Letter Agreement No. 3 dated August 25, 1990
from GPA Group plc and accepted and acknowledged by
America West Airlines, Inc., Letter Agreement No. 4
dated August 25, 1990 from GPA Group plc and
accepted and acknowledged by America West Airlines,
Inc., and Waiver Letter dated February 8, 1991 from
GPA Group plc, GPA Leasing USA I, Inc. and GPA
Leasing USA Sub I, Inc. and accepted and agreed to
by America West Airlines, Inc., to the extent that
such Aircraft Finance Agreement, as so amended,
modified and supplemented, is referenced in any of
the Sublease Agreements assumed by America West
Airlines, Inc. pursuant to that certain Stipulation
Regarding Aircraft Leases and/or Agreements with
GPA Group plc, GPA Leasing USA I, Inc., GPA Leasing
USA Sub I, Inc. and Industrial Bank of Japan and
Order approved September 5, 1991 and any of the
agreements and instruments identified in this
Schedule 3 to which either GPA Leasing USA I, Inc.,
GPA Leasing USA Sub I, Inc. or GPA Group plc is a
party (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
</TABLE>
3-24
<PAGE> 1
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
AMERICA WEST AIRLINES, INC.
AMERICA WEST AIRLINES, INC. (the "Corporation"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware (the "DGCL"), DOES HEREBY CERTIFY:
FIRST: That the present name of the Corporation is AMERICA WEST AIRLINES,
INC.
SECOND: That the Corporation filed its original Certificate of
Incorporation with the Secretary of State of Delaware on September 4, 1981.
THIRD: That the Corporation filed a Restated Certificate of Incorporation
with the Secretary of State of Delaware on June 4, 1984.
FOURTH: That the Corporation filed a Restated Certificate of Incorporation
with the Secretary of State of Delaware on May 27, 1988.
FIFTH: That the Corporation filed an Amendment to its Certificate of
Incorporation with the Secretary of State of Delaware on May 25, 1989.
SIXTH: That on June 27, 1991, the Corporation filed a petition in United
States Bankruptcy Court seeking relief under Chapter 11 of the United States
Bankruptcy Code, 11 U.S.C. sec.sec. 101-1330 (the "Bankruptcy Code").
SEVENTH: That on , 1994, the United States Bankruptcy Court for the
District of Arizona confirmed a plan of reorganization of the Corporation
adopting this Restated Certification of Incorporation pursuant to Section 303 of
the DGCL.
EIGHTH: That the Certificate of Incorporation of the Corporation, as
restated hereby and filed in accordance with Sections 103, 303, 242, and 245 of
the DGCL, is as follows:
1. NAME.
The name of the Corporation is AMERICA WEST AIRLINES, INC.
2. REGISTERED OFFICE AND REGISTERED AGENT.
The location of the registered office of the Corporation in the State of
Delaware is at 1209 Orange Street, Wilmington, New Castle County, Delaware, and
the name of the registered agent is the Corporation Trust Company.
3. PURPOSE.
The nature of the business or purposes to be conducted or promoted are to
engage in any lawful act or activity for which corporations may be organized
under the DGCL.
4. AUTHORIZED CAPITAL.
The total number of shares of all classes of stock which this Corporation
shall have authority to issue is 150,000,000 shares of which 1,200,000 shares
shall be Class A Common Stock ("Class A Common") with the par value of $0.01 per
share, 100,000,000 shares shall be Class B Common Stock ("Class B Common") with
the par value of $0.01 per share, and 48,800,000 shares shall be Preferred Stock
("Preferred Stock") with a par value of $0.01 per share.
<PAGE> 2
4.1 Common Stock.
All shares of Class A Common and Class B Common shall be identical and will
entitle the holders thereof to the same rights and privileges, except as
otherwise provided herein. Preemptive rights as provided for by Section
102(b)(3) of the DGCL shall not be granted and are hereby expressly denied.
4.1.1 Voting Rights.
4.1.1.1 Except as provided in Article 13.0, each registered holder
of Class A Common shall be entitled to fifty votes for each share of
such stock held by such holder, and each registered holder of Class B
Common shall be entitled to one vote for each share of such stock held
by such holder. The right to cumulate votes for election of directors as
provided in Section 214 of the DGCL shall not be granted and is hereby
expressly denied.
4.1.1.2 Except as otherwise provided herein or required by law,
Class A Common and Class B Common shall vote together as a single class
for the election of directors of the Corporation, as provided for in
Article 5.0, and on all other matters submitted to a vote of
stockholders of the Corporation.
4.1.1.3 In addition to any other vote required by law, except where
prohibited by applicable corporate law, any amendments to the Restated
Bylaws of the Corporation (the "Bylaws") shall be made in compliance
therewith.
4.1.1.4 In addition to the automatic suspension of voting rights
provided under Article 13.0, any holder of Class B Common may suspend
the voting rights relating to any shares of Class B Common held by it by
providing prior written notice to the Corporation, which notice shall
describe such shares in reasonable detail and state whether or not the
voting suspension is permanent or temporary and, if temporary, the
period thereof. Notwithstanding whether the suspension is permanent or
temporary, any stockholder that suspends its voting rights under this
Article 4.1.1.4 may rescind such suspension upon written notice to the
Corporation; provided that any notice reinstating voting rights under
this Article 4.1.1.4 shall not be effective with respect to any matter
unless such notice is sent prior to the record date for voting on such
matter. The suspension of voting rights hereunder shall not affect any
other rights held by the holders of such suspended Class B Common by
virtue of their stock ownership.
4.1.2 Dividends. The holders of Class A Common and Class B Common
shall be entitled to receive, when and if declared by the Board of
Directors, out of the assets of the Corporation which are by law available
therefor, dividends payable either in cash, in stock or otherwise. If any
dividend or distribution is paid on any class of common stock such dividend
or distribution shall be paid on all classes of common stock in the same
amount per share and any stock split or recapitalization of any class of
common stock shall apply equally to all classes of common stock; provided,
however, that in the case of dividends payable in shares of common stock,
or options, warrants or rights to acquire shares of common stock or
securities convertible into or exchangeable for shares of common stock, the
shares, options, warrants, rights or securities so payable shall be payable
in shares of, or options, warrants or rights to acquire, or securities
convertible into or exchangeable for, Class B Common.
4.1.3 Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, after payment or
provision for payment of the debts and other liabilities of the Corporation
and liquidation preferences, if any, of any series of Preferred Stock, the
holders of shares of all classes of common stock shall be entitled to share
ratably in the remaining net assets of the Corporation. Neither the merger
or consolidation of the Corporation, nor the sale, lease or conveyance of
all or part of its assets, shall be deemed to be a liquidation, dissolution
or winding up of the Corporation, either voluntarily or involuntarily,
within the meaning of this Article 4.1.3.
4.1.4 Conversion.
4.1.4.1 Optional Conversion of Class A Common to Class B
Common. Holders of Class A Common shall have the right, at their
individual options and at any time, to convert any or all shares
2
<PAGE> 3
of Class A Common held by them to the same number of shares of Class B
Common by delivering to the Corporation a notice of their intent to so
convert their shares of Class A Common and surrendering the
certificate or certificates representing such shares. The Corporation
shall promptly issue and deliver the certificate or certificates
evidencing the shares of Class B Common issuable upon conversion in
accordance with the holder's instructions. Such conversion, to the
extent permitted by law, shall be deemed to occur as of the close of
business on the date on which the holder's notice of intent is
received and the holder's shares of Class A Common are surrendered.
Class B Common issued under this Article 4.1.4.1 shall be deemed duly
authorized, validly issued, fully paid, and nonassessable.
4.1.4.2 In the case of any reorganization, reclassification or
change of shares of the Class B Common (other than a change in par value
or from par to no par value or as a result of a subdivision or
combination), or in the case of any consolidation of the Corporation
with one or more corporations or a merger of the Corporation with
another corporation, or in the case of any sale, lease or other
disposition of all or substantially all of the assets of the
Corporation, each holder of a share of Class A Common at the time
outstanding shall be entitled to convert such share into the kind and
amount of shares of stock and other securities and properties (including
cash) receivable upon such reorganization, reclassification, change of
shares, consolidation, merger, sale, lease or other disposition, by a
holder of the number of shares of Class B Common into which such shares
of Class A Common might have been converted immediately prior to such
reorganization, reclassification, change of shares, consolidation,
merger, sale, lease or other disposition. In the event of such a
reorganization, reclassification, change of shares, consolidation,
merger, sale, lease or other disposition, effective provision shall be
made in the charter of the resulting or surviving corporation or
otherwise for the protection of the conversion rights of the shares of
Class A Common as nearly equivalent as practicable, into any such other
shares of stock and other securities and property deliverable upon
conversion of shares of Class B Common into which such Class A Common
might have been converted immediately prior to such event.
4.1.4.3 The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Class B Common,
solely for the purpose of issuance upon conversion of outstanding shares
of Class A Common, such number of shares of Class B Common as shall from
time to time be issuable upon the conversion of all of the outstanding
shares of Class A Common. If any shares of Class B Common required to be
reserved for purposes of conversion hereunder (i) require registration
with or approval of any governmental authority under any federal or
state law before such shares of Class B Common may be issued upon
conversion or (ii) are listed on any national or regional securities
exchange or listing service, the Corporation shall use its commercially
reasonable efforts and incur commercially reasonable costs to cause such
shares to be duly registered, approved, or listed, as the case may be
prior to the effective time of such conversion.
4.1.4.4 The Corporation shall pay all documentary stamp or other
transactional taxes attributable to the issuance or delivery of shares
of Class B Common upon conversion of any shares of Class A Common;
provided, however, that the Corporation shall not be required to pay any
taxes which may be payable in respect of any transfer involved in the
issuance or delivery of any certificate for shares of Class B Common in
a name other than that of the registered holder of shares of Class A
Common converted.
4.2 Preferred Stock. Except as otherwise provided in that certain
Stockholders' Agreement for America West Airlines, Inc., dated
, 1994 for so long as it remains in force and effect (the
"Stockholders' Agreement"), the Preferred Stock may be issued as a class,
without series, or if so determined from time to time by the Board of
Directors, either in whole or in part in one or more series, each series to
be expressly designated by distinguishing number, letter or title prior to
the issue of any shares thereof. The Preferred Stock, and each series
thereof, may have such voting powers, full or limited, including the right
to have more or less than one vote per share, or no voting powers, and such
designations, preferences, dividend rights and relative, participating,
optional or other special rights, qualifications, limitations and
restrictions, if any, as shall be stated and expressed in the resolution or
3
<PAGE> 4
resolutions of the Board of Directors providing for the issuance of such
Preferred Stock (a "Preferred Stock Designation").
The Board of Directors is hereby authorized to (i) fix or alter the
dividend rights, dividend rates, dividend preferences and participations,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), the price or other consideration for which shares
shall be issued, the redemption price or prices, the liquidation preferences and
any and all relative, participating, optional or other special rights,
qualifications, limitations on and restrictions of each series of the Preferred
Stock and the number of shares constituting any such series and the designation
thereof, and (ii) increase or decrease the number of shares of any series
subsequent to the issuance of shares of that series to the extent permitted by
the DGCL, but not below the number of shares of such series then outstanding. In
case the number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status which they had prior to the
adoption of the resolution originally fixing the number of shares of such
series. Notwithstanding anything to the contrary contained in this Restated
Certificate of Incorporation or any Preferred Stock Designation, the holders of
Preferred Stock shall not be entitled to vote separately as a class with respect
to any amendment to this Restated Certificate of Incorporation to increase the
number of authorized shares of Preferred Stock.
4.5 Issuance of Nonvoting Stock. The Corporation will not issue nonvoting
equity securities to the extent prohibited by Section 1123 of the Bankruptcy
Code; provided, however that this Article 4.5 (a) will have no further force or
effect beyond that required under Section 1123 of the Bankruptcy Code, (b) will
have such force and effect, if any, only for so long as such section is in
effect and applicable to the Corporation, and (c) in all events may be amended
or eliminated in accordance with applicable law as from time to time in effect.
5. NUMBER AND TERM OF DIRECTORS.
The Board of Directors of the Corporation shall consist of up to fifteen
(15) members, which number may be increased or decreased from time to time by
resolution duly adopted by such Board, provided that at no time shall there be
fewer than nine (9) or more than fifteen (15) members. No decrease in the number
of Directors shall have the effect of shortening the term of any incumbent
Director. Except as otherwise provided in the Stockholders' Agreement, any
Director may be removed by the stockholders of the Corporation with or without
cause pursuant to the Bylaws and applicable law.
Each Director shall be elected (a) in accordance with the Bylaws and shall
serve for a term of one year or until the death, resignation or removal of such
Director, and until a successor shall have been properly elected and shall
qualify, and (b) as provided in the Stockholders' Agreement.
Beginning at the annual meeting of the stockholders immediately following
the third anniversary of the effective date of this Restated Certificate of
Incorporation (the "Third Annual Meeting"), the number of Directors shall be
divided into three (3) classes, as nearly equal in number as may be, to serve in
the first instance until the first, second and third annual meetings of the
stockholders to be held after the Third Annual Meeting, respectively, and until
their successors shall have been properly elected and shall qualify; and
thereafter for three-year terms. In the case of any increase in the number of
Directors of the Corporation, the additional Directors shall be so classified
that all classes of Directors shall be increased equally as nearly as may be,
and the additional Directors shall be elected as provided herein by the
Directors or by the stockholders at an annual meeting. In case of any decrease
in the number of Directors of the Corporation, all classes of Directors shall be
decreased equally, as nearly as may be. Election of Directors shall be conducted
as provided in this Restated Certificate of Incorporation, in the Bylaws, or by
applicable law.
6. MANAGEMENT.
The Corporation shall be managed by the Board of Directors, which shall
exercise all powers conferred under the laws of the State of Delaware. The
Bylaws shall be adopted contemporaneous with the adoption of this Restated
Certificate of Incorporation pursuant to Section 303 of the DGCL, but,
thereafter, the power to make, alter or repeal the Bylaws shall be vested in the
Board of Directors, as may be limited by the Bylaws.
4
<PAGE> 5
7. COMPROMISE OR ARRANGEMENT WITH CREDITORS.
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware, may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths ( 3/4) in value of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the Court to which the application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders, of this
Corporation, as the case may be and also on this Corporation.
8. VACANCIES ON THE BOARD OF DIRECTORS.
Except as otherwise provided in the Stockholders' Agreement, in case any
vacancy shall occur on the Board of Directors because of death, resignation,
retirement, disqualification, removal, an increase in the authorized number of
Directors or any other cause, the Board of Directors shall have the sole and
exclusive authority to, in accordance with the Bylaws, elect a Director to fill
such vacancy.
9. SPECIAL MEETINGS OF STOCKHOLDERS.
Special meetings of the stockholders of the Corporation, for any purpose or
purposes, unless otherwise prescribed herein or by statute, may be called by the
Chairman of the Board and shall be called by the Secretary at the written
request, or by resolution adopted by the affirmative vote, of a majority of the
Board of Directors. Stockholders of the Corporation shall not be entitled to
request a special meeting of the Stockholders.
10. NO STOCKHOLDER ACTION BY WRITTEN CONSENT.
All action by holders of the Corporation's outstanding voting securities
shall be taken at an annual or special meeting of the stockholders following
notice (or by written consent as provided below) as provided by law or in the
Bylaws. Stockholders of the Corporation shall have the power to act by means of
written consent only in the removal of directors in accordance with the
Stockholders' Agreement.
11. NOMINATIONS FOR ELECTION OF DIRECTORS.
Except as may be otherwise provided in the Stockholders' Agreement, no
person shall be elected to the Board of Directors of this Corporation at an
annual meeting of the stockholders, or at a special meeting called for that
purpose, unless a written nomination of such person to the Board of Directors
(i) by a stockholder of the Corporation shall be received by the Corporation in
accordance with the Bylaws or (ii) is made by or at the direction of the Board
of Directors.
12. LIMITATION OF DIRECTOR LIABILITY; INDEMNIFICATION OF DIRECTORS AND OFFICERS.
12.1 Limitation of Liability. A person who is or was a Director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL; or (iv) for any transaction from which the Director
derived an improper personal benefit. If the DGCL is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of the Directors of the Corporation
5
<PAGE> 6
shall be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended. The elimination and limitation of liability provided herein shall
continue after a Director has ceased to occupy such position as to acts or
omissions occurring during such Director's term or terms of office, and no
amendment or repeal of this Article 12.1 shall apply to or have any effect on
the liability or alleged liability of any Director of the Corporation for or
with respect to any acts or omissions of such Director occurring prior to such
amendment or repeal.
12.2 Indemnification. The Corporation shall indemnify, to the fullest
extent permitted by applicable law and pursuant to the Bylaws, each person who
is or was a Director or officer of the Corporation, and may indemnify each
employee and agent of the Corporation and all other persons whom the Corporation
is authorized to indemnify under the provisions of the DGCL.
13. FOREIGN OWNERSHIP OF VOTING STOCK.
At no time shall more than twenty five percent (25%) of the voting interest
of the Corporation be owned or controlled by persons who are not "Citizens of
the United States" (as such term is defined in Section 101 of the Federal
Aviation Act of 1958, as amended, (Title 49, United States Code), or as the same
may be from time to time amended) ("Non-Citizens"). In the event that
Non-Citizens shall own (beneficially or of record) or have voting control over
any shares of common stock of the Corporation, the voting rights of such persons
shall be subject to automatic suspension to the extent required to ensure that
the Corporation is in compliance with applicable provisions of law and
regulations relating to ownership or control of a U.S. carrier. The Bylaws shall
contain provisions to implement this Article 13.0, including, without
limitation, provisions restricting or prohibiting transfer of shares of voting
stock to Non-Citizens and provisions restricting or removing voting rights as to
shares of voting stock owned or controlled by Non-Citizens. Any determination as
to ownership, control or citizenship made by the Board of Directors shall be
conclusive and binding as between the Corporation and any stockholder for
purposes of this Article 13.0.
14. BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS.
The Corporation elects not to be governed by Section 203 of the General
Corporation Law of the State of Delaware, as the same may be amended from time
to time. This election shall be effective as of the earliest date permitted by
law.
15. ARIZONA CORPORATE TAKEOVERS ACT.
The Corporation elects not to be subject to Article 2, Chapter 6, Title 10
of the Arizona Revised Statutes, as the same may be amended from time to time.
This election shall be effective as of the earliest date permitted by law.
The Corporation elects not to be subject to Article 3, Chapter 6, Title 10
of the Arizona Revised Statutes, as the same shall be amended from time to time.
This election shall be effective as of the earliest date permitted by law.
6
<PAGE> 7
IN WITNESS WHEREOF, America West Airlines, Inc. has caused this Restated
Certificate of Incorporation to be signed by , its
President, and attested by , its Secretary, this day of
, 1994.
AMERICA WEST AIRLINES, INC.
By:___________________________________
, President
ATTEST:
_____________________________________________________
, Secretary
7
<PAGE> 1
EXHIBIT 3.2
RESTATED
BYLAWS
OF
AMERICA WEST AIRLINES, INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
1. OFFICES.......................................................................... 1
1.01 Offices..................................................................... 1
2. SEAL............................................................................. 1
2.01 Seal........................................................................ 1
3. MEETINGS OF STOCKHOLDERS......................................................... 1
3.01 Place of Meetings........................................................... 1
3.02 Annual Meetings............................................................. 1
3.03 Special Meetings............................................................ 2
3.04 Action by Consent in Lieu of a Meeting...................................... 2
3.05 Notice of Meetings.......................................................... 2
3.06 Stockholder Notices......................................................... 3
3.07 Adjourned Meetings.......................................................... 3
3.08 Quorum and Adjournment...................................................... 4
3.09 Majority Vote Required...................................................... 4
3.10 Manner of Voting............................................................ 4
3.11 Proxies..................................................................... 4
3.12 Presiding Officer and Secretary............................................. 5
3.13 Disregard of Nomination or Proposal......................................... 5
3.14 Inspections of Elections.................................................... 5
4. DIRECTORS........................................................................ 5
4.01 Powers...................................................................... 5
4.02 Number and Classification................................................... 6
4.03 Nominations................................................................. 6
4.04 Resignations................................................................ 6
4.05 Removal..................................................................... 7
4.06 Vacancies................................................................... 7
4.07 Presiding Officer and Secretary............................................. 7
4.08 Annual Meetings............................................................. 8
4.09 Regular Meetings............................................................ 8
4.10 Special Meetings............................................................ 8
4.11 Quorum and Powers of a Majority............................................. 8
4.12 Waiver of Notice............................................................ 9
4.13 Manner of Acting............................................................ 9
4.14 Compensation................................................................ 9
4.15 Committees.................................................................. 9
4.16 Committee Procedure......................................................... 10
5. OFFICERS......................................................................... 10
5.01 Number...................................................................... 10
5.02 Election of Officer, Qualification and Term................................. 11
5.03 Removal..................................................................... 11
5.04 Resignations................................................................ 11
5.05 Vacancies................................................................... 12
5.06 Salaries.................................................................... 12
5.07 The Chairman of the Board................................................... 12
5.08 The President............................................................... 12
5.09 The Vice Presidents......................................................... 12
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
5.10 The Secretary and the Assistant Secretary................................... 12
5.11 The Treasurer and the Assistant Treasurer................................... 13
5.12 Treasurer's Bond............................................................ 14
5.13 Chief Executive Officer..................................................... 14
5.14 Chief Operating Officer..................................................... 14
6. STOCK............................................................................ 15
6.01 Certificates................................................................ 15
6.02 Transfers................................................................... 15
6.03 Lost, Stolen or Destroyed Certificates...................................... 15
6.04 Record Date................................................................. 15
6.05 Registered Stockholders..................................................... 16
6.06 Additional Powers of the Board.............................................. 16
7. LIMITATIONS OF OWNERSHIP BY NON-CITIZENS......................................... 17
7.01 Definitions................................................................. 17
7.02 Policy...................................................................... 18
7.03 Foreign Stock Record........................................................ 18
7.04 Suspension of Voting Rights................................................. 18
7.05 Beneficial Ownership Inquiry................................................ 19
8. MISCELLANEOUS.................................................................... 19
8.01 Place and Inspection of Books............................................... 19
8.02 Indemnification of Directors, Officers Employees and Agents................. 20
8.03 Dividends................................................................... 23
8.04 Execution of Deeds, Contracts, and Other Agreements and Instruments......... 24
8.05 Checks...................................................................... 24
8.06 Voting Shares in Other Corporations......................................... 24
8.07 Fiscal Year................................................................. 24
8.08 Gender/Number............................................................... 24
8.09 Paragraph Titles............................................................ 24
8.10 Amendment................................................................... 24
8.11 Restated Certificate of Incorporation....................................... 24
</TABLE>
ii
<PAGE> 4
RESTATED
BYLAWS
OF
AMERICA WEST AIRLINES, INC.
(as amended through, and effective on , 1994)
1. OFFICES.
1.01 Offices. In addition to its registered office in the state of
Delaware, the Corporation shall have a general office at Maricopa County,
Arizona, and such other offices, either within or without the State of Delaware,
at such locations as the Board of Directors may from time to time determine or
the business of the Corporation may require.
2. SEAL.
2.01 Seal. (a) The Corporation shall have a seal, which shall have
inscribed thereon its name and year of incorporation and the words, "Corporate
Seal Delaware."
(b) The seal shall be kept in safe custody by the Secretary of the
Corporation. It shall be affixed by the Chairman of the Board, the
President or any Vice President, the Secretary or any Assistant Secretary,
or the Treasurer to any corporate instrument or document requiring it, by
practice or by law, and when so affixed, it may be attested by the
signature of the officer so affixing it.
3. MEETINGS OF STOCKHOLDERS.
3.01 Place of Meetings. All meetings of stockholders of the Corporation
shall be held at the general office of the Corporation in Maricopa County, State
of Arizona, unless otherwise specified in the notice calling any such meeting.
3.02 Annual Meetings. (a) The annual meeting of stockholders for 1995
shall be held at the Corporate offices on Tuesday, May 2, 1995, at 10:00 a.m. or
at such other time, date and place as shall be determined by the Board of
Directors, complying with Section 3.05(b) of these Restated Bylaws of the
Corporation. All subsequent annual meetings of stockholders, beginning with the
annual meeting to be held in 1996, shall be held on the first Tuesday of May, if
not a legal holiday, and if a legal holiday, then on the next business day
following, or at such other time, date and place as shall be determined by the
Board of Directors from time to time.
(b) At each annual meeting the stockholders shall, by plurality of the
votes cast, elect Directors and transact such other business as may
properly be brought before them.
(c) The Board of Directors may, in advance of any annual or special
meeting of the stockholders, adopt an agenda for such meeting, adherence to
which the Chairman of the Board may enforce.
3.03 Special Meetings. Special meetings of the stockholders of the
Corporation, for any purpose or purposes, unless otherwise prescribed herein or
by statute, may be called by the Chairman of the Board and shall be called by
the Secretary at the written request, or by resolution adopted by the
affirmative vote, of a majority of the Board of Directors. Such request shall
state the purpose or purposes of the proposed meeting. Stockholders of the
Corporation shall not be entitled to request a special meeting of the
stockholders.
3.04 Action by Consent in Lieu of a Meeting. Stockholders may act by
consent in accordance with Delaware Law in lieu of a meeting only in the removal
of directors in accordance with the Stockholders' Agreement (as hereinafter
defined).
3.05 Notice of Meetings. (a) Notices of meetings of stockholders shall be
in writing and shall state the place (which may be within or without the state
of Delaware), date and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which a meeting is called. No business
other than that specified in the notice thereof shall be transacted at any
special meeting.
<PAGE> 5
(b) Such notice shall either be delivered personally or mailed,
postage prepaid, to each stockholder entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before the date of the
meeting. If mailed, the notice shall be directed to the stockholder at his
or her address as it appears on the records of the Corporation. Personal
delivery of any such notice to any officer of a corporation or association
or to any member of a partnership shall constitute delivery of such notice
to such corporation, association or partnership.
(c) Notice of any meeting of stockholders need not be given to any
stockholder if waived by such stockholder in writing, whether before or
after such meeting is held, or if such stockholder shall sign the minutes
or attend the meeting.
3.06 Stockholder Notices. At any meeting of the stockholders, only such
business shall be conducted, and only such proposals shall be acted upon as
shall have been brought before the meeting (i) by, or at the direction of the
Board of Directors or (ii) by any stockholder who complies with the notice
procedures set forth in this Section 3.06.
(a) For a proposal to be properly brought before an annual meeting by
a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary. To be timely, a stockholder's notice must be
delivered to, or mailed and received, at the principal executive offices of
the Corporation not less than sixty (60) days nor more than ninety (90)
days prior to the scheduled annual meeting, regardless of any
postponements, deferrals or adjournments of that meeting to a later date;
provided, however, that if less than seventy (70) days notice or prior
public disclosure of the date of the scheduled annual meeting is given or
made, notice by the stockholder to be timely must be so delivered or
received no later than the close of business on the tenth (10th) day
following the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public
disclosure was made.
(b) A stockholder's notice to the Secretary shall in addition set
forth as to each matter the stockholder proposes to bring before the
meeting (i) a brief description of the proposal desired to be brought
before the meeting and the reasons for conducting such business at the
meeting, (ii) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business, (iii) the class and
number of shares which are beneficially owned by the stockholder on the
date of such stockholder notice and (iv) any material interest of the
stockholder in such proposal.
3.07 Adjourned Meetings. When a meeting is adjourned to another time or
place, unless otherwise provided by these Restated Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business which might have been transacted at the
original meeting. If an adjournment is for more than thirty (30) days or if
after an adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder entitled to
vote at the meeting.
3.08 Quorum and Adjournment. Except as otherwise provided by law, by the
Restated Certificate of Incorporation of the Corporation or by these Restated
Bylaws, the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, and the voting rights of which are not suspended, shall be requisite
and shall constitute a quorum for the transaction of business at all meetings of
stockholders. If, however, such majority shall not be present or represented at
any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
3.09 Majority Vote Required. When a quorum is present at any meeting of
stockholders, the affirmative vote of the majority of the aggregate voting power
of the shares present in person or represented by proxy at the meeting and
entitled to vote on the subject matter shall constitute the act of the
stockholders, unless by express provision of law, the Restated Certificate of
Incorporation or these Restated Bylaws a different vote is required, in which
case such express provision shall govern and control.
2
<PAGE> 6
3.10 Manner of Voting. At each meeting of stockholders, each stockholder
having the right to vote, and whose voting rights have not been suspended shall
be entitled to vote in person or by proxy. Proxies need not be filed with the
Secretary of the Corporation until the meeting is called to order, but shall be
filed before being voted. Each stockholder shall be entitled to vote each share
of stock having voting power registered in his name on the books of the
Corporation on the record date fixed, as provided in Section 6.04 of these
Restated Bylaws, for the determination of stockholders entitled to vote at such
meeting. All elections of directors shall be by written ballot.
3.11 Proxies. (a) At any meeting of stockholders, any stockholder may be
represented and vote by proxy or proxies appointed by a written form of proxy.
In the event that any form of proxy shall designate two or more persons to act
as proxies, a majority of such persons present at the meeting or, if only one
shall be present, then that one shall have and may exercise all of the powers
conferred by the form of proxy upon all of the persons so designated unless the
form of proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any annual or special
meeting of the stockholders, prescribe additional regulations concerning
the manner of execution and filing of proxies and the validation of the
same, which are intended to be voted at any such meeting.
3.12 Presiding Officer and Secretary. At each meeting of stockholders, the
Chairman of the Board shall preside and the Secretary shall act as Secretary of
the meeting.
3.13 Disregard of Nomination or Proposal. Except as otherwise provided by
law, the Restated Certificate of Incorporation or these Restated Bylaws, the
person presiding over any meeting of the stockholders shall have the power and
duty to determine whether a nomination or any other business proposed to be
brought before the meeting was made in accordance with the procedures set forth
in this Article 3 or Section 4.03 and, if any proposed nomination or business is
not in compliance with such provisions, to declare that such defective proposal
or nomination shall be disregarded.
3.14 Inspections of Elections. The Board of Directors by resolution shall
appoint one or more inspectors of election (which may include individuals who
serve the Corporation in other capacities including, without limitation, as
officers, employees, agents or representatives of the Corporation) to act at any
meeting of the stockholders and make a written report thereof. Such appointments
shall be made in accordance with, and each inspector shall have the duties
prescribed by, Section 231 of the General Corporation Law of the State of
Delaware (the "DCGL").
4. DIRECTORS.
4.01 Powers. The Board of Directors shall exercise all of the power of the
Corporation except such as are by law, or by the Restated Certificate of
Incorporation of this Corporation or by these Restated Bylaws conferred upon or
reserved to the stockholders of any class or classes.
4.02 Number and Classification. (a) The Board of Directors of the
Corporation shall consist of up to fifteen (15) members, which number may be
increased or decreased from time to time by resolution duly adopted by such
Board, provided that at no time shall there be fewer than nine (9) or more than
fifteen (15) members and provided further that, the Stockholders' Agreement
dated among the Corporation and others, for so long as it remains in
force and effect (as supplemented and amended from time to time, herein
"Stockholders' Agreement"), shall prescribe the exact number of directors and
their method of election, removal and replacement. No decrease in the number of
Directors shall have the effect of shortening the term of any incumbent
Director.
(b) Subject to and at such time as provided in the Restated
Certificate of Incorporation, the number of Directors shall be divided into
three (3) classes, as nearly equal in number as may be, to serve staggered
three-year terms on the Board of Directors. In the case of any increase in
the number of Directors of the Corporation, the additional Directors shall
be so classified that all classes of Directors shall be increased equally
as nearly as may be, and the additional Directors shall be elected as
provided herein by the Directors or by the stockholders at an annual
meeting. In case of any decrease in the number of Directors of the
Corporation, all classes of Directors shall be decreased equally, as nearly
as
3
<PAGE> 7
may be. Election of Directors shall be conducted as provided in the
Restated Certificate of Incorporation, in these Bylaws, or by applicable
law.
(c) At all times the composition of the Board of Directors shall
comply in all respects with the U.S. citizenship requirements of the
Federal Aviation Act of 1958, as amended.
4.03 Nominations. Except as otherwise provided in the Stockholders'
Agreement, no person shall be elected to the Board of Directors of this
Corporation at an annual meeting of the stockholders, or at a special meeting
called for that purpose, unless a written nomination of such person to the Board
of Directors (i) by a stockholder of the Corporation who is entitled to vote at
such meeting shall be received by the Secretary of the Corporation at least
ninety (90) days prior to such meeting or (ii) is made by or at the direction of
the Board of Directors.
4.04 Resignations. Any Director may resign at any time by giving written
notice to the Board of Directors or the Secretary. Such resignation shall take
effect at the date of receipt of such notice or at any later time specified
therein. Acceptance of such resignation shall not be necessary to make it
effective.
4.05 Removal. Except as otherwise provided in the Stockholders' Agreement,
at any special meeting of the stockholders duly called as provided herein, any
Director may, by a vote of the holders of stock representing a majority of the
voting power of all the shares of stock issued and outstanding and entitled to
vote thereat, be removed from office with or without cause, and the successor of
the Director so removed may be elected at such meeting. Stockholders shall have
the right to act by written consent in the removal of directors in accordance
with the Stockholders' Agreement. In the absence or such an election, any
vacancy may be filled as provided in Section 4.06.
4.06 Vacancies. (a) Except as otherwise provided in the Stockholders'
Agreement, in case any vacancy shall occur on the Board of Directors because of
death, resignation, retirement, disqualification, removal, an increase in the
authorized number of Directors or any other cause, the Board of Directors may,
at any meeting, by resolution adopted by the affirmative vote of a majority of
the Directors then in office, though less than a quorum, elect a Director to
fill such vacancy.
(b) If, as a result of a disaster or emergency (as determined in good
faith by the then remaining Directors), it becomes impossible to ascertain
whether or not vacancies exist on the Board of Directors, and a person is
or persons are elected by Directors, who in good faith believe themselves
to be a majority of the remaining Directors, to fill a vacancy or vacancies
that said remaining Directors in good faith believe exists, then the acts
of such person or persons who are so elected as Directors shall be valid
and binding upon the corporation and the stockholders, although it may
subsequently develop that at the time of the election (i) there was in fact
no vacancy or vacancies existing on the Board of Directors, or (ii) the
Directors who so elected such person or persons did not in fact constitute
a majority of the remaining Directors.
4.07 Presiding Officer and Secretary. At each meeting of the Board of
Directors, the Chairman of the Board shall preside, and the Secretary shall act
as secretary of the meeting.
4.08 Annual Meetings. The Board of Directors shall meet each year
immediately following the annual meeting of stockholders, at the place where
such meeting of stockholders has been held, or at such other place as shall be
fixed by the person presiding over the meeting of the stockholders at which such
Directors are elected, for the purpose of organization, election of officers,
and consideration of such other business as the Board considers relevant to the
management of the Corporation.
4.09 Regular Meetings. Regular meetings of the Board of Directors shall be
held on such dates and at such times and places, within or without the state of
Delaware, as shall from time to time be determined by the Board of Directors,
provided that the Board of Directors shall hold at least four (4) regular
meetings in each year. In the absence of any such determination, such meetings
shall be held at such times and places, within or without the State of Delaware,
as shall be designated by the Chairman of the Board on not less than three (3)
days' notice (specifying the time and place of the meeting and the agenda
therefor) to each
4
<PAGE> 8
Director, given verbally or in writing either personally, by telephone, by
facsimile transmission, by mail, by telegram or by telex.
4.10 Special Meetings. Special meetings of the Board of Directors shall be
held at the call of the Chairman of the Board at such times and places, within
or without the State of Delaware, as he or she shall designate, on not less than
three (3) days' notice (specifying the time and place of the meeting and the
agenda therefor) to each Director, given verbally or in writing either
personally, by telephone, by facsimile transmission, by mail, by telegram or by
telex. Special meetings shall be called by the Secretary on like notice at the
written request of a majority of the Directors.
4.11 Quorum and Powers of a Majority. At all meetings of the Board of
Directors and of each committee thereof, a majority of the members shall be
necessary and sufficient to constitute a quorum for the transaction of business,
and the act of a majority of the members present at any meeting at which a
quorum is present shall be the act of the Board of Directors or such committee,
unless by express provision of law, of the Restated Certificate of Incorporation
or these Restated Bylaws, a different vote is required, in which case such
express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
4.12 Waiver of Notice. Notice of any meeting of the Board of Directors, or
any committee thereof, need not be given to any member if waived by him or her
in writing, whether before or after such meeting is held, or if he or she shall
sign the minutes or attend the meeting.
4.13 Manner of Acting. (a) Members of the Board of Directors, or any
committee thereof, may participate in any meeting of the Board of Directors or
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating therein can hear each
other, and participation in a meeting by such means shall constitute presence in
person at such meeting.
(b) Any action required or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be taken without a meeting if
all members of the Board of Directors or such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or such committee.
4.14 Compensation. (a) The Board of Directors, by a resolution or
resolutions may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement from the Corporation
for his or her reasonable expenses incurred in attending meetings of the Board
of Directors or any committee thereof.
(c) Nothing contained in these Restated Bylaws shall be construed to
preclude any Director from serving the Corporation in any other capacity and
from receiving compensation from the Corporation for service rendered to it in
such other capacity.
4.15 Committees. The Board of Directors may, by resolution or resolutions
adopted by the affirmative vote of a majority of the Board of Directors,
designate one or more committees, each committee to consist of two or more
Directors, which to the extent provided in said resolution or resolutions shall
have and may exercise the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation; except that no such
committee shall have the power to (i) elect Directors, (ii) alter, amend, or
repeal these Bylaws or any resolution of the Board relating to such committee,
(iii) appoint any member of such committee, (iv) declare any dividend or make
any other distribution to the stockholders of the Corporation or (v) take any
other actions which may lawfully be taken only by the full Board of Directors.
Such committee or committees shall have such name or names as may be determined
from time to time by resolutions adopted by the Board of Directors.
4.16 Committee Procedure. (a) Except as otherwise provided by these
Restated Bylaws, each committee shall adopt its own rules governing the time,
place and method of holding its meetings and the conduct of its proceedings and
shall meet as provided by such rules or by resolution of the Board of Directors.
Unless otherwise provided by these Restated Bylaws or any such rules or
resolutions, notice of the time and place of
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each meeting of a committee shall be given to each member of such committee as
provided in Section 4.10 of these Restated Bylaws with respect to notices of
special meetings of the Board of Directors.
(b) Each committee shall keep regular minutes of its proceedings and report
the same to the Board of Directors when required.
(c) Any member of any committee, other than a member thereof serving
ex-officio, may be removed from such committee either with or without cause, at
any time, by resolution adopted by the affirmative vote of a majority of the
Board of Directors at any meeting thereof. Any vacancy in any committee shall be
filled by the Board of Directors in the manner prescribed by these Restated
Bylaws for the original appointment of the members of such committee.
5. OFFICERS.
5.01 Number. (a) The officers of the corporation shall include a Chief
Executive Officer, a President, one or more Vice Presidents (including one or
more Executive Vice Presidents and one or more Senior Vice Presidents if deemed
appropriate by the Board of Directors), a Secretary and a Treasurer. The Board
of Directors shall also elect a Chairman of the Board pursuant to Section 5.02.
The Board of Directors may also elect such other officers as the Board of
Directors may from time to time deem appropriate or necessary. Except for the
Chairman of the Board, none of the officers of the Corporation need be a
Director of the Corporation. Any two or more offices may be held by the same
person, but no officer shall execute, acknowledge, or verify any instrument in
more than one capacity.
(b) The Chairman of the Board shall be the Chief Executive Officer
unless the Board of Directors, by resolution adopted by the affirmative
vote of not less than two-thirds ( 2/3) of the Directors then in office,
designates the President or some other person as Chief Executive Officer.
The President shall be the Chief Operating Officer. If at any time the
offices of the Chairman of the Board and Chief Executive Officer shall not
be filled, the President shall also be the Chief Executive Officer.
(c) The Board of Directors may delegate to the Chief Executive Officer
the power to appoint one or more employees of the corporation as divisional
or departmental vice presidents and fix the duties of such appointees.
However, no such divisional or departmental vice president shall be
considered as an officer of the Corporation, the officers of the
Corporation being limited to those officers elected by the Board of
Directors.
5.02 Election of Officer, Qualification and Term. The officers of the
Corporation to be elected by the Board of Directors shall be elected annually at
the first meeting of the Board of Directors held after each annual meeting of
the stockholders. Each such officer shall hold office for one (1) year and until
a successor shall have been duly elected and shall qualify in his or her stead
unless the Board of Directors shall have provided by contract or otherwise in
any particular case, or until such officer shall have resigned and his or her
resignation shall have become effective, or until such officer shall have been
removed in the manner hereinafter provided. Notwithstanding anything in this
Section 5.02 to the contrary, the Chairman of the Board may be elected only by
the vote of two-thirds ( 2/3) of the Directors then in office (who may include
the Director who is or is to be the Chairman of the Board).
5.03 Removal. Except as otherwise expressly provided in a contract duly
authorized by the Board of Directors, any officer elected by the Board of
Directors may be removed, either with or without cause, at any time by
resolution adopted by the affirmative vote of a majority of the Board of
Directors at any meeting thereof; provided that the Chairman of the Board may be
removed by the vote of two-thirds ( 2/3) of the Directors then in office
(excluding the Director who is the Chairman of the Board).
5.04 Resignations. Any officer of the Corporation may resign at any time
by giving written notice to the Board of Directors or the Chairman of the Board.
Such resignation shall take effect at the date of the receipt of such notice or
at any later time specified therein and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
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5.05 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause may be filled for
the unexpired portion of the term by election by the Board of Directors at
any meeting thereof.
5.06 Salaries. The salaries of all officers of the Corporation shall
be fixed by the Board of Directors from time to time, and no officer shall
be prevented from receiving such salary by reason of the fact that he is
also a Director of the Corporation.
5.07 The Chairman of the Board. (a) The Chairman of the Board shall
have the powers and duties customarily and usually associated with the
office of the Chairman of the Board. The Chairman of the Board shall
preside at meetings of the stockholders and of the Board of Directors. In
the event of the Chairman of Board's temporary absence or disability and
the absence or disability of the President, the Chairman of the Board shall
have the power to designate any Director to preside at any or all meetings
of the stockholders and of the Board of Directors.
(b) If at any time the office of President shall not be filled, or
in the event of the disability of the President, the Chairman of the
Board (if one shall be elected) shall have the duties and powers of the
President. The Chairman of the Board shall have such other powers and
perform such greater or lesser duties as may be delegated to him from
time to time by the Board of Directors.
5.08 The President. In the event of the disability of the Chairman of
the Board, the President shall have the powers and duties of the Chairman
of the Board. The President shall have such other powers and perform such
other duties as may be delegated to him or her from time to time by the
Board of Directors or the Chairman of the Board.
5.09 The Vice Presidents. Each Vice President shall have such powers
and perform such duties as may from time to time be assigned to him or her
by the Board of Directors, the Chairman of the Board or the President.
5.10 The Secretary and the Assistant Secretary. (a) The Secretary
shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a
book kept for such purpose and shall perform like duties for the committees
of Directors as provided for in these Restated Bylaws when required. The
Secretary shall give, or cause to be given, notice of all meetings of
stockholders and of the Board of Directors. He or she shall have charge of
the stock ledger (unless responsibility for maintaining the stock ledger is
delegated to a transfer agent by the Board of Directors pursuant to Section
6.06) and such other books and papers as the Board of Directors may direct.
He or she shall have all such further powers and duties as generally are
incident to the position of Secretary or as may from time to time be
assigned to him or her by the Board of Directors or the Chairman of the
Board.
(b) Each Assistant Secretary shall have such powers and perform such
duties as may from time to time be assigned to him or her by the Board of
Directors, the Chairman of the Board or the Secretary. In case of the
absence or disability of the Secretary, the Assistant Secretary designated
by the Secretary (or, in the absence of such designation, the senior
Assistant Secretary) shall perform the duties and exercise the powers of
the Secretary.
5.11 (a) The Treasurer and the Assistant Treasurer. The Treasurer shall
have custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit moneys and other valuable effects in the name and
to the credit of the Corporation in such depositories as may be designated by
the Board of Directors. He or she may endorse all commercial documents requiring
endorsements for or on behalf of the Corporation and may sign all receipts and
vouchers for payments made to the Corporation.
(b) The Treasurer shall disburse funds of the Corporation as may from
time to time be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and render to the Board of Directors, the Chairman
of the Board and President, whenever they may require it, an account of all
transactions undertaken by him or her as Treasurer and of the financial
condition of the Corporation.
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(c) The Treasurer shall also maintain adequate records of all assets,
liabilities and transactions of the corporation and shall see that adequate
audits thereof are currently and regularly made. The Treasurer shall have
such other powers and perform such other duties that generally are incident
to the position of Treasurer or as may from time to time be assigned to him
or her by the Board of Directors, the Chairman of the Board or the
President.
(d) Each Assistant Treasurer shall have such powers and perform such
duties as may from time to time be assigned to him or her by the Board of
Directors, the Chairman of the Board, the President or the Treasurer. In
case of the absence or disability of the Treasurer, the Assistant Treasurer
designated by the Treasurer (or, in the absence of such designation, the
senior Assistant Treasurer) shall perform the duties and exercise the
powers of the Treasurer.
5.12 Treasurer's Bond. If required by the Board of Directors, the
Treasurer or any Assistant Treasurer shall give the Corporation a bond in such
form and with such surety or sureties as are satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
5.13 Chief Executive Officer. The Chief Executive Officer shall have,
subject to the supervision, direction and control of the Board of Directors, the
general powers and duties of supervision, direction and management of the
affairs and business of the Corporation usually vested in the chief executive
officer of a Corporation, including, without limitation, all powers necessary to
direct and control the organizational and reporting relationships within the
Corporation. If at any time the office of Chairman of the Board shall not be
filled, the Chief Executive Officer shall have the powers and duties of the
Chairman of the Board.
5.14 Chief Operating Officer. The Chief Operating Officer shall, subject
to the supervision, direction and control of the Chief Executive Officer and the
Board of Directors, manage the day-to-day operations of the Corporation and, in
general, shall assist the Chief Executive Officer.
6. STOCK
6.01 Certificates. Certificates or shares of the stock of the Corporation
shall be issued under the seal of the Corporation, or facsimile thereof, and
shall be numbered and shall be entered in the books of the Corporation as they
are issued. Each certificate shall bear a serial number, shall exhibit the
holder's name and the number of shares evidenced thereby, and shall be signed by
the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive
Officer or the President or any Vice President and the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer. Any or all of the
signatures on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if such person or entity were such officer, transfer
agent or registrar at the date of issue.
6.02 Transfers. Transfers of stock of the Corporation shall be made on the
books of the Corporation only upon surrender to the Corporation of a certificate
for the shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, provided such succession, assignment, or
transfer is not prohibited by the Restated Certificate of Incorporation, the
Bylaws, applicable law, or contract. Thereupon, the Corporation shall issue a
new certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
6.03 Lost, Stolen or Destroyed Certificates. Any person claiming a
certificate of stock to be lost, stolen or destroyed shall make an affidavit or
an affirmation of that fact, and shall give the Corporation a bond of indemnity
in satisfactory form and with one or more satisfactory sureties, whereupon a new
certificate may be issued of the same tenor and for the same number of shares as
the one alleged to be lost or destroyed.
6.04 Record Date. (a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of the stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or
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allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors shall fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
(b) If no record date is fixed by the Board of Directors, (i) the
record date for determining stockholders entitled to notice of or to vote
at a meeting of stockholders shall be at the close of business on the day
next preceding the date on which notice is given, or, if notice is waived
by all stockholders entitled to vote at the meeting, at the close of
business on the day next preceding the day on which the meeting was held
and (ii) the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting, provided that the Board of Directors may fix a new record date for
the adjourned meeting.
6.05 Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares as the person entitled to exercise the rights referred to in Section
6.04 and shall not be bound to recognize any equitable or other claim to or
interest in any such shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise expressly
provided by the laws of the State of Delaware.
6.06 Additional Powers of the Board. (a) In addition to those powers set
forth in Section 4.01, the Board of Directors shall have power and authority to
make all such rules and regulations as it shall deem expedient concerning the
issue, transfer and registration of certificates for shares of stock of the
Corporation.
(b) The Board of Directors may appoint and remove transfer agents and
registrars of transfers, and may require all stock certificates to bear the
signature of any such transfer agent and/or any such registrar of
transfers.
(c) The Board of Directors shall have power and authority to create
and issue (whether or not in connection with the issue and sale of any
stock or other securities of the Corporation) warrants, rights or options
entitling the holders thereof to purchase from the Corporation any shares
of any class or classes or any other securities of the Corporation for such
consideration and to such persons, firms or corporations as the Board of
Directors, in its sole discretion, may determine, setting aside from the
authorized but unissued stock of the Corporation the requisite number of
shares for issuance upon the exercise of such warrants, rights or options.
Such warrants, rights or options shall be evidenced by such instrument or
instruments as shall be approved by the Board of Directors. The terms upon
which, the time or times (which may be limited or unlimited in duration) at
or within which, and the price or prices at which any such shares or other
securities may be purchased from the Corporation upon the exercise of any
such warrant, right or option shall be such as shall be fixed and stated in
a resolution or resolutions of the Board of Directors providing for the
creation and issue of such warrants, rights or options.
7. LIMITATIONS OF OWNERSHIP BY NON-CITIZENS.
7.01 Definitions. (a) "Act" shall mean the Federal Aviation Act of 1958,
as amended (Title 49 United States Code) or as the same may be from time to time
amended.
(b) "Beneficial Ownership," "Beneficially Owned" or "Owned
Beneficially" refers to beneficial ownership as defined in Rule 13d-3
(without regard to the 60-day provision in paragraph (d)(1)(i) thereof)
under the Securities Exchange Act of 1934, as amended.
(c) "Foreign Stock Record" shall have the meaning set forth Section
7.03.
(d) "Non-Citizen" shall mean any person or entity who is not a
"Citizen of the United States" as defined in Section 101 of the Act,
including any agent, trustee or representative of a Non-Citizen.
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(e) "Own or Control" or "Owned or Controlled" shall mean (i) ownership
of record, (ii) beneficial ownership or (iii) the power to direct, by
agreement, agency or in any other manner, the voting of Stock. Any
determination by the Board of Directors as to whether Stock is Owned or
Controlled by a Non-Citizen shall be final.
(f) "Permitted Percentage" shall mean twenty five percent (25%) of the
voting power of the Stock.
(g) "Stock" shall mean the outstanding capital stock of the
corporation entitled to vote; provided, however, that for the purpose of
determining the voting power of Stock that shall at any time constitute the
Permitted Percentage, the voting power of Stock outstanding shall not be
adjusted downward solely because shares of Stock may not be entitled to
vote by reason of any provision of this Article 7.
7.02 Policy. It is the policy of the Corporation that, consistent with the
requirements of Section 101 of the Act, Non-Citizens shall not Own or Control
more than the Permitted Percentage and, if Non-Citizens nonetheless at any time
Own or Control more than the Permitted Percentage, the voting rights of the
Stock in excess of the Permitted Percentage shall be automatically suspended in
accordance with Sections 7.03 and 7.04 below.
7.03 Foreign Stock Record. The Corporation or any transfer agent
designated by it shall maintain a separate stock record (the "Foreign Stock
Record") in which shall be registered Stock known to the corporation to be Owned
or Controlled by Non-Citizens. The Foreign Stock Record shall include (i) the
name and nationality of each such Non-Citizen, (ii) the number of shares of
Stock Owned or controlled by such Non-Citizen and (iii) the date of registration
of such shares in the Foreign Stock Record. In no event shall shares in excess
of the Permitted Percentage be entered on the Foreign Stock Record. In the event
that the Corporation shall determine that stock registered on the Foreign Stock
Record exceeds the Permitted Percentage, sufficient shares shall be removed from
the Foreign Stock Record so that the number of shares entered therein does not
exceed the Permitted Percentage. Stock shall be removed from the Foreign Stock
Record in reverse chronological order based upon the date of registration
therein.
7.04 Suspension of Voting Rights. If at any time the number of shares of
Stock known to the Corporation to be Owned or Controlled by Non-Citizens exceeds
the Permitted Percentage, the voting rights of Stock Owned or Controlled by
Non-Citizens and not registered on the Foreign Stock Record at the time of any
vote or action of the stockholders of the Corporation shall, without further
action by the Corporation, be suspended. Such suspension of voting rights shall
automatically terminate upon the earlier of the (i) transfer of such shares to a
person or entity who is not a Non-Citizen, or (ii) registration of such shares
on the Foreign Stock Record, subject to the final sentence of Section 7.03.
7.05 Beneficial Ownership Inquiry. (a) The Corporation may by notice in
writing (which may be included in the form of proxy or ballot distributed to
stockholders in connection with the annual meeting or any special meeting of the
stockholders of the Corporation, or otherwise) require a person that is a holder
of record of Stock or that the Corporation knows to have, or has reasonable
cause to believe has, Beneficial Ownership of Stock to certify in such manner as
the Corporation shall deem appropriate (including by way of execution of any
form of proxy or ballot of such person) that, to the knowledge of such person:
(i) all Stock as to which such person has record ownership or
Beneficial Ownership is owned and controlled only by Citizens of the
United States; or
(ii) the number and class or series of Stock owned of record or
Beneficially Owned by such person that is owned or controlled by
Non-Citizens is as set forth in such certificate.
(b) With respect to any Stock identified in response to clause (a)(ii)
above, the Corporation may require such person to provide such further
information as the Corporation may reasonably require in order to implement
the provisions of this Article 7.
(c) For purposes of applying the provisions of this Article 7 with
respect to any Stock, in the event of the failure of any person to provide
the certificate or other information to which the Corporation is entitled
pursuant to this Section 7.05, the Corporation shall presume that the Stock
in question in owned or controlled by Non-Citizens.
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8. MISCELLANEOUS.
8.01 Place and Inspection of Books. (a) The books of the Corporation other
than such books as are required by law to be kept within the State of Delaware
shall be kept in the State of Arizona or at such place or places either within
or without the State of Delaware as the Board of Directors may from time to time
determine.
(b) At least ten (10) days before each meeting of stockholders, the
officer in charge of the stock ledger of the Corporation shall prepare a
complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at
least ten (10) days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present.
(c) The Board of Directors shall determine from time to time whether
and, if allowed, when and under what conditions and regulations the
accounts and books of the Corporation (except such as may be by law
specifically open to inspection or as otherwise provided by these Restated
Bylaws) or any of them shall be open to the inspection of the stockholders
and the stockholders' rights in respect thereof.
8.02 Indemnification of Directors, Officers, Employees and Agents. (a) The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that such
person is or was a Director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid or owed in settlement actually and reasonably
paid or incurred by him or her or rendered or levied against him or her in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation; and with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not, in itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that such person is or was a Director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses, including attorneys' fees, actually and
reasonably paid or incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the Corporation; provided, however, that no indemnification shall be
made in respect to any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication
of liability but in view of all circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
(c) The Corporation shall, at the discretion of the Board of
Directors, indemnify all employees and agents of the Corporation (other
than Directors and officers) to the extent that Directors and officers
shall be indemnified pursuant to subsections (a) and (b).
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(d) To the extent that a person who may be entitled to indemnification
by the Corporation under this section is or has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred
to in subsections (a) and (b), or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses, including attorney's
fees, actually and reasonably paid or incurred by him in connection
therewith.
(e) Any indemnification under subsections (a), (b), or (c) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the Director, officer, employee or
agent is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in subsection (a) or (b). Such
determination shall be made (i) by the Board of Directors by a majority
vote of a quorum consisting of Directors who were not parties to such
action, suit or proceeding, (ii) if such a quorum is not obtainable or,
even if obtainable, a quorum of disinterested Directors so directs, by
independent legal counsel in a written opinion, (iii) by the stockholders,
or (iv) in any case in which applicable law makes court approval a
prerequisite to indemnification, by the court in which such action, suit or
proceeding was brought or another court of competent jurisdiction.
(f) Expenses, including attorneys' fees, incurred by an officer or
Director in defending a civil, criminal, administrative, or investigative
action, suit or proceeding shall be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the Director or officer to repay such amount
if it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation as authorized in this section. Such
expenses, including attorneys' fees, incurred by other employees and agents
shall be so paid upon terms and conditions, if any, as the Board of
Directors deems appropriate.
(g) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of the stockholders or disinterested directors or otherwise, both as to
action in an official capacity and as to action in another capacity while
holding such office.
(h) The provisions of this section shall continue as to a person who
has ceased to be a Director, officer, employee or agent and shall inure to
the benefit of the estate, executors, administrators, spouse, heirs,
legatees or devisees of a person entitled to indemnification hereunder and
the term "person," where used in the section shall include the estate,
executors, administrators, spouse, heirs, legatees or devisees of such
person.
(i) For the purposes of this Section 8.02, (i) "employee benefit plan"
and "fiduciary" shall be deemed to include, but not be limited to, the
meanings set forth, respectively, in Sections 3(3) and 21(A) of the
Employee Retirement Income Security Act of 1974, as amended, and references
to the judgments, fines and amounts paid or owed in settlement or rendered
or levied shall be deemed to encompass and include excise taxes required to
be paid pursuant to a applicable law in respect of any transaction
involving an employee benefit plan, (ii) references to the Corporation
shall be deemed to include any predecessor corporation and any constituent
corporation absorbed in a merger, consolidation or other reorganization of
or by the Corporation which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers,
employees, agents or fiduciaries so that any person who was a director,
officer, employee, agent or fiduciary of such predecessor or constituent
corporation, or served at the request of such predecessor or constituent
corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, shall stand in the same position under the provisions of
this Section 8.02 with respect to the Corporation as such person would have
with respect to such predecessor or constituent corporation if its separate
existence had continued, and (iii) all other terms shall be deemed to have
the meanings for such terms as set forth in Section 145 of the DGCL.
8.03 Dividends. (a) Dividends may be declared at the discretion of the
Board of Directors at any meeting thereof.
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(b) Dividends may be paid to stockholders in cash or, when the
Directors shall so determine, in stock. A Director shall be fully protected
in relying in good faith upon the books of account of the Corporation or
statements prepared by any of its officers as to the value and amount of
the assets, liabilities or net profits of the Corporation, or any other
facts pertinent to the existence and amount of surplus or other funds from
which dividends might properly be declared.
(c) Before payment of any dividend or any distribution of profits,
there may be set aside out of the said surplus of the Corporation such sum
or sums as the Board of Directors from time to time, in its discretion
thinks proper as a reserve fund to meet contingencies, or for equalizing
dividends, or for such other purpose as the Board of Directors shall think
conducive to the interests of the Corporation and the Board of Directors
may abolish any such reserve in the manner in which it was created.
8.04 Execution of Deeds, Contracts, and Other Agreements and
Instruments. Subject to the specific directions of the Board of Directors, all
deeds, mortgages and bonds entered into by the Corporation and all other written
contracts and agreements to which the Corporation shall be a party shall be
executed in its name by the Chairman of the Board, the President, or a Vice
President, or such other person or persons as may be authorized by any such
officer.
8.05 Checks. All checks, drafts, acceptances, notes and other orders,
demands or instruments in respect to the payment of money may be signed or
endorsed on behalf of the Corporation by such officer or officers or by such
agent or agents as the Board of Directors may from time to time designate.
8.06 Voting Shares in Other Corporations. The Chairman of the Board of the
Corporation (or any other Director designated by a majority of the Board of
Directors) may vote any and all shares held by the Corporation in any other
corporation.
8.07 Fiscal Year. The fiscal year of the Corporation shall correspond with
the calendar year.
8.08 Gender/Number. As used in these Restated Bylaws, the masculine,
feminine or neuter gender, and the singular or plural number, shall each include
the others whenever the context so indicates.
8.09 Paragraph Titles. The titles of the paragraphs have been inserted as
a matter of reference only and shall not control or affect the meaning or
construction of any of the terms and provisions hereof.
8.10 Amendment. These Restated Bylaws may be altered, amended or repealed
by the affirmative vote of the holders of a majority of the voting power of the
stock issued and outstanding and entitled to vote at any meeting of stockholders
or by resolution adopted by the affirmative vote of not less than a majority of
the Directors in office at any annual or regular meeting of the Board of
Directors or at any special meeting of the Board of Directors if notice if the
proposed alteration, amendment or repeal be contained in the notice of such
special meeting.
8.11 Restated Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Restated
Bylaws is inconsistent with or conflicts with a provision of the Restated
Certificate of Incorporation, such provision of these Restated Bylaws shall be
superseded by the inconsistent provision in the Restated Certificate of
Incorporation to the extent necessary to give effect to such provision in the
Restated Certificate of Incorporation.
13
<PAGE> 1
EXHIBIT 4.1
================================================================================
AMERICA WEST AIRLINES, INC.,
AND
_______________________________________________________,
TRUSTEE
INDENTURE
DATED AS OF , 1994
________________________________________
$100,000,000
% SENIOR UNSECURED NOTES DUE 2001
================================================================================
<PAGE> 2
CROSS REFERENCE SHEET(1)
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of
, 1994 among AMERICA WEST AIRLINES, INC. and [
], Trustee:
<TABLE>
<CAPTION>
SECTION OF THE ACT SECTION OF INDENTURE
__________________ ____________________
<S> <C>
310(a)(1) and (2)................................... 6.9 and 6.10(b)
6.8, 6.10(a), (b) and (d), 6.11 and
310(b).............................................. 6.12
311(a).............................................. 6.13
312(a).............................................. 4.1 and 4.2
312(b).............................................. 4.2
312(c).............................................. 4.2
313(a).............................................. 4.4
313(c).............................................. 4.4, 5.11, 6.10, 6.11, 8.2 and 12.2
314(a).............................................. 4.3
314(a)(4)........................................... 3.5
314(c)(1) and (2)................................... 11.5
314(c)(3)........................................... Inapplicable
314(e).............................................. 11.5
315(a), (c) and (d)................................. 6.1
315(b).............................................. 5.11
315(e).............................................. 5.12 and 6.10(b)
316(a)(1)........................................... 5.9
316(a) (last sentence).............................. 7.4
316(b).............................................. 5.7
317(a).............................................. 5.2
317(b).............................................. 3.4(a) and (b)
318(a).............................................. 11.7
</TABLE>
- ---------------
(1) This Cross Reference Sheet is not part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
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<S> <C>
ARTICLE ONE -- DEFINITIONS............................................................
SECTION 1.1 Certain Terms Defined...............................................
"Adjusted Consolidated Net Income"...............................................
"Affiliates".....................................................................
"Alliance Agreements"............................................................
"Applicable Documents"...........................................................
"Asset Sale".....................................................................
"Authenticating Agent"...........................................................
"Board of Directors".............................................................
"Board Resolution"...............................................................
"Business Day"...................................................................
"Capital Stock"..................................................................
"Capitalized Lease Obligation"...................................................
"Cash Equivalents"...............................................................
"Closing Date"...................................................................
"Commission".....................................................................
"Commodity Agreement"............................................................
"Common Stock"...................................................................
"Company"........................................................................
"Company Order"..................................................................
"Consolidated" or "consolidated".................................................
"Consolidated Net Worth".........................................................
"Consolidated Tangible Net Worth"................................................
"Corporate Trust Office".........................................................
"Currency Agreement".............................................................
"Default"........................................................................
"Depository".....................................................................
"Event of Default"...............................................................
"Exchange Act"...................................................................
"GAAP"...........................................................................
"Global Security"................................................................
"Guarantee"......................................................................
"Holder", "Holder of Securities", "Securityholder"...............................
"Indebtedness"...................................................................
"Indenture"......................................................................
"Independent Financial Advisor"..................................................
"Interest Payment Date"..........................................................
"Interest Rate Agreement"........................................................
"Investment".....................................................................
"Investment Grade"...............................................................
"Lien"...........................................................................
"Moody's"........................................................................
"Net Cash Proceeds"..............................................................
"Net Offering Proceeds"..........................................................
"Net Proceeds Offer".............................................................
"Net Proceeds Purchase Date".....................................................
"Officer"........................................................................
"Officers' Certificate"..........................................................
"Opinion of Counsel".............................................................
"Outstanding"....................................................................
</TABLE>
i
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<TABLE>
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<S> <C>
"Paying Agent"...................................................................
"Payment Restriction"............................................................
"Person".........................................................................
"principal"......................................................................
"Public Offering Sale"...........................................................
"Purchase Agreement".............................................................
"record date"....................................................................
"Redeemable Dividends"...........................................................
"Redeemable Stock"...............................................................
"Redemption Date"................................................................
"Redemption Price"...............................................................
"Refinancing Indebtedness".......................................................
"Registration Rights Agreement"..................................................
"Responsible Officer"............................................................
"Restricted Payment".............................................................
"S&P"............................................................................
"Securities Act".................................................................
"Security" or "Securities".......................................................
"Stated Maturity"................................................................
"Subsidiary".....................................................................
"TIA"............................................................................
"Trade Payables".................................................................
"Trustee"........................................................................
"U.S. Government Obligations"....................................................
"U.S. Legal Tender"..............................................................
"Voting Stock"...................................................................
"Wholly Owned"...................................................................
ARTICLE TWO
SECURITIES............................................................................
SECTION 2.1 Form and Dating.....................................................
SECTION 2.2 Execution and Authentication........................................
SECTION 2.3 Certificate of Authentication.......................................
SECTION 2.4 Payments of Interest................................................
SECTION 2.5 Registration, Transfer and Exchange.................................
SECTION 2.6 Mutilated, Defaced, Destroyed, Lost and Stolen Securities...........
SECTION 2.7 Cancellation of Securities; Destruction Thereof.....................
SECTION 2.8 Temporary Securities................................................
SECTION 2.9 Currency and Manner of Payments in Respect of Securities............
SECTION 2.10 CUSIP Number.........................................................
ARTICLE THREE
REDEMPTIONS...........................................................................
SECTION 3.1 Notices to Trustee..................................................
SECTION 3.2 Selection of Securities to be Redeemed..............................
SECTION 3.3 Notice of Redemption................................................
SECTION 3.4 Effect of Notice of Redemption......................................
SECTION 3.5 Deposit of Redemption Price.........................................
SECTION 3.6 Securities Redeemed in Part.........................................
SECTION 3.7 Optional Redemption.................................................
ARTICLE FOUR
COVENANTS OF THE COMPANY..............................................................
</TABLE>
ii
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<TABLE>
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<S> <C>
SECTION 4.1 Payment of Principal and Interest...................................
SECTION 4.2 Offices for Payments, etc...........................................
SECTION 4.3 Appointment to Fill a Vacancy in Office of Trustee..................
SECTION 4.4 Paying Agents.......................................................
SECTION 4.5 Reports and Information.............................................
SECTION 4.6 Corporate Existence.................................................
SECTION 4.7 Payment of Taxes and Other Claims...................................
SECTION 4.8 Maintenance of Properties...........................................
SECTION 4.9 Maintenance of Insurance............................................
SECTION 4.10 Compliance with Laws.................................................
SECTION 4.11 Disposition of Proceeds of Public Offering Sale......................
SECTION 4.12 Limitation on Issuances and Dispositions of Capital Stock of
Subsidiaries.........................................................
SECTION 4.13 Limitation on Restricted Payments....................................
SECTION 4.14 Limitation on Transactions with Affiliates...........................
SECTION 4.15 Limitation on Asset Sales............................................
SECTION 4.16 Limitation on Payment Restrictions Affecting Subsidiaries............
SECTION 4.18 Limitation on Investments............................................
SECTION 4.19 Waiver of Stay, Extension or Usury Laws..............................
ARTICLE FIVE
SECURITYHOLDERS LISTS AND REPORTS BY COMPANY AND THE TRUSTEE..........................
SECTION 5.1 The Company to Furnish Trustee Information as to Names and Addresses
of Securityholders.............................................
SECTION 5.2 Disclosure of Names and Addresses of Securityholders................
SECTION 5.3 Reports by the Trustee..............................................
ARTICLE SIX
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER.........................................
SECTION 6.1 Merger or Consolidation.............................................
SECTION 6.2 Successor Corporation Substituted...................................
ARTICLE SEVEN
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT.......................
SECTION 7.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default.............................................................
SECTION 7.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.......
SECTION 7.3 Application of Proceeds.............................................
SECTION 7.4 Suits for Enforcement...............................................
SECTION 7.5 Restoration of Rights on Abandonment of Proceedings.................
SECTION 7.6 Limitations on Suits by Securityholders.............................
SECTION 7.7 Unconditional Right of Securityholders to Institute Certain Suits...
SECTION 7.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default.............................................................
SECTION 7.9 Control by Holders of Securities....................................
SECTION 7.10 Waiver of Past Defaults..............................................
SECTION 7.11 Trustees to Give Notice of Default, But May Withhold in Certain
Circumstances........................................................
SECTION 7.12 Right of Court to Require Filing of Undertaking to Pay Costs.........
ARTICLE EIGHT
CONCERNING THE TRUSTEE................................................................
SECTION 8.1 Duties and Responsibilities of the Trustee; During Default; Prior to
Default.............................................................
SECTION 8.2 Certain Rights of the Trustee.......................................
SECTION 8.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof.....................................
</TABLE>
iii
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<TABLE>
<CAPTION>
PAGE
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<S> <C>
SECTION 8.4 Trustee and Agents May Hold Securities; Collections, etc............
SECTION 8.5 Monies Held by Trustee..............................................
SECTION 8.6 Compensation and Indemnification of Trustee and Its Prior Claim.....
SECTION 8.7 Right of Trustee to Rely on Officers' Certificate, etc..............
SECTION 8.8 Persons Eligible for Appointment as Trustee.........................
SECTION 8.9 Resignation and Removal; Appointment of Successor Trustee...........
SECTION 8.10 Acceptance of Appointment by Successor Trustee.......................
SECTION 8.11 Merger, Conversion, Consolidation or Succession to Business of
Trustee..............................................................
SECTION 8.12 Preferential Collection of Claims Against the Company................
SECTION 8.13 Appointment of Authenticating Agent..................................
ARTICLE NINE
CONCERNING THE SECURITYHOLDERS........................................................
SECTION 9.1 Evidence of Action Taken by Securityholders.........................
SECTION 9.2 Proof of Execution of Instruments and of Holding of Securities......
SECTION 9.3 Holders to be Treated as Owners.....................................
SECTION 9.4 Securities Owned by the Company Deemed Not Outstanding..............
SECTION 9.5 Right of Revocation of Action Taken.................................
ARTICLE TEN
AMENDMENTS............................................................................
SECTION 10.1 Amendments and Supplements Permitted Without Consent of Holders......
SECTION 10.2 Amendments and Supplements Requiring Consent of Holders..............
SECTION 10.3 Compliance with TIA..................................................
SECTION 10.4 Revocation and Effect of Consents....................................
SECTION 10.5 Notation on or Exchange of Securities................................
SECTION 10.6 Trustee Protected....................................................
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONIES.............................
SECTION 11.1 Satisfaction and Discharge of Indenture..............................
SECTION 11.2 Application by Trustee of Funds Deposited for Payment of Securities;
Other Miscellaneous Provisions.................................
SECTION 11.3 Repayment of Monies Held by Paying Agent.............................
SECTION 11.4 Return of Monies Held by Trustee and Paying Agent Unclaimed for
Two Years......................................................
SECTION 11.5 Indemnity for U.S. Government Obligations............................
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS..............................................................
SECTION 12.1 Incorporators, Stockholders, Officers and Directors of the Company
Exempt from Individual Liability...............................
SECTION 12.2 Provisions of Indenture for the Sole Benefit of Parties and Holders
of Securities........................................................
SECTION 12.3 Successors and Assigns of the Company Bound by Indenture.............
SECTION 12.4 Notices..............................................................
SECTION 12.5 Officers' Certificates and Opinions of Counsel; Statements to be
Contained Therein..............................................
SECTION 12.6 Payments Due on Saturdays, Sundays and Holidays......................
SECTION 12.7 Conflict of Any Provision of Indenture with Trust Indenture Act of
1939.................................................................
SECTION 12.8 New York Law to Govern...............................................
SECTION 12.9 Counterparts.........................................................
SECTION 12.10 Effect of Headings...................................................
</TABLE>
iv
<PAGE> 7
INDENTURE, dated as of , 1994, between America West Airlines,
Inc., a Delaware corporation (the "Company"), having its principal office at
4000 East Sky Harbour Blvd., Phoenix, Arizona 85034, and
(the "Trustee").
Each party hereto agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's % Senior
Unsecured Notes due 2001.
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture shall have the respective meanings specified
in this Section. All other terms used in this Indenture that are defined in the
TIA or the definitions of which in the Securities Act are referred to in the
TIA, including terms defined therein by reference to the Securities Act (except
as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in the TIA and in the
Securities Act as in force at the date of this Indenture. All accounting terms
used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with GAAP. The words "herein " "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Adjusted Consolidated Net Income" means, for any Person for any period,
the aggregate net income (or loss) of such Person and its consolidated
Subsidiaries for such period determined in accordance with GAAP; provided that
the following items shall be excluded in computing Adjusted Consolidated Net
Income (without duplication): (i) the net income (or loss) of any Person (other
than a Subsidiary of such first Person) in which any other Person (other than
such first Person or any of its Subsidiaries) has a joint or shared interest,
except to the extent of the amount of cash dividends or other distributions
actually paid to, and received by, such first Person or any of its Subsidiaries
during such period out of funds legally available therefor, (ii) the net income
(or loss) of any Person accrued prior to the date it becomes a Subsidiary of
such first Person or any of its Subsidiaries or all or substantially all of the
property and assets of such Person are acquired by such first Person or any of
its Subsidiaries, (iii) the net income (or loss) of any Subsidiary of such first
Person which Subsidiary is subject to a Payment Restriction, except (A) such
exclusion shall not apply to the extent of the amount of cash dividends or other
distributions actually paid to, and received by, such first Person or any of its
Subsidiaries during such period from such Subsidiary in compliance with such
Payment Restriction out of funds legally available therefor and (B) such
exclusion shall apply only while such Payment Restriction is in effect, and upon
the elimination or reduction of such Payment Restriction, the previously
excluded net income (or loss) shall be added back retroactively; (iv) any gains
or losses (on an after-tax basis) attributable to Asset Sales; and (v) all
extraordinary gains and extraordinary losses.
"Affiliates" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, is defined to mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Alliance Agreements" [To Come]
"Applicable Documents" means collectively, the Purchase Agreement, the
Registration Rights Agreement, this Indenture and the Securities.
"Asset Sale" means any sale, transfer or other disposition (including by
way of merger, consolidation, exchange of assets or sale-leaseback
transactions), in one transaction or a series of related transactions, by the
Company or any of its Subsidiaries to any Person other than the Company or any
of its Subsidiaries of (i) all
<PAGE> 8
or any of the Capital Stock of any Subsidiary of the Company, (ii) all or
substantially all of the property and assets of an operating unit or business of
the Company or any of its Subsidiaries or (iii) any other property and assets of
the Company or any of its Subsidiaries outside the ordinary course of business
of the Company or such Subsidiary and, in each case, that is not governed by the
provisions of Article Six of this Indenture; provided that none of (A) sales or
other dispositions of inventory, receivables and other current assets, (B) sale
or other dispositions of surplus equipment, spare parts, expendable inventories,
furniture or fixtures in an aggregate amount not to exceed $10,000,000 in any
fiscal year of the Company, (C) sale leasebacks of aircraft and engines,
passenger loading bridges or other flight or ground equipment, flight simulators
or the Company's reservation facility located at 222 South Mill Avenue, Tempe,
Arizona or (D) $20,000,000 of other sales in any fiscal year of the Company
shall be included within the meaning of "Asset Sale".
"Authenticating Agent" shall have the meaning set forth in Section 8.13.
"Board of Directors" when used with reference to any Person, means the
Board of Directors of such Person or any committee of such Board duly
authorized, with respect to any particular matter, to exercise the power of the
Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person, as certified by the
Secretary or an Assistant Secretary of such Person.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York, New York, the City of Phoenix,
Arizona or the city of the Corporate Trust Office of the Trustee, are authorized
or required by law to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
Common Stock.
"Capitalized Lease Obligation" means, as applied to any Person, obligations
of such Person under any lease of any property (whether real, personal or mixed)
which, in accordance with GAAP, is required to be capitalized on the balance
sheet of such Person, and the amount of Indebtedness represented by such
obligations shall be the capitalized amount of such obligations determined in
accordance with GAAP.
"Cash Equivalents" means (i) U.S. Government Obligations, (ii) commercial
paper, (iii) time deposits, certificates of deposit and banker's acceptances,
(iv) repurchase agreements that are secured by a perfected security interest in
U.S. Government Obligations, and (v) money market funds investing solely in one
or both of the types of securities described in clauses (i) and (ii) above.
"Closing Date" means the date on which the Securities are originally issued
under this Indenture.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, or if at any time after the execution and delivery of this
Indenture such Commission is not existing and performing the duties now assigned
to it under the TIA, then the body performing such duties on such date.
"Commodity Agreement" means any agreement or arrangement designed to
protect the Company or any of its Subsidiaries against fluctuations in the
prices of commodities used by the Company or any of its Subsidiaries in the
ordinary course of its business.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means America West Airlines, Inc., a Delaware corporation and,
subject to Article Six hereof, its successors and assigns.
"Company Order" means a written statement, request or order of the Company
signed in its name by the Chairman, the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee.
2
<PAGE> 9
"Consolidated" or "consolidated," when used with reference to any
accounting term, means the amount described by such accounting term, determined
on a consolidated basis in accordance with GAAP, after elimination of
intercompany items.
"Consolidated Net Worth" means, with respect to any Person on any date, the
consolidated stockholders' equity, less amounts attributable to Redeemable
Stock, of such Person and its Subsidiaries on such date as determined on a
consolidated basis in accordance with GAAP; provided that, with respect to the
Company, adjustments following the Closing Date to the accounting books and
records of the Company in accordance with Accounting Principles Board Opinions
Nos. 16 and 17 (or successor opinions thereto) shall not be given effect.
"Consolidated Tangible Net Worth" means, with respect to any Person on any
date, the Consolidated Net Worth of such Person on such date, less the net book
value on such date as shown by the accounting books and records of such Person
and its Subsidiaries of all of its licenses, patents, patent applications,
copyrights, trademarks, trade names, goodwill, non-compete agreements or
unamortized debt discount and expense, all as determined on a consolidated basis
in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at .
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any of its Subsidiaries against fluctuations in currency values or
under which the Company or any of its Subsidiaries is a party or a beneficiary
on the date of the Indenture or becomes a party or a beneficiary thereafter.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Depository" means, with respect to the Securities issued in the form of
one or more Global Securities, each Person designated as Depository by the
Company until a successor Depository shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depository" shall mean
or include each Person who is then a Depository hereunder.
"Event of Default" means any event or condition specified as such in
Section 7.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the date of this Indenture, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board.
"Global Security" means a Security evidencing all or a part of the
Securities, issued to a Depository or its nominee in accordance with Section
2.2, and bearing the legend prescribed in Section 2.2.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct, or indirect, contingent or otherwise, of such first Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation of such other Person (whether arising
by virtue of partnership arrangements, or by agreement to keepwell, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
3
<PAGE> 10
"Holder", "Holder of Securities", "Securityholder" or other similar terms
means the person in whose name a Security is registered in the security register
kept by the Company for that purpose in accordance with the terms hereof.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto), (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services,
which purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto or the completion of
such services, except Trade Payables, (v) all obligations of such Person as
lessee under Capitalized Leases, (vi) all Indebtedness of other Persons secured
by a Lien on any asset of such Person, whether or not such Indebtedness is
assumed by such Person; provided that the amount of such Indebtedness shall be
the lesser of (A) the fair market value of such asset at such date of
determination and (B) the stated principal amount of such Indebtedness, (vii)
all Indebtedness of other Persons Guaranteed by such Person to the extent such
Indebtedness is Guaranteed by such Person, (viii) to the extent not otherwise
included in this definition, obligations under Currency Agreements, Interest
Rate Agreements and Commodity Agreements. The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and the maximum liability, upon the
occurrence of the contingency giving rise to the obligation, of any contingent
obligations at such date; provided that the amount outstanding at any time of
any Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with
GAAP.
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, and shall include the form and terms of the Securities as set forth
herein.
"Independent Financial Advisor" means a reputable accounting, appraisal or
a nationally recognized investment banking firm that is, in the reasonable
judgment of the Board of Directors of the Company, qualified to perform the task
for which such firm has been engaged hereunder and disinterested and independent
with respect to the Company and its Affiliates.
"Interest Payment Date", means the fifteenth day of each and
, commencing 15, 1994.
"Interest Rate Agreement" means any interest rate future agreement,
interest rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement designed to protect the Company or any of
its Subsidiaries against fluctuations in interest rates or under which the
Company or any of its Subsidiaries is a party or a beneficiary on the date of
this Indenture or becomes a party or a beneficiary thereafter.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business consistent with past practices that are recorded as accounts receivable
on the balance sheet of such Person or its Subsidiaries) or other extension of
credit or capital contribution by such Person to any other Person (by means of
any transfer of cash or other property to others or any payment for property or
services for the account or use of others; provided, that any transfer of
aircraft to a limited partnership or other entity in connection with the
transaction in which the aircraft are leased to the Company shall not be an
Investment), or any purchase or acquisition by such person of Capital Stock,
bonds, notes, debentures or other similar instruments issued by any other
Person.
"Investment Grade" means a rating of BBB-or higher by S&P or Baa3 or higher
by Moody's or the equivalent of such ratings by S&P or Moody's. In the event
that the Company shall select any other rating agency, the equivalent of such
ratings by such rating agency shall be used.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including, without limitation, any conditional sale or other
title retention agreement or lease in the nature
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thereof, any sale with recourse against the seller or any Affiliate of the
seller, or any agreement to give any security interest); provided, that in no
event shall a true operating lease be deemed to constitute a Lien hereunder.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds of
such Asset Sale in the form of cash or Cash Equivalents, including payments in
respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of
cash or Cash Equivalents (except to the extent such obligations are financed or
sold with recourse to the Company or any Subsidiary of the Company) and proceeds
from the conversion of other property received when converted to cash or Cash
Equivalents, net of (i) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment bankers) related to such
Asset Sale, (ii) provisions for all taxes payable as a result of such Asset Sale
without regard to the consolidated results of operations of the Company and its
Subsidiaries, taken as a whole, (iii) payments made to repay Indebtedness or any
other obligation outstanding at the time of such Asset Sale that either (A) is
secured by a Lien on the property or assets sold or (B) is required by its own
terms to be paid as a result of such Asset Sale, and (iv) appropriate amounts to
be provided by the Company or any Subsidiary of the Company as a reserve against
any liabilities associated with such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale, all as determined in conformity with GAAP.
"Net Offering Proceeds" means, with respect to any Public Offering Sale,
the proceeds of such Public Offering Sale in the form of cash or Cash
Equivalents, net of (i) underwriting discounts and commissions and other fees
and expenses (including fees and expenses of counsel) incurred in connection
with such Public Offering Sale, (ii) provisions for all taxes payable as a
result of such Public Offering Sale without regard to the consolidated results
of operations of the Company and its Subsidiaries, taken as a whole, and (iii)
appropriate amounts to be provided by the Company or any Subsidiary of the
Company as a reserve against any liabilities associated with such Public
Offering Sale, all as determined in conformity with GAAP.
"Net Proceeds Offer" shall have the meaning set forth in Section 4.11(a).
"Net Proceeds Purchase Date" shall have the meaning set forth in Section
4.11(b).
"Officer" means with respect to any Person, the Chairman, the President,
the Secretary, any Assistant Secretary, the Chief Financial Officer, the
Controller, the Treasurer, the Assistant Treasurer or any Vice President of such
Person.
"Officers' Certificate" means a certificate signed by the Chairman, the
President or a Vice President of the Company and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who may be
either internal or outside counsel for the Company.
"Outstanding" when used with reference to Securities, subject to the
provisions of Section 9.4 means, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which monies or U.S. Government Obligations (as provided for in Section
11.1) in the necessary amount shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Company) or shall have
been set aside, segregated and held in trust by the Company for the Holders
of such Securities (if the Company shall act as Paying Agent); provided,
however, that, if such Securities, or portions thereof, are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the Trustee shall
have been made for giving such notice; and
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(c) Securities that shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.6.
"Paying Agent" means any Person (which may include the Company) authorized
by the Company to pay the principal of, premium (if any) or interest on the
Securities on behalf of the Company.
"Payment Restriction" means, with respect to a Subsidiary of any Person,
any encumbrance, restriction or limitation, whether by operation of the terms of
its charter or by reason of any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation, on the ability of (i) such Subsidiary
to (a) pay dividends or make other distributions on its Capital Stock or make
payments on any obligation, liability or Indebtedness owed to such Person or any
other Subsidiary of such Person, (b) make loans or advances to such Person or
any other Subsidiary of such Person, or (c) transfer any of its property or
assets to such Person or any other Subsidiary of such Person, or (ii) such
Person or any other Subsidiary of such Person to receive or retain any such (a)
dividends, distributions or payments, (b) loans or advances, or (c) property or
assets.
"Person" means an individual, a corporation, a partnership, an association,
a business trust, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"principal" of any Indebtedness (including the Securities) means the
principal of such Indebtedness plus the premium, if any, on such Indebtedness.
"Public Offering Sale" means an underwritten public offering of Capital
Stock of the Company pursuant to a registration statement filed pursuant to the
Securities Act.
"Purchase Agreement" means that certain Note Purchase Agreement dated as of
the date of this Indenture pursuant to which the Company agreed to issue and
sell and the Purchasers named in such agreement agreed to purchase, an aggregate
of $100,000,000 in principal amount of Securities.
"record date" shall have the meaning set forth in Section 2.4.
"Redeemable Dividends" means, for any dividend payable with regard to
Redeemable Stock, the quotient of (i) the aggregate amount of the dividend
divided by (ii) the difference between one and the maximum statutory federal and
state income tax rate (expressed as a decimal number between one and zero) then
applicable to the issuer of such Redeemable Stock.
"Redeemable Stock" means any class or series of Capital Stock of any Person
that by its terms or otherwise (i) is required to be redeemed prior to the
Stated Maturity of the Securities, (ii) may be required to be redeemed at the
option of the holder of such class or series of Capital Stock at any time prior
to the Stated Maturity of the Securities or (iii) is convertible into or
exchangeable for Capital Stock referred to in clause (i) or (ii) above or
Indebtedness having a scheduled maturity prior to the Stated Maturity of the
Securities; provided that any Capital Stock that would not constitute Redeemable
Stock but for provisions thereof offering holders thereof the right to require
the Company to repurchase or redeem such Capital Stock upon the occurrence of an
"asset sale" occurring prior to the Stated Maturity of the Securities shall not
constitute Redeemable Stock if the asset sale provisions contained in such
Capital Stock specifically provide that in respect of any particular asset sale
proceeds, the Company will not repurchase or redeem any such Capital Stock
pursuant to such provisions prior to the Company's repurchase of such Securities
as are required to be repurchased from Holders accepting an Excess Proceeds
Offer pursuant to the provisions of Section 4.15.
"Redemption Date" when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and the
Securities.
"Redemption Price" when used with respect to any Security to be redeemed,
means the price fixed for such redemption pursuant to this Indenture and the
Securities.
"Refinancing Indebtedness" means any Indebtedness of the Company or any
Subsidiary issued in exchange for, or the net proceeds of which are applied
entirely to substantially concurrently repay, refinance,
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refund or replace, outstanding Indebtedness of the Company or any of its
Subsidiaries (the "Refinanced Indebtedness"), to the extent such Indebtedness:
(a) is issued in a principal amount (or if such Indebtedness is issued
at an original issue discount, is issued at an original issue price) not
exceeding the outstanding principal amount (or, if such Refinanced
Indebtedness was issued at an original issue discount, not exceeding the
outstanding accreted principal amount) of such Refinanced Indebtedness, and
(b) if the Refinanced Indebtedness is Indebtedness of the Company and
ranks by contract, by its terms or otherwise junior in right of payment to
the Securities, (i) does not have a final scheduled maturity and is not
subject to any principal payments, including but not limited to payments
upon mandatory or optional redemption, prior to the dates of analogous
payments under the Refinanced Indebtedness, and (ii) has subordination
provisions effective to subordinate such Indebtedness to the Securities at
least to the extent that such Refinanced Indebtedness is subordinated to
the Securities, or
(c) if the Refinanced Indebtedness is Indebtedness of the Company
which is pari passu in right of payment with the Securities, (i) is pari
passu or subordinated in right of payment to the Securities, (ii) does not
have a final scheduled maturity and is not subject to any principal
payments, including but not limited to, payments upon mandatory or optional
redemption, prior to the final scheduled maturity date of the Refinanced
Indebtedness, and (iii) is not secured by any Lien on any property of the
Company or any Subsidiary in addition to Liens securing the Refinanced
Indebtedness.
"Registration Rights Agreement" means that certain Registration Rights
Agreement dated as of the date of this Indenture among the Company and the
parties named as signatories thereto, pursuant to which the Company is obligated
to register the Securities and certain other securities of the Company.
"Responsible Officer" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president
(whether or not designated by numbers or words added before or after the title
"vice president"), the secretary, the treasurer, any trust officer, any
assistant trust officer, any assistant secretary, any assistant treasurer, or
any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Payment" shall have the meaning set forth in Section 4.13.
"S&P" means Standard & Poor's Corporation and its successors.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" means the Company's % Senior Unsecured Notes
due 2001 issued under this Indenture.
"Stated Maturity" means, (i) with respect to the principal of the
Securities, 2001 and (ii) with respect to any scheduled
installment of interest on any Security, the date specified in such Security as
the fixed date on which such installment is due and payable.
"Subsidiary" means any corporation more than 50% of the outstanding shares
of Voting Stock of which at the time of determination are owned by the Company
directly or indirectly through one or more Subsidiaries, or both.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trade Payables" means, with respect to any Person, any accounts payable or
any other indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person or any of its Subsidiaries and arising in
the ordinary course of business in connection with the acquisition of goods or
services.
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"Trustee" means the Person identified as the "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Eight, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the Securities, and shall also include a depository
receipt issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of
the holder of a depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
"U.S. Legal Tender" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to vote for the election of directors, managers or trustees of any
Person (irrespective of whether or not at the time stock of any class or classes
will have or might have, voting power by the reason of the happening of any
contingency).
"Wholly Owned" means, with respect to any Person, any Subsidiary of such
Person all of the Capital Stock or other similar equity ownership interests of
which (other than any director's qualifying shares or Investments by foreign
nationals mandated by applicable law) is owned directly or indirectly by such
Person.
ARTICLE TWO
SECURITIES
SECTION 2.1 Form and Dating. The Securities and the related Trustee's
certificate of authentication shall be substantially in the respective forms set
forth in Exhibit A, which exhibit is a part of this Indenture. The Securities
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Security shall be dated the date of its authentication. The
Securities shall be issuable only in registered form in denominations of $1,000
and integral multiples thereof.
The terms and provisions contained in the Securities shall constitute, and
are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and agree to be bound thereby.
SECTION 2.2 Execution and Authentication. Two Officers of the Company
(each of whom shall have been duly authorized by all requisite corporate
actions) shall sign each Security for the Company by manual or facsimile
signature. If an Officer whose signature is on a Security no longer holds that
office at the time any Securities are authenticated, such Securities shall
nevertheless be valid. The Company's seal shall be reproduced on each Security.
The seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated and delivered by the Trustee.
With respect to the sale and issuance of the Securities, the Trustee shall,
upon receipt of a written order of the Company in the form of an Officers'
Certificate, authenticate Securities for issuance on the Closing Date in the
aggregate principal amount of $100,000,000.
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If any Securities are to be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall authenticate
and deliver one or more Global Securities, that (i) shall represent and shall be
in denominations of $1,000 or integral multiples thereof (ii) shall be
registered in the name of the Depository for such Global Security or Securities
or the nominee of such Depository, (iii) shall be delivered by the Trustee to
such Depository or pursuant to such Depository's instructions and (iv) shall
bear a legend substantially to the following effect:
Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except
as a whole by the Depository to the nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository.
Each Depository must, at the time of its designation and at all times while
it serves as Depository, be a clearing agency registered under the Exchange Act
and any other applicable statute or regulation.
SECTION 2.3 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form set forth
in Exhibit A hereto, executed (subject to Section 8.13) by the Trustee by the
manual signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder of such Security
is entitled to the benefits of this Indenture.
SECTION 2.4 Payments of Interest. The Securities shall bear interest from
the date of authentication, and such interest shall be payable on the dates set
forth therein.
The person in whose name any Security is registered at the close of
business on any record date applicable to such Security with respect to any
Interest Payment Date for such Security shall be entitled to receive the
interest, if any, payable on such Interest Payment Date notwithstanding any
transfer or exchange of such Security subsequent to the record date and prior to
such Interest Payment Date, except if and to the extent the Company shall
default in the payment of the interest due on such Interest Payment Date, in
which case such defaulted interest shall be paid to the persons in whose names
Outstanding Securities are registered at the close of business on a subsequent
record date (which shall be not less then five Business Days prior to the date
of payment of such defaulted interest) established by notice given by mail by or
on behalf of the Company to the Holders of Securities not less than 15 days
preceding such subsequent record date. The term "record date" as used with
respect to any Interest Payment Date (except a date for payment of defaulted
interest) for the Securities shall mean the date specified as such in the terms
of the Securities.
Subject to the foregoing provisions of this Section 2.4, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 2.5 Registration, Transfer and Exchange. The Company will keep at
each office or agency to be maintained for the purpose as provided in Section
4.2 a register or registers in which, subject to such reasonable regulations as
it may prescribe, it will provide for the registration of Securities and the
registration of transfer of Securities. Such register shall be in written form
in the English language or in any other form capable of being converted into
such form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security at any
such office or agency to be maintained for the purpose as provided in Section
4.2, the Company shall execute and the Trustee shall authenticate and deliver in
the name of the transferee or transferees a new Security or Securities.
At the option of the Holder thereof, Securities (other than a Global
Security, except as set forth below) may be exchanged for a Security or
Securities having authorized denominations in an equal aggregate principal
amount, upon surrender of such Securities to be exchanged at the agency of the
Company that shall
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be maintained for such purpose in accordance with Section 4.2 and upon payment,
if the Company shall so require, of the amounts hereinafter provided.
All Securities presented for registration of transfer, exchange, redemption
or payment shall (if so required by the Company or the Trustee) be duly endorsed
by, or be accompanied by a written instrument or instruments of transfer, in
form satisfactory to the Company and the Trustee and duly executed by the Holder
or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Company shall not be required to exchange or register a transfer of (a)
any Securities for a period of 15 days next preceding the first mailing of
notice of redemption of Securities to be redeemed or (b) any Securities
selected, called or being called for redemption, in whole or in part, except, in
the case of any Security to be redeemed in part, the portion thereof not so to
be redeemed.
Notwithstanding any other provision of this Section 2.5, unless and until
it is exchanged in whole or in part for Securities in non-global form, a Global
Security representing all or a portion of the Securities may not be transferred
except as a whole by the Depository to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor Depository
or a nominee of such successor Depository.
If at any time the Depository for any Securities represented by one or more
Global Securities notifies the Company that it is unwilling or unable to
continue as Depository for such Securities or if at any time the Depository for
such Securities shall no longer be eligible under Section 2.2, the Company shall
appoint a successor Depository eligible under Section 2.2 with respect to such
Securities. If a successor Depository eligible under Section 2.2 for such
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of an Officer's Certificate of the
Company for the authentication and delivery of Securities in non-global form,
will authenticate and deliver Securities in non-global form in exchange for such
Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities issued in the form of one or more Global Securities shall no longer
be represented by a Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of an Company order for the
authentication and delivery of Securities in non-global form, will authenticate
and deliver, Securities in non-global form in exchange for such Global Security
or Securities.
Any person having a beneficial interest in a Global Security may upon
request exchange such beneficial interest for Securities in non-global form.
Upon receipt by the Trustee of written instructions (or such other form of
instructions as is customary for the Depository) from the Depository or its
nominee on behalf of any person having a beneficial interest in a Global
Security and upon receipt by the Trustee of a written order or such other form
of instructions as is customary for the Depository or the person designated by
the Depository as having such a beneficial interest containing registration
instructions, then the Trustee will cause, in accordance with the standing
instructions and procedures existing between the Depository and the Trustee, the
aggregate principal amount of the Global Security to be reduced and following
such reduction, the Company will execute and upon receipt of an authentication
order in the form of an Officers' Certificate, the Trustee will authenticate and
deliver Securities in non-global form.
Securities in non-global form issued in exchange for a beneficial interest
in a Global Security pursuant to this Section 2.5 shall be registered in such
names and in such authorized denominations as the Depository for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the Trustee.
The Trustee or such agent shall deliver such Securities to or as directed by the
Person in whose names such Securities are so registered.
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The Securities executed by the Company, and authenticated and delivered by
the Trustee, upon any transfer or exchange contemplated by this Section 2.5
shall be dated the date of their authentication, shall be in authorized
denominations, shall be in like aggregate principal amount and have the same
Stated Maturity date and interest rate as, and bear interest from the most
recent date to which interest has been paid on (or if no interest has been paid,
from the date of), the Securities surrendered upon such transfer or exchange (or
as the portion of any Global Security being exchanged for Securities in
non-global form, as the case may be), and shall bear a number of other
distinguishing symbol not appearing on any Security contemporaneously
Outstanding.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
SECTION 2.6 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon
the written request of any officer of the Company, the Trustee shall
authenticate and deliver a new Security of the same Stated Maturity date
appearing on any Security, interest rate as, bearing interest from the most
recent date to which interest has been paid on (or if no interest has been paid,
from the date of) the mutilated or defaced Security, or the Security so
destroyed, lost or stolen, and bearing a number or other distinguishing symbol
not contemporaneously Outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of or in substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substitute
Security shall furnish to the Company and to the Trustee and any agent of the
Company or the Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof and in the case of
mutilation or defacement, shall surrender the Security to the Trustee or such
agent.
Upon the issuance of any substitute Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee or its agent) connected therewith. In case any
Security that has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Company and to the Trustee and any agent of the Company or the
Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and the Trustee and any agent of the Company
or the Trustee evidence to their satisfaction of the destruction, loss or theft
of such Security and of the ownership thereof.
Every substitute Security issued pursuant to the provisions of this Section
2.6 by virtue of the fact that any such Security is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone and shall be entitled to all the benefits of (but shall be subject to all
the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities duly authenticated and
delivered hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced or
destroyed, lost or stolen Securities and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.7 Cancellation of Securities; Destruction Thereof.
(a) All Securities surrendered for payment, redemption, registration
of transfer or exchange, if surrendered to the Company or any agent of the
Company or any agent of the Trustee, shall be delivered to the Trustee for
cancellation and, upon receipt thereof by the Trustee, shall be cancelled
by it; and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this
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Indenture. The Trustee shall destroy cancelled Securities held by it and
deliver a certificate of destruction to the Company. If the Company or any
agent of the Company shall acquire any of the Securities, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are delivered to
the Trustee for cancellation.
(b) At such time as all beneficial interests in a Global Security have
either been exchanged for Securities in non-global form, redeemed,
repurchased or cancelled, such Global Security shall be returned to and
cancelled by the Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Security is exchanged for Securities in
non-global form, redeemed, repurchased or cancelled, the principal amount
of Securities represented by such Global Security shall be reduced and an
endorsement shall be made on such Global Security by the Trustee to reflect
such reduction.
SECTION 2.8 Temporary Securities. Until definitive Securities are ready
for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee, upon receipt of a written order signed by two
Officers of the Company, shall authenticate definitive Securities in exchange
for temporary Securities. Until such exchange, temporary Securities shall be
entitled to the same rights, benefits and privileges as definitive Securities.
SECTION 2.9 Currency and Manner of Payments in Respect of
Securities. Payment of the principal of and premium (if any) and interest on,
any Security will be made in U.S. Legal Tender.
SECTION 2.10 CUSIP Number. A "CUSIP" number will be printed on the
Securities, and the Trustee shall use the CUSIP number in notices of redemption,
purchase or exchange as a convenience to Holders, provided that any such notice
may state that no representation is made as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Securities and that reliance
may be placed only on the other identification numbers printed on the
Securities. The Company will promptly notify the Trustee of any change in the
CUSIP number.
ARTICLE THREE
REDEMPTIONS
SECTION 3.1 Notices to Trustee. If the Company elects to redeem
Securities pursuant to Section 3.7 it shall furnish to the Trustee, at least 10
but not more than 15 days before notice of any redemption is to be mailed to
Holders (or such shorter time as may be satisfactory to the Trustee), an
Officers, Certificate stating that the Company has elected to redeem Securities
pursuant to Section 3.7, the date notice of redemption is to be mailed to
Holders, the Redemption Date, the aggregate principal amount of Securities to be
redeemed, the Redemption Price for such Securities and the amount of accrued and
unpaid interest on such Securities as of the Redemption Date. If the Trustee is
not the registrar for the Securities, the Company shall, concurrently with
delivery of its notice to the Trustee of a redemption, cause the registrar for
the Securities to deliver to the Trustee a certificate (upon which the Trustee
may rely) setting forth the name of, and the aggregate principal amount of
Securities held by each Holder. The Company will also provide the Trustee with
any additional information that the Trustee reasonably requests in connection
with any redemption.
SECTION 3.2 Selection of Securities to be Redeemed. If less than all
outstanding Securities are to be redeemed, the Company shall select the
outstanding Securities to be redeemed or accepted for payment in compliance with
the requirements of the principal national securities exchange, if any, on which
the Securities are listed or, if the Securities are not listed on a securities
exchange, on a pro rata basis, by lot or by any other method that the Trustee
deems fair and appropriate. If the Company elects to mail notice of a redemption
to Holders, the Trustee shall, at least 5 days prior to the date notice of
redemption is to be mailed, (i) select the Securities to be redeemed from
Securities Outstanding not previously called for redemption, and (ii) promptly
notify the Company of the names of each Holder of Securities selected for
redemption, the principal amount of Securities held by each such Holder and the
principal amount of such Holder's Securities that are to be
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<PAGE> 19
redeemed. The Trustee shall select for redemption Securities or portions of
Securities in principal amounts of $1,000 or integral multiples of $1,000;
except that if all of the Securities of a Holder are selected for redemption,
the aggregate principal amount of the Securities held by such Holder, even if
not a multiple of $1,000, may be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
SECTION 3.3 Notice of Redemption.
(a) At least 30 days but not more than 60 days before any Redemption
Date, the Company shall mail by first class mail to each such Holder's
registered address a notice of redemption to each Holder of Securities or
portions thereof that are to be redeemed. With respect to any redemption of
Securities, the notice shall identify the Securities or portions thereof to
be redeemed and shall state: (1) the Redemption Date; (2) the Redemption
Price for the Securities and the amount of unpaid and accrued interest on
such Securities as of the date of redemption; (3) if any Security is being
redeemed in part, the portion of the principal amount of such Security to
be redeemed and that, after the Redemption Date, upon surrender of such
Security, a new Security or Securities in principal amount equal to the
unredeemed portion will be delivered; (4) the name and address of the
Paying Agent; (5) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price for, and any accrued
and unpaid interest on, such Securities; (6) that, unless the Company
defaults in making such redemption payment, interest on Securities called
for redemption ceases to accrue on and after the Redemption Date and the
only remaining right of the Holders of such Securities is to receive
payment of the Redemption Price upon surrender to the Paying Agent of the
Securities redeemed; and (7) if fewer than all the Securities are to be
redeemed, the identification of the particular Securities (or portions
thereof) to be redeemed, as well as the aggregate principal amount of
Securities to be redeemed and the aggregate principal amount of Securities
to be outstanding after such partial redemption.
(b) At the Company's request, the Trustee shall (at the Company's
expense) give the notice of any redemption to Holders; provided, however,
that the Company shall deliver to the Trustee, at least 10 days prior to
the date that notice of the redemption is to be mailed to Holders, an
Officers' Certificate that (i) requests the Trustee to give notice of the
redemption to Holders, (ii) sets forth the information to be provided to
Holders in the notice of redemption, as set forth in the preceding
paragraph, and (iii) sets forth the aggregate principal amount of
Securities to be redeemed and the amount of accrued and unpaid interest
thereon as of the redemption date. If the Trustee is not the registrar for
the Securities, the Company shall, concurrently with any such request,
cause the registrar for the Securities to deliver to the Trustee a
certificate (upon which the Trustee may rely) setting forth the name of,
the address of, and the aggregate principal amount of Securities held by,
each Holder; provided further that any such Officers' Certificate may be
delivered to the Trustee on a date later than permitted under this Section
3.3(b) if such later date is acceptable to the Trustee.
SECTION 3.4 Effect of Notice of Redemption. Once notice of redemption is
mailed to the Holders, Securities called for redemption shall become due and
payable on the Redemption Date at the Redemption Price. Upon surrender to the
Trustee or the Paying Agent, the Securities called for redemption shall be paid
at the Redemption Price.
SECTION 3.5 Deposit of Redemption Price.
(a) On or prior to any Redemption Date, the Company shall deposit with
the Paying Agent money sufficient to pay the Redemption Price of, and
accrued interest on, all Securities to be redeemed on that date. After any
Redemption Date, the Trustee or the Paying Agent shall promptly return to
the Company any money that the Company deposited with the Trustee or the
Paying Agent in excess of the amounts necessary to pay the Redemption Price
of, and accrued interest on, all Securities to be redeemed.
(b) If the Company complies with the preceding paragraph, unless the
Company defaults in the payment of such Redemption Price, interest on the
Securities to be redeemed will cease to accrue on such Securities on the
applicable Redemption Date, whether or not such Securities are presented
for payment. If a Security is redeemed on or after an interest record date
but on or prior to the related
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<PAGE> 20
Interest Payment Date, then any accrued and unpaid interest shall be paid
to the Person in whose name such Security was registered at the close of
business on such record date. If any Security called for redemption shall
not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest will be paid on
the unpaid principal and interest from the redemption date until such
principal and interest is paid, at the rate of interest provided in the
Securities and Section 4.1.
SECTION 3.6 Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder at the Company's expense a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
If a Global Security is so surrendered, such new Security so issued shall be a
new Global Security.
SECTION 3.7 Optional Redemption. The Company, at its option on notice to
the Holders as provided herein, may redeem the Securities:
(a) prior to , 1997
(i) at any time in whole but not in part, at a Redemption Price
equal to 105% of the aggregate principal amount of the Securities then
Outstanding, plus accrued and unpaid interest thereon to the Redemption
Date; or
(ii) from time to time in part from the Net Offering Proceeds
received by the Company prior to , 1997 from one or more
Public Offering Sales at a Redemption Price equal to 105% of the
aggregate principal amount of the Securities so redeemed, plus accrued
and unpaid interest thereon to the Redemption Date; and
(b) on and after , 1997, at any time in whole or from time
to time in part, at a Redemption Price equal to the applicable percentage
of the aggregate principal amount of the Securities so to be redeemed, set
forth below, plus accrued and unpaid interest thereon to the Redemption
Date.
<TABLE>
<CAPTION>
IF REDEEMED
DURING THE
12 MONTHS BEGINNING PERCENTAGE
___________________ __________
<S> <C>
1997.............................................................. 105.0 %
1998.............................................................. 103.3 %
1999.............................................................. 101.7 %
2000 and thereafter............................................... 100.0 %
</TABLE>
ARTICLE FOUR
COVENANTS OF THE COMPANY
SECTION 4.1 Payment of Principal and Interest. The Company covenants and
agrees that it will duly and punctually pay or cause to be paid the principal
of, premium (if any) and interest on, each of the Securities at the place or
places, at the respective times and in the manner provided in such Securities
and in this Indenture. To the extent lawful, the Company shall pay interest on
overdue principal, premium and interest at a rate equal to the then applicable
interest rate on the Securities, compounded semi-annually.
SECTION 4.2 Offices for Payments, etc. So long as any Securities are
authorized for issuance pursuant to this Indenture or are outstanding hereunder,
the Company will maintain in the Borough of Manhattan, the City of New York, an
office or agency where the Securities may be presented for payment and for
exchange and registration of transfer as in this Indenture provided. The Company
will give prompt written notice to the Trustee of any change in the location of
such office or agency. Until the Company shall furnish to the Trustee a
different address therefor, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee as specified
in Section 12.4 hereof.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind
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<PAGE> 21
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in the Borough of Manhattan, the City of New York, for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 4.3 Appointment to Fill a Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 8.9, a Trustee so that there
shall at all times be a Trustee with respect to the Securities.
SECTION 4.4 Paying Agents. Whenever the Company shall appoint a Paying
Agent other than the Trustee with respect to the Securities, it will cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section
4.4,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of, premium (if any) and interest on the
Securities (whether such sums have been paid to it by the Company or any
other obligor on the Securities) in trust for the benefit of the Holders of
the Securities or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities) to make any payment of the
principal of, premium (if any) or interest on the Securities when the same
shall be due and payable, and
(c) that it will pay any such sums so held in trust by it to the
Trustee upon the Trustee's written request, at any time during the
continuance of the failure referred to in clause (b) above.
The Company will, on or prior to each due date of the principal of, premium
(if any) or interest on the Securities, deposit with the Paying Agent a sum
sufficient to pay such principal, premium or interest so becoming due, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of any failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Securities it will, on or before each due date of the principal of, premium (if
any) or interest on the Securities set aside, segregate and hold in trust for
the benefit of the Holders of the Securities a sum sufficient to pay such amount
so becoming due. The Company will promptly notify the Trustee of any failure to
take such action.
Anything in this Section 4.4 to the contrary notwithstanding, but subject
to Section 11.1, the Company may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to the Securities or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust with
respect to the Securities by the Company or any Paying Agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section 4.4 to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section 4.4 is subject to the
provisions of Sections 11.3 and 11.4 hereof.
SECTION 4.5 Reports and Information.
(a) The Company will furnish to the Trustee within 120 days after the
end of each fiscal year an Officers' Certificate stating that (i) a review
of the activities of the Company and its Subsidiaries during the preceding
fiscal year has been made to determine whether the Company has kept,
observed, performed and fulfilled all of its obligations under this
Indenture and the Securities, (ii) such review was supervised by the
Officers of the Company signing such certificate, and (iii) that to the
best knowledge of each Officer signing such certificate, (A) during such
year the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of
this Indenture (or, if a Default or Event of Default occurred, describing
all such Defaults or Events of Default of which each such Officer may have
knowledge and what action the Company has taken or proposes to take with
respect thereto), and (B) no event has occurred and remains in existence by
reason of which payments on account of the principal of, premium (if any)
or interest on, the Securities are prohibited or if such event has
occurred, a description
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<PAGE> 22
of the event and what action the Company is taking or proposes to take with
respect thereto. The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly after any Officer of the
Company becomes aware of (i) any Default or Event of Default, or (ii) any
default or event of default under any issue of Indebtedness that could
result in an Event of Default under Section 7.1, an Officers' Certificate
specifying such Default, Event of Default or default and what action the
Company is taking or proposes to take with respect thereto.
(b) If the Company is subject to the requirements of Section 13 or
15(d) of the Exchange Act, the Company shall file with the Commission all
quarterly and annual reports and such other information, documents or other
reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) required to be filed
pursuant to such provisions of the Exchange Act. The Company shall file
with the Trustee, within 5 days after it files the same with the
Commission, copies of the quarterly and annual reports and such other
information, documents, and reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe)
that it files with the Commission as contemplated by this Section 4.5(b).
The Company shall also comply with the other provisions of Section 314(a)
of the TIA. If the Company is not required to file the aforementioned
reports, the Company (at its own expense) shall file with the Trustee and
mail, or cause the Trustee to mail, to Holders at their addresses appearing
in the register of Securities at the time of such mailing within 5 days
after it would have been required to file such information with the
Commission, all information and financial statements, including any notes
thereto and with respect to annual reports, an auditors' report by an
accounting firm of established national reputation, and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
comparable to the disclosure that the Company would have been required to
include in annual and quarterly reports, information, documents or other
reports, including, without limitation, reports on Forms 10-K, 10-Q and
8-K, if the Company was subject to the requirements of Section 13 or 15(d)
of the Exchange Act.
SECTION 4.6 Corporate Existence. Subject to Article Six, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the corporate, partnership or other
existence of each Subsidiary of the Company and the rights (charter and
statutory) and franchises of the Company and any Subsidiary of the Company;
provided, that the Company shall not be required to preserve any such corporate,
partnership or other existence of any Subsidiary or any such right or franchise,
if the Board of Directors of the Company shall determine in the exercise of its
business judgment that the preservation thereof is no longer desirable in the
conduct of the business of the Company or any Subsidiary and that abandonment of
any such right or franchise shall have no material adverse effect on the Company
and its Subsidiaries taken as a whole, or the Holders.
SECTION 4.7 Payment of Taxes and Other Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies that, if unpaid, might by law become a lien upon the
property of the Company, or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim the amount, applicability or validity of
which is being contested in good faith by appropriate proceedings and with
respect to which an adequate reserve has been established by the Company to the
extent required by GAAP.
SECTION 4.8 Maintenance of Properties. The Company shall, and shall cause
each of its Subsidiaries to, maintain all properties used or useful in the
conduct of its business in good condition, repair and working order and supply
such properties with all necessary equipment and make all necessary repairs,
renewals, replacements, betterments and improvements thereto, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company or any
Subsidiary from discontinuing the operation and maintenance of any of such
properties if such discontinuance is, in the good faith judgment of the Company
or such Subsidiary, as the case may be, desirable in the conduct of its
respective business and not disadvantageous in any material respect to the
Holders.
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<PAGE> 23
SECTION 4.9 Maintenance of Insurance. The Company will insure and keep
insured, and will cause each Subsidiary to insure and keep insured, with
reputable insurance companies, such of their respective properties, to such an
extent and against such risks, and will maintain liability insurance, to the
extent that property of a similar character is usually so insured by companies
engaged in a similar business and owning similar properties in accordance with
good business practice.
SECTION 4.10 Compliance with Laws. The Company shall comply, and shall
cause each of its Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of America, all states
and municipalities thereof, and of any governmental department, commission,
board, regulatory authority, bureau, agency and instrumentality of the
foregoing, in respect of the conduct of their respective businesses and the
ownership of their respective properties, except such as are being contested in
good faith and by appropriate proceedings and except for such noncompliance as
would not in the aggregate have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
SECTION 4.11 Disposition of Proceeds of Public Offering Sale.
(a) If the Company shall consummate a Public Offering Sale at any time
or from time to time prior to , 1997, it shall, promptly after
each Public Offering Sale so consummated at a time when, immediately prior
to such consummation, the Company shall have cash and Cash Equivalents, not
subject to any restriction on disposition, of at least $100,000,000, make
an offer to apply a portion of the Net Offering Proceeds thereof equal to
the lesser of (x) 50% of such Net Offering Proceeds and (y) the excess, if
any, of (i) $20,000,000 over (ii) the amount of any Net Offering Proceeds
of any prior Public Offering Sale received prior to , 1997,
and applied to purchase Securities pursuant to a prior Net Proceeds Offer
pursuant to this Section 4.11), to purchase Securities on a pro rata basis
from all Holders (a "Net Proceeds Offer") at a purchase price equal to 104%
of the principal amount of the Securities so purchased, plus accrued and
unpaid interest to the date of purchase. Any Net Proceeds Offer shall
remain open from the time of mailing until 5 days (or such shorter period
as may be required under applicable law) before the Net Proceeds Purchase
Date.
(b) Notice of a Net Proceeds Offer pursuant to this Section 4.11 shall
be mailed, by first class mail, by the Trustee on behalf of the Company not
more than 60 days after the consummation of the relevant Public Offering
Sale to all Holders at their last registered addresses. The notice shall
contain all instructions and material necessary to enable such Holders to
tender Securities pursuant to the Net Proceeds Offer and shall state the
following terms:
(i) that the Net Proceeds Offer is being made pursuant to this
Section 4.11 and that all Securities tendered will be accepted for
purchase; provided, however, that if the aggregate purchase price of
Securities tendered in a Net Proceeds Offer (including accrued interest
at the expiration of such offer) exceeds the aggregate amount of the Net
Offering Proceeds required to be applied in such Net Proceeds Offer, the
Company shall select the Securities to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so
that only Securities in denominations of $1,000 or integral multiples
thereof shall be purchased);
(ii) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be a Business Day no earlier than 30
days nor later than 60 days from the date such notice is mailed) (the
"Net Proceeds Purchase Date");
(iii) that any security not tendered will continue to accrue
interest if interest is then accruing;
(iv) that, unless the Company defaults in making payment therefor,
any Security accepted for purchase pursuant to the Net Proceeds Offer
shall cease to accrue interest on the Net Proceeds Purchase Date;
(v) that Holders electing to have a Security purchased pursuant to
a Net Proceeds Offer will be required to surrender the Security, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Security completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the Business Day prior to
the Net Proceeds Purchase Date;
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<PAGE> 24
(vi) that each Holder will be entitled to withdraw its election (in
whole but not in part) if the Paying Agent receives, not later than the
close of business on the third Business Day immediately preceding the
Net Proceeds Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing its election to have such Securities purchased;
and
(vii) that Holders whose Securities were purchased only in part
will be issued new Securities equal in aggregate principal amount to the
unpurchased portion of the Securities surrendered.
On the Net Proceeds Purchase Date, the Company shall: (i) accept for
purchase on a pro rata basis Securities or portions thereof tendered pursuant to
the Net Proceeds Offer; (ii) deposit with the Paying Agent money sufficient to
pay the purchase price of all Securities or portions thereof so accepted; and
(ii) deliver, or cause to be delivered, to the Trustee all Securities or
portions thereof so accepted together with an Officers' Certificate specifying
the Securities or portions thereof accepted for purchase by the Company. The
Paying Agent shall promptly mail to the Holders of Securities so accepted
payment in an amount equal to the purchase price, and the Company shall execute
and the Trustee shall promptly authenticate and mail to each of such Holders a
new Security equal in principal amount to any unpurchased portion of the
Security surrendered; provided that each Security purchased and each new
Security delivered shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company will publicly announce the results of the Net
Proceeds Offer as soon as practicable after the Net Proceeds Purchase Date. For
purposes of this Section 4.11, the Trustee shall act as the Paying Agent.
SECTION 4.12 Limitation on Issuances and Dispositions of Capital Stock of
Subsidiaries. Each Subsidiary of the Company shall at all times be a Wholly
Owned Subsidiary of the Company. The Company (i) shall not, and shall not permit
any Subsidiary to, transfer, convey, sell, or otherwise dispose of any Capital
Stock of a Subsidiary, or securities convertible or exchangeable into, or
options, warrants, rights or any other interest with respect to, Capital Stock
of a Subsidiary to any Person (other than the Company or a Wholly Owned
Subsidiary) and (ii) shall not permit any Subsidiary to issue shares of its
Capital Stock (other than directors' qualifying shares), or securities
convertible or exchangeable into, or options, warrants, rights or any other
interest with respect to, its Capital Stock to any Person other than to the
Company or a Wholly Owned Subsidiary.
SECTION 4.13 Limitation on Restricted Payments.
(a) Except as otherwise provided in this Section 4.13, the Company
shall not, and shall not permit any Subsidiary to, directly or indirectly,
(i) declare or pay any dividends on or make any distributions in
respect of the Capital Stock of the Company (other than dividends or
distributions payable solely in shares of Capital Stock (other than
Redeemable Stock) or in options, warrants, or other rights to purchase
Capital Stock (other than Redeemable Stock)) to holders of Capital Stock
of the Company;
(ii) purchase, redeem or otherwise acquire or retire for value
(other than through the issuance solely of Capital Stock (other than
Redeemable Stock) or options, warrants or other giths to purchase
Capital Stock (other than Redeemable Stock)) any Capital Stock or
warrants, rights (other than exchangeable or convertible Indebtedness of
the Company not prohibited under clause (iii) below) or options to
acquire Capital Stock of the Company; or
(iii) redeem, repurchase, defease (including, but not limited to,
in substance or legal defeasance), or otherwise acquire or retire for
value (other than through the issuance solely of Capital Stock (other
than Redeemable Stock) or warrants, rights or options to acquire Capital
Stock (other than Redeemable Stock)) (collectively, a "prepayment"),
directly or indirectly (including by way of amendment of the terms of
any Indebtedness in connection with any retirement or acquisition of
such Indebtedness), other than at any scheduled maturity thereof or by
any scheduled repayment or scheduled sinking fund payment, any
Indebtedness which is subordinated in right of payment to the
18
<PAGE> 25
Securities or which matures after the maturity date of the Securities
(except out of the proceeds of Refinancing Indebtedness);
if, at the time of such transaction described in clause (i), (ii) or (iii)
(such transactions being hereinafter collectively referred to as
"Restricted Payments") or after giving effect thereto, either (x) a Default
or an Event of Default shall have occurred and be continuing or (y) the
aggregate amount expended by the Company and its Subsidiaries for all
Restricted Payments (the amount of any Restricted Payment if other than
cash to be the fair market value of the property included in such payment
as determined in good faith by the Board of Directors as evidenced by a
Board Resolution) from and after the Closing Date shall exceed the sum of
(A) 50% (or, if the Securities at the time of the proposed Restricted
Payment are rated Investment Grade by both S&P and Moody's, 75%) of the
aggregate Adjusted Consolidated Net Income (or if such Adjusted
Consolidated Net Income is a loss, minus 100% of such loss) of the Company
and its Subsidiaries for the period from the first day of the first quarter
ended subsequent to the Closing Date and through the last day of the most
recently completed quarter immediately preceding the quarter in which the
Restricted Payment occurs, calculated on a cumulative basis as if such
period were a single accounting period; (B) the aggregate net proceeds
received by the Company after the Closing Date (including the fair market
value of non-cash proceeds as determined in good faith by the Board of
Directors as evidenced by a Board Resolution) from any Person other than a
Subsidiary, as a result of the issuance of (or contribution to capital on)
Capital Stock of the Company (other than any Redeemable Stock) or warrants,
rights or options to acquire Capital Stock (other than any Redeemable
Stock); (C) the aggregate net proceeds received by the Company after the
Closing Date from any Person other than a Subsidiary as a result of the
issuance of Capital Stock (other than Redeemable Stock) upon conversion or
exchange of Indebtedness or upon exercise of options, warrants or other
rights to acquire such Capital Stock and (D) $25,000,000. For purposes of
any calculation that is required to be made in respect of, or after, the
declaration of a dividend by the Company, such dividend shall be deemed to
be paid at the date of declaration and shall be included in determining the
aggregate amount of Restricted Payments.
For the purposes of this Section 4.13, the net proceeds from the
issuance of shares of Capital Stock of the Company upon conversion of debt
securities shall be deemed to be an amount equal to the net book value of
such debt securities (plus the additional amount required to be paid upon
such conversion, if any), less any cash payment on account of fractional
shares; the "net book value" of a security shall be the net amount received
by the Company on the issuance of such security, as adjusted on the books
of the Company to the date of conversion.
(b) Notwithstanding the foregoing, if no Default or Event of Default
shall have occurred or be continuing at the time or as a result thereof,
the provisions of this Section 4.13 shall not prohibit (i) the payment of
any dividend in respect of the Company's Capital Stock within 60 days after
the date of declaration thereof, if at such date of declaration such
payment complied with the provisions hereof; (ii) the purchase, redemption
or other acquisition or retirement for value of any shares of the Company's
Capital Stock or the prepayment of any indebtedness of the Company which is
subordinated in right of payment to the Securities or which matures after
the maturity date of the Securities by any exchange for, or out of and to
the extent the Company has received cash proceeds from the substantially
concurrent sale or issuance (other than to a Subsidiary) of, shares of
Capital Stock (other than any Redeemable Stock) of the Company or warrants,
rights or options to acquire Capital Stock (other than any Redeemable
Stock); or (iii) the purchase or redemption of shares of Capital Stock of
the Company (including options on any such shares or related stock
appreciation rights or similar securities) held by officers or employees of
the Company or its Subsidiaries (or their estates or beneficiaries under
their estates) upon death, disability, retirement, termination of
employment of any such Person pursuant to the terms of any Plan or any
other agreement under which such shares of stock or related rights were
issued; provided that the aggregate amount of such purchases or redemptions
of such Capital Stock shall not exceed $3,000,000 in any one fiscal year of
the Company. For purposes of determining the aggregate amount of Restricted
Payments permitted under clause (y) of Section 4.13(a), all amounts
expended pursuant to clauses (i) (to the extent deemed to have been paid
and already included in determining the
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aggregate amount of Restricted Payments pursuant to clause (y) of Section
4.13(a)), (ii) and (iii) of this paragraph shall be excluded.
Prior to making any Restricted Payment under this Section, the Company
shall deliver to the Trustee an Officers' Certificate setting forth the
computation by which the amount available for Restricted Payments was
determined. The Trustee shall have no duty or responsibility to determine
the accuracy or correctness of this computation or that the provisions of
this Section have been satisfied and shall be fully protected in relying on
such Officers' Certificate.
SECTION 4.14 Limitation on Transactions with Affiliates.
(a) Neither the Company nor any Subsidiary of the Company shall,
directly or indirectly (i) sell, lease, transfer or otherwise dispose of
any of its properties or assets, or issue securities to, (ii) purchase any
property, assets or securities from, (iii) make any Investment in, or (iv)
enter into or suffer to exist any contract or agreement with or for the
benefit of, an Affiliate or holder of 5% or more of any class of Capital
Stock (and any Affiliate of such holder) of the Company (an "Affiliate
Transaction"), other than (x) Affiliate Transactions permitted under
Section 4.14(b) and (y) Affiliate Transactions (including lease
transactions) which are on fair and reasonable terms no less favorable to
the Company or such Subsidiary, as the case may be, than those as might
reasonably have been obtainable at such time from an unaffiliated party;
provided that if an Affiliate Transaction or series of related Affiliate
Transactions involves or has a value in excess of $1,000,000 and less than
or equal to $5,000,000, the Company or such Subsidiary, as the case may be,
shall not enter into such Affiliate Transaction or series of related
Affiliate Transactions unless a majority of the disinterested members of
the Board of Directors of the Company or such Subsidiary or an Independent
Financial Advisor shall reasonably and in good faith determine that such
Affiliate Transaction is fair to the Company or such Subsidiary, as the
case may be, or is on terms no less favorable to the Company or such
Subsidiary, as the case may be, than those as might reasonably have been
obtainable at such time from an unaffiliated party. In addition, neither
the Company nor any Subsidiary shall enter into an Affiliate Transaction or
series of related Affiliate Transactions involving or having a value of
more than $5,000,000 unless the Company or such Subsidiary, as the case may
be, has received an opinion from an Independent Financial Advisor to the
effect that the financial terms of such Affiliate Transaction are fair to
the Company or such Subsidiary or are at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party.
(b) The provisions of Section 4.14(a) shall not apply to (i) any
agreement as in effect as of the Closing Date, or any amendment thereto so
long as any such amendment is not disadvantageous to the Holders in any
material respect or any transaction contemplated thereby (including
pursuant to any amendment thereto); (ii) any transaction between the
Company and any Wholly Owned Subsidiary or between Wholly Owned
Subsidiaries, provided such transactions are not otherwise prohibited by
this Indenture; (iii) reasonable and customary fees and compensation paid
to, and indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any Subsidiary, as determined by the Board of
Directors of the Company or any Subsidiary or the senior management thereof
in good faith; (iv) any Restricted Payments not prohibited by Section 4.13;
(v) any payments or other transactions pursuant to any tax sharing
agreement between the Company and any other Person with which the Company
is required or permitted to file a consolidated tax return or with which
the Company is or could be part of a consolidated group for tax purposes;
and (vi) transactions with Continental Airlines, Inc., Mesa Airlines, Inc.
and their respective Affiliates as contemplated by the Alliance Agreements.
SECTION 4.15 Limitation on Asset Sales. Subject to the following
paragraphs of this Section, in the event and to the extent that on any date
after the Closing Date the Company and its Subsidiaries shall receive Net Cash
Proceeds from one or more Asset Sales (other than Asset Sales by the Company or
any Subsidiary to the Company or another Subsidiary), then the Company shall, or
shall cause such Subsidiary to, within 12 months after such date apply an amount
equal to such Net Cash Proceeds (A) to repay Indebtedness of the Company or
Indebtedness of any Subsidiary, in each case owing to a Person other than the
Company or any of its Subsidiaries, and/or (B) as an Investment (or enter into a
definitive agreement committing to so invest
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within 12 months after the date of such agreement), in property or assets of a
nature or type or that are used in a business (or in a Person having property
and assets of a nature or type, or engaged in a business) similar or related to
the nature or type of the property and assets of, or the business of, the
Company and its Subsidiaries existing on the date thereof (as determined in good
faith by the Board of Directors of the Company or such Subsidiary, as the case
may be, whose determination shall be conclusive and evidenced by a Board
Resolution). The amount of such Net Cash Proceeds required to be applied (or to
be committed to be applied) during such 12-month period as set forth in clause
(A) or (B) of the preceding sentence shall constitute "Excess Proceeds."
If on the first Business Day following any 12-month period referred to in
the preceding paragraph, the aggregate amount of Excess Proceeds from all Asset
Sales, not previously applied as provided in clause (A) or (B) of the preceding
paragraph, exceeds $15,000,000, the Company, within 10 Business Days after the
end of any such 12-month period, make an offer to purchase on a pro rata basis
from all Holders (an "Excess Proceeds Offer"), and shall purchase from Holders
accepting such Excess Proceeds Offer, the maximum principal amount (expressed as
an integral multiple of $1,000) of Securities that may be purchased from funds
in an amount equal to all such outstanding Excess Proceeds at a purchase price
equal to 100% of the principal amount of the Securities so purchased, plus
accrued and unpaid interest thereon (if any) to the date of purchase ("Excess
Proceeds Payment"). Upon completion of an Excess Proceeds Offer (or upon
termination of such offer if no repurchases are required), the amount of such
Excess Proceeds relating thereto shall be equal to zero.
The Company shall commence an Excess Proceeds Offer by causing the Trustee
to mail a notice to each Holder stating: (i) that the Excess Proceeds Offer is
being made pursuant to this Section 4.15 and that all Securities validly
tendered will be accepted for purchase; provided, however, that if the aggregate
purchase price of Securities tendered in an Excess Proceeds Offer (including
accrued interest to the date of purchase) exceeds the aggregate amount of the
Excess Proceeds required to be applied in such Excess Proceeds Offer, the
Company shall select the Securities to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Company so that only
Securities in denominations of $1,000 or integral multiples thereof shall be
purchased); (ii) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be a Business Day no earlier than 30 days nor
later than 60 days from the date such notice is mailed) (the "Excess Proceeds
Purchase Date"); (iii) that any Security not tendered will continue to accrue
interest pursuant to its terms; (iv) that, unless the Company defaults in the
purchase of such Security on the Excess Proceeds Purchase Date, any Security
accepted for purchase pursuant to the Excess Proceeds Offer shall cease to
accrue interest after the Excess Proceeds Purchase Date; (v) that Holders
electing to have a Security purchased pursuant to the Excess Proceeds Offer will
be required to surrender the Security, together with the form entitled "Option
of the Holder to Elect Purchase" on the reverse side of the Security completed,
to the Paying Agent at the address specified in the notice prior to the close of
business on the Business Day immediately preceding the Excess Proceeds Purchase
Date; (vi) that each Holder will be entitled to withdraw its election (in whole
but not in part) if the Paying Agent receives, not later than the close of
business on the third Business Day immediately preceding the Excess Proceeds
Purchase Date, a telegram, telex, facsimile transmission or letter setting forth
the name of such Holder, the principal amount of Securities delivered for
purchase and a statement that such Holder is withdrawing its election to have
such Securities purchased; and (vii) that Holders whose Securities are being
purchased only in part will be issued new Securities equal in aggregate
principal amount to the unpurchased portion of the Securities surrendered.
On the Excess Proceeds Purchase Date, the Company shall: (i) accept for
purchase on a pro rata basis Securities or portions thereof tendered pursuant to
the Excess Proceeds Offer; (ii) deposit with the Paying Agent money sufficient
to pay the purchase price of all Securities or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee all Securities or
portions thereof so accepted together with an Officers' Certificate specifying
the Securities or portions thereof accepted for purchase by the Company. The
Paying Agent shall promptly mail to the Holders of Securities so accepted
payment in an amount equal to the purchase price, and the Company shall execute
and the Trustee shall promptly authenticate and mail to each such Holders a new
Security equal in principal amount to any unpurchased portion of the Security
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surrendered; provided that each Security purchased and each new Security
delivered shall be in a principal amount of $1,000 or an integral multiple
thereof. The Company will publicly announce the results of the Excess Proceeds
Offer as soon as practicable after the Excess Proceeds Purchase Date. For
purposes of this Section 4.15, the Trustee shall act as the Paying Agent.
Notwithstanding the foregoing:
(i) to the extent that any or all of the Net Cash Proceeds of any
Asset Sale are prohibited or delayed by applicable local law from being
repatriated to the United States of America, the portion of such Net Cash
Proceeds so affected will not be required to be applied pursuant to this
Section 4.14 but may be retained for so long, but only for so long, as the
applicable local law will not permit repatriation to the United States of
America (the Company hereby agrees to promptly take all reasonable actions
required by the applicable local law to permit such repatriation) and once
such repatriation of any such affected Net Cash Proceeds is permitted under
the applicable local law, such repatriation will be immediately effected
and such repatriated Net Cash Proceeds will be applied in the manner set
forth in this Section 4.15 as if such Asset Sale had occurred on the date
of repatriation; and
(ii) to the extent that the Board of Directors of the Company has
determined in good faith that repatriation of any or all of the Net Cash
Proceeds would have an adverse tax consequence to the Company, the Net Cash
Proceeds so affected may be retained outside the United States of America
for so long as such adverse tax consequences would continue.
The Company will comply with Rule 14e-1 under the Securities Exchange Act
of 1934, as amended, and any other securities laws and regulations thereunder to
the extent such laws and regulations are applicable, in the event that such
Excess Proceeds are received by the Company as contemplated by this Section 4.15
and the Company is required to repurchase Securities as described above.
SECTION 4.16 Limitation on Payment Restrictions Affecting
Subsidiaries. The Company shall not, and shall not permit any Subsidiary to,
create or otherwise cause or suffer to exist or become effective any Payment
Restriction or consensual encumbrance with respect to any Subsidiary thereof to
(a) pay dividends or make any other distributions on such Subsidiary's Capital
Stock; (b) make any loans or advances to the Company or any other Subsidiary; or
(c) transfer any of its property or assets to the Company or any other
Subsidiary except (i) restrictions imposed by applicable law; (ii) any
restrictions existing under this Indenture; and (iii) encumbrances or
restrictions contained in any agreement or instrument (A) relating to any
property acquired by the Company or any of its Subsidiaries after the Closing
Date, provided that such encumbrance or restriction relates only the property
which is acquired; (B) relating to any Indebtedness of any Subsidiary at the
date of acquisition of such Subsidiary by the Company or any Subsidiary of the
Company, provided that such Indebtedness was not incurred in connection with, or
in contemplation of, such acquisition (the Company being entitled to rely upon a
certificate of such Subsidiary as to whether such Indebtedness was incurred in
contemplation thereof); (C) arising pursuant to an agreement effecting a
refinancing of Indebtedness issued pursuant to an agreement referred to in the
foregoing clauses (A) and (B), so long as the encumbrances and restrictions
contained in any such refinancing agreement are no more restrictive than the
encumbrances and restrictions contained in such agreements; (D) which constitute
customary provisions restricting subletting or assignment of any lease of the
Company or any Subsidiary or provisions in agreements that restrict the
assignment of such agreement or any rights thereunder; and (E) which constitute
restrictions on the sale or other disposition of any property securing
Indebtedness as a result of a lien on such property.
SECTION 4.18 Limitation on Investments. The Company shall not, and shall
not permit any Subsidiary to make any Investment other than (i) Investments
consisting of non-cash proceeds from Asset Sales permitted by this Indenture;
(ii) Investments in cash and Cash Equivalents; (iii) accounts receivable if
credited or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; (iv) payroll advances
and advances for business and travel expenses in the ordinary course of
business; (v) Investments by the Company in its Subsidiaries in the ordinary
course of business; or (vi) Investments by any Subsidiary of the Company in the
Company or in any Subsidiary.
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SECTION 4.19 Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE FIVE
SECURITYHOLDERS LISTS AND REPORTS BY COMPANY AND THE TRUSTEE
SECTION 5.1 The Company to Furnish Trustee Information as to Names and
Addresses of Securityholders. If and so long as the Trustee shall not be the
Security registrar for the Securities, the Company covenants and agrees that it
will furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Securities pursuant to Section 312 of the TIA:
(a) semi-annually and not more than 15 days after each record date for
the payment of interest on such Securities, as hereinabove specified and as
of such record date, and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Company of any such request as of a date not
more than 15 days prior to the time such information is furnished.
SECTION 5.2 Disclosure of Names and Addresses of Securityholders. Each
and every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of the Company or the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
of Securities in accordance with Section 312 of the TIA, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under Section 312(b) of the TIA.
SECTION 5.3 Reports by the Trustee. Any Trustee's report required under
Section 313(m) of the TIA shall be transmitted on or before May 15 in each year
beginning May 15, 1995, as provided in Section 313(c) of the TIA, so long as any
Securities are outstanding hereunder, and shall be dated as of a date convenient
to the Trustee no more than 60 days prior thereto.
ARTICLE SIX
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 6.1 Merger or Consolidation. The Company shall not consolidate
with or merge into any other corporation or convey, lease or transfer its
properties and assets substantially as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person that acquires by conveyance, lease or
transfer the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws of
the United States of America or any State or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the
Company's obligation for the due and punctual payment of the principal of
and interest on all the Securities according to their tenor and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
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(b) immediately before and after giving effect to such transaction, no
Event of Default, and no event that, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, lease or transfer and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with; and
(d) the Person formed by such consolidation or surviving such merger
or to which the properties and assets of the Company as an entirety or
substantially as an entirety are transferred or leased shall have a
Consolidated Tangible Net Worth (immediately after and giving effect to
such transaction) equal to or greater than that of the Company (immediately
preceding such transaction).
This Section shall only apply to a merger or consolidation in which the
Company is not the surviving corporation and to conveyances, leases, and
transfers by the Company, as transferee or lessor.
SECTION 6.2 Successor Corporation Substituted. Upon any consolidation or
merger by the Company with or into any other corporation, or any conveyance or
transfer by the Company of its properties and assets substantially as an
entirety to any Person, in accordance with Section 6.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company and in the event of any such conveyance or transfer, the
Company, except in the event of a conveyance by way of lease, shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be dissolved and liquidated. Such successor corporation may
cause to be signed, and may issue either in its own name or in the name of the
Company prior to such succession, any or all of the Securities issuable
hereunder that theretofore shall not have been signed by the Company or and
delivered to the Trustee; and, upon the order of such successor corporation,
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities that previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
that such successor corporation thereafter shall, cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, conveyance or transfer, such
changes in phrasing and form (but not in substance) may be made in the
Securities that may be endorsed thereon, as the case may be, thereafter to be
delivered as may be appropriate.
ARTICLE SEVEN
REMEDIES OF THE TRUSTEE
AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 7.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "Event of Default", with respect to the Securities, means any one of
the following events that shall have occurred and be continuing (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of the principal of or premium (if any) on
any Security when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;
(b) default in the payment of interest on any Security when the same
becomes due and payable, and such default continues for a period of 30
days;
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(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture or under the
Securities and such default or breach continues for a period of 30
consecutive days after the date on which written notice specifying such
failure, stating that such notice is a "Notice of Default" under the
Indenture and demanding that the Company remedy the same, shall have been
given by registered or certified mail, return receipt requested, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
25% or more in aggregate principal amount of the Securities Outstanding;
(d) there occurs with respect to any issue or issues of Indebtedness
of the Company and/or one or more Subsidiaries having an outstanding
principal amount of $10 million or more in the aggregate for all such
issues of all such Persons, whether such Indebtedness now exists or shall
hereafter be created, an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable prior to its
Stated Maturity and such Indebtedness has not been discharged in full or
such acceleration has not been rescinded or annulled within 30 days of such
acceleration;
(e) any final judgment or order (not covered by insurance) for the
payment of money in excess of $10 million in the aggregate for all such
final judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) shall be
rendered against the Company or any Subsidiary and shall not be discharged,
and there shall be any period of 60 consecutive days following entry of the
final judgment or order that causes the aggregate amount for all such final
judgments or orders outstanding against all such Persons to exceed $10
million during which a stay of enforcement of such final judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect;
(f) a court having jurisdiction in the premises enters a decree or
order for (i) relief in respect of the Company or any Subsidiary in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, (ii) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Company or any Subsidiary or for all or substantially all of the
property and assets of the Company or any Subsidiary or (iii) the winding
up or liquidation of the affairs of the Company or any Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days;
(g) the Company or any Subsidiary (i) commences a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (ii) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Subsidiary or for
all or substantially all of the property and assets of the Company or any
Subsidiary or (iii) effects any general assignment for the benefit of
creditors of the Company or any Subsidiary;
(h) the Company and/or one or more Subsidiaries fail to make at the
final (but not any interim) fixed maturity of one or more issues of
Indebtedness a principal payment or principal payments aggregating more
than $10 million and all such defaulted payments shall not have been made,
waived or extended within 30 days of the payment default that caused the
aggregate amount of such defaulted payments to exceed $10 million; or
(i) any of the Applicable Documents shall cease, for any reason, to be
in full force and effect in any material respect, except as a result of an
amendment, waiver or termination thereof as contemplated or permitted
therein.
If an Event of Default (other than an Event of Default specified in clause
(f) or (g) above that occurs with respect to the Company) occurs and is
continuing, the Trustee or the Holders of at least 25% of the aggregate
principal amount of the Securities then Outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders (the
"Acceleration Notice" )), may, and the Trustee at the request of the Holders
shall, declare the entire unpaid principal, premium (if any) and accrued
interest on the Securities to be immediately due and payable as specified below.
Upon a declaration of acceleration, such principal, premium (if any) and accrued
interest shall be immediately due and payable. In the event of a
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declaration of acceleration because an Event of Default set forth in clause (d)
above has occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default shall be remedied, cured by the Company or waived by the
holders of the relevant Indebtedness within 30 days after the occurrence of the
Event of Default with respect thereto and the Company has delivered an Officer's
Certificate as to such effect. If an Event of Default specified in clause (f) or
(g) above occurs with respect to the Company, all unpaid principal of, premium
(if any) and accrued interest on the Securities then outstanding shall ipso
facto become and be immediately due and payable without declaration or other act
on the part of the Trustee or any Holder.
The Holders of at least a majority in principal amount of the outstanding
Securities, by written notice to the Company and the Trustee, may waive all past
defaults and rescind and annul a declaration of acceleration and its
consequences if (i) all existing Events of Default, other than the non-payment
of the principal of, premium, if any, and interest on Securities that have
become due solely by such declaration of acceleration, have been cured or waived
and (ii) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 7.1 with respect to Securities all or part of which are represented by a
Global Security, a record date shall be established for determining Holders of
Outstanding Securities entitled to join in such Notice of Default, which record
date shall be at the close of business on the day the Trustee receives such
Notice of Default. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such Notice of
Default, whether or not such Holders remain Holders after such record date;
provided, that unless Holders of at least 25% in principal amount of the
Outstanding Securities, or their proxies, shall have joined in such Notice of
Default prior to the day which is 90 days after such record date, such Notice of
Default shall automatically and without further action by any Holder be
cancelled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after expiration of such 90-day
period, a new Notice of Default identical to a Notice of Default which has been
cancelled pursuant to the proviso to the preceding sentence, in which event a
new record date shall be established pursuant to the provisions of this Section
7.1.
Upon receipt by the Trustee of any Acceleration Notice or any rescission
and annulment thereof, with respect to Securities all or part of which are
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided,
that unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day which is 90 days after
such record date, such notice of declaration of acceleration or rescission and
annulment, as the case may be, shall automatically and without further action by
any Holder be cancelled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of
such 90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a
written notice which has been cancelled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 7.1.
SECTION 7.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Company covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities when the
same shall have become due and payable, whether upon maturity of the Securities
or upon any redemption or by declaration or otherwise, then upon demand of the
Trustee, the Company will pay to the Trustee for the benefit of the Holders of
the Securities the whole amount that then shall have become due and payable an
all Securities for principal or interest, as the case may be (with interest to
the date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest specified in
the
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Securities); and in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including reasonable compensation
to the Trustee and each predecessor Trustee, their respective agents, attorneys
and counsel, and any expenses and liabilities incurred, and all advances made by
the Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Company may pay the principal
of and interest on the Securities to the registered Holders, whether or not the
Securities are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities and collect in the manner provided by law out of the property of the
Company or other obligor upon the Securities, wherever situated the monies
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or the property of the Company or such other
obligor, or in case of any other judicial proceedings relative to the Company or
other obligor upon the Securities, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee will have
made any demand pursuant to the provisions of this Section, shall be entitled
and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee, except as a result of negligence or bad
faith) and of the Securityholders allowed in any judicial proceedings
relative to the Company or other obligor upon the Securities, or to the
creditors or property of the Company or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings or person performing similar functions
in comparable proceedings, and
(c) to collect and receive any monies or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to pay
to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar person.
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All rights of action and of asserting claims under this Indenture, or under
any of the Securities may be enforced by the Trustee without the possession of
any of the Securities or the production thereof on any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses, disbursements
and compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities in respect of which such action was taken, and it shall not be
necessary to make any Holders of such Securities parties to any such
proceedings.
SECTION 7.3 Application of Proceeds. Any monies collected by the Trustee
pursuant to this Article Seven in respect of the Securities shall be applied in
the following order at the date or dates fixed by the Trustee and, in the case
of the distribution of such monies on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities in reduced principal amounts in exchange for the presented Securities
if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of amounts due the Trustee or any predecessor
Trustee under Section 8.6;
SECOND: In case the principal of the Securities shall not have become
and be then due and payable, to the payment of interest on the Securities
in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest specified in the Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities for principal and interest, with
interest upon the overdue principal, and (to the extent that such interest
has been collected by the Trustee) upon overdue installments of interest at
the same rate as the rate of interest specified in the Securities and in
case such monies shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities, then to the payment of such principal
and interest without preference or priority of principal over interest or
of interest over principal, or of any installment of interest over any
other installment of interest, or of any Security over any other Security,
ratably to the aggregate of such principal and accrued and unpaid interest;
and
FOURTH: To the payment of the remainder, if any, to the Company or any
other person lawfully entitled thereto.
SECTION 7.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 7.5 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then and in every such case
the Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
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SECTION 7.6 Limitations on Suits by Securityholders. A Holder of
Securities may not pursue any remedy with respect to this Indenture or the
Securities unless; (i) such Holder gives to the Trustee written notice of a
continuing Event of Default; (ii) the Holders of at least 25% in aggregate
principal amount of outstanding Securities make a written request to the Trustee
to pursue the remedy; (iii) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against any costs, liability or expense;
(iv) the Trustee does not comply with the request within 60 days after receipt
of the request and the offer of indemnity; and (v) during such 60-day period,
the Holders of a majority in aggregate principal amount of the outstanding
Securities do not give the Trustee a direction that is inconsistent with the
request.
For purposes of this Section 7.6, the Trustee shall comply with Section
316(a) of the TIA in making any determination of whether the Holders of the
required aggregate principal amount of outstanding Securities have concurred in
any request or direction of the Trustee to pursue any remedy available to the
Trustee or the Holders with respect to this Indenture or the Securities or
otherwise under the law.
A Holder of Securities may not use this Indenture to prejudice the rights
of another Holder or to obtain a preference or priority over such other Holder.
SECTION 7.7 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of, premium (if any) and interest on such Security on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 7.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as provided in Section 7.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Holder to exercise any right
or power accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 7.6, every power and remedy given by this Indenture or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Holders.
SECTION 7.9 Control by Holders of Securities. The Holders of a majority
in aggregate principal amount of the Securities at the time outstanding shall
have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Securities by this Indenture;
provided, that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture; and provided, further, that (subject to
the provisions of Section 8.1) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors, the executive committee,
or a trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders not joining in the giving of said
direction. It being understood that (subject to Section 8.1) the Trustee shall
have no duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and that is not
inconsistent with such direction or directions by the Holders.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to Securities all or part of which are
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represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided,
that unless the Holders of a majority in principal amount of the Outstanding
Securities shall have joined in such notice prior to the day which is 90 days
after such record date, such notice shall automatically and without further
action by any Holder be cancelled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new notice identical to a notice which has
been cancelled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 7.9.
SECTION 7.10 Waiver of Past Defaults. Subject to Sections 7.1 and 7.7,
the Holders of at least a majority in principal amount of the outstanding
Securities, by notice to the Trustee, may waive an existing Event of Default and
its consequences, except a default in the payment of principal of or interest on
any Security as specified in clause (a) or (b) of Section 7.1.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any past default hereunder.
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have waived
such default prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default at Event of Default or impair any right consequent thereon.
SECTION 7.11 Trustees to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall, within ninety days after the
occurrence of a Default with respect to the Securities, give notice of all
Defaults known to the Trustee to all Holders of Securities in the manner and to
the extent provided in Section 313(c) of the TIA, unless in each case such
Defaults shall have been cured before the mailing or publication of such notice;
provided, however, that, except in the case of Default in the payment of the
principal of or interest on any of the Securities, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or trustees or
Responsible Officers of the Trustee, or any combination of the foregoing, in
good faith determines that the withholding of such notice is in the interests of
the Securityholders.
SECTION 7.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
its acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merit and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder or group of Securityholders holding in the
aggregate more than 10% in aggregate principal amount of the Securities or to
any suit instituted by any Securityholder for the enforcement of the payment of
the principal of or interest on any Security on or after the due date expressed
in such Security or any date fixed for redemption.
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ARTICLE EIGHT
CONCERNING THE TRUSTEE
SECTION 8.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of the Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities and after the curing or waiving of all Events of
Default that may have occurred, has undertaken to perform such duties and only
such duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to the Securities has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to such Securities such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to the
Securities and after the curing or waiving of all such Events of Default
with respect to such Securities that may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders pursuant to Section 7.9 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
The provisions of this Section 8.1 are in furtherance of and subject to
Section 315 of the TIA.
SECTION 8.2 Certain Rights of the Trustee. In furtherance of and subject
to the TIA, and subject to Section 8.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate of the
Company (unless other evidence in respect thereof be herein
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specifically prescribed); and any resolution of the Board of Directors of
the Company may be evidenced to the Trustee by a copy thereof certified by
the secretary or an assistant secretary of the Company;
(c) the Trustee may consult with counsel and any written advice or any
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in reliance thereon in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture; and
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing to
so do by the Holders of not less than a majority in aggregate principal
amount of the Securities then Outstanding; provided, however, that, if the
payment within a reasonable time to the Trustee of the costs, expenses, or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Company or, if paid by the Trustee or
any predecessor Trustee, shall be repaid by the Company upon demand.
SECTION 8.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of any of the Securities or of the proceeds thereof.
SECTION 8.4 Trustee and Agents May Hold Securities; Collections, etc. The
Trustee or any agent of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and may otherwise
deal with the Company and receive, collect, hold and retain collections from the
Company with the same rights it would have if it were not the Trustee or such
agent.
SECTION 8.5 Monies Held by Trustee. Subject to the provisions of Section
11.4 hereof, all monies received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Company or
the Trustee shall be under any liability for interest on any monies received by
it hereunder.
SECTION 8.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and the Company covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on behalf
of it in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Company also covenants to indemnify the Trustee and each predecessor Trustee
for, and to
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hold it harmless against, any loss, liability or expense incurred, without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability in the premises. The obligations of the
Company under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness of the Company hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities, and the Securities are hereby subordinated to such
senior claim.
SECTION 8.7 Right of Trustee to Rely on Officers' Certificate,
etc. Subject to Sections 8.1 and 8.2, whenever in the administration of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate of the Company delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 8.8 Persons Eligible for Appointment as Trustee. The Trustee
shall at all times be a corporation organized and doing business under the laws
of the United States of America or of any State or the District of Columbia, or
a corporation or other Person permitted to act as Trustee by the Commission
pursuant to the TIA, having a combined capital and surplus of at least
$50,000,000, and that is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by Federal, State or
District of Columbia authority. Such corporation shall have an address in the
Borough of Manhattan, The City of New York for the presentment of Securities. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.9.
The provisions of this Section 8.8 are in furtherance of and subject to
Section 310(a) of the TIA.
SECTION 8.9 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice of resignation to the Company
and by mailing notice of such resignation to the Holders of then
Outstanding Securities at their addresses as they shall appear on the
registry books. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee or trustees by written
instrument in duplicate, executed by authority of the Board of Directors of
the Company, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of resignation,
the resigning trustee may petition any court of competent jurisdiction for
the appointment of a successor trustee, or any Securityholder who has been
a bona fide Holder of a Security or Securities for at least six months may,
subject to the provisions of Section 8.12, on behalf of itself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the TIA with respect to the Securities after written request
therefor by the Company or by any Securityholder who has been a bona
fide Holder of a Security or Securities for at least six months; or
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(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.8 and Section 310(a) of the TIA and shall fail
to resign after written request therefor by the Company or by any
Securityholder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, unless the Trustee's duty to resign has been stayed
as provided pursuant to Section 310(b) of the TIA, the Company may remove
the Trustee and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors of the Company, one
copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
315(e) of the TIA, any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months may on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment
of a successor trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed, and to the Company the evidence provided
for in Section 9.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section 8.9
shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 8.10.
SECTION 8.10 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 8.9 shall execute and deliver
to the Company and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee hereunder; but nevertheless, on the written
request of the Company or of the successor trustee, upon payment of its charges
then unpaid, the Trustee ceasing to act shall, subject to Section 11.4, pay over
to the successor trustee all monies at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 8.6.
No successor trustee shall accept appointment as provided to this Section
8.10 unless at the time of such acceptance such successor trustee shall be
qualified under Section 310(b) of the TIA and eligible under the provisions of
Section 8.8.
Upon acceptance of appointment by any successor trustee as provided in this
Section 8.10, the Company shall give notice thereof to the Holders of
Securities, by mailing such notice to such Holders at their addresses as they
shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
8.9. If the Company fails to give such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Company.
SECTION 8.11 Merger, Conversion, Consolidation or Succession to Business
of Trustee. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
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any corporation succeeding to the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder; provided, however, that such
corporation shall be qualified under Section 310(b) of the TIA and eligible
under the provisions of Section 8.8, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trust created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor Trustee hereunder or in
the name of the successor Trustee; and in all such cases such certificate shall
have the full force that it has anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 8.12 Preferential Collection of Claims Against the Company. The
Trustee shall comply with Section 311(a) of the TIA. Any Trustee that has
resigned or been removed is subject to Section 311(s) of the TIA to the extent
indicated therein.
SECTION 8.13 Appointment of Authenticating Agent. As long as any
Securities remain Outstanding, the Trustee may, by an instrument in writing,
appoint an authenticating agent (the "Authenticating Agent") that shall be
authorized to act on behalf of the Trustee to authenticate Securities, including
Securities issued upon exchange, registration of transfer, partial redemption or
pursuant to Section 2.5. Securities authenticated by such Authenticating Agent
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee. Whenever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or to the Trustee's Certificate of Authentication
(including, without limitation, in Section 2.3), such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a Certificate of Authentication executed on behalf of
the Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $5,000,000 (determined as provided in Section 8.8 with
respect to the Trustee) and subject to supervision or examination by Federal or
State authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all Securities for which it served as Authenticating Agent without
the execution or filing of any paper or any further act on the part of the
Trustee or such Authenticating Agent. Any Authenticating Agent may at any time,
and if it shall cease to be eligible shall, resign by giving written notice of
resignation to the Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.13, the Trustee shall upon
receipt of an Company Order appoint a successor Authenticating Agent and the
Company shall provide notice of such appointment to all Holders in the manner
and to the extent provided in Section 12.4. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. The Company agrees
to pay to the Authenticating Agent from time to time reasonable compensation.
The Authenticating Agent for the Securities shall have no responsibility or
liability for any action taken by it as such at the direction of the Trustee.
Sections 8.2, 8.3, 8.4, 8.6, 8.8 and 9.3 shall be applicable to any
Authenticating Agent as if each reference to "Trustee" therein referred to the
Authenticating Agent.
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ARTICLE NINE
CONCERNING THE SECURITYHOLDERS
SECTION 9.1 Evidence of Action Taken by Securityholders. Any request
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such specified
percentage of Securityholders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
8.1 and 8.2) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Article Nine.
SECTION 9.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 8.1 and 8.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of
any jurisdiction authorized to take acknowledgments of deeds or administer
oaths that the person executing such instruments acknowledged to him the
execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer. Where such execution is by
or on behalf of any legal entity other than an individual, such certificate
or affidavit shall also constitute sufficient proof of the authority of the
person executing the same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
The Company may set a record date for purposes of determining the identity
of Holders of Securities entitled to vote or consent to any action referred to
in Section 9.1, which record date may be set at any time or from time to time by
notice to the Trustee, for any date or dates (in the case of any adjournment or
reconsideration not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any other
provisions hereof, only Holders of Securities of record on such record date
shall be entitled to so vote or give such consent or revoke such vote or
comment.
SECTION 9.3 Holders to be Treated as Owners. The Company, the Trustee and
any agent of the Company or the Trustee may deem and treat the person in whose
name any Security shall be registered upon the Security register as the absolute
owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of, premium (if
any) and interest on such Security and for all other purposes, and neither the
Company or the Trustee nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary.
SECTION 9.4 Securities Owned by the Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities have concurred in any direction, consent or waiver under
this Indenture, Securities that are owned by the Company or any other obligor on
the Securities with respect to which such determination is being made or by any
Affiliate of the Company or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Securities that the Trustee knows are so
owned shall be so disregarded. Securities so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made
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by the Trustee in accordance with such advice. Upon request of the Trustee, the
Company shall furnish to the Trustee promptly an Officer's Certificate listing
and identifying all Securities, if any, known by the Company, to be owned or
held by or for the account of any of the above-described persons; and, subject
to Sections 8.1 and 8.2, the Trustee shall be entitled to accept such Officer's
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of
any such determination.
SECTION 9.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 9.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in connection with such
action, any Holder of a Security the serial number of which is shown by the
evidence to be included among the serial numbers of the Securities the Holders
of which have consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in this Article
Nine, revoke such action so far as it concerns such Security. Except as
aforesaid, any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange of substitution
therefor or on registration of transfer thereof, irrespective of whether or not
any notation in regard thereto is made upon any such Security. Any action taken
by the Holders of the percentage in aggregate principal amount of the Securities
specified in this Indenture in connection with such action shall be conclusively
binding upon the Company, the Trustee and the Holders of all the Securities
affected by such action.
ARTICLE TEN
AMENDMENTS
SECTION 10.1 Amendments and Supplements Permitted Without Consent of
Holders.
(a) Notwithstanding Section 10.2, the Company and the Trustee may
amend or supplement this Indenture or the Securities without the consent of
any Holder to: (i) cure any ambiguity, correct or supplement any provisions
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture; provided that such amendment does not adversely affect the
rights of the Holders; (ii) provide for uncertificated Securities in
addition to or in place of certificated Securities; (iii) evidence the
succession of another corporation to the Company and provide for the
assumption by such successor of the Company's obligations to the Holders
hereunder and under the Notes as permitted under Article Six; (iv) make any
change that would (1) provide any additional rights or benefits to Holders
or (2) not adversely affect the legal rights under the Indenture of any
Holder, or (v) comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
(b) Upon the Company's request, after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any
amended or supplemental indenture, and the documents described in Section
10.6, the Trustee shall join with the Company in the execution of any
amended or supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and
stipulations that may be contained in any such amended or supplemental
indenture, but the Trustee shall not be obligated to enter into an amended
or supplemental indenture that affects its own rights, duties or immunities
under this Indenture or otherwise.
SECTION 10.2 Amendments and Supplements Requiring Consent of Holders.
(a) Except as otherwise provided in Section 10.1(a) and 10.2(c), this
Indenture and the Securities may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Securities (including consents
obtained in connection with a tender offer or exchange offer for the
Securities), and any existing Default or Event of Default or non-compliance
with any provision of the Indenture or the Securities may be waived with
the consent of
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Holders of at least a majority in principal of the then outstanding
Securities (including consents obtained in connection with a tender offer
or exchange offer for the Securities).
(b) Upon the Company's request and after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any
supplemental indenture, evidence of the Holders' consent, and the documents
described in Section 10.6, the Trustee shall join with the Company in the
execution of such amended or supplemental indenture unless such amended or
supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may
in its discretion, but shall not be obligated to, enter into such amended
or supplemental indenture.
(c) Without the consent of each Holder affected, no amendment,
supplement or waiver to this Indenture shall: (i) reduce the principal
amount of Securities whose Holders must consent to an amendment, supplement
or waiver of any provision of this Indenture on the Securities, (ii) reduce
the principal of or change the fixed maturity of any Security, or alter the
provisions with respect to the redemption of the Securities in a manner
adverse to the Holders, (iii) reduce the rate of or change the time for
payment of interest on any Security, (iv) waive a Default or Event of
Default in the payment of principal of, or premium (if any) or interest on,
the Securities (except that Holders of at least a majority in aggregate
principal amount of the then outstanding Securities may (1) rescind an
acceleration of the Securities that resulted from a non-payment default,
and (2) waive the payment default that resulted from such acceleration),
(v) make any Security payable in money other than U.S. Legal Tender, (vi)
make any change in the provisions of the Indenture relating to waivers of
past Defaults or the rights of Holders to receive payments of principal of,
or premium (if any) or interest on, the Securities, (vii) waive a
redemption payment with respect to any Security, or (ix) make any change in
Section 7.7, Section 7.10 or this sentence.
(d) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not
such Holders remain Holders after such record date; provided, that unless
such consent shall have become effective by virtue of the requisite
percentage having been obtained prior to the date which is 90 days after
such record date, any such consent previously given shall automatically and
without further action by any Holder be cancelled and of no further effect.
(e) It shall not be necessary for the consent of the Holders under
this Section 10.2 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the
substance thereof. After an amendment, supplement or waiver under this
Section 10.2 becomes effective, the Company shall mail to each Holder
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of
any such amended or supplemental indenture or waiver.
SECTION 10.3 Compliance with TIA. Every amendment or supplement to this
Indenture or the Securities shall be set forth in an amended supplemental
indenture that complies with the TIA as then in effect.
SECTION 10.4 Revocation and Effect of Consents.
(a) Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Security is a continuing consent by the
Holder and every subsequent holder of a Security or portion of a Security
that evidences the same Indebtedness as the consenting Holder's Security,
even if notation of the consent is not made on any Security. However, any
such Holder or subsequent Holder may revoke the consent as to its Security
or portion of a Security if the Trustee receives the notice of revocation
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities
have consented (and not theretofore revoked such consent) to the amendment
or waiver.
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(b) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the holders of Securities entitled to
consent to any amendment or waiver. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph,
those Persons who were holders of Securities at such record date (or their
duly designated proxies), and only those Persons, shall be entitled to
consent to such amendment or waiver or to revoke any consent previously
given, whether or not such Persons continue to be holders of Securities
after such record date. No consent shall be valid or effective for more
than 90 days after such record date.
(c) After an amendment or waiver becomes effective it shall bind every
Holder, unless it is of the type described in Section 10.2(c), in which
case the amendment or waiver shall only bind each Holder that consented to
it and every subsequent holder of a Security that evidences the same debt
as the consenting Holder's Security.
SECTION 10.5 Notation on or Exchange of Securities. The Trustee may place
an appropriate notation about an amendment, supplement or waiver on any Security
thereafter authenticated. The Company in exchange for all Securities may issue
and the Trustee shall authenticate new Securities that reflect the amendment,
supplement or waiver. Failure to make the appropriate notation or issue a new
Security shall not affect the validity and effect of such amendment, supplement
or waiver.
SECTION 10.6 Trustee Protected. The Trustee shall sign any amendment or
supplemental indenture authorized pursuant to this Article Ten if the amendment
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing such
amendment or supplemental indenture, the Trustee shall be entitled to receive
and, subject to Section 8.1, shall be fully protected in relying upon, an
Officers' Certificate and Opinion of Counsel as conclusive evidence that such
amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms. The Company may not sign
an amendment or supplemental indenture until the Board of Directors approves it.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 11.1 Satisfaction and Discharge of Indenture.
(A) Except as otherwise provided in this Section 11.1, the Company may
terminate its obligations under the Securities and this Indenture with
respect to the Securities if:
(i) all Securities previously authenticated and delivered (other
than destroyed, lost or stolen Securities that have been replaced or
Securities that are paid pursuant to Section 4.1 of this Indenture or
Securities for whose payment money or securities have theretofore been
held in trust and thereafter repaid to the Company, as provided in
Section 11.4 of this Indenture) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder;
or
(ii) (A) the Securities mature within one year or all of them are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (B) the
Company irrevocably deposits in trust with the Trustee during such
one-year period, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, as trust funds solely
for the benefit of the Holders for that purpose, money or U.S.
Government Obligations sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee), without consideration
of any reinvestment of any interest thereon, to pay principal and
interest on the Securities to maturity or redemption, as the case may
be, and to pay all other sums payable by it hereunder, (C) no Event of
Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit, (D) such deposit will not result
in a breach or violation of, or constitute a default under, this
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<PAGE> 46
Indenture or any other agreement or instrument to which the Company is
a party or by which either is bound and (E) the Company has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, in
each case stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture have been
complied with.
With respect to the foregoing clause (i), the Company's obligations under
Section 8.6 shall survive. With respect to the foregoing clause (ii), the
Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 4.1, 4.2, 4.3, 4.4,
8.6, 8.9, 11.2, 11.4 and 11.5 of this Indenture shall survive until the
Securities are no longer outstanding. Thereafter, only the Company's obligations
in Section 8.6 and 11.2 of this Indenture shall survive. After any such
irrevocable deposit, the Trustee upon request shall acknowledge in writing the
discharge of the Company's obligations under the Securities and this Indenture
with respect to the Securities except for those surviving obligations specified
above.
(B) The Company will be deemed to have paid and will be discharged
from any and all obligations in respect of the Securities on the 123rd day
after the deposit referred to in clause (d) of this paragraph, and the
provisions of this Indenture will no longer be in effect with respect to
the Securities, except as to (i) rights of registration of transfer and
exchange, (ii) substitution of apparently mutilated, defaced, destroyed,
lost or stolen Securities, (iii) rights of Holders to receive payments of
principal thereof and interest thereon, (iv) the Company's obligations
under Section , (v) the rights, obligations and immunities of the
Trustee hereunder and (vi) the rights of the Holders of Securities as
beneficiaries of this Indenture with respect to the property so deposited
with the Trustee payable to all or any of them, and the Trustee, at the
expense of the Company, shall at the Company's request execute proper
instruments acknowledging the same; provided that the following conditions
shall have been satisfied:
(a) with reference to this Section 11.1(B), the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section 8.8)
and conveyed all right, title and interest for the benefit of the
Holders of the Securities, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, in and to (1) money in an amount, (2) U.S. Government
Obligations that, through the payment of interest and principal in
respect thereof in accordance with their terms, will provide, not later
than one day before the due date of any payment referred to in this
clause (a), money in an amount or (3) a combination thereof in an amount
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without
consideration of the reinvestment of such interest and after payment of
all federal, state and local taxes or other charges and assessments in
respect thereof payable by the Trustee, the principal of, premium, if
any, and interest on the outstanding Securities at the Stated Maturity
of such principal or interest; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such principal, premium, if
any, and interest with respect to the Securities;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which either is bound;
(c) the Company shall have delivered to the Trustee (1) either (x)
a ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of Securities will not recognize
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this Section 11.1(B) and will be
subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such option had not
been exercised or (y) an Opinion of Counsel to the same effect as the
ruling described in clause (x) above and (2) an Opinion of Counsel to
the effect that (w) the creation of the defeasance trust does not
violate the Investment Company Act of 1940, (x) the Holders have a valid
first-priority security interest in the trust funds and (y) after the
passage of 123 days following the deposit (except, with respect to any
trust funds for the account of any Holder who may be
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deemed to be an "insider" for purposes of the United States Bankruptcy
Code, after one year following the deposit), the trust funds will not
be subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law
in a case commenced by or against the Company under either such
statute, and either (I) the trust funds will not longer remain the
property of the Company (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally) or (II) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company, (a) assuming such trust
funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to the Holders, the Trustee will hold,
for the benefit of the Holders, a valid and perfected security
interest in such trust funds that is not avoidable in bankruptcy or
otherwise except for the effect of Section 552(b) of the United States
Bankruptcy Code on interest on the trust funds accruing after the
commencement of a case under such statute and (b) the Holders will be
entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used in such case or proceeding;
(d) if the Securities are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit, defeasance and discharge will
not cause the Securities to be delisted; and
(e) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 11.1(B) have been complied with.
Notwithstanding the foregoing clause (a), prior to the end of the 123-day
period referenced to in clause (d)(2)(y) above, none of the Company's
obligations under this Indenture shall be discharged. Subsequent to the end of
such 123-day period with respect to this Section 11.1, the Company's obligations
in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 4.1, 4.2, 4.3, 4.4, 8.6, 8.9, 11.2, 11.4
and 11.5 shall survive until the Securities are no longer outstanding.
Thereafter, only the Company's obligations in Section 8.6 and 11.2 shall
survive. If and when a ruling from the Internal Revenue Service or an Opinion of
Counsel referred to in clause (d)(1) above is able to be provided specifically
without regard to, and not in reliance upon, the continuance of the Company's
obligations under Section 4.1, then the Company's obligations under such Section
4.1 shall cease upon delivery to the Trustee of such ruling or Opinion of
Counsel and compliance with the other conditions precedent provided for herein
relating to the defeasance contemplated by this Section 11.1.
After any such irrevocable deposit, the Trustee upon request, shall
acknowledge in writing the discharge of the Company's obligations under the
Securities and this Indenture with respect to the Securities except for those
surviving obligations in the immediately preceding paragraph.
(C) The Company may omit to comply with any term, provision or
condition set forth in clause (d) of Section 6.1 of this Indenture, the
covenants described in Sections 4.11, 4.13, 4.14, 4.15 and 4.18 of this
Indenture and clause (c) of Section 7.1 of this Indenture with respect to
such covenants, and clauses (d), (e) and (h) of Section 7.1 shall be deemed
not to be Events of Default, in each case with respect to the outstanding
Securities if:
(a) with reference to this Section 11.1(C), the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section 8.8)
and conveyed in and to all right, title and interest to the Trustee for
the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee as security for
payment of the principal of, premium, if any, and interest, in any, on
the Securities for, and dedicated solely to, the benefit of the Holders
of the Securities, in and to (1) money in an amount, (2) U.S. Government
Obligations that, through the payment of interest and principal in
respect thereof in accordance with their terms, will provide, not later
than one day before the due date of any payment referred to in this
clause (a), money in an amount or (3) a combination thereof in an amount
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without
consideration of the reinvestment of
41
<PAGE> 48
such interest and after payment of all federal, state and local taxes
or other charges and assessments in respect thereof payable by the
Trustee, the principal of, premium, if any, and interest on the
outstanding Securities on the Stated Maturity of such principal or
interest; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of such principal, premium, if any, and
interest with respect to the Securities;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(c) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(d) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (1) the creation of the defeasance trust does not
violate the Investment Company Act of 1940, (2) the Holders of the
Securities have a valid first-priority security interest in the trust
funds, (3) the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance
of certain obligations and will be subject to federal income tax on the
same amount and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred and (4)
after the passage of 123 days following the deposit (except, with
respect to any trust funds for the account of any Holder who may be
deemed to be an "insider" for purposes of the United States Bankruptcy
Code, after one year following the deposit), the trust funds will not be
subject to the effect of Section 547 of the United States Bankruptcy
Code or Section 15 of the New York Debtor and Creditor Law in a case
commenced by or against the Company under either such statute, and
either (x) the trust funds will no longer remain the property of the
Company (and therefore will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally) or (y) if a court were to rule
under any such law in any case or proceeding that the trust funds
remained property of the Company, and (i) assuming such trust funds
remained in the possession of the Trustee prior to such court ruling to
the extent not paid to the Holders the Trustee will hold, for the
benefit of the Holders, a valid and perfected security interest in such
trustee funds that is not avoidable in bankruptcy or otherwise except
for the effect of Section 552(b) of the United States Bankruptcy Code on
interest on the trust funds accruing after the commencement of a case
under such statute and (ii) the Holders will be entitled to receive
adequate protection of their interests in such trust funds if such trust
funds are used in such case or proceeding;
(e) if the Securities are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit, defeasance and discharge will
not cause the Securities to be delisted; and
(f) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 11.1 have been complied with.
SECTION 11.2 Application by Trustee of Funds Deposited for Payment of
Securities; Other Miscellaneous Provisions. Subject to Section 11.4, all monies
deposited with the Trustee (or other trustee) pursuant to Section 11.3 shall be
held in trust and applied by it to the payment, either directly or through any
Paying Agent (including the Company or the guarantor acting as Paying Agent), to
the Holders of the Securities for the payment or redemption of which such monies
have been deposited with the Trustee, of all sums due and to become due thereon
for principal premium, if any, and interest if may; but such money need not be
segregated from other funds except to the extent required by law.
If the Trustee or any Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 11.1 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such applications, the
42
<PAGE> 49
Company's obligations under this Indenture and the Securities related thereto
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.1B(a) or 11.1C(a) until such time as the Trustee or any Paying Agent
is permitted to apply all such money or U.S, Government Obligations in
accordance with Section 11.1; provided, however, that if the Company has made
any payment of interest on or principal of and premium (if any) on the
Securities because of the reinstatement of its obligations hereunder, the
Company shall be subrogated to the rights of the holders of the Securities to
receive such payment from the money or U.S. Government obligations held by the
Trustee for such purpose.
SECTION 11.3 Repayment of Monies Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities, all
monies then held by any Paying Agent under the provisions of this Indenture with
respect to such Securities shall, upon demand of the Company, be repaid to the
Company or paid to the Trustee and thereupon such Paying Agent shall be released
from all further liability with respect to such monies.
SECTION 11.4 Return of Monies Held by Trustee and Paying Agent Unclaimed
for Two Years. Any monies deposited with or paid to the Trustee or any Paying
Agent for the payment of the principal of, premium (if any) or interest on any
Security and not applied but remaining unclaimed for two years after the date
upon which such principal or interest shall have become due and payable shall,
upon the written request of the Company and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Company by the Trustee or such Paying Agent, and the
Holder of the Securities shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Company for any payment that such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such monies shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment
with respect to monies deposited with it for any payment, may at the expense of
the Company, mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the security register notice, that such monies
remain and that, after a date specified therein, which shall not be less than
thirty days from the date of such mailing, any unclaimed balance of such money
then remaining will be, repaid to the Company.
SECTION 11.5 Indemnity for U.S. Government Obligations. The Company shall
pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited by the Company
pursuant to Section 11.1 or the principal or interest received in respect of
such obligations.
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
SECTION 12.1 Incorporators, Stockholders, Officers and Directors of the
Company Exempt from Individual Liability. No director, officer, employee,
incorporator or shareholder of the Company or the Trustee shall have any
liability for any obligation of the Company under this Indenture or the
Securities or for any claim based on, in respect of, or by reason of, any such
obligation or the creation of any such obligation. Each Holder by accepting a
Security waives and releases such Persons from all such liability and such
waiver and release is part of the consideration for the issuance of the
Securities.
SECTION 12.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities. Nothing in this Indenture or in the Securities expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 12.3 Successors and Assigns of the Company Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind its successors and
assigns, whether so expressed or not.
43
<PAGE> 50
SECTION 12.4 Notices. Any notice, communication or demand that by any
provision of this Indenture is required or permitted to be given or served may
be given or served by being personally delivered, deposited postage prepaid,
first-class mail, return receipt requested or delivered by telecopier or
overnight air courier guaranteeing next day delivery addressed if to the Company
to: 4000 East Sky Harbor Blvd., Phoenix, Arizona 85034; if to the Trustee to:
. The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) it in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his last address an it appears in the Security
register. In any case where notice to such Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
each filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 12.5 Officers' Certificates and Opinions of Counsel; Statements to
be Contained Therein. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Company, upon the certificate, statement or opinion of or representations by
an officer or officers of the Company unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
44
<PAGE> 51
SECTION 12.6 Payments Due on Saturdays, Sundays and Holidays. If the date
of maturity of interest on or principal of the Securities the date fixed for
redemption or repayment of any Security shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the date of maturity or the date fixed for redemption, and no interest shall
accrue for the period after such date.
SECTION 12.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or with another provision (an
"incorporated provision") included in this Indenture by operation of, Sections
310 to 316, inclusive, of the Trust Indenture Act of 1939, such imposed duties
or incorporated provision shall control.
SECTION 12.8 New York Law to Govern. This Indenture and each Security,
shall be deemed to be a contract under the law of the State of New York, and for
all purposes shall be construed in accordance with the law of such State, except
as may otherwise be required by mandatory provisions of law.
SECTION 12.9 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 12.10 Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
45
<PAGE> 52
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of , 1994.
AMERICA WEST AIRLINES, INC.
By:__________________________________
Title:
Attest:
By:______________________________________________
Title:
[TRUSTEE]
By:___________________________________
Title:
Attest:
By:______________________________________________
Title:
46
<PAGE> 53
STATE OF NEW YORK |
|
| ss.:
|
COUNTY OF NEW YORK |
On this of , 199 before me personally came
, to me personally known, who, being by
me duly sworn, did depose and say that he resides at
; that he is the
of America West Airlines, Inc., one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that It was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
(NOTARIAL SEAL)
______________________________________
Notary Public
47
<PAGE> 54
STATE OF NEW YORK |
|
| ss.:
|
COUNTY OF NEW YORK |
On this of , 199 before me personally came
, to me personally known, who, being by
me duly sworn, did depose and say that he resides at
; that he is the
of [TRUSTEE], one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that It was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
(NOTARIAL SEAL)
______________________________________
Notary Public
48
<PAGE> 55
EXHIBIT A
[FORM OF FACE OF SECURITY]
THE ISSUANCE OF THE SECURITIES PRESENTED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR PURSUANT TO THE
SECURITIES OR "BLUE SKY" LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT PURSUANT
TO (i) A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS
EFFECTIVE UNDER SUCH ACT, (ii) RULE 144 OR RULE 144A UNDER SUCH ACT, OR (iii)
ANY OTHER EXEMPTION FROM REGISTRATION UNDER SUCH ACT RELATING TO SUCH ACT,
PROVIDED THAT, IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL REASONABLY
SATISFACTORY IN FORM AND SUBSTANCE IS FURNISHED TO THE COMPANY THAT AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.
[OID LEGEND]
AMERICA WEST AIRLINES, INC.
% SENIOR UNSECURED NOTES DUE 2001
No. R- $
America West Airlines, Inc. a Delaware corporation (the "Company"), which
term includes any successor corporation, for value received, promises to pay
, or registered assigns, the principal sum of on
, 2001.
Interest Payment Dates: 15 and 15, commencing
, 1994.
Record Dates: 1 and 1.
This Security is continued on the following page and the additional
provisions set forth therein shall for all purposes have the same effect as if
set forth at this place.
A-1
<PAGE> 56
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed to, or imprinted on, this Security.
Dated:
AMERICA WEST AIRLINES, INC.
By:__________________________________
Name:
Title:
Attest:
_________________________________________________________
Assistant Secretary
[Seal]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within mentioned Indenture.
[TRUSTEE], as trustee
By:___________________________________
Authorized Signature
A-2
<PAGE> 57
AMERICA WEST AIRLINES, INC.
[FORM OF REVERSE OF SECURITY]
% SENIOR UNSECURED NOTES DUE 2001
1. INTEREST.
America West Airlines, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the unpaid principal amount of this Security to
Persons who are registered Holders at the close of business on the relevant
Record Date at the rate of % per annum.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months and shall be payable semi-annually on 15 and
15 of each year commencing 15, 1994, or if any
such day is not a Business Day, on the next succeeding Business Day. Interest
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance. Interest shall accrue with
respect to principal on this Security to, but not including the date of
repayment of such principal; provided, however, that if payment to the Paying
Agent occurs after 10:00 a.m., New York City time, interest shall be deemed to
accrue until the following Business Day.
To the extent lawful, the Company shall pay interest on overdue principal,
premium (if any) and interest at the rate of interest borne by this Security. On
each Interest Payment Date, interest on the Securities will be paid for the
immediately preceding accrual period.
2. METHOD OF PAYMENT.
The Company will pay interest on the Securities (except defaulted interest)
to the persons who are registered Holders at the close of business on the Record
Date next preceding the applicable Interest Payment Date. If the Company
defaults in the payment of the interest due on such Interest Payment Date, such
defaulted interest will be paid to the Persons who are registered Holders of
Securities at the close of business on a subsequent record date established by
notice given not less than 15 days prior to such subsequent record date. The
Company will pay the principal of this Security to the Holder that surrenders
this Security to a Paying Agent on or after , 2001 or, in the
event of a redemption of this Security, on or after the Redemption Date, as
described below. The Company will pay principal and interest in U.S. Legal
Tender by Federal funds bank wire transfer or (in the case of payment of
interest) by check. If this Security is a Global Security, all payments in
respect of this Security will be made to the Depository or its nominee in
immediately available funds in accordance with customary procedures established
from time to time by the Depository.
3. PAYING AGENT AND REGISTRAR.
Initially, (the "Trustee"), will act as Paying Agent and
registrar for the Securities. The Company may change any Paying Agent, co-Paying
Agent, registrar or co-registrar without notice. Except as provided in the
Indenture, the Company or any of its Subsidiaries may, subject to certain
exceptions, act as Paying Agent, registrar or co-registrar.
4. INDENTURE.
The Company issued this Security under an Indenture dated as of
, 1994 (the "Indenture") between the Company and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code sec.sec. 77aaa -- 77bbbb). The Securities
are subject to all such terms, and Holders of the Securities are referred to the
Indenture and said Act for a statement of such terms. In the event of any
conflict between this Security and the Indenture, the Indenture shall govern.
The Securities are general unsecured obligations of the Company limited in
aggregate principal amount to $100,000,000.
<PAGE> 58
5. OPTIONAL REDEMPTION.
The Securities may be redeemed prior to , 1997 (a) at any
etime in whole but not in part, at a Redemption Price equal to 105% of the
aggregate principal amount of the Securities then Outstanding plus accrued and
unpaid interest hereon to the Redemption Date, or (b) from time to time in part
from the Net Offering Proceeds received by the Company prior to ,
1997 from one or more Public Offering Sales at a Redemption Price equal to 105%
of the aggregate principal amount of the Securities so redeemed, plus accrued
and unpaid interest thereon to the Redemption Date.
The Securities further may be redeemed on and after , 1997,
at any time in whole or from time to time in part, at a Redemption Price equal
to the applicable percentage of the aggregate principal amount of the Securities
so to be redeemed, set forth below, plus accrued and unpaid interest thereon to
the Redemption Date.
<TABLE>
<CAPTION>
IF REDEEMED
DURING THE
12 MONTHS BEGINNING % OF
, PRINCIPAL AMOUNT
_____________________ ________________
<S> <C>
1997................................................. 105.0
1998................................................. 103.3
1999................................................. 101.7
2000 and thereafter.................................. 100.0
</TABLE>
If the Redemption Date is subsequent to a Record Date with respect to any
Interest Payment Date and on or prior to such Interest Payment Date, then such
accrued interest, if any, will be paid to the person in whose name such
Securities are registered at the close of business on such Record Date and no
other interest will be payable thereon.
6. NOTICE OF REDEMPTION.
Notice of Redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Securities to be redeemed at
his registered address. Securities in denominations larger than $1,000 may be
redeemed in part, but not in denominations of less than $1,000.
From and after any Redemption Date, if monies for the redemption of the
Securities called for redemption shall have been made available for redemption
on such Redemption Date, the Securities called for redemption will cease to bear
interest and the only right of the Holders of such Securities will be to receive
payment of the Redemption Price.
7. LIMITATION ON PUBLIC OFFERING SALES.
As more fully set forth in the Indenture, under certain circumstances the
Company is required to apply 50% (but not more than $20,000,000) of the net
proceeds from one or more Public Offering Sales to purchase Securities in a Net
Proceeds Offer at a purchase price equal to 104% of the principal amount of the
Securities plus any accrued and unpaid interest to the date of purchase. A
Holder of Securities may tender in any Net Proceeds Offer all or any portion of
its Securities at its discretion by completing the form entitled "Option of
Holder to Elect Purchase" appearing on the reverse side of this Security.
8. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Company need not register the transfer of
or exchange any Securities selected for redemption. Also, the Company need not
issue, exchange or register the transfer of any Securities for a period of 15
days prior to the selection of the Securities to be redeemed.
2
<PAGE> 59
In accordance with the provisions of the Indenture and subject to certain
limitations therein set forth, an owner of a beneficial interest in a Global
Security may request a Security in certificated form, in exchange in whole or in
part, as the case may be, for such beneficial owner's interest in the Global
Security. In any such instance, an owner of a beneficial interest in a Global
Security will be entitled to physical delivery in certificated form of
Securities in authorized denominations equal in principal amount to such
beneficial interest and to have such Securities registered in its name.
9. PERSONS DEEMED OWNERS.
The registered Holder of a Security may be treated as the owner of it for
all purposes.
With respect to Global Securities, the Depository shall grant proxies and
otherwise authorize Holders of Global Securities to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a Holder of a Security is entitled to give or take under the Indenture.
10. UNCLAIMED MONEY.
If money deposited with or paid to the Trustee or any Paying Agent for the
payment of principal, premium (if any) or interest on the Securities remains
unclaimed for 2 years, the Trustee and any such Paying Agent will pay the money
back to the Company at its request. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
11. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
If the Company at any time deposits with the Trustee money or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Securities to redemption or maturity and complies with the other provisions of
the Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Securities (including the financial
covenants, but excluding certain obligations, including without limitation its
obligation to pay the principal of or interest on the Securities).
12. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the outstanding Securities and certain existing
Defaults or Events of Default or compliance with any provisions may be waived
with the consent of the Holders of at least a majority in aggregate principal
amount of the outstanding Securities. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, correct or supplement any
provision which may be inconsistent with any other provision, or to make any
other provisions with respect to matters or questions arising under the
Indenture which shall not be inconsistent with the provisions of the Indenture
(provided such amendment or supplement does not adversely affect the rights of
any of the Holders), provide for any additional rights or benefits to Holders or
make any change that does not adversely affect the rights of any Holder.
13. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the Company and
its Subsidiaries to, among other things, make payments in respect of its Capital
Stock or certain Indebtedness, merge or consolidate with any other person or
sell, lease, transfer or otherwise dispose of all or substantially all of its
properties or assets and undertake certain transactions with Affiliates. The
limitations are subject to a number of important qualifications and exceptions.
The Company must annually (and in certain instances, more frequently) report to
the Trustee on compliance with such limitations.
3
<PAGE> 60
14. ASSET SALES.
As more fully set forth in the Indenture, the Indenture provides that the
Company must apply certain proceeds resulting from certain Asset Sales to the
repurchase Securities under certain circumstances in an Excess Proceeds Offer at
a purchase price equal to 100% of the principal amount thereof plus accrued and
unpaid interest thereon to the date of purchase. A Holder of Securities may
tender or refrain from tendering in any Excess Proceeds Offer all or any portion
of its Securities at its discretion by completing the form entitled "Option of
Holder to Elect Purchase" appearing on the reverse side of this Security.
15. SUCCESSORS.
When a successor assumes all the obligations of its predecessor under the
Securities and the Indenture, the predecessor will be released from those
obligations.
16. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, subject to certain
exceptions, the Trustee or the Holders of at least 25% in principal amount of
Securities may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in principal amount of the Securities then outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold notice in certain circumstances.
17. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company or
its Affiliates, and may otherwise deal with the Company or its Affiliates as if
it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS.
No stockholder, director, officer, employee or incorporator, as such, past,
present or future, of the Company or any successor corporation shall have any
liability for any obligation of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Security by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of the issue for the Securities.
19. AUTHENTICATION.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the face of this Security.
20. ABBREVIATION.
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants by the
entireties), TEN (= joint tenants with right of survivorship and not as tenants
in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
21. INDENTURE.
The Holder hereof, by accepting this Security, agrees to be bound by all of
the terms and provisions of the Indenture applicable to such Holder.
The Company will furnish to any Holder of a Security upon written request
and without charge a copy of the Indenture. Requests may be made to: America
West Airlines, Inc., 4000 East Sky Harbour Blvd., Phoenix, Arizona 85034.
4
<PAGE> 61
[FORM OF ASSIGNMENT]
I or we assign and transfer this Security to
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert social security or other
identifying number of assignee
and irrevocably appoint agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
Dated Signed
__________________ ______________________________
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee:
5
<PAGE> 62
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Security purchased by the Company pursuant to
Section 4.11 or 4.15 of the Indenture, check the box:
Section 4.11 / / Section 4.15 / /
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 4.11 or 4.15 of the Indenture, state the amount (in original
principal amount):
$ .
Date:___________________________ Your Signature:___________________________
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guarantee:___________________________
6
<PAGE> 1
EXHIBIT 4.3
================================================================================
AMERICA WEST AIRLINES, INC.
AND
[ ],
AS WARRANT AGENT
_______________________________________
WARRANT AGREEMENT
DATED AS OF [ ], 1994
_______________________________________
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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<S> <C> <C>
Parties................................................................................. 1
Recitals................................................................................ 1
ARTICLE I
DEFINITIONS.............................................................................
SECTION 1.01. Definitions........................................................ 1
ARTICLE II
ISSUANCE, EXECUTION AND TRANSFER OF WARRANT CERTIFICATES................................
SECTION 2.01. Form of Warrant Certificates....................................... 4
SECTION 2.02. Execution of Warrant Certificates.................................. 4
SECTION 2.03. Issuance, Delivery and Registration of Warrant Certificates........ 5
SECTION 2.04. Transfer and Exchange of Warrant Certificates...................... 5
ARTICLE III
WARRANT PRICE, EXPIRATION DATE AND EXERCISE OF WARRANTS.................................
SECTION 3.01. Warrant Price; Expiration Date..................................... 7
SECTION 3.02. Exercise of Warrants; Common Stock Record Date..................... 7
SECTION 3.03. No Fractional Shares to Be Issued.................................. 9
SECTION 3.04 Acquisition of Warrants by the Company; Cancellation of Warrants... 10
ARTICLE IV
ADJUSTMENT OF WARRANT PRICE, SHARES OF COMMON STOCK PURCHASABLE AND NUMBER OF
WARRANTS..............................................................................
SECTION 4.01. Adjustment of Warrant Price........................................ 11
SECTION 4.02. Adjustment of Shares of Class B Common Stock Purchasable Upon
Exercise of Warrants............................................. 16
SECTION 4.03. Election to Adjust Warrants Instead of Shares Per Warrant.......... 17
SECTION 4.04. No Fractional Warrants to Be Issued................................ 18
SECTION 4.05. Rights Upon Consolidation, Merger, Sale, Transfer or
Reclassification................................................. 18
SECTION 4.06. Covenant to Reserve Shares for Issuance on Exercise................ 20
SECTION 4.07. Condition Precedent to Reduction of Warrant Price Below Par Value
of Shares of Class B Common Stock; Compliance with Governmental
Requirements; Suspension of Exercise of Warrants................. 21
SECTION 4.08. Payment of Taxes on Stock Certificates Issued upon Exercise........ 21
SECTION 4.09. Warrant Agent Not Responsible for Adjustments or Validity of
Stock............................................................ 22
SECTION 4.10. Statements on Warrants............................................. 22
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS..............................
SECTION 5.01. No Rights as Stockholders.......................................... 23
SECTION 5.02. Mutilated or Missing Warrant Certificates.......................... 23
SECTION 5.03. Delivery of Prospectuses........................................... 24
ARTICLE VI
CONCERNING THE WARRANT AGENT............................................................
SECTION 6.01. Payment of Certain Taxes........................................... 24
SECTION 6.02. Change of Warrant Agent............................................ 24
SECTION 6.03. Compensation; Further Assurances................................... 26
SECTION 6.04. Reliance on Counsel................................................ 27
SECTION 6.05. Proof of Actions Taken............................................. 27
SECTION 6.06. Correctness of Statements.......................................... 27
SECTION 6.07. Validity of Agreement.............................................. 27
SECTION 6.08. Use of Agents...................................................... 28
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
SECTION 6.09. Liability of Warrant Agent......................................... 28
SECTION 6.10. Legal Proceedings.................................................. 28
SECTION 6.11. Other Transactions in Securities of the Company.................... 28
SECTION 6.12. Actions as Agent................................................... 28
SECTION 6.13. Appointment and Acceptance of Agency............................... 29
ARTICLE VII
MISCELLANEOUS PROVISIONS................................................................
SECTION 7.01. Supplements and Amendments......................................... 29
SECTION 7.02. Successors and Assigns............................................. 29
SECTION 7.03. Notices............................................................ 30
SECTION 7.04. Applicable Law..................................................... 30
SECTION 7.05. Benefits of this Agreement......................................... 30
SECTION 7.06. Registered Warrant Holders......................................... 31
SECTION 7.07. Inspection of Agreement............................................ 31
SECTION 7.08. Headings........................................................... 31
SECTION 7.09. Counterparts....................................................... 32
Signatures and Seals.................................................................... 32
Exhibit A -- Form of Warrant Certificate................................................ A-1
Exhibit B -- Schedule of Fees To Be Paid to Warrant Agent............................... B-1
</TABLE>
ii
<PAGE> 4
WARRANT AGREEMENT
THIS AGREEMENT (the "Agreement" ) made as of [ ], 1994 between
AMERICA WEST AIRLINES, INC., a Delaware Corporation (including, on or after the
effective date of the Plan, as defined herein, its successor, as reorganized
pursuant to Chapter 11, Title 11 of the United States Bankruptcy Code (the
"Bankruptcy Code" )) (the "Company" ), and the Warrant Agent, as defined herein.
WITNESSETH THAT:
WHEREAS, pursuant to, among other things, a Plan of Reorganization of the
Company (the "Plan" ), that certain Third Revised Investment Agreement, dated as
of April 21, 1994 (as it may be further amended, modified or supplemented from
time to time, the "Investment Agreement" ), among the Company and AmWest
Partners, L.P., a Texas limited partnership ("AmWest" ), and a confirmation
order confirming the Plan issued by the Bankruptcy Court for the District of
Arizona (the "Bankruptcy Court" ), the Company proposes to issue and deliver its
Warrant Certificates evidencing Warrants (each, as defined herein) to acquire up
to an aggregate of 10,384,615 shares, subject to adjustment, of its Class B
Common Stock, as defined herein;
WHEREAS, the Company wishes the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to act in connection with the
issuance, exchange, transfer, substitution and exercise of Warrants; and
WHEREAS, the Company desires to enter into this Agreement to set forth the
terms and conditions of the Warrants and the rights of the holders thereof.
NOW THEREFORE in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement, the following terms
shall have the following respective meanings (all terms defined herein in the
singular are to have the correlative meanings when used in the plural and vice
versa):
Affiliate: shall mean (i) when used with reference to any partnership,
any Person that, directly or indirectly, owns or controls 10% or more of
either the capital or profit interests of such partnership or is a partner
of such partnership or is a Person in which such partnership has a 10% or
greater direct or indirect equity interest and (ii) when used with
reference to any corporation, any Person that, directly or indirectly, owns
or controls 10% or more of the outstanding voting securities of such
corporation or is a Person in which such corporation has a 10% or greater
direct or indirect equity interest. In addition, the term "Affiliate," when
used with reference to any Person, shall also mean any other Person that,
directly or indirectly, controls or is controlled by or is under common
control with such Person. As used in the preceding sentence, (A) the term
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the entity
referred to, whether through ownership of voting securities, by contract or
otherwise and (B) the terms "controlling" and "controls" shall have
meanings correlative to the foregoing. Notwithstanding the foregoing, the
Company will be deemed not to be an Affiliate of AmWest or any of its
partners or assignees.
AmWest: shall have the meaning specified in the recitals.
Bankruptcy Code: shall have the meaning specified in the preamble.
Bankruptcy Court: shall have the meaning specified in the recitals.
Board of Directors: shall mean the Board of Directors of the Company.
<PAGE> 5
Business Day: shall mean any day of the week other than a Saturday,
Sunday or a day which shall be in New York, New York or in the city in
which the principal office of the Warrant Agent is located a day on which
banking institutions are authorized or required by law to close.
Class A Common Stock: shall mean the Class A Common Stock, par value
$[ ] per share, of the Company.
Class B Common Stock: shall mean the Class B Common Stock, par value
$[ ] per share, of the Company.
Common Stock: shall mean the Class A Common Stock, Class B Common
Stock and all other stock of any class or classes (however designated) of
the Company from time to time outstanding the holders of which have the
right, without limitation as to amount, either to all or to a share of the
balance of current dividends and liquidating dividends after the payment of
dividends and distributions on any shares entitled to preference.
Company: shall have the meaning specified in the preamble.
Distribution Date: shall mean the date of the closing of the
transactions contemplated by the Investment Agreement.
Equity Holders: shall mean the holders (including holders of Common
Stock and preferred stock) of record of the Company's equity securities as
of the applicable record date fixed by the Bankruptcy Court.
Expiration Date: shall mean [ ], 1999.
GPA: shall mean GPA Group plc., an Irish company, and any direct or
indirect subsidiary thereof.
Investment Agreement: shall have the meaning specified in the
recitals.
1933 Act: shall mean the Securities Act of 1933, as amended from time
to time, or any successor statute, and the rules and regulations
promulgated thereunder.
Officer's Certificate: shall have the meaning specified in Section
4.01(e).
Person: shall mean a natural person, a corporation, a partnership, a
trust, a joint venture, a governmental authority or any other entity or
organization.
Plan: shall have the meaning specified in the recitals.
Related Agreements: shall have the meaning specified in the Investment
Agreement.
Restricted Securities: shall have the meaning specified in Section
2.04.
Subsidiary: shall mean a corporation, association or other business
entity in which the Company or one or more Subsidiaries owns sufficient
voting securities to enable it or them (as a group) ordinarily, in the
absence of contingencies, to elect a majority of the directors (or Persons
performing similar functions) of such business entity.
Warrant Agent: shall mean [ ] or any successor to it appointed
pursuant to Section 6.02.
Warrant Agent's Office: shall mean, for so long as [ ] shall
be the Warrant Agent, the principal business address of [ ] as
specified in Section 7.03 and, thereafter, the office or agency maintained
by the Warrant Agent in the Borough of Manhattan, New York, New York or the
principal office of the Warrant Agent.
Warrant Certificates: shall have the meaning specified in Section
2.01.
Warrant Price: shall mean a price of [$ ] for each share of
Class B Common Stock issuable upon exercise of a Warrant, subject to
adjustment as provided herein.
Warrant Register: shall have the meaning specified in Section 2.03.
2
<PAGE> 6
Warrants: shall mean the Warrants to purchase Class B Common Stock
issued pursuant to this Agreement, the Plan and the Investment Agreement
and all Warrants issued in substitution therefor.
ARTICLE II
ISSUANCE, EXECUTION AND TRANSFER OF WARRANT CERTIFICATES
SECTION 2.01. Form of Warrant Certificates. The Warrants shall be
evidenced by certificates in temporary or definitive fully registered form (the
"Warrant Certificates" ) substantially in the form of Exhibit A hereto, and
designated as Warrants to Purchase Class B Common Stock of America West
Airlines, Inc., and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange, or to conform
to usage, or as may, consistently herewith, be determined to be necessary or
appropriate by the officers of the Company executing such Warrant Certificates
as evidenced by their execution of the Warrant Certificates. Each Warrant shall
evidence the right, subject to the provisions of this Agreement and of the
Warrant Certificate, to purchase one share of Class B Common Stock at the
Warrant Price, subject to adjustment pursuant to the provisions of Article IV.
SECTION 2.02. Execution of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be dated as of the date of countersignature
thereof by the Warrant Agent either upon initial issuance or upon exchange,
substitution or transfer, shall be signed manually by, or bear the facsimile
signature of, the Chairman of the Board, the Chief Executive Officer, the
President or a Vice President of the Company, shall have the Company's seal or a
facsimile thereof affixed or imprinted thereon and shall be attested by the
manual or facsimile signature of the Secretary or an Assistant Secretary of the
Company. In case any officer of the Company whose manual or facsimile signature
has been placed upon any Warrant Certificate shall have ceased to be such before
such Warrant Certificate is issued, it may be issued with the same effect as if
such officer had not ceased to be such at the date of issuance. Warrant
Certificates shall be countersigned manually by the Warrant Agent and shall not
be valid for any purpose unless so countersigned. Warrant Certificates may be
countersigned by the Warrant Agent, with the same effect, notwithstanding that
any Persons whose manual or facsimile signatures appear thereon as proper
officers of the Company shall have ceased to be such officers at the time of
such countersignature. Any Warrant Certificate may be signed on behalf of the
Company by any Person who, at the actual date of the execution of such Warrant
Certificate, shall be a proper officer of the Company to sign such Warrant
Certificate, although at the date of the execution of this Agreement any such
Person was not such an officer.
SECTION 2.03. Issuance, Delivery and Registration of Warrant
Certificates. The Warrant Agent shall, and the Company shall cause the Warrant
Agent to, countersign, issue and deliver:
(a) to AmWest or its assignees, on the Distribution Date, Warrant
Certificates representing 2,769,231 Warrants;
(b) to [the Equity Holders/the Trust as provided for in the Plan], on
the Distribution Date, Warrant Certificates representing 6,230,769
Warrants;
(c) to GPA, on the Distribution Date, Warrant Certificates
representing 1,384,615 Warrants; and
shall countersign and deliver Warrant Certificates upon exchange or
transfer of or substitution for, one or more previously countersigned
Warrant Certificates as hereinafter provided. The Warrant Agent shall
maintain books (the "Warrant Register" ) for the registration of Warrant
Certificates (including, without limitation, registration of the Warrant
Certificates described above) and the registration of transfers of Warrant
Certificates after the Distribution Date.
SECTION 2.04. Transfer and Exchange of Warrant Certificates.
(a) Notwithstanding anything herein to the contrary, neither any
Warrant nor the Class B Common Stock underlying any Warrant may be sold,
assigned or otherwise transferred to any Person unless such transfer is
made pursuant to an effective registration statement or otherwise in
accordance with the
3
<PAGE> 7
requirements of the 1933 Act and applicable state securities laws. Until
the Restricted Securities cease to be Restricted Securities, certificates
evidencing Restricted Securities (and only such certificates) will bear a
legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND
REGULATIONS THEREUNDER (THE "1933 ACT" ) OR UNDER THE SECURITIES LAWS OF
ANY STATE; AND SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED OTHER THAN IN
ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE 1933 ACT OR AN
EXEMPTION THEREFROM AND FROM ANY APPLICABLE STATE SECURITIES LAWS.
During such period, the Company may instruct its transfer agent to mark its
records to restrict the transfer of Restricted Securities.
For purposes of this Agreement, the term "Restricted Securities" shall mean
the Warrants issued to AmWest[, GPA] or any of their respective Affiliates or
assignees on the Distribution Date and (a) any shares of Class B Common Stock
which have been issued upon exercise of such Warrants and (b) any shares of
Class B Common Stock which are issuable upon the exercise of such Warrants. For
the purposes of this Agreement, such securities will cease to be Restricted
Securities (i) when they have been sold pursuant to an effective registration
statement under the 1933 Act, (ii) when they are distributed to the public
pursuant to Rule 144 (or any similar provision then in force) under the 1933 Act
or (iii) when (A) they have been otherwise transferred without registration
under the 1933 Act pursuant to an exemption from the registration requirements
of the 1933 Act and (B) if it has so requested, the Company has received an
opinion of counsel (either its own counsel or, if the Company so requests,
counsel to the holders of such Restricted Securities) acceptable to the Company
that such Restricted Securities may be so transferred without registration or
pursuant to an exemption, and in each such instance has delivered new
certificates or other evidence of ownership for such securities that are not
subject to any stop transfer order or other restriction on transfer and not
bearing the legend prescribed by the preceding paragraph.
(b) Subject to paragraph (a) above, the Warrant Agent, from time to
time, shall register the transfer of all or any whole number of Warrants
covered by any outstanding Warrant Certificates in the Warrant Register
upon surrender at the Warrant Agent's Office of Warrant Certificates
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Company and the Warrant Agent, duly executed by the
registered Warrant holder or his attorney duly authorized in writing. Upon
any such registration of transfer, a new Warrant Certificate shall be
countersigned by the Warrant Agent and issued to the transferee and the
surrendered Warrant Certificate shall promptly be canceled by the Warrant
Agent. Warrant Certificates may be exchanged at the option of the holder
thereof, upon surrender, properly endorsed, at the Warrant Agent's Office,
with written instructions, for other Warrant Certificates countersigned by
the Warrant Agent representing in the aggregate a like number of Warrants.
The Company or the Warrant Agent may require the payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any such exchange or transfer.
ARTICLE III
WARRANT PRICE, EXPIRATION DATE AND EXERCISE OF WARRANTS
SECTION 3.01. Warrant Price; Expiration Date. Each Warrant Certificate
shall entitle the registered holder thereof, subject to the provisions thereof
and of this Agreement, to purchase from the Company at any time commencing at
the opening of business on the day after the Distribution Date and before 5:00
p.m., New York time, on the Expiration Date, one share of Class B Common Stock
for each of the Warrants specified therein, at the Warrant Price, subject to
adjustment as provided in Article IV hereof, payable in full at the time of
purchase. Each Warrant not exercised during the applicable period set forth
above shall become void, and all rights thereunder and all rights in respect
thereof under this Agreement shall cease at the end of such period.
4
<PAGE> 8
SECTION 3.02. Exercise of Warrants; Common Stock Record Date.
(a) Commencing at the opening of business on the day after the
Distribution Date, Warrants may be exercised by surrendering the Warrant
Certificate evidencing such Warrants at the Warrant Agent's Office with the
Election to Exercise form set forth on the reverse of the Warrant
Certificate duly completed and executed by the registered holder thereof or
his attorney duly authorized in writing, and by paying in full to the
Warrant Agent for the account of the Company (i) in cash, (ii) by certified
or official bank check or (iii) by any combination of the foregoing, the
Warrant Price for each share of Class B Common Stock as to which Warrants
are exercised and any applicable taxes that the Company is not required to
pay as set forth in Section 4.08 or 6.01. A registered Warrant holder may
exercise all or any number of whole Warrants represented by a Warrant
Certificate. [In the alternative, the registered holder of a Warrant
Certificate may exercise its rights to purchase some or all of the shares
of Class B Common Stock represented by such Warrant Certificate on a net
basis such that, without the exchange of any funds, such holder receives
that number of shares of Class B Common Stock subscribed to pursuant to
such Warrant Certificate less that number of shares of Class B Common Stock
having an aggregate current market price per share, as computed pursuant to
Section 4.01(d) hereof, at the time of exercise equal to the sum of (i) the
aggregate Warrant Price for such shares subscribed to pursuant to such
Warrant Certificate and (ii) any applicable taxes that the Company is not
required to pay as set forth in Section 4.08 or 6.01 (unless such holder
has otherwise paid to the Warrant Agent in cash or by certified bank check
the amount of such taxes).]
(b) Subject to the provisions of subsection (e) below and Section 4.08
hereof, as soon as practicable (and in any event within five (5) Business
Days) after the exercise of any Warrants and payment [, if applicable,] by
the registered Warrant holder of the full Warrant Price for the shares as
to which such Warrants are then being exercised, the Warrant Agent shall
promptly requisition from the transfer agent of the Class B Common Stock
and deliver to or upon the order of such registered Warrant holder a
certificate or certificates for the number of full shares of Class B Common
Stock to which such Warrant holder is entitled, registered in such name or
names as may be directed by him (if other than to such registered holder,
(i) to the extent such transfer is not validly restricted and (ii) upon
payment of any transfer taxes that are required to be paid by such holder
or its transferees in connection with any transfer by such registered
holder), together with cash or scrip, as provided in Section 3.03 hereof,
in respect of any fractional shares, and, if the number of Warrants
represented by a Warrant Certificate shall not have been exercised in full,
a new Warrant Certificate delivered to the holder of the Warrant
Certificate or to his duly authorized assignee, countersigned by the
Warrant Agent, for the number of Warrants remaining unexercised, together
with cash or scrip, as provided in Section 4.04 hereof, in respect of the
balance of any fractional Warrants represented by the surrendered Warrant
Certificate. Any shares of Class B Common Stock issued upon a Warrant
holder's exercise of any Warrant shall be validly authorized and issued,
fully paid, non-assessable, free of pre-emptive rights and free from all
taxes (other than those specified in clause (ii) above), liens, charges,
security interests and claims created or incurred by the Company in respect
of the issuance thereof.
(c) A Warrant shall be deemed to have been exercised immediately prior
to the close of business on the date of the due surrender for exercise of
the Warrant Certificate and payment [, if applicable,] to the Warrant Agent
for the account of the Company of the Warrant Price and any applicable
taxes that the Company is not required to pay as set forth in Section 4.08
or 6.01. Each Person in whose name any such certificate for shares of Class
B Common Stock is issued shall for all purposes be deemed to have become
the holder of record of such shares at the close of business on the date on
which the Warrant Certificate was duly surrendered to the Warrant Agent and
payment of the Warrant Price and any such applicable taxes was made to the
Warrant Agent for the account of the Company, irrespective of the date of
delivery of such share certificate, except that, if the date of such
surrender and payment is a date when the stock transfer books of the
Company are closed, such Person shall be deemed to have become the holder
of such shares at the close of business on the next succeeding date on
which the stock transfer books are open (whether before or after the
Expiration Date).
5
<PAGE> 9
(d) The Warrant Agent shall promptly notify both the Company and the
transfer agent of the Class B Common Stock in writing of any exercise of
any Warrant and of the number of shares delivered upon the exercise of such
Warrant and shall pay to the Company within 72 hours after receipt by wire
transfer or certified or official bank check payable to the order of the
Company the amount of money received by it upon the exercise of Warrants
(less any amount paid by the Warrant Agent in respect of a fractional share
upon such exercise in accordance with Section 3.03 hereof). The Warrant
Agent shall hold any proceeds collected and not yet paid to the Company in
a federally insured escrow account. A detailed accounting statement setting
forth the number of Warrants exercised, the amount of funds received
[and/or Warrants surrendered] upon such exercise and all expenses incurred
by the Warrant Agent as provided in this Agreement shall be transmitted to
the Company on payment to the Company of the funds so received [(or upon
the receipt of the Warrants so surrendered)] upon exercise. The Warrant
Agent shall render to the Company a complete accounting setting forth the
number of Warrants exercised [and surrendered], the identity of the Persons
exercising such Warrants, the number of shares issued, the amounts
distributed to the Company and all expenses incurred by the Warrant Agent
as provided in this Agreement as of the Expiration Date.
(e) The Warrant Agent may deem and treat the Person named as the
registered holder on the face of any Warrant as the true and lawful owner
thereof for all purposes. If the Warrant Agent is instructed to deliver
shares upon the exercise of Warrants or to deliver a Warrant Certificate
representing unexercised Warrants, in either case registered in a name or
names other than the name or names in which a Warrant Certificate tendered
in connection with such exercise is registered, the Warrant Agent may
require such documents, and such evidence of payment of applicable transfer
taxes, as it may deem necessary to enable it to carry out the instructions
of the bearer.
SECTION 3.03. No Fractional Shares to Be Issued. Notwithstanding anything
to the contrary contained in this Agreement, if the number of shares of Class B
Common Stock purchasable on the exercise of each Warrant is adjusted pursuant to
the provisions of Section 4.02 hereof, the Company shall not be required to
issue any fraction of a share of Class B Common Stock or to distribute stock
certificates that evidence fractional shares of Class B Common Stock. If Warrant
Certificates evidencing more than one Warrant shall be surrendered for exercise
at one time by the same holder, the number of full shares which shall be
issuable upon exercise thereof shall be computed on the basis of the aggregate
number of Warrants so surrendered. If any fraction of a share of Class B Common
Stock would, except for the provisions of this Section 3.03, be issuable on the
exercise of any Warrant or Warrants, the Company shall, at its option upon
notice to the Warrant Agent given within two (2) Business Days of exercise of
any such Warrant or Warrants, either (a) purchase such fraction for an amount in
cash equal to the then-current market value of such fraction computed in
accordance with Section 4.01(d) hereof (assuming, for the purpose of such
computation, that the date of surrender of such Warrants to the Warrant Agent
shall be the applicable record date referred to in Section 4.01(d)) or (b) issue
scrip of the Company in lieu thereof, rounded up to the nearest one-hundredth of
a share. Such scrip shall be non-dividend bearing and non-voting, shall be
exchangeable in combination with other similar scrip for the number of full
shares of Class B Common Stock represented thereby, shall be issued in such
denominations (not less than one-hundredth of a share) and in such form, shall
expire after such reasonable time (which shall not be sooner than either (i)
five years from the date of issue or (ii) one year after the Expiration Date,
whichever first occurs) and may contain such provisions for sale for the account
of the holders of such scrip of shares of Class B Common Stock for which such
scrip is exchangeable or the payment to such holders of the market value of such
shares, and be subject to such other terms and provisions, if any, as the Board
of Directors may from time to time determine. The Warrant holders, by their
acceptance of the Warrant Certificates, expressly waive their right to receive
any fraction of a share of Class B Common Stock or a stock certificate
representing a fraction of a share of Class B Common Stock.
SECTION 3.04. Acquisition of Warrants by the Company; Cancellation of
Warrants. The Company shall have the right, except as limited by law or other
agreement, to purchase or otherwise acquire Warrants at such times, in such
manner and for such consideration as it may deem appropriate. The Warrant Agent
shall cancel any Warrant Certificate delivered to it for exercise, in whole or
in part, or delivered to it for transfer, exchange, or substitution, and no
Warrant Certificates shall be issued in lieu thereof unless such exercise,
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transfer, exchange or substitution is expressly permitted by the provisions of
this Agreement. On request of the Company, the Warrant Agent shall destroy
canceled Warrant Certificates held by it and shall deliver its certificates of
destruction to the Company. If the Company shall acquire any of the Warrants,
such acquisition shall not operate as a redemption or termination of the right
represented by such Warrants unless and until the Warrant Certificates
evidencing such Warrants are surrendered to the Warrant Agent for cancellation.
ARTICLE IV
ADJUSTMENT OF WARRANT PRICE, SHARES OF COMMON
STOCK PURCHASABLE AND NUMBER OF WARRANTS
SECTION 4.01. Adjustment of Warrant Price. The Warrant Price specified in
Section 3.01 shall be subject to adjustment from time to time as follows:
(a) If the Company after the date hereof shall (i) pay a dividend or
make a distribution to all holders of Common Stock or any class thereof in
shares of Common Stock or any class thereof, (ii) subdivide the outstanding
shares of Common Stock or any class thereof, or (iii) combine the
outstanding shares of Common Stock or any class thereof into a smaller
number of shares, then in any such case the Warrant Price in effect
immediately prior thereto shall be adjusted to a price obtained by
multiplying such Warrant Price by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding prior to such action
and the denominator shall be the number of shares of Common Stock
outstanding after giving effect to such action. An adjustment made pursuant
to clause (i) of this subsection (a) shall become effective retroactively
immediately after the record date for such dividend or distribution, and an
adjustment made pursuant to clause (ii) or (iii) of this subsection (a)
shall become effective immediately after the effective date of such
subdivision or combination.
(b) If the Company after the date hereof shall issue rights or
warrants to all holders of Common Stock or any class thereof entitling them
[for a period expiring within 45 days after the record date mentioned
below] to subscribe for or purchase shares of Common Stock or any class
thereof at a price per share less than the then-current market price per
share (as determined pursuant to subsection (d) below) on the record date
(or, if applicable, the ex-distribution date) mentioned below, the Warrant
Price in effect immediately prior thereto shall be adjusted to a price
obtained by multiplying such Warrant Price by a fraction of which (i) the
numerator shall be the number of shares of Common Stock outstanding on the
date of issuance of such rights or warrants plus the number of shares of
Common Stock of the class subject to such rights or warrants which the
aggregate offering price of the total number of shares so to be offered
would purchase at the current market price of the Common Stock subject to
such rights or warrants, and (ii) the denominator shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights
or warrants plus the number of additional shares of Common Stock, or the
applicable class thereof, to be offered for subscription or purchase;
provided, however, that no adjustment shall be made if the Company issues
or distributes to each holder of Warrants the rights or warrants which each
holder of Warrants would have been entitled to receive had such Warrants
been exercised prior to the record date mentioned below. Any such
adjustments shall be made whenever such rights or warrants are issued and
shall become effective retroactively immediately after the record date for
the determination of stockholders entitled to receive such rights or
warrants. [Upon expiration of the period during which any such rights or
warrants may be exercised, any adjustment previously made pursuant to the
foregoing provisions shall be recalculated to take into consideration only
those rights or warrants actually exercised during the applicable period
for exercise and notice of any such further adjustment to the Warrant Price
shall be given to Warrant holders as herein provided.]
(c) If the Company after the date hereof shall issue or distribute to
all holders of Common Stock or any class thereof evidences of its
indebtedness or assets (excluding any cash dividend or distribution),
shares of capital stock of any class other than the Common Stock or rights
to subscribe therefor (excluding those referred to in subsection (b)
above), in each such case the Warrant Price in effect immediately prior
thereto shall be adjusted to a price obtained by multiplying such Warrant
Price by a
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fraction of which (i) the numerator shall be the sum of the amount, for
each class of Common Stock then outstanding, of the then-current market
price per share (determined as provided in subsection (d) below) of the
Common Stock of such class, multiplied by the number of outstanding shares
of such class, in each case on the record date (or, if applicable, the
ex-distribution date) mentioned below less the then-current fair market
value (as determined by the Board of Directors in its reasonable judgment
whose determination shall be conclusive, and described in a statement filed
with the Warrant Agent) of the assets or evidences of indebtedness so
distributed, such shares of capital stock of any class other than Common
Stock or rights to subscribe therefor, and (ii) the denominator shall be
the sum of the amount, for each class of Common Stock then outstanding, of
the then-current market price per share of the Common Stock of such class,
multiplied by the number of outstanding shares of such class, in each case
on the record date (or, if applicable, the ex-distribution date) mentioned
below; provided, however, that no adjustment shall be made (1) if the
Company issues or distributes to each holder of Warrants the subscription
rights referred to above in this subsection (c) that each holder of
Warrants would have been entitled to receive had the Warrants been
exercised prior to the record date mentioned below, or (2) if the Company
grants to each holder of Warrants the right to receive, upon the exercise
thereof at any time after the distribution of the evidences of indebtedness
or assets or shares of capital stock of any class other than the Common
Stock referred to above in this subsection (c), the evidences of
indebtedness or assets or shares of capital stock of any class other than
the Common Stock that such holder would have been entitled to receive had
the Warrants been exercised prior to the record date mentioned below. The
Company shall provide the Warrant Agent, upon receipt of a written request
therefor, with any indenture or other instrument defining the rights of the
holders of any indebtedness, assets, capital stock or subscription rights
referred to in this subsection 4.01(c). Any such adjustment shall be made
whenever any such distribution is made and shall become effective
retroactively immediately after the record date for the determination of
stockholders entitled to receive such distribution. [Upon expiration of the
period during which any subscription rights granted pursuant to this
subsection (c) may be exercised, any adjustment previously made pursuant to
the foregoing provisions shall be recalculated to take into consideration
only those subscription rights actually exercised during the applicable
period for exercise and notice of any such further adjustment to the
Warrant Price shall be given to Warrant holders as herein provided.]
(d) For the purpose of any computation under subsection (b) or (c)
above, the current market price per share of any class of Common Stock on
any date shall be deemed to be the average of the daily mean between the
high and low sales prices regular way of the shares of such class of Common
Stock on the exchange on which such shares are listed as specified below
for the ten consecutive trading days (as defined below) preceding the
applicable record date (or, if earlier, the date on which such class of
Common Stock commences trading on an ex-distribution basis). If there shall
not have been a sale regular way on any such trading day, the mean of the
last reported bid and asked quotations regular way on the specified
exchange on such day shall be deemed to be the only sale price. The
exchange specified for purposes of this subsection 4.01(d) shall be the
[New York Stock Exchange, Inc.] if the shares of the applicable class of
Common Stock are listed thereon or, if the shares of the applicable class
of Common Stock shall not be listed on such exchange, then that national
securities exchange on which the applicable class of Common Stock is listed
having the largest volume of trading in the applicable class of Common
Stock during the calendar year or portion thereof next preceding such
computation. If the shares of the applicable class of Common Stock shall
not be listed on any such exchange on all such ten trading days, the
average of the closing high bid and low asked prices for the applicable
class of Common Stock in the over-the-counter market on each trading day on
which such shares are not so listed as reported by the National Association
of Securities Dealers Automatic Quotation System or, if not so reported,
then as reported by the National Quotation Bureau Incorporated, or if such
organization is not in existence, by an organization providing similar
services (as determined by the Board of Directors of the Company), shall be
deemed to be the only sale price on such trading day. If the shares of the
applicable class of Common Stock shall not be so reported on any of such
trading days, then the current market price per share of such shares of
Common Stock shall be the fair market value thereof as determined in the
reasonable judgement of the Board of Directors. For the purpose of this
subsection 4.01(d), "trading day" shall
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mean a day on which the securities exchange specified for purposes of this
subsection 4.01(d) shall be open for business or, if the shares of the
applicable class of Common Stock shall not be listed on such exchange for
such period, a day with respect to which quotations of the character
specified for purposes of this subsection 4.01(d) shall be reported.
(e) In any case in which this Section 4.01 shall require that an
adjustment be made retroactively immediately following a record date, the
Company may elect to defer (but only until five Business Days following the
filing by the Company with the Warrant Agent of a certificate signed by the
Chairman of the Board, Chief Executive Officer, the President or any Vice
President of the Company (an "Officers' Certificate" ) [or a certificate of
a firm of independent public accountants] as required in subsection (g) of
this Section 4.01) issuing to the holder of any Warrant exercised after
such record date the shares of Class B Common Stock issuable upon such
exercise in excess of the shares of Class B Common Stock issuable upon such
exercise prior to such adjustment.
(f) No adjustment shall be required unless such adjustment would
require an increase or decrease of at least $[0.05] in the Warrant Price
then subject to adjustment; provided, however, that any adjustments that
are not made by reason of this subsection (f) shall be carried forward and
taken into account in any subsequent adjustment. In case the Company shall
at any time issue Common Stock or any class thereof by way of dividend on
any stock of the Company or subdivide or combine the outstanding shares of
Common Stock or any class thereof, said amount of $[0.05] specified in the
preceding sentence (as theretofore increased or decreased, if said amount
shall have been adjusted in accordance with the provisions of this
paragraph (f)) shall forthwith be proportionately increased in the case of
such a combination or decreased in the case of such a subdivision or stock
dividend so as appropriately to reflect the same. All calculations under
this Section 4.01 shall be made to the nearest hundredth of a cent.
(g) Whenever an adjustment in the Warrant Price is made as required or
permitted by the provisions of Section 4.01, 4.02 or 4.03 of this
Agreement, the Company shall promptly file with the Warrant Agent [(i)] an
Officers' Certificate [in the case of an adjustment pursuant to subsection
(a) or (i) of this Section 4.01, or (ii) a certificate of a firm of
independent public accountants in the case of any other adjustment pursuant
to this Section 4.01, in each case] (A) setting forth the adjusted Warrant
Price as provided in this Section 4.01 and setting forth a brief statement
of the facts requiring such adjustment and the computation thereof, and (B)
setting forth the number of shares of Class B Common Stock (or portions
thereof) purchasable upon exercise of a Warrant after such adjustment in
the Warrant Price in accordance with Section 4.02 hereof or the number of
Warrants outstanding in accordance with Section 4.03 hereof after such
adjustment in the Warrant Price and the record date therefor, which
Officers' Certificate [or certificate of a firm of independent public
accountants, as the case may be,] shall be conclusive evidence (absent
manifest error) of the correctness of any such adjustment, and promptly
after such filing shall mail or cause to be mailed a notice of such
adjustment to each Warrant holder at his last address as the same appears
on the Warrant Register. The Warrant Agent shall be under no duty or
responsibility with respect to any such certificate except to exhibit the
same to any holder of Warrants desiring inspection thereof.
(h) In case:
(1) the Company shall declare a dividend (or any other
distribution) on shares of Common Stock or any class thereof payable
from sources other than its retained earnings (as such term is used in
generally accepted accounting principles); or
(2) the Company shall authorize the granting to the holders of
shares of Common Stock or any class thereof of rights to subscribe for
or purchase any shares of capital stock of any class or of any other
right; or
(3) of any reclassification of shares of Common Stock or any class
thereof (other than a subdivision or combination of outstanding shares
of Common Stock or any class thereof), or of any consolidation or merger
to which the Company is a party and for which approval of any
stockholders
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of the Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company; or
(4) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Warrant Agent, and
shall cause to be mailed to the holders of the Warrants, at their last
addresses as they shall appear upon the Warrant Register, at least 10
days prior to the applicable record date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution or rights, or, if a record is not to be
taken, the date as of which the holders of Common Stock (or any class
thereof) of record to be entitled to such dividend, distribution or
rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and, if
applicable, the date as of which it is expected that holders of Common
Stock (or any class thereof) of record shall be entitled to exchange
their shares of Common Stock for securities or other property (including
cash) deliverable upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up. Failure to give
any such notice, or any defect therein, shall not affect the validity of
the proceedings referred to in clauses (1), (2), (3) and (4) above.
(i) Notwithstanding anything to the contrary contained in this Section
4.01, the Company shall be entitled, but not required, to make such
reductions in the Warrant Price, in addition to those required by this
Section 4.01, as it in its discretion shall determine to be advisable,
including, without limitation, in order that any dividend in or
distribution of shares of Common Stock (or any class thereof) or shares of
capital stock of any class other than Common Stock, subdivision,
reclassification or combination of shares of Common Stock, issuance of
rights or warrants, or any other transaction having a similar effect, shall
not be treated as a distribution of property by the Company to its
stockholders under Section 305 of the Internal Revenue Code of 1986, as
amended or any successor provision and shall not be taxable to them.
(j) Notwithstanding anything to the contrary contained in this
Agreement, no adjustment to the Warrant Price or the number of shares of
Common Stock purchasable upon exercise of a Warrant (or the number of
Warrants) shall be made as a result of, or in connection with, the issuance
of (i) options or rights to purchase Common Stock issued to directors,
officers or employees of the Company or its Subsidiaries pursuant to a
stock option or other similar plan adopted by the Board of Directors, or
the modification, renewal or extension of any such plan if approved by the
Board of Directors, (ii) shares of Common Stock or other securities issued
by the Company pursuant to and in accordance with the Plan, the Investment
Agreement or the Related Agreements, or (iii) upon conversion of shares of
any class of Common Stock into shares of any other class of Common Stock
pursuant to and in accordance with the provisions of the Certificate of
Incorporation of the Company as in effect from time to time.
SECTION 4.02. Adjustment of Shares of Class B Common Stock Purchasable
Upon Exercise of Warrants. Unless the Company shall have exercised its election
as provided in Section 4.03 hereof, upon each adjustment of the Warrant Price
pursuant to Section 4.01 hereof the number of shares of Class B Common Stock
purchasable upon exercise of a Warrant outstanding prior to the effectiveness of
such adjustment shall be adjusted to the number of shares of Class B Common
Stock, calculated to the nearest one-hundredth of a share, obtained by (i)
multiplying the number of shares of Class B Common Stock purchasable immediately
prior to such adjustment upon the exercise of a Warrant by the Warrant Price in
effect prior to such adjustment, and (ii) dividing the product so obtained by
the Warrant Price in effect after such adjustment of the Warrant Price.
SECTION 4.03. Election to Adjust Warrants Instead of Shares Per
Warrant. The Company may elect on or after the date of any adjustment of the
Warrant Price pursuant to Section 4.01 hereof to adjust the number of Warrants
outstanding in substitution for any adjustment in the number of shares of Class
B Common Stock purchasable upon the exercise of a Warrant as provided in Section
4.02 hereof. Each of the Warrants outstanding after such adjustment of the
number of Warrants shall be exercisable for one share of Class B Common Stock.
Each Warrant held of record prior to such adjustment of the number of Warrants
shall become that number of Warrants (calculated to the nearest hundredth)
obtained by (i) multiplying the
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number of Warrants held of record prior to adjustment of the number of Warrants
by the Warrant Price in effect prior to adjustment of the Warrant Price, and
(ii) dividing the product so obtained by the Warrant Price in effect after
adjustment of the Warrant Price. The Company shall make a public announcement of
its election to adjust the number of Warrants, indicating the record date for
the adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Warrant Price is adjusted or
any day thereafter, but shall not be less than 10 or more than 30 days later
than the date of public announcement. Upon each adjustment of the number of
Warrants pursuant to this Section 4.03, the Company shall cause the Warrant
Agent, as promptly as practicable, to distribute to holders of record of the
Warrant Certificates on such record date either (i) Warrant Certificates
evidencing any additional Warrants to which such holders shall be entitled as a
result of such adjustment, or (ii) in substitution and replacement for the
Warrant Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to which such holders shall be entitled after such
adjustment. Warrant Certificates to be so distributed shall be issued, executed
and countersigned in the manner specified in this Agreement (but may bear, at
the option of the Company, the adjusted Warrant Price), shall represent the same
class of Warrants as was represented by the Warrant Certificates so surrendered
and shall be registered in the names of the holders of record of the Warrant
Certificates on the record date specified in the public announcement.
For the purposes of this Section 4.03, "public announcement" shall mean
publication at least once in a newspaper printed in the English language and
customarily published at least once a day for at least five days in each
calendar week and of general circulation in the Borough of Manhattan, New York,
New York.
SECTION 4.04. No Fractional Warrants to Be Issued. Notwithstanding
anything to the contrary contained in this Agreement, the Company shall not be
required to issue fractions of Warrants on any distribution of Warrants to
Warrant holders pursuant to Section 4.03 hereof or otherwise or to distribute
Warrant Certificates that evidence fractional Warrants. If any fraction of a
Warrant would, except for the provisions of this Section 4.04, be issuable upon
an adjustment of the Warrant Price and distribution of Warrants pursuant to
Section 4.03 hereof or otherwise, the Company shall, at its option, either (a)
purchase such fraction for an amount in cash equal to the then-current market
value of such fraction computed in accordance with Section 4.01(d) hereof (with
respect to the current market price of the Warrant rather than the per share
current market price of the Class B Common Stock and assuming, for the purpose
of such computation, that the effective date of such adjustment of the Warrant
Price, or such other relevant date, shall be the applicable record date referred
to in Section 4.01(d)) or (b) issue scrip of the Company in lieu thereof,
rounded up to the nearest one-hundredth of a Warrant. Such scrip shall be
exchangeable in combination with other similar scrip for the number of full
Warrants represented thereby, shall be issued in such denominations (not less
than one-hundredth of a Warrant) and in such form, shall expire on the
Expiration Date and may contain such provisions for sale for the account of the
holders of such scrip of the Warrants for which such scrip is exchangeable or
the payment to such holders of the market value of such Warrants, and be subject
to such other terms and provisions, if any, as the Board of Directors may from
time to time determine. The Warrant holders, by their acceptance of the Warrant
Certificates, expressly waive their right to receive any fraction of a Warrant
or a Warrant Certificate representing a fraction of a Warrant upon the
adjustment thereof in accordance with this Article IV or otherwise.
SECTION 4.05. Rights Upon Consolidation, Merger, Sale, Transfer or
Reclassification.
(a) In case of any consolidation with or merger of the Company into
another corporation (other than a merger or consolidation in which the
Company is the continuing corporation), or in case of any lease, sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, such successor, leasing or
purchasing corporation, as the case may be, shall execute with the Warrant
Agent a supplemental agreement (1) providing that the holder of each
Warrant then outstanding shall have the right thereafter (until the
Expiration Date) to receive, upon exercise thereof, in lieu of each share
of Class B Common Stock deliverable upon such exercise immediately prior to
such event, only the kind and amount of shares and/or other securities
and/or property and/or cash receivable upon such consolidation, merger,
lease, sale or conveyance by a holder of one share of Class B Common Stock,
and (2) setting forth the Warrant Price for the shares and/or other
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securities and/or property and/or cash so issuable, which shall be an
amount equal to the Warrant Price per share of Class B Common Stock
immediately prior to such event.
(b) In case of any liquidation, dissolution or winding up of the
affairs of the Company, the Company shall make prompt, proportionate,
equitable, lawful and adequate provision as part of the terms of such
dissolution, liquidation or winding up such that the holder of a Warrant
may thereafter receive, on exercise of such Warrant, in lieu of each share
of Class B Common Stock of the Company which such holder would have been
entitled to receive upon exercise of such Warrant, the same kind and amount
of any stock, securities or assets as may be issuable, distributable or
payable on any such dissolution, liquidation or winding up with respect to
each share of Class B Common Stock of the Company; provided, however, that
in the event of any such dissolution, liquidation or winding up, the right
to exercise the Warrants shall terminate on a date fixed by the Company,
such date to be not earlier than the 60th day next succeeding the date on
which notice of such termination of the right to exercise the Warrants has
been given by mail to the holders thereof in accordance with Section
4.01(h).
(c) In case of any reclassification or change of the shares of Class B
Common Stock issuable upon exercise of the Warrants (other than a change in
par value, or from par value to no par value, or as a result of a
subdivision or combination) or in case of any consolidation or merger of
another corporation into the Company in which the Company is the continuing
corporation and in which the holders of the shares of Common Stock
thereafter receive shares and/or other securities and/or property and/or
cash for such shares of Common Stock (including for this purpose shares
reflecting a change in par value or from par value to no par value or as a
result of a subdivision or combination of the shares of Common Stock), the
Company shall execute with the Warrant Agent a supplemental agreement (1)
providing that the holder of each Warrant then outstanding shall have the
right thereafter (until the Expiration Date) to receive, upon exercise
thereof, in lieu of each share of Class B Common Stock, deliverable upon
such exercise immediately prior to such event, only the kind and amount of
shares and/or other securities and/or property and/or cash receivable upon
such reclassification, change, consolidation or merger by a holder of one
share of Class B Common Stock, and (2) setting forth the Warrant Price for
the shares and/or other securities and/or property and/or cash so issuable,
which shall be an amount equal to the Warrant Price per share of Class B
Common Stock immediately prior to such event. If, as a result of this
subsection (c), the holder of any Warrant thereafter surrendered for
exercise shall become entitled to receive shares of two or more classes of
capital stock of the Company, the Board of Directors (whose determination
shall be conclusive and shall be described in a statement filed with the
Warrant Agent) shall determine the allocation of the Warrant Price between
or among shares of such classes of capital stock.
(d) Any supplemental agreement entered into pursuant to this Section
4.05 shall, where appropriate, state the Warrant Price in terms of one full
share of Class B Common Stock of the Company or one full share of the
common stock of any successor, leasing or purchasing corporation.
(e) The above provisions of this Section 4.05 shall similarly apply to
successive reclassifications and changes of shares of Class B Common Stock
and to successive consolidations, mergers, leases, sales or conveyances,
mutatis mutandis.
(f) Notice of the execution of any such supplemental agreement shall
be mailed by the Company to registered holders of Warrants as soon as
practicable after the execution of such supplemental agreement.
(g) In the event that at any time as a result of the provisions of
this Section 4.05, the holder of any Warrant thereafter surrendered for
exercise shall become entitled to receive any shares or other securities
other than shares of Class B Common Stock, thereafter the price or prices
of such other shares or other securities so receivable upon exercise of any
Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions of Article IV
with respect to Class B Common Stock, and the provisions of Article III
with respect to the Class B Common Stock shall apply on like terms to any
such other shares or other securities.
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SECTION 4.06. Covenant to Reserve Shares for Issuance on Exercise. The
Company covenants that it will at all times reserve and keep available free of
preemptive rights out of its authorized and unissued Class B Common Stock,
solely for the purpose of issue upon exercise of Warrants and exchange of scrip
as herein provided, the full number of shares of Class B Common Stock, if any,
then issuable if all outstanding Warrants then exercisable were to be exercised.
The Company covenants that all shares of Class B Common Stock which shall be so
issuable shall be duly and validly issued and fully paid and non-assessable.
The Company hereby authorizes and directs its current and future transfer
agents for the Class B Common Stock and for any shares of the Company's capital
stock issuable upon the exercise of any of the Warrants at all times to reserve
such number of authorized shares as shall be requisite for such purpose. The
Warrant Agent is hereby authorized to requisition from time to time from any
such transfer agents stock certificates required to honor outstanding Warrants
upon exercise thereof in accordance with the terms of this Agreement, and the
Company hereby authorizes and directs such transfer agents to comply with all
such requests of the Warrant Agent. The Company will supply such transfer agents
with duly executed stock certificates for such purposes and will provide or
otherwise make available any cash or scrip which may be payable as provided in
this Article IV. Promptly after the Expiration Date, the Warrant Agent shall
certify to the Company the aggregate number of Warrants then outstanding, and
thereafter no shares shall be reserved in respect of such Warrants.
SECTION 4.07. Condition Precedent to Reduction of Warrant Price Below Par
Value of Shares of Class B Common Stock; Compliance with Governmental
Requirements; Suspension of Exercise of Warrants. Before taking any action that
would cause an adjustment reducing the Warrant Price to below the then par value
of any of the shares of Class B Common Stock issuable upon exercise of the
Warrants, the Company will take any corporate action that may, in the opinion of
its counsel, be necessary in order that the Company may validly and legally
issue fully paid and non-assessable shares of such Class B Common Stock at such
adjusted Warrant Price.
The Company covenants that if any shares of Class B Common Stock required
to be reserved for purposes of exercise of Warrants or exchange of scrip
require, under any Federal or state law or rule or regulation of any national
securities exchange, registration with or approval of any governmental
authority, or listing on any national securities exchange before such shares may
be issued upon exercise, the Company will in good faith and as expeditiously as
possible endeavor to cause such shares to be duly registered, approved or listed
on the relevant national securities exchange, as the case may be; provided,
however, that in no event shall such shares of Class B Common Stock be issued,
and the Company is hereby authorized to suspend the exercise of all Warrants,
for the period during which such registration, approval or listing is required
but not in effect.
SECTION 4.08. Payment of Taxes on Stock Certificates Issued upon
Exercise. The initial issuance of certificates of Class B Common Stock upon the
exercise of Warrants shall be made without charge to the exercising Warrant
holders for any transfer, stamp or similar tax or for any other governmental
charges that may be imposed in respect of the issuance of such stock
certificates, and such stock certificates shall be issued in the respective
names of, or in such names as may be directed by, the registered holders of the
Warrants exercised; provided, however, that the Company shall not be required to
pay any tax or such other charges that may be payable in respect of any transfer
involved in the issuance and delivery of any such stock certificate, any Warrant
Certificates or other securities in a name other than that of the registered
holder of the Warrant Certificate surrendered upon exercise of the Warrant, and
the Company shall not be required to issue or deliver such certificates or other
securities unless and until the Person or Persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 4.09. Warrant Agent Not Responsible for Adjustments or Validity of
Stock. The Warrant Agent shall not at any time be under any duty or
responsibility to any Warrant holder to determine whether any facts exist that
may require an adjustment of the Warrant Price, or with respect to the nature or
extent of any such adjustment when made, or with respect to the method employed
herein or in any supplemental agreement in making the same. The Warrant Agent
shall not be accountable with respect to the validity or
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<PAGE> 17
value (or the kind or amount) of any shares of Class B Common Stock or of any
securities or property or scrip which may at any time be issued or delivered
upon the exercise of any Warrant or upon any adjustment pursuant to this Article
IV, and it makes no representation with respect thereto. The Warrant Agent shall
not be responsible for any failure of the Company to make any cash payment or to
issue, transfer or deliver any shares of Class B Common Stock or stock
certificates or other securities or property upon the surrender of any Warrant
for the purpose of exercise or upon any adjustment pursuant to this Article IV,
or to comply with any of the covenants of the Company contained in this Article
IV.
SECTION 4.10. Statements on Warrants. The form of Warrant Certificate
need not be changed because of any adjustment made pursuant to this Article IV,
and Warrant Certificates issued after such adjustment may state the same Warrant
Price and the same number of shares of Class B Common Stock as are stated in the
Warrant Certificates initially issued pursuant to this Agreement. The Company,
however, may at any time in its sole discretion (which shall be conclusive) make
any change in the form of Warrant Certificate that it may deem appropriate and
that does not affect the substance thereof; and any Warrant Certificate
thereafter issued or countersigned, whether in exchange or substitution for an
outstanding Warrant Certificate or otherwise, may be in the form as so changed.
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS
SECTION 5.01. No Rights as Stockholders. Nothing contained in this
Agreement or in any Warrant Certificate shall be construed as conferring on the
holder of any Warrant or its transferee any rights whatsoever as a stockholder
of the Company, either at law or equity, including but not limited to the right
to vote at, or to receive notice of, any meeting of stockholders of the Company;
nor shall the consent of any such holder be required with respect to any action
or proceeding of the Company; nor shall any such holder, by reason of the
ownership or possession of a Warrant or the Warrant Certificate representing the
same, either at, before or after exercising such Warrant, have any right to
receive any cash dividends, stock dividends, allotments or rights, or other
distributions (except as specifically provided herein), paid, allotted or
distributed or distributable to the stockholders of the Company prior to the
date of the exercise of such Warrant, nor shall such holder have any right not
expressly conferred by this Agreement or the Warrant Certificate that he holds.
SECTION 5.02. Mutilated or Missing Warrant Certificates. If any Warrant
Certificate is lost, stolen, mutilated or destroyed, the Company shall issue and
the Warrant Agent shall countersign, in exchange and substitution for and upon
cancellation of the mutilated Warrant Certificate, or in lieu of and
substitution for the Warrant Certificate lost, stolen or destroyed, upon receipt
of a proper affidavit or other evidence satisfactory to the Company and the
Warrant Agent (and surrender of any mutilated Warrant Certificate) and bond of
indemnity in form and amount and with corporate surety satisfactory to the
Company and the Warrant Agent in each instance protecting the Company and the
Warrant Agent, a new Warrant Certificate of like tenor and representing an
equivalent number of Warrants as the Warrant Certificate so lost, stolen,
mutilated or destroyed. Any such new Warrant Certificate shall constitute an
original contractual obligation of the Company, whether or not the allegedly
lost, stolen, mutilated or destroyed Warrant Certificate shall be at any time
enforceable by anyone. An applicant for such a substitute Warrant Certificate
shall also comply with such other reasonable regulations and pay such other
reasonable charges as the Company or the Warrant Agent may prescribe.
Notwithstanding the foregoing, in the event that a lost, stolen, mutilated or
destroyed Warrant Certificate was held by a Person to which Warrant Certificates
were originally issued pursuant to Section 2.03(a), [(b)] or (c), or by a Person
holding Warrants to purchase not less than 100,000 shares of Class B Common
Stock, (i) an indemnity agreement from such Person in lieu of a bond shall be
acceptable and (ii) no charges shall be made for such substitution. All Warrant
Certificates shall be held and owned upon the express condition that the
foregoing provisions are exclusive, with respect to the replacement of lost,
stolen, mutilated or destroyed Warrant Certificates, and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement of negotiable
instruments or other securities without their surrender.
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<PAGE> 18
SECTION 5.03. Delivery of Prospectuses. If, and to the extent that, the
Company may be required by the 1933 Act or any other applicable Federal or state
law to furnish a prospectus to Warrant holders upon their exercise of Warrants,
the Company shall cause to be kept, either at the Warrant Agent's Office or at
such other location designated by the Company, sufficient quantities of such
prospectuses for delivery to Warrant holders upon their exercise of Warrants,
and shall deliver such prospectuses or cause such prospectuses to be delivered
to such Warrant holders together with the shares of Class B Common Stock or
other securities receivable by such Warrant holders upon their exercise of
Warrants.
ARTICLE VI
CONCERNING THE WARRANT AGENT
SECTION 6.01. Payment of Certain Taxes. The Company will from time to
time promptly pay all transfer, stamp or similar taxes and all other
governmental charges that may be imposed upon the Company or otherwise in
respect of the initial issuance or delivery of shares of Class B Common Stock
upon the exercise of Warrants, but the Company shall not be obligated to pay any
transfer, stamp or similar taxes or other governmental charges in respect of any
transfer of the Warrants or such shares effected by any holder thereof.
SECTION 6.02. Change of Warrant Agent.
(a) The Warrant Agent, or any successor to it hereafter appointed, may
resign its duties and be discharged from all further duties and liabilities
hereunder (except liabilities arising as a result of the Warrant Agent's
own negligence, willful misconduct or bad faith) after giving 60 days'
notice in writing to the Company, except that such shorter notice may be
given as the Company and AmWest shall, in writing, accept as sufficient. At
least 15 days prior to the date such resignation is to become effective,
the Warrant Agent shall cause a copy of such notice of resignation to be
mailed to the registered holder of each Warrant Certificate. If the office
of the Warrant Agent becomes vacant by resignation or incapacity to act or
otherwise, the Company shall appoint a successor Warrant Agent in place of
the Warrant Agent [; provided that in the event that AmWest is the holder
of any Warrants at such time, the Company shall notify and consult with
AmWest with respect to such proposed appointment]. If the Company shall
fail to make such appointment within a period of 60 days after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by any holder of Warrants (who shall, with
such notice, submit a copy of his Warrant Certificate for inspection by the
Company), then the holder of any Warrants may apply, at the expense of the
Company, to any court of competent jurisdiction for the appointment of a
successor warrant agent.
(b) The Warrant Agent may be removed by the Company at any time upon
30 days' written notice to the Warrant Agent; provided, that the Warrant
Agent shall not be removed until a successor Warrant Agent meeting the
qualifications hereof shall have been appointed and provided further that
in the event AmWest is the holder of any Warrants at such time, the Company
shall obtain the consent of AmWest, which consent shall not be unreasonably
withheld.
(c) Any successor Warrant Agent, whether appointed by the Company or
by a court, shall be a corporation organized, in good standing and doing
business under the laws of the United States of America or any state
thereof or the District of Columbia, and authorized under such laws to
exercise corporate trust powers and subject to supervision or examination
by Federal or state authority and having a combined capital and surplus of
not less than $10,000,000. The combined capital and surplus of any such
successor Warrant Agent shall be deemed to be the combined capital and
surplus as set forth in the most recent report of its condition published
prior to its appointment pursuant to law or to the requirements of a
Federal or state supervising or examining authority. After appointment, any
successor Warrant Agent shall be vested with all the authority, powers,
rights, immunities, duties and obligations of its predecessor Warrant Agent
with like effect as if originally named as Warrant Agent hereunder, without
any further assurance, conveyance, act or deed; provided, however, that in
no event shall any successor Warrant Agent be liable for any breach,
default or failure of performance by the predecessor Warrant Agent of any
covenant or obligation under this Agreement existing on the date the
successor
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<PAGE> 19
Warrant Agent assumes authority pursuant to this Section 6.02. If for any
reason it becomes necessary or appropriate, the predecessor Warrant Agent
shall execute and deliver, at the expense of the Company, an instrument
transferring to such successor Warrant Agent all the authority, powers and
rights of such predecessor Warrant Agent hereunder; and upon request of any
successor Warrant Agent, the Company shall make, execute, acknowledge and
deliver any and all instruments in writing to more fully and effectually
vest in and confirm to such successor Warrant Agent all such authority,
powers, rights, immunities, duties and obligations. Upon assumption by a
successor Warrant Agent of the duties and responsibilities hereunder, the
predecessor Warrant Agent shall deliver and transfer, at the expense of the
Company, to the successor Warrant Agent any property at the time held by it
hereunder. As soon as practicable after such appointment, the Company shall
give notice thereof to the predecessor Warrant Agent, the registered
holders of the Warrants and each transfer agent for the shares of its Class
B Common Stock. Failure to give such notice, or any defect therein, shall
not affect the validity of the appointment of the successor Warrant Agent.
(d) Any corporation into which the Warrant Agent may be merged or with
which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Warrant Agent shall be a party, shall be the
successor Warrant Agent under this Agreement without any further act,
provided that such corporation is eligible for appointment as a successor
to the Warrant Agent. Any such successor Warrant Agent shall promptly cause
notice of its succession as Warrant Agent to be mailed to the Company and
to the registered holder of each Warrant Certificate. In case at the time
such successor Warrant Agent shall succeed to the agency created by this
Agreement, any of the Warrant Certificates shall have been countersigned
but not delivered, any such successor Warrant Agent may adopt the
countersignature of the original Warrant Agent and deliver such Warrant
Certificates so countersigned, and in case at that time any of the Warrant
Certificates shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrant Certificates either in the name
of the predecessor Warrant Agent or in the name of the successor Warrant
Agent; and in all such cases Warrant Certificates shall have the full force
provided in the Warrant Certificates and in this Agreement.
(e) In case at any time the name of the Warrant Agent shall be changed
and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignatures under its prior name and deliver such Warrant
Certificates so countersigned; and in case at that time any of the Warrant
Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have
the full force provided in the Warrant Certificates and in this Agreement.
SECTION 6.03. Compensation; Further Assurances. The Company agrees (i)
that it will pay the Warrant Agent the fees set forth in Exhibit B for its
services as Warrant Agent hereunder and, except as otherwise expressly provided,
will pay or reimburse the Warrant Agent upon demand for all reasonable expenses,
disbursements and advances incurred or made by the Warrant Agent in accordance
with any of the provisions of this Agreement (including the reasonable
compensation, expenses and disbursements of its agents and counsel) except any
such expense, disbursement or advance as may arise from its or any of their
negligence, willful misconduct or bad faith; and (ii) that it will perform,
execute, acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Warrant Agent for the carrying
out or performing of the provisions of this Agreement.
SECTION 6.04. Reliance on Counsel. The Warrant Agent may consult with
legal counsel (who may be legal counsel for the Company), and the written
opinion of such counsel or any advice of legal counsel subsequently confirmed by
a written opinion of such counsel shall be full and complete authorization and
protection to the Warrant Agent as to any action taken or omitted by it in good
faith and in accordance with such written opinion or advice, provided that such
counsel shall be reasonably acceptable to the Company.
SECTION 6.05. Proof of Actions Taken. Whenever in the performance of its
duties under this Agreement the Warrant Agent shall deem it necessary or
desirable that any matter be proved or established by
16
<PAGE> 20
the Company prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of bad faith on the part of the Warrant Agent,
be deemed to be conclusively proved and established by an Officers' Certificate
delivered to the Warrant Agent; and such Officers' Certificate shall, in the
absence of bad faith on the part of the Warrant Agent be full authority to the
Warrant Agent for any action taken, suffered or omitted in good faith by it
under the provisions of this Agreement in reliance upon such certificate; but in
its discretion the Warrant Agent may in lieu thereof accept other evidence of
such fact or matter or may require such further or additional evidence as to it
may deem reasonable.
SECTION 6.06. Correctness of Statements. The Warrant Agent shall not be
liable for or by reason of any of the statements of fact or recitals contained
in this Agreement or in the Warrant Certificates (except its countersignature
thereof) or be required to verify the same, and all such statements and recitals
are and shall be deemed to have been made by the Company only.
SECTION 6.07. Validity of Agreement. The Warrant Agent shall not be under
any responsibility in respect of the validity of this Agreement or the execution
and delivery hereof (other than such execution and delivery by the Warrant
Agent) or in respect of the validity or execution of any Warrant Certificates
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Agreement
or in any Warrant Certificate; nor shall it by any act hereunder be deemed to
make any representation or warranty as to the authorization or reservation of
any shares of Class B Common Stock to be issued pursuant to this Agreement or
any Warrants or as to whether any shares of Class B Common Stock will, when
issued, be validly issued and fully paid and non-assessable.
SECTION 6.08. Use of Agents. The Warrant Agent may execute and exercise
any of the rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents and the Warrant Agent
shall not be responsible for the misconduct or negligence of any agent or
attorney, provided due care had been exercised in the appointment and continued
employment thereof.
SECTION 6.09. Liability of Warrant Agent. The Warrant Agent shall incur
no liability or responsibility to the Company or to any holder of Warrants for
any action taken in reliance on any notice, resolution, waiver, consent, order,
certificate, or other paper, document or instrument believed by it to be genuine
and to have been signed, sent or presented by the proper party or parties. The
Company agrees to indemnify the Warrant Agent and hold it harmless against any
and all liabilities, including judgments, costs and reasonable counsel fees, for
anything done or omitted in good faith by the Warrant Agent in the execution of
this Warrant Agreement, except as a result of the Warrant Agent's negligence or
willful misconduct or bad faith.
SECTION 6.10. Legal Proceedings. The Warrant Agent shall be under no
obligation to institute any action, suit or legal proceeding or to take any
other action likely to involve expense unless the Company or one or more holders
of Warrants shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred, but this provision
shall not affect the power of the Warrant Agent to take such action as the
Warrant Agent may consider proper, whether with or without any such security or
indemnity.
SECTION 6.11. Other Transactions in Securities of the Company. The
Warrant Agent in its individual or any other capacity may become the owner of
the Warrants or other securities of the Company, or become pecuniarily
interested in any transaction in which the Company may be interested, or
contract with or lend money to the Company or otherwise act as fully and freely
as though it were not Warrant Agent under this Warrant Agreement. Nothing herein
shall preclude the Warrant Agent from acting in any other capacity for the
Company or for any other legal entity.
SECTION 6.12. Actions as Agent. The Warrant Agent shall act hereunder
solely as agent and not in a ministerial capacity, and its duties shall be
determined solely by the provisions hereof. The Warrant Agent shall not be
liable for anything which it may do or refrain from doing in good faith in
connection with this Agreement except for its own negligence or willful
misconduct or bad faith.
SECTION 6.13. Appointment and Acceptance of Agency. The Company hereby
appoints the Warrant Agent to act as agent for the Company in accordance with
the instructions set forth in this Agreement, and the
17
<PAGE> 21
Warrant Agent hereby accepts the agency established by this Agreement and agrees
to perform the same upon the terms and conditions herein set forth.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Supplements and Amendments.
(a) Notwithstanding the provisions of subsection (b) below, the
Warrant Agent may, without the consent or concurrence of the registered
holders of the Warrants, enter into one or more supplemental agreements or
amendments with the Company for the purpose of evidencing the rights of
Warrant holders upon consolidation, merger, sale, transfer,
reclassification, liquidation or dissolution pursuant to Section 4.05
hereof, making any changes or corrections in this Agreement that are
required to cure any ambiguity, to correct or supplement any provision
contained herein that may be defective or inconsistent with any other
provision herein or any clerical omission or mistake or manifest error
herein contained, or making such other provisions in regard to matters or
questions arising under this Agreement as shall not adversely affect the
interests of the holders of the Warrants or be inconsistent with this
Agreement or any supplemental agreement or amendment.
(b) With the consent of the registered holders of at least a majority in
number of the Warrants at the time outstanding, the Company and the Warrant
Agent may at any time and from time to time by supplemental agreement or
amendment add any provisions to or change in any manner or eliminate any of the
provisions of this Agreement or of any supplemental agreement or modify in any
manner the rights and obligations of the Warrant holders and of the Company;
provided, however, that no such supplemental agreement or amendment shall,
without the consent of the registered holder of each outstanding Warrant
affected thereby,
(1) alter the provisions of this Agreement so as to affect
adversely in any material respect the terms upon which the Warrants are
exercisable; or
(2) reduce the number of Warrants outstanding the consent of whose
holders is required for any such supplemental agreement or amendment.
SECTION 7.02. Successors and Assigns. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 7.03. Notices. Any notice or demand authorized by this Agreement
to be given or made by the Warrant Agent or by the holder of any Warrant to or
on the Company shall be sufficiently given or made if sent by mail first-class,
postage prepaid or by facsimile, addressed (until another address is filed in
writing by the Company with the Warrant Agent), as follows:
America West Airlines, Inc.
[4000 E. Sky Harbor Blvd.
Phoenix, AZ 85035
Attention: General Counsel
Facsimile No.: (602) 693-5904]
Any notice or demand authorized by this Agreement to be given or made by
the holder of any Warrant or by the Company to or on the Warrant Agent shall be
sufficiently given or made if sent by mail first-class,
18
<PAGE> 22
postage prepaid or by facsimile, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
[
]
Any notice of demand authorized by this Agreement to be given or made to
the holder of any Warrants shall be sufficiently given or made if sent by
first-class mail, postage prepaid to the last address of such holder as it shall
appear on the Warrant Register.
SECTION 7.04. Applicable Law. THE VALIDITY, INTERPRETATION AND
PERFORMANCE OF THIS AGREEMENT AND OF THE WARRANT CERTIFICATES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.05. Benefits of this Agreement. Nothing in this Agreement
expressed and nothing that may be implied from any of the provisions hereof is
intended, or shall be construed, to confer upon, or give to, any Person other
than the parties hereto and the holders of the Warrants any right, remedy or
claim under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof, and all covenants, conditions,
stipulations, promises and agreements in this Agreement contained shall be for
the sole and exclusive benefit of the parties hereto and their successors and
assigns and of the holders of the Warrants.
SECTION 7.06. Registered Warrant Holders. Prior to due presentment for
registration of transfer, the Company and the Warrant Agent may deem and treat
the Person in whose name any Warrants are registered in the Warrant Register as
the absolute owner thereof for all purposes whatever (notwithstanding any
notation of ownership or other writing thereon made by anyone other than the
Company or the Warrant Agent) and neither the Company nor the Warrant Agent
shall be affected by any notice to the contrary or be bound to recognize any
equitable or other claim to or interest in any Warrants on the part of any other
Person and shall not be liable for any registration of transfer of Warrants that
are registered or to be registered in the name of a fiduciary or the nominee of
a fiduciary unless made with actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration of transfer or with
such knowledge of such facts that its participation therein amounts to bad
faith. The terms "Warrant" holder and holder of any "Warrants" and all other
similar terms used herein shall mean such Person in whose name Warrants are
registered in the Warrant Register.
SECTION 7.07. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times for inspection by any registered Warrant
holder at the principal office of the Warrant Agent. The Warrant Agent may
require any such holder to submit his Warrant Certificate for inspection by it
before allowing such holder to inspect a copy of this Agreement.
SECTION 7.08. Headings. The Article and Section headings herein are for
convenience only and are not a part of this Agreement and shall not affect the
interpretation thereof.
SECTION 7.09. Counterparts. The Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original.
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<PAGE> 23
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto under their respective seals as of the day and year first above written.
AMERICA WEST AIRLINES, INC.
[CORPORATE SEAL]
By:__________________________________
Name:
Title:
Attest:___________________________
Name:
Title:
[NAME OF WARRANT AGENT]
[CORPORATE SEAL]
By:__________________________________
Name:
Title:
Attest:____________________________
Name:
Title:
20
<PAGE> 24
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[INSERT LEGEND FROM STOCKHOLDERS AGREEMENT]
[THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS
THEREUNDER (THE "1933 ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE; AND SUCH
SECURITIES MAY NOT BE SOLD OR TRANSFERRED OTHER THAN IN ACCORDANCE WITH THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT OR AN EXEMPTION THEREFROM AND FROM ANY
APPLICABLE STATE SECURITIES LAWS.]
NO. [ ]-[ ] WARRANTS
VOID AFTER , 1999
WARRANTS TO PURCHASE CLASS B COMMON STOCK
OF AMERICA WEST AIRLINES, INC.
AMERICA WEST AIRLINES, INC., a Delaware corporation (hereinafter called the
("Company" ), for value received, hereby certifies that
or registered assigns, is the owner of the number of
Warrants set forth above, each of which represents the right, at any time
commencing on the day after , 1994, and before 5:00 p.m., New York
time, on , 1999, on which date such Warrants expire, initially to
purchase, subject to the terms hereof and of the Warrant Agreement (as
hereinafter defined), one share of Class B Common Stock, par value $[ ] per
share, of the Company (hereinafter called the "Class B Common Stock" ) at the
price of $[ ] per share (the "Warrant Price" ), subject to the terms and
conditions hereof and of the Warrant Agreement, each such purchase to be made,
and to be deemed effective for the purpose of determining the date of exercise,
only upon surrender hereof to the Company at the Warrant Agent's Office, with
the Election to Exercise Form on the reverse hereof duly completed and signed,
and upon [either (i)] payment in full to the Warrant Agent for the account of
the Company of the Warrant Price (a) in cash, (b) by certified or official bank
check, or (c) by any combination of the foregoing [or (ii) payment in full to
the Warrant Agent as provided pursuant to the last sentence of Section 3.02(c)
of the Warrant Agreement], and upon compliance with and subject to the
conditions set forth herein and in the Warrant Agreement. Capitalized terms that
are not otherwise defined herein shall have the meanings ascribed to them in the
Warrant Agreement (as hereinafter defined).
The Warrant Price and, at the Company's option, either (1) the number of
shares of Class B Common Stock purchasable on the exercise of each Warrant or
(2) the number of Warrants outstanding, are subject to adjustment in certain
events as provided in the Warrant Agreement. In the event the Company elects to
adjust the number of Warrants outstanding rather than the number of shares of
Class B Common Stock purchasable on the exercise of each Warrant, the Company
shall cause the Warrant Agent to distribute to registered holders of Warrant
Certificates either Warrant Certificates representing any additional Warrants
issuable pursuant to the adjustment or substitute Warrant Certificates to
replace all outstanding Warrant Certificates in accordance with the provisions
of the Warrant Agreement. The Company shall not be required to issue fractions
of Warrants or Warrant Certificates evidencing fractional Warrants upon any such
adjustment or otherwise, but the Company shall make adjustment in cash or scrip
for any fraction of a Warrant which the registered holder of Warrants would have
been entitled to receive upon such adjustment or otherwise on the basis of the
then-current market value of such fraction of a Warrant (computed as provided in
the Warrant Agreement).
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of [ ], 1994 (herein called the "Warrant
Agreement" ), between the Company and the Warrant Agent and is subject to and is
to be construed in accordance with the terms and provisions of the Warrant
A-1
<PAGE> 25
Agreement, which terms and provisions are hereby incorporated by reference
herein and made a part hereof. Every holder of this Warrant Certificate consents
to all of the terms contained in the Warrant Agreement by acceptance hereof. A
copy of the Warrant Agreement is available for inspection by the registered
holder hereof at the Warrant Agent's Office.
The Company shall not be required upon the exercise of the Warrants
represented hereby to issue fractions of shares of Class B Common Stock, to
distribute stock certificates that evidence fractional shares of Class B Common
Stock or to issue Warrant Certificates representing fractional Warrants, but
shall make adjustment in cash or scrip for any fraction of a share which the
same registered holder of Warrants exercised in the same transaction would have
been entitled to purchase on the basis of the then-current market value of any
such fraction of a share (computed as provided in the Warrant Agreement). If the
Warrants represented hereby shall be exercised in part, the registered holder
hereof shall be entitled to receive, upon surrender hereof, another Warrant
Certificate for the balance of the number of whole Warrants not exercised as
provided in the Warrant Agreement.
Commencing on the day after the Distribution Date, this Warrant Certificate
may be exchanged either separately or in combination with other Warrant
Certificates at the Warrant Agent's Office for new Warrant Certificates
representing the same aggregate number of Warrants evidenced by the Warrant
Certificate or Warrant Certificates exchanged, upon surrender of this Warrant
Certificate and upon compliance with and subject to the conditions set forth
herein and in the Warrant Agreement.
Commencing on the day after the Distribution Date, this Warrant Certificate
is transferable at the Warrant Agent's Office by the registered holder hereof in
Person or by his attorney duly authorized in writing, upon surrender of this
Warrant Certificate and upon compliance with and subject to the conditions set
forth herein and in the Warrant Agreement. Upon any such transfer, a new Warrant
Certificate or new Warrant Certificates of different denominations, representing
in the aggregate a like number of Warrants, will be issued to the transferee.
Every holder of Warrants, by accepting this Warrant Certificate, consents and
agrees with the Company, the Warrant Agent and with every subsequent holder of
this Warrant Certificate that until due presentation for the registration of
transfer of this Warrant Certificate on the Warrant Register maintained by the
Warrant Agent, the Company and the Warrant Agent may deem and treat the Person
in whose name this Warrant Certificate is registered as the absolute and lawful
owner for all purposes whatsoever and neither the Company nor the Warrant Agent
shall be affected by any notice to the contrary.
The Company is authorized by the Warrant Agreement to suspend the exercise
of all Warrants for any period during which any shares of Class B Common Stock
reserved for exercise of Warrants require, under any Federal or state law or
rule or regulation of any national securities exchange, registration with or
approval of any governmental authority or listing on any national securities
exchange and such registration, approval or listing is not in effect.
Nothing contained in the Warrant Agreement or in this Warrant Certificate
shall be construed as conferring on the holder of any Warrants or his transferee
any rights whatsoever as a stockholder of the Company.
This Warrant Certificate shall not be valid unless countersigned manually
by the Warrant Agent.
The Warrant Agreement and each Warrant Certificate, including this Warrant
Certificate, shall be deemed a contract made under the laws of the State of New
York and for all purposes shall be governed by and construed in accordance with
the laws of the State of New York.
A-2
<PAGE> 26
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: , 1994
AMERICA WEST AIRLINES, INC.
[CORPORATE SEAL]
By:___________________________________
Name:
Title:
ATTEST:
By:___________________________________
Name:
Title:
COUNTERSIGNED:
[NAME OF WARRANT AGENT]
By:___________________________________
Name:
Title:
A-3
<PAGE> 27
ELECTION TO EXERCISE
(TO BE EXECUTED UPON EXERCISE OF WARRANT)
To AMERICA WEST AIRLINES, INC.:
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
shares of Class B Common Stock, as provided for therein, and [either (i)]
tenders herewith payment of the purchase price in full in the form of cash or a
certified or official bank check in the amount of $ [or (ii) provide
for cashless exercise option].
Please issue a certificate or certificates for such shares of Class B
Common Stock in the name of, and pay any cash for any fractional share to:
<TABLE>
<S> <C>
PLEASE INSERT SOCIAL SECURITY OR OTHER Name________________________________________
IDENTIFYING NUMBER OF ASSIGNEE (Please Print Name and Address)
_______________________________________________ Address_____________________________________
_______________________________________________ Signature___________________________________
</TABLE>
NOTE: The above signature should correspond exactly with the name on the
face of this Warrant Certificate or with the name of assignee appearing in the
assignment form below. In the event of any assignment, the Warrant Agent may
require evidence of payment of any applicable transfer taxes.
AND, if said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder less any fraction of a share paid in cash or scrip.
Dated: , 19
A-4
<PAGE> 28
ASSIGNMENT
(TO BE EXECUTED ONLY UPON ASSIGNMENT OF WARRANT CERTIFICATE)
For value received, hereby sells, assigns and
transfers unto the within Warrant Certificate, together
with all right, title and interest therein, and does hereby irrevocably
constitute and appoint attorney, to transfer said
Warrant Certificate on the books of the within-named Company, with full power of
substitution in the premises.
Dated: , 19
______________________________________
NOTE: The above signature should
correspond exactly with the name on
the face of this Warrant Certificate.
Signature guaranteed:
_____________________________________________
A-5
<PAGE> 29
EXHIBIT B
[SCHEDULE OF FEES TO BE PAID TO WARRANT AGENT]
<PAGE> 1
EXHIBIT 4.5
STOCKHOLDERS' AGREEMENT FOR
AMERICA WEST AIRLINES, INC.
THIS STOCKHOLDERS' AGREEMENT FOR AMERICA WEST AIRLINES, INC. (this
"Agreement") is entered into as of this day of , 1994 by and among
AmWest Partners, L.P., a Texas limited partnership ("AmWest"), GPA Group plc, a
corporation organized under the laws of Ireland ("GPA"), ,
and (collectively, the "Stockholder
Representatives"), and America West Airlines, Inc., a Delaware corporation (the
"Company").
RECITALS:
WHEREAS, on June 27, 1991, the Company filed a case seeking relief under
Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the
District of Arizona (the "Bankruptcy Court"); and
WHEREAS, on December 8, 1993, the Bankruptcy Court entered an Order on
Motion to Establish Procedures for Submission of Investment Proposals (the
"Procedures Order"); and
WHEREAS, pursuant to the Procedures Order, AmWest and the Company have
entered into that certain Third Revised Investment Agreement dated April 21,
1994 (the "Investment Agreement"), contemplating an investment by AmWest in the
Company (the "Investment") and providing for the consummation of the Company's
Plan of Reorganization (the "Plan"); and
WHEREAS, on , 1994, the Bankruptcy Court entered an order
confirming the Plan; and
WHEREAS, in consideration of the Investment, the Company has issued common
stock of the Company ("Common Stock") consisting of Class A Common Stock ("Class
A Common") and Class B Common Stock ("Class B Common") and warrants to purchase
Class B Common to AmWest and others; and
WHEREAS, in exchange for the release and modification of certain agreements
and claims, the Company has issued shares of Class B Common and warrants to
purchase Class B Common to GPA; and
WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the Official
Committee of Equity Holders of America West Airlines, Inc., appointed in the
Company's Chapter 11 case (the "Equity Committee") has appointed
as a Stockholder Representative; and
WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the Official
Committee of Unsecured Creditors of America West Airlines, Inc., appointed in
the Company's Chapter 11 case (the "Creditors' Committee") has appointed
as a Stockholder Representative; and
WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the Board of
Directors of the Company, as constituted prior to consummation of the Plan, has
appointed as a Stockholder Representative; and
WHEREAS, the parties hereto have agreed to enter into this Agreement
pursuant to Section 218(c) of Title 8 of the Delaware Code (the "General
Corporation Law").
NOW, THEREFORE, in consideration of the premises herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
"Affiliate" shall mean (i) when used with reference to any partnership, any
person or entity that, directly or indirectly, owns or controls ten percent
(10%) or more of either the capital or profit interests of such partnership or
is a partner of such partnership or is a person or entity in which such
partnership has a ten percent (10%) or greater direct or indirect equity
interest and (ii) when used with reference to any
1
<PAGE> 2
corporation, any person or entity that, directly or indirectly, owns or controls
ten percent (10%) or more of the outstanding voting securities of such
corporation or is a person or entity in which such corporation has a ten percent
(10%) or greater direct or indirect equity interest. In addition, the term
"Affiliate," when used with reference to any person or entity, shall also mean
any other person or entity that, directly or indirectly, controls or is
controlled by or is under common control with such person or entity. As used in
the preceding sentence, (A) the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of the entity referred to, whether through ownership of voting
securities, by contract or otherwise and (B) the terms "controlling" and
"controls" shall have meanings correlative to the foregoing. Notwithstanding the
foregoing, neither the Company nor any Fidelity Fund will be deemed to be an
Affiliate of AmWest or any of its partners.
"Alliance Agreements" shall have the meaning set forth in the Investment
Agreement.
"AmWest" shall have the meaning set forth above, and in the event AmWest
Partners, L.P., by dissolution or otherwise, designates any or all of its
general and limited partners to receive Common Stock attributable to AmWest
Partners, L.P., upon consummation of the Plan, "AmWest" shall collectively
include all such general and limited partners.
"AmWest Director" shall mean a director of the Company designated by AmWest
pursuant to Section 2.1(a).
"Annual Meeting" shall mean an annual meeting of the shareholders of the
Company.
"Board" shall mean the Company's Board of Directors.
"Bylaws" shall mean the Restated Bylaws adopted by the Company in
accordance with Section 303 of the General Corporation Law pursuant to the Plan.
"Citizens of the United States" shall have the meaning set forth in Section
1301, Title 49, United States Code, as now in effect or as it may hereafter from
time to time be amended.
"Continental" shall mean Continental Airlines, Inc. or any successor.
"Creditors' Committee Director" shall mean a director of the Company
designated by the Creditors' Committee or otherwise pursuant to Section 2.1(b).
"Effective Date" shall mean the date upon which the Restated Certificate of
Incorporation becomes effective in accordance with the Plan and the General
Corporation Law.
"Equity Committee Director" shall mean a director of the Company designated
by the Equity Committee or otherwise pursuant to Section 2.1(b)
"Fidelity Fund" shall mean a fund or account managed or advised by Fidelity
Management Trust Company or any of its Affiliates or successor(s).
"GPA Director" shall mean a director of the Company designated by GPA
pursuant to Section 2.1(c).
"Independent Company Director" shall mean a director of the Company
designated pursuant to Section 2.1(b).
"Independent Directors" shall mean, collectively, the Creditors' Committee
Directors, the Equity Committee Director, and the Independent Company Director.
"Lehman" shall mean Lehman Brothers Inc. or any successor.
"Mesa" shall mean Mesa Airlines, Inc. or any successor.
"Public Offering" shall have the meaning set forth in Section 4.2.
"Restated Certificate of Incorporation" shall mean the Restated Certificate
of Incorporation adopted by the Company in accordance with Section 303 of the
General Corporation Law pursuant to the Plan.
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<PAGE> 3
"Stockholder Representatives" shall mean the persons identified as such in
the recitals set forth above; provided that in the case of the death,
resignation, removal or disability of a Stockholder Representative, his or her
successor shall be designated by the remaining Stockholder Representatives, and
upon providing a written acknowledgment to such effect to all other parties
hereto and agreeing to be bound and subject to the terms hereof, shall become a
Stockholder Representative.
"Third Annual Meeting" shall mean the first Annual Meeting after the third
anniversary of the Effective Date.
2. DESIGNATION AND VOTING FOR COMPANY DIRECTORS.
2.1 Until the Third Annual Meeting, subject to the exception set forth in
Section 4.7(a), the Board shall consist of up to fifteen (15) persons, of whom
nine (9) persons shall be AmWest Directors, five (5) persons shall be
Independent Directors and up to one (1) person shall be a GPA Director, all
designated in accordance with the following procedure:
(a) The AmWest Directors designated on Exhibit A hereto shall serve
until the first Annual Meeting following the Effective Date and until the
successor to each such director shall be duly elected and qualified, or
until their death, disability, removal or resignation. No less than thirty
(30) days in advance of each Annual Meeting prior to (but not including)
the Third Annual Meeting, and no less than five (5) days in advance of any
other meeting of the Board at which a director will be elected to sit on
the Board in a seat vacated by an AmWest Director because of death,
disability, removal, resignation, or otherwise, AmWest shall give written
notice to the other parties hereto designating the individual or
individuals to serve as AmWest Directors. For so long as AmWest and/or its
Affiliates holds at least five percent (5%) of the voting equity securities
of the Company (on a fully diluted basis), GPA agrees to vote the Common
Stock held and controlled by it and to cause the GPA Director to vote or
provide written consents in favor of such designees and to take any other
action necessary to elect such designees. The Stockholder Representatives
agree to recommend to the Independent Directors to vote or provide written
consents in favor of such designees and to take any other action necessary
to elect such designees.
(b) Three (3) Creditors' Committee Directors, one (1) Equity Committee
Director, and one (1) Independent Company Director, each as designated on
Exhibit A hereto, shall serve until the first Annual Meeting following the
Effective Date and until the successor to each such director shall be duly
elected and qualified, or until their death, disability, removal or
resignation. Until the Third Annual Meeting, the Company shall nominate for
reelection, and AmWest and GPA shall vote the Common Stock held and
controlled by them in favor of, each Independent Director designated on
Exhibit A for so long as he or she continues to serve on the Board. No less
than five (5) days in advance of any meeting of the Board at which a
director will be elected to sit on the Board in a seat vacated by an
Independent Director because of death, disability, removal, resignation or
otherwise (a "Successor Independent Director"), and no less than thirty
(30) days in advance of an Annual Meeting prior to (but not including) the
Third Annual Meeting at which the term of any Successor Independent
Director will expire, the Stockholder Representatives shall give written
notice to the other parties hereto designating the individuals to serve as
Independent Directors; except that if the Creditors' Committee or the
Equity Committee remain in effect, they shall have the right to designate
the Creditors' Committee Directors and the Equity Committee Director,
respectively, or the individuals to fill vacancies thereof, by giving
written notice to the other parties hereto in accordance with the terms set
forth above and provided that the Stockholder Representatives shall select
any Successor Independent Director to replace the Independent Company
Director from among the executive officers of the Company. Each of AmWest
and GPA agrees to vote the Common Stock held and controlled by them and to
cause the AmWest Directors and the GPA Director, respectively, to vote or
provide written consents in favor of such designees and to take any other
action necessary to elect such designees; provided that each Independent
Director shall be reasonably acceptable to AmWest at the time of his or her
initial designation.
(c) The GPA Director designated on Exhibit A hereto shall serve until
the first Annual Meeting following the Effective Date and until the
successor to such director shall be duly elected and qualified or
3
<PAGE> 4
until his or her death, disability, removal, or resignation. No less than
thirty (30) days in advance of each Annual Meeting prior to (but not
including) the Third Annual Meeting, and no less than five (5) days in
advance of any other meeting of the Board at which a director will be
elected to sit on the Board in a seat vacated by the GPA Director because
of death, disability, removal, resignation or otherwise, GPA shall give
written notice to the other parties hereto designating the individual to
serve as GPA Director. Unless the rights of GPA hereunder have been
terminated pursuant to Section 6.2, AmWest agrees to vote the Common Stock
held and controlled by it, and to cause the AmWest Directors, and the
Stockholder Representatives agree to recommend to the Independent
Directors, to vote or provide written consents in favor of such designee
and to take any other action necessary to elect such designee; provided
that the GPA Director shall be reasonably acceptable to AmWest at the time
of his or her initial designation.
(d) Except as otherwise provided herein, each of AmWest, the
Stockholder Representatives, and GPA agrees to nominate or cause the
nomination of the AmWest Directors, the Independent Directors, and the GPA
Director, respectively, in accordance with the Bylaws.
(e) Notwithstanding the foregoing, no party hereto shall be obligated
to vote any shares for which the voting rights have been suspended, whether
voluntarily or involuntarily.
(f) In the event that AmWest, the Creditors' Committee or Equity
Committee (for so long as each is in existence and has the ability to
designate a director as herein provided), the Stockholder Representatives,
or GPA shall fail or refuse to designate a nominee to the Board for a
position allocated to and to be filled by such group or entity as herein
provided, such position shall not be filled and shall remain vacant unless
and until such designation shall be made as herein provided.
(g) In the event that the rights and obligations of GPA with respect
to this Agreement are terminated in accordance with Section 6.2, GPA agrees
to cause the resignation of, or provide notice to the other parties hereto
as provided in subsection (h)(i) below requesting removal of the GPA
Director, at which time the Board shall be reduced to fourteen (14)
persons.
(h) The parties hereto agree (i) to vote the Common Stock held and
controlled by them in favor of the removal from the Board, upon notice by
the group or entity having the right to designate such director under this
Section 2.1 and requesting such removal, of any person or persons
designated to the Board by such group or entity, and (ii) to vote the
Common Stock held and controlled by them (other than stock held
individually by any Stockholder Representative) and to cause (or in the
case of the Stockholder Representatives, recommend to) the directors
designated by them to vote or take such action as may be required under the
General Corporation Law or otherwise to implement the provisions of this
Agreement. The group or entity who has nominated any director in accordance
with this Agreement shall have the exclusive right to remove or replace
such director by written notice as herein provided; except that nothing in
this agreement shall be construed to limit or prohibit the removal of any
director for cause.
2.2 Until the Third Annual Meeting, at least eight of the AmWest Directors,
at least two of the Creditors' Committee Directors, the Equity Committee
Director, and the Independent Company Director shall each be Citizens of the
United States.
2.3 AmWest agrees that no AmWest Director shall be an officer or employee
of Continental.
3. VOTING ON CERTAIN MATTERS.
3.1 Any Director who is selected by, or who is a director of, Continental
shall recuse himself or herself from voting on, or otherwise receiving any
confidential information regarding, matters in connection with negotiations
between Continental and the Company (including, without limitation, negotiation
between Continental and the Company of the Alliance Agreements) and matters in
connection with any action involving direct competition between Continental and
the Company. Any Director who is selected by, or who is a director, officer or
employee of, Mesa shall recuse himself or herself from voting on, or otherwise
receiving any confidential information regarding, matters in connection with
negotiations between Mesa and the Company (including, without limitation,
negotiation between Mesa and the Company of the Alliance
4
<PAGE> 5
Agreements) and matters in connection with any action involving direct
competition between Mesa and the Company.
3.2 Until the Third Annual Meeting, the affirmative vote of the holders of
a majority of the voting power of the outstanding shares of each class of common
stock of the Company entitled to vote (excluding any shares owned by AmWest or
any of its Affiliates, but not, however, excluding shares owned, controlled or
voted by Mesa or any of its transferees that are not otherwise Affiliates of
AmWest), voting as a single class, shall be required to approve, adopt or
authorize:
(a) Any merger or consolidation of the Company with or into AmWest or
any Affiliate of AmWest;
(b) Any sale, lease, exchange, transfer, or other disposition by the
Company of all or any substantial part of the assets of the Company to
AmWest or any Affiliate of AmWest;
(c) Any transaction with or involving the Company as a result of which
AmWest or any of AmWest's Affiliates will, as a result of issuances of
voting securities by the Company (or any other securities convertible into
or exchangeable for such voting securities), acquire an increased
percentage ownership of such voting securities, except for (i) the exercise
of Warrants issued under the Plan, (ii) the conversion of Class A Common
held by it to Class B Common, or (iii) otherwise pursuant to a transaction
in which all holders of Class B Common may participate on a pro rata basis
at the same price per share and on the same economic terms, including,
without limitation, (A) a tender or exchange offer for all shares of the
Common Stock and (B) a Public Offering; or
(d) Any related series or combination of transactions having or which
will have, directly or indirectly, the same effect as any of the foregoing.
At the request of any party proposing such a transaction and subject to
approval by the Board, the Company agrees to put to a vote of the shareholders
the approval of any transaction referred to in subparagraphs (a) through (d)
above (excluding the excepted transactions referred to in clauses (i), (ii), and
(iii) of subparagraph (c)) at the next regular or any duly convened special
meeting of the shareholders of the Company. The voting requirements specified
above shall not be applicable to a proposed action which has been approved or
recommended by at least three Independent Directors.
4. FURTHER COVENANTS.
4.1 Neither AmWest nor any partner or Affiliate of AmWest or of any partner
of AmWest shall sell or otherwise transfer any Common Stock (other than to an
Affiliate of the transferor) if, after giving effect thereto and to any related
transaction, the total number of shares of Class B Common beneficially owned by
the transferor is less than twice the total number of shares of Class A Common
beneficially owned by the transferor; provided, however, that nothing contained
in this Section 4.1 shall prohibit any owner of Common Stock from selling or
otherwise transferring, in a single transaction or related series of
transactions, all shares of Common Stock owned by it, subject to the remaining
provisions of this Agreement.
4.2 AmWest agrees that its constituent documents shall at all times require
that this Agreement be binding upon all general and limited partners of AmWest
and any Affiliate of AmWest or such partners who hold or receive shares of the
Company or direct the voting of any shares held by AmWest, and upon any
assignees or transferees in a single transaction or a related series of
transactions of all or substantially all of the Common Stock owned by AmWest or
any of its partners or Affiliates of AmWest or any of their partners; except
that this Agreement shall not be binding (x) upon and Fidelity Fund or Lehman
with respect to Class B Common and warrants to purchase Class B Common acquired
by them contemporaneous with the consummation of the Plan pursuant to an
assignment or transfer from AmWest, or (y) upon any assignee or transferee who
acquires such Common Stock pursuant to (i) a tender or exchange offer open to
all shareholders of the Company on a pro rata basis at the same price per share
and on the same economic terms, (ii) a distribution registered under the
Securities Act of 1933 (as amended, the "Securities Act") (a "Public Offering"),
or (iii) a transfer made pursuant to Rule 144 (as amended, "Rule 144") under the
Securities Act. AmWest shall not sell or transfer (including upon dissolution of
AmWest) any Common Stock held by it to any of its general or limited partners,
to any Fidelity Fund, or to any Affiliate of AmWest or such partners and
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<PAGE> 6
AmWest shall not sell or transfer all or substantially all of the Common Stock
held by it in a single transaction or a related series of transactions, except
in accordance with clauses (i), (ii) or (iii), above, unless and until it causes
any assignee or transferee to provide a written acknowledgment to the other
parties hereto that it accepts and is bound and subject to the terms of this
Agreement.
4.3 AmWest covenants and agrees that it shall not sell or transfer, in a
single transaction or a related series of transactions, shares of Common Stock
representing fifty one percent (51%) or more of the combined voting power of all
shares of Common Stock then outstanding, other than (i) pursuant to or in
connection with a tender or exchange offer for all shares of Common Stock and
for the benefit of all holders of Class B Common on a pro rata basis at the same
price per share and on the same economic terms, (ii) to any Affiliate of AmWest,
(iii) to any Affiliate of AmWest's partners, (iv) pursuant to a bankruptcy or
insolvency proceeding, (v) pursuant to a judicial order, legal process,
execution or attachment, or (vi) in a Public Offering.
4.4 Within ten (10) days of the Effective Date, AmWest shall file with the
Securities and Exchange Commission, a Schedule 13D pursuant to Regulation 13D-G
("Regulation 13D-G") under the Securities Exchange Act of 1934 (as amended, the
"Exchange Act"), and shall amend such filing as required by Regulation 13D-G.
Each other party hereto covered by such filing covenants and agrees to promptly
provide to AmWest all information pertaining to such party and necessary to make
such amendments and to notify AmWest of any changes in facts or circumstances
pertaining to such party that would require any amendments under Regulation
13D-G.
4.5 AmWest agrees that it shall not cause any amendment to the provisions
of the Restated Certificate of Incorporation or the Bylaws or otherwise take any
action that supersedes or materially adversely affects or impairs the rights and
obligations of the parties under this Agreement or is contrary to the provisions
of this Agreement.
4.6 (a) Each certificate evidencing shares of Common Stock issued to AmWest
or any of its partners, GPA and any of their respective Affiliates, and any
assignee or transferee bound by the terms hereof, including shares of Common
Stock issued in connection with the exercise of any warrant, so long as such
Common Stock is held by them and prior to the termination or expiration of this
Agreement, shall be conspicuously stamped or marked with a legend including
substantially as follows:
THE RIGHTS AND OBLIGATIONS OF THE HOLDER OF THIS CERTIFICATE
SHALL BE SUBJECT TO THE TERMS AND PROVISIONS OF THAT CERTAIN
STOCKHOLDERS' AGREEMENT DATED , 1994, COPIES OF
WHICH ARE ON FILE AT THE PRINCIPAL OFFICE OF AMERICA WEST
AIRLINES, INC.
and each such certificate, for so long as such certificate is held by AmWest or
any of its partners and any of their respective Affiliates and any assignee or
transferee bound by the terms hereof and prior to the termination or expiration
of this Agreement, shall include in such legend the following:
THIS CERTIFICATE AND ANY INTEREST HEREIN MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH
THE AFORESAID STOCKHOLDERS' AGREEMENT.
(b) All certificates evidencing shares of Common Stock and warrants of
the Company that have not been registered pursuant to the Securities Act of
1933, as amended, and that are not exempt from registration under Section
1145 of the Bankruptcy Code, shall at all times be conspicuously stamped or
marked with a legend including substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE
RULES AND REGULATIONS THEREUNDER (THE "SECURITIES ACT") OR UNDER
THE SECURITIES LAWS OF ANY STATE; AND SUCH SECURITIES MAY NOT BE
SOLD OR TRANSFERRED OTHER THAN IN ACCOR-
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<PAGE> 7
DANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR AN
EXEMPTION THEREFROM AND FROM ANY APPLICABLE STATE SECURITIES LAWS.
(c) Upon the termination of this Agreement, the Company shall, without
charge and upon surrender of certificates by the holders thereof and
written request cancel all certificates evidencing shares of Common Stock
bearing the legend described in subparagraph (a) above and issue to the
holders thereof replacement certificates that do not bear such a legend for
an equal number of shares held by such holders. Upon the transfer of any
Common Stock bearing the legend described in subparagraph (a) above to a
party not bound by and subject to this Agreement, the Company shall,
without charge and upon the surrender of certificates by the holders
thereof and written request cancel all certificates evidencing such shares
of Common Stock and issue to the transferee thereof replacement
certificates that do not bear such a legend.
4.7 During the term of this Agreement, AmWest shall not cause the issuance
of any preferred stock that would (a) increase the number of directors in excess
of the number provided in Section 2.1 (except for increases caused by a
provision allowing holders of preferred stock to elect additional directors in
the event of nonpayment of dividends) or (b) eliminate or reduce the number of
Creditors' Committee Directors, Equity Committee Director, Independent Company
Director, or GPA Director.
5. RIGHTS UPON BREACH.
5.1 Each party hereto recognizes and agrees that a violation of any term,
provision, or condition of this Agreement may cause irreparable damage to the
other parties which is difficult or impossible to quantify or ascertain and that
the award of any sum of damages may not be adequate relief to such other
parties. Each party hereto therefore agrees that in the event of any breach of
this Agreement, the other party or parties shall, in addition to any remedies at
law which may be available, have the right to obtain appropriate equitable
(including, but not limited to, injunctive) relief. All remedies hereunder shall
be cumulative and not exclusive.
5.2 In addition to any other remedies available at law or in equity, each
party hereto agrees that the Company shall have the right (a) to withhold
transfer, and to instruct any transfer agent for securities of the Company to
withhold transfer, of any certificates evidencing shares of Common Stock held by
AmWest or any partner or Affiliate of AmWest or transferee if the Company
reasonably believes that such transfer would not be in material compliance with
the terms and provisions of this Agreement, unless the transferee provides to
the Company an opinion of legal counsel reasonably acceptable to the Company
that such transfer will be in material compliance with the terms and provisions
hereof, and (b) to require any person requesting such transfer to provide such
information as may reasonably be requested by the Company regarding ownership of
securities, affiliations, if any, between AmWest and the transferee and such
other matters pertaining to the transfer as may be appropriate to enable the
Company to determine the compliance of the proposed transfer of securities with
the terms and provisions of this Agreement.
6. TERMINATION.
6.1 This Agreement shall automatically terminate without any action by any
party on the day immediately preceding the Third Annual Meeting and shall not be
extended except in accordance with Section 7.3. Upon such termination, the
rights and obligations of each party hereunder shall terminate and the
provisions of this Agreement shall be of no force and effect; provided that no
such termination shall relieve any person or entity from liability for breach or
default of this Agreement prior to such termination.
6.2 GPA's rights and obligations under this Agreement (other than its
obligations under Section 2.1(g)) shall terminate immediately and without notice
upon the earlier of (a) termination of this Agreement under Section 6.1, (b) the
sale or transfer by GPA of equity securities of the Company resulting in the
holding by GPA of less than two percent (2%) of the voting equity securities of
the Company (on a fully diluted basis), or (c) any occurrence, other than as
described in clause (b) above, resulting in the holding by GPA of less than two
percent (2%) of the voting equity securities of the Company (on a fully diluted
basis) if (i) the Company files a Form 10-Q under the Exchange Act, or other
written report or statement, that is delivered to
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<PAGE> 8
GPA and a copy to the party designated in Section 7.1, reflecting information as
to the Company's total issued and outstanding capital stock as of a date therein
specified (the "Determination Date") from which GPA can determine whether it
holds less than two percent (2%) of the voting equity securities of the Company
(on a fully diluted basis) and (ii) GPA fails to acquire (by purchase, or
otherwise) sufficient voting equity securities of the Company such that it
continues to hold less than two percent (2%) of the voting equity securities of
the Company (on a fully diluted basis) determined as of the Determination Date
for thirty-five (35) days after delivery of such Form 10-Q, or provision of such
report or statement to GPA. GPA acknowledges that the Company's continuing with
its existing procedures for the distribution of Form-10Qs constitutes delivery
to GPA within the meaning of this Section 6.2.
7. MISCELLANEOUS.
7.1 All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or mailed (first class postage prepaid) or by
prepaid express courier at the following addresses or facsimile numbers:
<TABLE>
<S> <C>
If to AmWest: AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax Number: (817) 871-4010
with a copy to: Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Attention: Richard P. Schifter
Fax Number: (202) 872-6720
and a copy to: Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Fax Number: (216) 586-7864
If to GPA: GPA Group plc
GPA House
Shannon, Ireland
Attention: Patrick H. Blaney
Fax Number: 353 61 360220
with a copy to: Paul, Hastings, Janofsky & Walker
399 Park Avenue, 31st Floor
New York, New York 10022
Attention: Marguerite R. Kahn
Fax Number: (212) 319-4090
If to____________:
If to____________:
If to____________:
If to the Company: America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: General Counsel
Fax Number: (602) 693-5904
</TABLE>
8
<PAGE> 9
<TABLE>
<S> <C>
with a copy to: Andrews & Kurth, L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: David G. Elkins
Fax Number: (713) 220-4285
</TABLE>
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 7.1, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 7.1, be deemed given upon receipt, and (iii) if
delivered by mail or by express courier in the manner described above to the
address as provided in this Section 7.1, be deemed given upon receipt (in each
case regardless of whether such notice is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section 7.1). Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party
by giving notice as provided in this Section 7.1 specifying such change to the
other parties hereto. Nothing in this Section 7.1 shall be deemed or construed
to alter any notice provisions contained in the Bylaws.
7.2 This Agreement shall in all respects be governed by and construed in
accordance with the laws of the State of Delaware without reference to
principles of conflicts or choice of law under which the law of any other
jurisdiction would apply.
7.3 This Agreement may only be amended, waived, supplemented, modified or
extended by a written instrument signed by authorized representatives of each
party hereto.
7.4 This Agreement shall inure to the benefit of and be binding upon each
of the parties hereto and their respective successors and permitted assigns.
7.5 This Agreement may be executed by the parties hereto in counterparts
and by telecopy, each of which shall be deemed to constitute an original and all
of which together shall constitute one and the same instrument.
7.6 If any term or provision of this Agreement shall be found by a court of
competent jurisdiction to be illegal, invalid or unenforceable to any extent,
the remainder of this Agreement shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
7.7 The parties hereto intend that in the case of any conflict or
inconsistency between this Agreement and the Restated Certificate of
Incorporation or the Bylaws, that this Agreement shall control, and therefore in
the event that any term or provision of this Agreement is rendered invalid,
illegal or unenforceable by the Restated Certificate of Incorporation or the
Bylaws, the parties agree to amend the Restated Certificate of Incorporation or
the Bylaws (as the case may be) so as to render such term or provision valid,
legal and enforceable, if and to the extent possible.
9
<PAGE> 10
IN WITNESS WHEREOF, the parties hereto, by their respective officers
thereunto duly authorized, have executed this Agreement as of the date first
written above.
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.,
its General Partner
By:________________________________
Name:
Title:
GPA GROUP PLC
By:________________________________
Name:
Title:
___________________________________
[Stockholder Representative]
___________________________________
[Stockholder Representative]
___________________________________
[Stockholder Representative]
AMERICA WEST AIRLINES, INC.
By:________________________________
Name:
Title:
10
<PAGE> 1
EXHIBIT 4.6
================================================================================
REGISTRATION RIGHTS AGREEMENT
AMONG
AMERICA WEST AIRLINES, INC.,
AMWEST PARTNERS, L.P.
AND
THE OTHER HOLDERS NAMED HEREIN
DATED AS OF , 1994
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C> <C>
1. Definitions....................................................................... 2
2. Registration under the Securities Act............................................. 6
2.1 Shelf Registration Statement............................................... 6
2.2 Demand Registration........................................................ 7
2.3 Piggyback Registration..................................................... 8
2.4 Trust Indenture Act Qualification; Rating.................................. 10
2.5 Registration Terms and Procedures.......................................... 10
2.6 Underwritten Offerings..................................................... 18
2.7 Preparation; Reasonable Investigation...................................... 19
2.8 Indemnification............................................................ 19
[2.9 Liquidated Damages......................................................... 23]
3. Rule 144 and Rule 144A............................................................ 25
4. Term.............................................................................. 26
5. Amendments and Waivers............................................................ 26
6. Entire Agreement.................................................................. 27
7. No Third-Party Beneficiary........................................................ 27
8. Invalid Provisions................................................................ 27
9. Nominees for Beneficial Owners.................................................... 27
10. Notices........................................................................... 27
11. Assignment........................................................................ 29
12. Descriptive Headings.............................................................. 29
[13. Specific Performance.............................................................. 28]
14. Governing Law..................................................................... 29
15. Registration Rights to Others..................................................... 29
16. Attorney's Fees................................................................... 30
17. Limitation of Liability........................................................... 30
18. Termination of Certain Rights..................................................... 30
19. Counterparts...................................................................... 30
</TABLE>
i
<PAGE> 3
SCHEDULES
SCHEDULE 1 -- ADDITIONAL NOTICES
ii
<PAGE> 4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of , 1994 among AMERICA
WEST AIRLINES, INC., a Delaware corporation (including its successor, as
reorganized pursuant to Chapter 11, Title 11 of the United States Bankruptcy
Code (the "Bankruptcy Code"), the "Company"), AMWEST PARTNERS, L.P., a Texas
limited partnership ("Investor"), and the funds or accounts managed or advised
by Fidelity Management Trust Company or its affiliates listed on the signature
pages hereto (each, a "Fidelity Fund" and collectively, "Fidelity").
W I T N E S S E T H :
WHEREAS, the Company is a Debtor and Debtor-in-Possession in the case (the
"Chapter 11 Case") filed in the United States Bankruptcy Court for the District
of Arizona (the "Bankruptcy Court"), entitled "In re America West Airlines,
Inc., Debtor," Chapter 11 Case No. 91-07505-PHX-RGM, under the Bankruptcy Code;
WHEREAS, the Company and Investor have entered into that certain Third
Revised Investment Agreement dated as of April 21, 1994 (as it may be further
amended, modified or supplemented from time to time, the "Investment Agreement")
and the Company and Fidelity have entered into a Note Purchase Agreement dated
as of , 1994 (as amended, modified or supplemented from time to
time, the "Note Purchase Agreement"), which agreements among other things
provide for the purchase of the Securities (as defined in the Investment
Agreement) in connection with and as part of the transactions to be consummated
pursuant to the confirmation of a Plan of Reorganization (as amended, modified
or supplemented from time to time) of the Company in the Chapter 11 Case (the
"Plan of Reorganization");
WHEREAS, as a condition to Investor's obligations to consummate the
transactions contemplated by the Investment Agreement, the Company has agreed to
file a shelf registration statement with respect to the Securities issued or
issuable to Investor, Fidelity and their respective Affiliates [and such shelf
registration shall have been declared effective on or prior to the Effective
Date];
WHEREAS, by Order dated , 1994, the Bankruptcy Court confirmed
the Plan of Reorganization; and
WHEREAS, the Investment Agreement, the Note Purchase Agreement and the Plan
of Reorganization contemplate that the Company, Investor, and Fidelity will
enter into certain agreements, including, without limitation, this Registration
Rights Agreement;
NOW THEREFORE, the parties hereby agree as follows:
1. Definitions. Capitalized terms used herein that are not otherwise
defined herein shall have the meanings ascribed to them in the Investment
Agreement. In addition, the following terms, as used herein, have the following
meanings (all terms defined herein in the singular to have the correlative
meanings when used in the plural and vice versa):
"Agreement" means this Registration Rights Agreement, as the same shall be
amended, modified or supplemented from time to time.
"Chapter 11 Case" has the meaning ascribed to it in the preamble.
"Demand Registration" means any registration of Registrable Securities
under the Securities Act effected in accordance with Section 2.2.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor statute, and the rules and regulations
promulgated thereunder.
"Fidelity Funds" has the meaning ascribed to it in the preamble.
"Holders" means the holders of record of Registrable Securities.
"Indemnified Party" has the meaning ascribed to it in Section 2.9(a).
<PAGE> 5
"Indenture" means that certain Indenture between the Company and
, as Trustee, dated as of , 1994 and relating to
$ principal amount of the Notes.
"Loss" has the meaning ascribed to it in Section 2.9(a).
"Material Adverse Change" means (i) any general suspension of trading in,
or limitation on, prices for securities on any national securities exchange or
in the over-the-counter market in the United States of America, (ii) the
declaration of a banking moratorium or any suspension of payments in respect of
banks in the United States of America, (iii) the commencement of a war, armed
hostilities or other international or national calamity involving the United
States of America, (iv) any limitation (whether or not mandatory) by any
governmental authority on, or any other event which is reasonably likely to
significantly affect the extension of credit by banks or other financial
institutions, (v) any material adverse change in the Company's business,
condition (financial or otherwise) or prospects or (vi) a % or more decline
in the Dow Jones Industrial average or the Standard and Poor's Index of 400
Industrial Companies, in each case from the date a Notice of Demand is made.
"Notes" has the meaning ascribed to it in the Note Purchase Agreement.
"Notice of Demand" means a request by Investor or any Fidelity Fund, as the
case may be, pursuant to Section 2.2 that the Company effect the registration
under the Securities Act of all or part of the Registrable Securities held by it
and its Affiliates and, at its option, any direct or indirect transferee of
Registrable Securities held by it, and any other Holder that requests to have
its Registrable Securities included in such registration pursuant to Section
2.2(c). A Notice of Demand shall specify (i) the type and amount of Registrable
Securities proposed to be registered, (ii) the intended method or methods and
plan of disposition thereof and (iii) whether or not such requested registration
is to be an underwritten offering.
"Participating Holders" means, with respect to any registration of
Registrable Securities by the Company pursuant to this Agreement, the Requesting
Holder and any other Holders that are entitled to participate in, and are
participating in or seeking to participate in, such registration.
"Piggyback Registration" means any registration of Registrable Equity
Securities under the Securities Act effected in accordance with Section 2.3.
"Piggyback Registration Notice" has the meaning ascribed to it in Section
2.3(a).
"Registrable Debt Securities" means the Notes sold to any Fidelity Fund or
any of their respective assignees or Affiliates pursuant to the Note Purchase
Agreement or subsequently acquired by any transferee (direct or indirect) of
such Persons. As to any particular Registrable Debt Securities, once issued such
securities shall cease to be Registrable Debt Securities when (a) such
securities shall have been distributed pursuant to the Plan of Reorganization
without registration or qualification under the Securities Act or any similar
state law then in force pursuant to Section 1145 of the Bankruptcy Code, (b) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with the plan of distribution set forth in such
registration statement, (c) such securities shall have been distributed in
accordance with Rule 144 or (d) such securities shall have been otherwise
transferred, new certificates therefor not bearing a legend restricting further
transfer shall have been delivered in exchange therefor by the Company and
subsequent disposition of such securities shall not require registration or
qualification under the Securities Act or any similar state law then in force.
"Registrable Equity Securities" means the equity securities acquired by
Investor, any Fidelity Fund or any of their respective assignees or Affiliates
pursuant to the Plan or subsequently acquired by any transferee (direct or
indirect) of such Persons, including, without limitation, (a) any shares of
Class A Common or Class B Common issued or issuable on the Effective Date, (b)
any Warrant, (c) any shares of Class B Common issued or issuable upon the
exercise of the Warrants and (d) any securities issued or issuable with respect
to any such Class A Common, Class B Common or Warrants by way of stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise. As to any particular
Registrable Equity Securities, once issued such securities shall cease to be
Registrable Equity Securities when (i) such securities shall have been
distributed pursuant to the Plan of
2
<PAGE> 6
Reorganization without registration or qualification under the Securities Act or
any similar state law then in force pursuant to Section 1145 of the Bankruptcy
Code, (ii) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with the plan of distribution set forth in
such registration statement, (iii) such securities shall have been distributed
in accordance with Rule 144 or (iv) such securities shall have been otherwise
transferred, new certificates therefor not bearing a legend restricting further
transfer shall have been delivered in exchange therefor by the Company and
subsequent disposition of such shares shall not require registration or
qualification under the Securities Act or any similar state law then in force.
"Registrable Securities" means the Registrable Debt Securities and the
Registrable Equity Securities.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
(a) all registration, filing, securities exchange listing, rating agency and
National Association of Securities Dealers fees, (b) all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws and any legal fees and expenses incurred in connection with the blue
sky qualifications of the Registrable Securities and the determination of their
eligibility for investment under the laws of any jurisdiction, (c) all word
processing, duplicating, printing, messenger and delivery expenses, (d) the fees
and disbursements of counsel for the Company and of its independent public
accountants, including, without limitation, the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, (e) the fees and disbursements incurred by the Holders of the
Registrable Securities being registered (including, without limitation, the fees
and disbursements for one counsel or firm of counsel selected by the Requisite
Holders of Registrable Debt Securities and Registrable Equity Securities), (f)
premiums and other costs of policies of insurance against liabilities arising
out of the public offering of the Registrable Securities being registered to the
extent the Company elects to obtain such insurance, (g) any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities (but excluding underwriting discounts and commissions and transfer
taxes, if any, relating to the Registrable Securities being registered) and (h)
fees and expenses of other Persons retained or employed by the Company.
"Requesting Holder" means the party providing a Notice of Demand to the
Company pursuant to Section 2.2(a).
"Requisite Holders" means, (a) with respect to any Registrable Equity
Securities, any Holder or Holders of a majority in interest of the Registrable
Equity Securities included or to be included in such registration and (b) with
respect to any Registrable Debt Securities, any Holder or Holders of a majority
of the aggregate principal amount of the Registrable Debt Securities included or
to be included in such registration.
"Rule 144" means Rule 144 promulgated by the SEC under the Securities Act,
and any successor provision thereto.
"Rule 144A" means Rule 144A promulgated by the SEC under the Securities
Act, and any successor provision thereto.
"SEC" means the United States Securities and Exchange Commission, or any
successor governmental agency or authority thereto.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor statute, and the rules and regulations promulgated
thereunder.
"Shelf Period" has the meaning ascribed to it in Section 2.1(b).
"Shelf Registration Statement" has the meaning ascribed to it in Section
2.1.
"Successor" means, with respect to any Person, a successor to such Person
by merger, consolidation, liquidation or other similar transaction.
"Suspension Notice" has the meaning ascribed to it in Section 2.5(h).
"Suspension Period" has the meaning ascribed to it in Section 2.5(h).
3
<PAGE> 7
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
sec.sec. 77aaa-77bbbb), as amended from time to time, or any successor
statute, and the rules and regulations promulgated thereunder.
2. Registration under the Securities Act.
2.1 Shelf Registration Statement.
(a) Filing of Shelf Registration Statement. If, as of the Effective
Date, (i) the Company shall not have filed, or the SEC shall not have
declared (or there shall not remain) effective, a shelf registration
statement covering all of the Registrable Securities (the "Shelf
Registration Statement") or (ii) the securities covered under the Shelf
Registration Statement shall not qualify under all blue sky or other
securities laws, the Company shall, as appropriate, promptly file a Shelf
Registration Statement with the SEC and use [commercially reasonable] [its
best] efforts to cause a Shelf Registration Statement to be declared
effective as soon as practicable and to qualify such securities under all
blue sky and other securities laws as soon as practicable.
(b) Continuous Effectiveness of Shelf Registration Statement. Once
the Shelf Registration Statement has been filed and declared effective, the
Company shall use [commercially reasonable] [its best] efforts to cause the
Shelf Registration Statement to remain continuously effective until the
earlier of (i) the third (3rd) anniversary of the Effective Date and (ii)
the date on which all of the Registrable Securities covered by such Shelf
Registration Statement have been sold, but in no event prior to the
expiration of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder (the "Shelf Period"); provided,
however, that (x) the Company may (no more than twice during any twelve
(12) month period and for a period not to exceed forty-five (45) days)
suspend use of the Shelf Registration Statement at any time if the
continued effectiveness thereof would require the Company to disclose a
material transaction, which disclosure the Board of Directors of the
Company shall have determined in good faith is not in the best interests of
the Company and its stockholders and (y) the Company may suspend use of the
Shelf Registration Statement during any period (not to exceed forty-five
(45) days) if each of the Company, Investor and each Fidelity Fund agrees
in writing to such suspension for such period.
(c) Underwritten Offering. If Investor and Fidelity so elect, the
offering of Registrable Securities pursuant to the Shelf Registration
Statement shall be in the form of an underwritten offering, with such
book-running managing underwriter or underwriters as they shall jointly
select with the approval of the Company, such approval not to be
unreasonably withheld.
2.2 Demand Registration.
(a) Registration on Request. Except as provided in subsection (b)
below,
(i) at any time after the Shelf Period, Investor may provide the
Company with a Notice of Demand[; and
(ii) if at any time during the Shelf Period the Shelf Registration
Statement is not effective for any reason (other than under the
circumstances and during the periods permitted by the proviso to Section
2.1(b)), each of Investor and Fidelity may, at any time and from time to
time, provide the Company with up to two (2) additional Notices of
Demand.]
Upon receipt of a Notice of Demand, the Company shall use [commercially
reasonable] [its best] efforts to effect at the earliest practicable date
the registration under the Securities Act of the Registrable Securities
that the Company has been so requested to register (whether pursuant to the
Notice of Demand or pursuant to Section 2.2(c)), for disposition in
accordance with the intended method or methods of disposition specified in
the Notice of Demand or such other notice.
(b) Limitations on Demand Registration. The Company shall not be
obligated to take any action to effect any registration pursuant to this
Section 2.2: (i) after the Company has, in accordance with the provisions
of Section 2.5(c), effected [(A) one (1) registration of Registrable
Securities with respect to
4
<PAGE> 8
a registration requested pursuant to Section 2.2(a)(i) and (B) four (4)
registrations of Registrable Securities with respect to a registration
requested pursuant to Section 2.2(a)(ii); (ii) during any period (occurring
no more than twice during any twelve (12) month period and not to exceed
forty-five (45) days) in which such registration would require the Company
to disclose a material transaction, which disclosure the Board of Directors
of the Company shall have determined in good faith is not in the best
interests of the Company and its stockholders; or (iii) during any period
(not to exceed forty-five (45) days) if each of the Company, Investor and
each Fidelity Fund agrees in writing to suspend such registration for such
period.
(c) Notice to certain non-Requesting Holders. Upon receipt of any
Notice of Demand from a Requesting Holder, the Company will give prompt
(but in any event within ( ) days after such receipt) notice
to all Holders of Registrable Securities of such Notice of Demand and of
such Holders' rights under this Section 2.2. Upon the request of any such
Holder made within ( ) days after the receipt by such Holder
of any such notice (which request shall specify the Registrable Securities
intended to be disposed of by such Holder and the intended method or
methods of disposition thereof), the Company will use [commercially
reasonable] [its best] efforts to effect the registration of all
Registrable Securities which the Company has been so requested to register
pursuant to the Notice of Demand.
(d) Priority in Demand Registrations. If (i) a registration pursuant
to this Section 2.2(c) involves an underwritten offering of the securities
being registered to be distributed (on a firm commitment basis) by or
through one or more underwriters of recognized standing under underwriting
terms appropriate for such a transaction and (ii) the managing underwriter
of such underwritten offering shall inform the Company and the Requesting
Holder by letter of its belief that the amount of securities requested to
be included in such registration exceeds the amount which can be sold in
(or during the time of) such offering within a price range acceptable to
the Requesting Holder, then the Company will include in such registration
such amount of securities which the Company is so advised can be sold in
(or during the time of) such offering as follows: first, such Registrable
Securities requested to be included in such registration by the Requesting
Holder, its Affiliates and any direct or indirect transferees of its
Registrable Securities pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included by such
parties; and second, such Registrable Securities requested to be included
in such registration by all other Holders pro rata on the basis of the
amount of such securities so proposed to be sold and so requested to be
included by such Holders.
2.3 Piggyback Registration.
(a) Right to Include Registrable Securities. If the Company at any
time proposes to register any of its equity securities under the Securities
Act (other than by a registration on Form S-4 or Form S-8 or any successor
or similar form then in effect and other than pursuant to Section 2.1 or
2.2) in a form and in a manner that would permit registration of the
Registrable Equity Securities, whether or not for sale for its own account,
it will give prompt (but in no event less than [thirty (30)] days prior to
the proposed date of filing the registration statement relating to such
registration) notice to all Holders of Registrable Equity Securities of the
Company's intention to do so and of such Holders' rights under this Section
2.3. Upon the request of any such Holder made within [twenty (20)] days
after the receipt by such Holder of any such notice (which request shall
specify the Registrable Equity Securities intended to be disposed of by
such Holder and the intended method or methods of disposition thereof) (the
"Piggyback Registration Notice"), the Company will use [commercially
reasonable] [its best] efforts to effect the registration under the
Securities Act of all Registrable Equity Securities which the Company has
been so requested to register by the Holders thereof, to the extent
required to permit the disposition (in accordance with the intended method
or methods thereof as aforesaid) of the Registrable Equity Securities so to
be registered, provided that if, at any time after giving notice of its
intention to register any equity securities and prior to the effective date
of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of such equity securities, the Company may, at its election,
give notice of such determination to each such Holder and, thereupon, (i)
in the case of a determination not to register, shall be relieved of its
obligation to register any
5
<PAGE> 9
Registrable Equity Securities in connection with such registration (but not
from its obligation to pay all Registration Expenses in connection
therewith as provided in Section 2.5(b)), without prejudice, however, to
the right of Investor to request that such registration be effected as a
registration under Section 2.2, and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any Registrable
Equity Securities for the same period as the delay in registering such
other equity securities. No registration effected under this Section 2.3
shall be deemed to have been effected pursuant to Section 2.1 or 2.2 or
shall relieve the Company of its obligation to effect any registration
under such Sections.
(b) Priority in Piggyback Registrations. If (i) a registration
pursuant to this Section 2.3 involves an underwritten offering of the
securities being registered, whether or not for sale for the account of the
Company, to be distributed (on a firm commitment basis) by or through one
or more underwriters of recognized standing under underwriting terms
appropriate for such a transaction and (ii) the managing underwriter of
such underwritten offering shall inform the Company and the Holders
requesting such registration by letter of its belief that the amount of
securities requested to be included in such registration exceeds the amount
which can be sold in (or during the time of) such offering within a price
range acceptable to the Company, then the Company will include in such
registration such amount of securities which the Company is so advised can
be sold in (or during the time of) such offering as follows: first, all
securities proposed by the Company to be sold for its own account; second,
such Registrable Equity Securities requested to be included in such
registration by Investor, any Fidelity Fund or any of their respective
Affiliates pro rata on the basis of the amount of such securities so
proposed to be sold and so requested to be included by such parties; third,
such Registrable Equity Securities requested to be included in such
registration by all other Holders pro rata on the basis of the amount of
such securities so proposed to be sold and so requested to be included by
such Holders; and fourth, all other securities of the Company requested to
be included in such registration pro rata on the basis of the amount of
such securities so proposed to be sold and so requested to be included.
2.4 Trust Indenture Act Qualification; Rating. At or prior to the
date the SEC declares the Shelf Registration Statement to be effective, the
Company shall qualify the Indenture under the Trust Indenture Act, and
shall use [commercially reasonable] [its best] efforts to effect such
registration to permit the sale of the Notes thereunder in accordance with
the intended method or methods of disposition thereof. If notified by a
nationally recognized rating agency that the Notes are being rated, the
Company shall cooperate in providing information and making a presentation
to such agency in connection therewith.
2.5 Registration Terms and Procedures.
(a) Registration Statement Form. Registrations under Section 2.2
shall be on such appropriate registration forms of the SEC (i) as shall be
acceptable to the Requesting Holder (such acceptance not to be unreasonably
withheld) and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of
disposition. The Company agrees to include in any such registration
statement all information that any Participating Holder shall reasonably
request (to the extent such information relates to such Participating
Holder).
(b) Registration Expenses. Subject to Section 2.5(f), the Company
will pay all Registration Expenses incurred in connection with a
registration to be effected (whether or not effected or deemed effected
pursuant to subsection (c) below) pursuant to Sections 2.1, 2.2 or 2.3.
(c) Effectiveness of Demand Registration. A registration will not be
deemed to have been effected under Section 2.2 unless the registration
statement with respect thereto has been declared effective by the SEC [and
remains effective for [nine (9)] months]; provided, however, that if (i)
after such registration statement has been declared effective, the offering
of Registrable Securities pursuant to such registration statement is
interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court (for reasons other
than a misrepresentation or omission by the Requesting Holder or any
Participating Holder) or (ii) the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection
with such registration have not been satisfied (for reasons other than a
wrongful or bad faith act, omission or misrepresentation by the
6
<PAGE> 10
Requesting Holder or any Participating Holder), such registration statement
will be deemed not to have become effective. If a registration pursuant to
Section 2.2 is deemed not to have been effected hereunder, then the Company
shall continue to be obligated to effect a registration pursuant to such
Section.
(d) Selection of Underwriter. If, in connection with a registration
effected pursuant to Section 2.2, the Requesting Holder so elects, the
offering of Registrable Securities pursuant to such Section shall be in the
form of an underwritten offering. If the Requesting Holder so elects, it
shall select one or more nationally recognized firms of investment bankers
to act as the book-running managing underwriter or underwriters in
connection with such offering, provided that such selection shall be
subject to the consent of the Company, which consent shall not be
unreasonably withheld.
(e) Registration of Securities. Participating Holders may seek to
register different types of Registrable Securities and/or different classes
of the same type of Registrable Securities simultaneously and the Company
shall use its, and in the case of an underwritten offering, shall cause the
managing underwriter or underwriters to use [commercially reasonable] [its
best] efforts to effect such registration and sale in accordance with the
intended method or methods of disposition specified by such Holders.
(f) Withdrawal. Any Holder participating in a registration pursuant
to this Agreement shall be permitted to withdraw all or part of its
Registrable Securities from such registration at any time prior to the
effective date of the registration statement covering such securities;
provided that, in the event of a withdrawal from a registration effected
pursuant to Section 2.2, such registration shall be deemed to have been
effected for purposes of Section 2.5(c) unless (i) the Requesting Holder
and any Participating Holders shall have paid or reimbursed the Company for
the reasonable fees and expenses paid by the Company hereunder to the
extent such fees and expenses would customarily have been paid by sellers
in connection with a registration of similar securities or (ii) the
Requesting Holder elects to terminate such registration due to the
occurrence of a Material Adverse Change; provided, however, that only one
such withdrawal shall be permitted pursuant to this clause (ii).
(g) Registration Procedures. In connection with the Company's
obligations to register Registrable Securities pursuant to this Agreement,
the Company will use [commercially reasonable] [its best] efforts to effect
such registration so as to permit the sale of any Registrable Securities
included in such registration in accordance with the intended method or
methods of distribution thereof, and pursuant thereto the Company will as
expeditiously as possible:
(i) prepare and (as soon thereafter as possible) file with the SEC
the requisite registration statement containing all information required
thereby to effect such registration and thereafter use [commercially
reasonable] [its best] efforts to cause such registration statement to
become and remain effective in accordance with the terms of this
Agreement, provided that as far in advance as practicable before filing
such registration statement or any amendment, supplement or exhibit
thereto (but, with respect to the filing of such registration statement,
in no event later than ten (10) days prior to such filing), the Company
will furnish to the Participating Holders or their counsel copies of
reasonably complete drafts of all such documents proposed to be filed
(excluding exhibits, which shall be made available upon request by any
Participating Holder), and any such Holder shall have the opportunity to
object to any information contained therein and the Company will make
the corrections reasonably requested by such Holder with respect to such
information prior to filing any such registration statement, amendment,
supplement or exhibit;
(ii) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith (A) as reasonably requested by any Participating Holder to
which such registration statement relates (but only to the extent such
request relates to information with respect to such Holder) and (B) as
may be necessary to keep such registration statement effective for the
period referred to in Section 2.1(b) in the case of a Shelf Registration
Statement or [nine (9) months] in the case of a registration effected
pursuant to Section 2.2 or 2.3 (or such shorter period as shall be
necessary to complete the distribution of the securities covered
thereby, but not before the expiration of the applicable period referred
to in Section 4(3) of the Securities Act and Rule 174 thereunder), and
comply with the provisions of the
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Securities Act with respect to the sale or other disposition of all
securities covered by such registration statement during such period
in accordance with the intended method or methods of disposition by
the seller or sellers thereof set forth in such registration
statement;
(iii) furnish to each Holder covered by, and each underwriter or
agent participating in the disposition of securities under, such
registration statement such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits and documents incorporated by
reference), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act relating to such Holder's Registrable Securities, in
conformity with the requirements of the Securities Act, and such other
documents as such Holder, underwriter or agent may reasonably request to
facilitate the disposition of such Registrable Securities;
(iv) use [commercially reasonable] [its best] efforts to register
or qualify all Registrable Securities and other securities covered by
such registration statement under (A) with respect to the Shelf
Registration Statement, all blue sky and other securities laws and (B)
with respect to a registration effected pursuant to Section 2.2, all
applicable blue sky and other securities laws, and to keep such
registration or qualification in effect for so long as such registration
statement remains in effect, and take any other action which may be
reasonably necessary or advisable to enable such Holder to consummate
the disposition of the securities owned by such Holder, except that the
Company shall not for any such purpose be required to (a) qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this clause (iv) be
obligated to be so qualified, (b) subject itself to taxation in any such
jurisdiction [or (c) consent to general service of process in any
jurisdiction];
(v) use [commercially reasonable] [its best] efforts to cause all
Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or
authorities applicable to the Company as may be reasonably necessary to
enable the seller or sellers thereof (or underwriter or agent, if any)
to consummate the disposition of such Registrable Securities in
accordance with the plan of distribution set forth in such registration
statement;
(vi) furnish to each Holder of at least percent ( %) in
interest of Registrable Equity Securities or at least percent ( %)
in aggregate principal amount of Registrable Debt Securities covered by
such registration statement a signed counterpart, addressed to such
Holder (and underwriter or agent, if any) of:
(A) an opinion of counsel to the Company, dated the effective
date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), and
(B) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants
who have certified the Company's financial statements included in
such registration statement,
in each case, reasonably satisfactory in form and substance to such
Holder (and underwriter or agent and their respective counsel) and
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the
case of the accountants' letter, with respect to events subsequent to
the date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
the underwriter or agent in underwritten public offerings of securities;
(vii) promptly notify each Holder and any underwriter or agent
participating in the disposition of Registrable Securities covered by
such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon
discovery that, or upon the
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<PAGE> 12
happening of any event known to the Company as a result of which, the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made, and promptly prepare and furnish to such Holder
(or underwriter or agent, if any) a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances under which they were made;
(viii) otherwise use [commercially reasonable] [its best] efforts
to comply with all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably practicable
(but not more than fifteen (15) months) after the effective date of the
registration statement, an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, and furnish to each Holder covered by such registration
statement or any participating underwriter or agent at least five (5)
business days prior to the filing a copy of any amendment or supplement
to such registration statement or prospectus;
(ix) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of
such registration statement;
(x) use [commercially reasonable] [its best] efforts to (A) list,
on or prior to the effective date of such registration statement, all
Registrable Equity Securities covered by such registration statement on
any securities exchange on which any of the Registrable Equity
Securities is then listed, if any or (B) have authorized for quotation
and/or listing, as applicable, on the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") of the National Market
System of NASDAQ if the Registrable Equity Securities so qualify;
(xi) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such
Registrable Securities and their respective counsel in connection with
any filings required to be made with the National Association of
Securities Dealers;
(xii) use [commercially reasonable] [its best] efforts to prevent
the issuance by the SEC or any other governmental agency or court of a
stop order, injunction or other order suspending the effectiveness of
such registration statement and, if such an order is issued, use
[commercially reasonable] [its best] efforts to cause such order to be
lifted as promptly as practicable;
[(xiii) enter into such agreements and take such other actions as
the Requisite Holders of such Registrable Securities shall reasonably
request in order to expedite or facilitate the disposition of such
Registrable Securities;]
(xiv) promptly notify each seller and the underwriter or agent, if
any:
(A) when such registration statement or any prospectus used in
connection therewith, or any amendment or supplement thereto, has
been filed and, with respect to such registration statement or any
post-effective amendment thereto, when the same has become effective;
(B) of any written comments from the SEC with respect to any
filing referred to in clause (A) and of any written request by the
SEC for amendments or supplements to such registration statement or
prospectus;
(C) of the notification to the Company by the SEC of its
initiation of any proceeding with respect to, or of the issuance by
the SEC of, any stop order suspending the effectiveness of such
registration statement; and
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<PAGE> 13
(D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the applicable securities or blue sky laws
of any jurisdiction;
(xv) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the distribution of such
Registrable Securities to facilitate the timely preparation and delivery
of certificates (which shall not bear any restrictive legends, other
than as required by applicable law, the Investment Agreement or the Note
Purchase Agreement) representing securities sold under a registration
statement hereunder, and enable such securities to be in such
denominations and registered in such names as such seller, underwriter
or agent may request and keep available and make available to the
Company's transfer agent, prior to the effectiveness of such
registration statement, an adequate supply of such certificates;
(xvi) not later than the effective date of such registration
statement, provide a CUSIP number for all Registrable Securities covered
by a registration statement hereunder;
(xvii) incorporate in the registration statement or any amendment,
supplement or post-effective amendment thereto such information as each
Holder, the underwriter or agent (if any) or their respective counsel
may reasonably request to be included therein with respect to any
Registrable Securities being sold by such Holder to such underwriter or
agent, the purchase price being paid therefor by such underwriter or
agent and any other terms of the offering of such Registrable
Securities;
(xviii) during any period when a prospectus is required to be
delivered under the Securities Act, make periodic filings with the SEC
pursuant to and containing the information required by the Exchange Act
(whether or not the Company is required to make such filings pursuant to
such Act);
(xix) in connection with an underwritten offering, participate, to
the extent reasonably requested by the Requisite Holders or the managing
underwriter for the offering, in customary efforts to sell the
securities under the offering, including, without limitation,
participating in "road shows."
(h) Agreements of Certain Holders. (i) Each Holder of Registrable
Securities as to which any registration is being effected shall furnish to
the Company such information regarding such Holder, the Registrable
Securities held by such Holder and the intended plan of distribution of
such securities as the Company may from time to time reasonably request in
writing in connection with such registration. If any registration statement
refers to Investor, any Fidelity Fund or any of their respective Affiliates
by name or otherwise as the holder of any securities of the Company, then
such Holder shall have the right to require [(A) the insertion therein of
language, in form and substance reasonably satisfactory to such Holder, to
the effect that the holding by such Holder of such securities is not to be
construed as a recommendation by such Holder of the investment quality of
the Company's securities covered thereby and that such holding does not
imply that such Holder will assist in meeting any future financial
requirements of the Company, or (B)] in the event that such reference to
such Holder by name or otherwise is not required by the Securities Act or
any similar federal or state blue sky statute and the rules and regulations
thereunder then in force, the deletion of the reference to such Holder.
(ii) Each Holder of Registrable Securities as to which any
registration is being effected agrees, by acquisition of such Registrable
Securities, that upon receipt of any notice (a "Suspension Notice") from
the Company of the happening of any event of the kind described in clause
(vii) of Section 2.5(g), such Holder will forthwith discontinue such
Holder's disposition of Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus
contemplated by clause (vii) of Section 2.5(g)[; provided, however, that in
no event shall the period (the "Suspension Period") from the date on which
such Holder receives a Suspension Notice to and including the date on which
such Holder receives copies of the supplemented or amended prospectus
contemplated by clause (vii) of Section 2.5(g) exceed twenty (20) days].
The Company shall [use commercially reasonable efforts to] take such
actions as are necessary to
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end the Suspension Period as promptly as practicable. In the event the
Company shall give any such notice, the period referred to in clause (ii)
of Section 2.5(g) shall be extended by a number of days equal to the number
of days of the Suspension Period.
2.6 Underwritten Offerings.
(a) Underwritten Offerings in Connection with a Shelf or a Demand
Registration. If requested by the underwriters for any underwritten
offering in connection with a registration pursuant to Section 2.1 or 2.2,
the Company will enter into an underwriting agreement with such
underwriters for such offering, such agreement (i) to be satisfactory in
substance and form to the Company and to each of Investor and each Fidelity
Fund (so long as it or any of its Affiliates holds Registrable Securities
to be included in such registration) and (ii) to contain such
representations and warranties by the Company and such Holders (subject to
the last sentence of this Section 2.6(a)) and such other terms as are
generally prevailing in agreements of such type, including, without
limitation, indemnities to the effect and to the extent provided in Section
2.8. Each of Investor and each Fidelity Fund (so long as it or any of its
Affiliates holds Registrable Securities to be included in such
registration) shall be a party to such underwriting agreement and may, at
its option, require that any or all of the representations and warranties
by, and the other agreements on the part of, the Company to and for the
benefit of such underwriters shall also be made to and for its benefit and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to
its obligations thereunder. [No Holder shall be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such Holder's Registrable Securities and such Holder's intended method of
distribution and any other representation required by law.]
(b) Underwritten Offerings in Connection with Piggyback
Registrations. If the Company at any time proposes to register any of its
equity securities under the Securities Act as contemplated by Section 2.3
and such securities are to be distributed by or through one or more
underwriters, the Company will, if requested by any Participating Holder
and subject to Section 2.3(b), arrange for such underwriters to include all
of the Registrable Equity Securities to be offered and sold by such Holder
or Holders among the securities to be distributed by such underwriters. The
Holders of Registrable Equity Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between the
Company and such underwriters, provided that such agreement is reasonably
satisfactory in substance and form to the Requisite Holders, and may, at
their option, require that any or all of the representations and warranties
by, and the other agreements on the part of, the Company to and for the
benefit of such underwriters shall also be made to and for the benefit of
such Holders and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holders thereunder. Any
such Holder shall not be required to make any representations or warranties
to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Holder, such
Holder's Registrable Equity Securities and such Holder's intended method of
distribution and any other representation required by law.
2.7 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the Holders of Registrable
Securities to be registered under such registration statement, their
underwriters or agents, if any, and their respective counsel and accountants
reasonable access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of such Holders' and such underwriters' or agents' respective counsel,
to conduct a reasonable investigation within the meaning of the Securities Act.
2.8 Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, each Holder
participating in an offering hereunder, its directors, officers,
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shareholders, employees, investment advisers, agents and Affiliates, either
direct or indirect (and such Affiliates', directors, officers,
shareholders, employees, investment advisers and agents), and each other
Person, if any, who controls such Persons within the meaning of the
Securities Act (each such Person, an "Indemnified Party"), from and against
any losses, claims, damages, liabilities or expenses, joint or several
(each a "Loss" and collectively, "Losses"), to which such Indemnified Party
may become subject under the Securities Act or otherwise, insofar as such
Losses (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities
Act (including all documents incorporated therein by reference), any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company
will reimburse such Indemnified Party for any legal or any other expenses
reasonably incurred by it in connection with investigating or defending
against any such Loss, action or proceeding; provided that in any such case
the Company shall not be liable to any particular Indemnified Party to the
extent that such Loss (or action or proceeding in respect thereof) arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such
Indemnified Party specifically for inclusion therein; and provided,
further, that the Company shall not be liable in any such case to the
extent it is finally determined by a court of competent jurisdiction that
any such Loss (or action or proceeding in respect thereof) arises out of or
is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made
(i) in any such preliminary prospectus, if (A) it was the
responsibility of such Indemnified Party to provide the Person asserting
such Loss with a current copy of the prospectus and such Indemnified
Party failed to deliver or cause to be delivered a copy of the
prospectus to such Person after the Company had furnished such
Indemnified Party with a sufficient number of copies of the same prior
to the sale of Registrable Securities to the Person asserting such Loss
and (B) the prospectus corrected such untrue statement or omission; or
(ii) in such prospectus, if such untrue statement or omission is
corrected in an amendment or supplement to such prospectus and such
amendment or supplement has been delivered to the Indemnified Party
prior to the sale of Registrable Securities to the Person asserting such
Loss and the Indemnified Party thereafter fails to deliver the
prospectus as so amended or supplemented prior to or concurrently with
such sale after the Company had furnished such Indemnified Party with a
sufficient number of copies of the same [and informed the Indemnified
Party of the necessity to deliver such amendment or supplement to
purchasers of securities].
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall
survive the transfer of such securities by such Indemnified Party. The
Company shall also indemnify each other Person who participates (including
as an underwriter) in the offering or sale of Registrable Securities
hereunder, their officers and directors and each other Person, if any, who
controls any such participating Person within the meaning of the Securities
Act to the same extent as provided above with respect to Indemnified
Parties.
(b) Indemnification by the Sellers. The Company may require, as a
condition to including any Registrable Securities in any registration
statement filed pursuant to Section 2.3 and as a condition to indemnifying
such sellers pursuant to this Section 2.8, that the Company shall have
received an undertaking reasonably satisfactory to it from each prospective
seller of such securities, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in paragraph (a) of this Section
2.8) the Company, each director, officer, employee and agent of the
Company, and each other Person, if any, who controls the Company within the
meaning of the Securities Act, from and against any Losses (or actions or
proceedings, whether commenced or threatened, in respect thereof) arising
out of or
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based upon any untrue statement or alleged untrue statement of a material
fact contained in any registration statement under which such securities
were registered under the Securities Act (including all documents
incorporated therein by reference), any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission from such
registration statement, preliminary prospectus, final prospectus or summary
prospectus, or any amendment or supplement thereto required to be stated
therein or necessary to make the statements therein not misleading, if (but
only if) such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
such prospective seller specifically for inclusion therein; provided,
however, that such prospective seller shall not be obligated to provide
such indemnity to the extent that such Losses result, directly or
indirectly, from the failure of the Company to promptly amend or take
action to correct or supplement any such registration statement,
prospectus, amendment or supplement based on corrected or supplemental
information provided in writing by such prospective seller to the Company
expressly for such purpose; and provided further, that the obligation to
provide indemnification pursuant to this Section 2.8(b) shall be several,
and not joint and several, among such indemnifying parties. Notwithstanding
anything in this Section 2.8(b) to the contrary, in no event shall the
liability of any prospective seller under such indemnity be greater in
amount than the amount of the proceeds received by such seller upon the
sale of its Registrable Securities in the offering to which the Losses
relate. Such indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or any such director,
officer, employee, agent or participating or controlling Person and shall
survive the transfer of such securities by such prospective seller.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in paragraph (a) or (b) of this Section 2.8, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give prompt written notice to the latter of the
commencement of such action, provided that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying
party of its obligations under this Section 2.8, except to the extent that
the indemnifying party is actually and materially prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, the indemnifying party shall be entitled to participate
in and to assume the defense thereof [(such assumption to constitute its
acknowledgement of its agreement to indemnify the indemnified party with
respect to such matters)], jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal fees or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that if, in such
indemnified party's reasonable judgment, a conflict of interest between
such indemnified and indemnifying parties may exist in respect of such
claim, such indemnified party shall be entitled to separate counsel at the
expense of the indemnifying party; and provided, further, that[, unless
there exists a conflict of interest among indemnified parties,] all
indemnified parties in respect of such claim shall be entitled to only one
counsel or firm of counsel for all such indemnified parties. In the event
an indemnifying party shall not be entitled, or elects not, to assume the
defense of a claim, such indemnifying party shall not be obligated to pay
the fees and expenses of more than one counsel or firm of counsel for all
parties indemnified by such indemnifying party in respect of such claim,
unless in the reasonable judgment of any such indemnified party a conflict
of interest may exist between such indemnified party and any other of such
indemnified parties in respect of such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel for such indemnified party or parties. No indemnifying
party shall, without the consent of the indemnified party, consent to entry
of any judgment or enter into any settlement that (i) does not include as
an unconditional term thereof the giving by the claimant or plaintiff to
such indemnified party of a release from all Losses in respect of such
claim or litigation or (ii) would impose injunctive relief on such
indemnified party. No indemnifying party shall be subject to
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<PAGE> 17
any Losses for any settlement made without its consent, which consent shall
not be unreasonably withheld.
(d) Other Indemnification. The provisions of this Section 2.8 shall
be in addition to any other rights to indemnification or contribution which
an indemnified party may have pursuant to law, equity, contract or
otherwise.
(e) Indemnification Payments. The indemnification required by this
Section 2.8 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, promptly as and when bills are
received or Losses are incurred.
(f) Contribution. If for any reason the foregoing indemnity and
reimbursement is unavailable or is insufficient to hold harmless an
indemnified party under paragraph (a) or (b) of this Section 2.8, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of any Loss (or actions or proceedings,
whether commenced or threatened, in respect thereof), including, without
limitation, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such Loss, action or
proceeding, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and the indemnified party
on the other. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the indemnifying party or the indemnified party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
Notwithstanding anything in this Section 2.8(f) to the contrary, no
indemnifying party (other than the Company) shall be required pursuant to
this Section 2.8(f) to contribute any amount in excess of the amount by
which the net proceeds received by such indemnifying party from the sale of
Registrable Securities in the offering to which the Losses of the
indemnified parties relate exceeds the amount of any damages which such
indemnifying party has otherwise been required to pay by reason of such
untrue statement or omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
[2.9 Liquidated Damages.
(a) If the Company shall not have filed, or the SEC shall not have
declared effective, a Shelf Registration Statement as of the Effective
Date, the Company shall pay liquidated damages to each Holder covered or to
be covered by such registration statement in an amount equal to (i) in the
case of Registrable Debt Securities, $.10 per $1,000 outstanding principal
amount of such Registrable Debt Securities and (ii) in the case of
Registrable Equity Securities, $. per share (or, in the case of any
Warrant, $. per share based on the number of shares issuable upon exercise
of the Warrant) for each week specified in subsection (g) below.
(b) If the late filing or late declaration of effectiveness referred
to in clause (a) above shall not have been cured within ninety (90) days
after the Effective Date, the daily liquidated damages set forth in clause
(a) above shall increase by an amount equal to (i) in the case of
Registrable Debt Securities, $.15 per $1,000 outstanding principal amount
of such Registrable Debt Securities and (ii) in the case of Registrable
Equity Securities, $. per share (or in the case of any Warrant, $. per
share based on the number of shares issuable upon exercise of the Warrant)
for each week specified in subsection (g) below.
(c) If the late filing or late declaration of effectiveness referred
to in clause (a) above shall not have been cured within one hundred and
eighty (180) days after the Effective Date, the daily liquidated damages
set forth in clause (a) above shall increase by an amount equal to (i) in
the case of Registrable Debt Securities, $.20 per $1,000 outstanding
principal amount of such Registrable Debt Securities and (ii) in the case
of Registrable Equity Securities, $. per share (or in the case of any
Warrant, $. per share based on the number of shares issuable upon exercise
of the Warrant) for each week specified in subsection (g) below.
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(d) If a stop order is imposed or if for any other reason the
effectiveness of the Shelf Registration Statement is suspended during the
period specified in the first sentence of Section 2.1(b), the Company shall
pay liquidated damages to each Holder covered or to be covered by such
registration statement in an amount equal to (i) in the case of Registrable
Debt Securities, $.10 per $1,000 outstanding principal amount of such
Registrable Debt Securities and (ii) in the case of Registrable Equity
Securities, $. per share (or in the case of any Warrant, $. per share
based on the number of shares issuable upon exercise of the Warrant) for
each week specified in subsection (g) below.
(e) If the stop order or other suspension of effectiveness of the
Shelf Registration Statement referred to in clause (d) above shall not have
been cured within ninety (90) days after such stop order was imposed or the
effectiveness of the Shelf Registration Statement was otherwise suspended,
the daily liquidated damages set forth in clause (d) above shall increase
by an amount equal to (i) in the case of Registrable Debt Securities, $.15
per $1,000 outstanding principal amount of such Registrable Debt Securities
and (ii) in the case of Registrable Equity Securities, $. per share (or in
the case of any Warrant, $. per share based on the number of shares
issuable upon exercise of the Warrant) for each week specified in
subsection (g) below.
(f) If the stop order or other suspension of effectiveness of the
Shelf Registration Statement referred to in clause (d) above shall not have
been cured within one hundred and eighty (180) days after such stop order
was imposed or the effectiveness of the Shelf Registration Statement was
otherwise suspended, the daily liquidated damages set forth in clause (d)
above shall increase by an amount equal to (i) in the case of Registrable
Debt Securities, $.20 per $1,000 outstanding principal amount of such
Registrable Debt Securities and (ii) in the case of Registrable Equity
Securities, $. per share (or in the case of any Warrant, $. per share
based on the number of shares issuable upon exercise of the Warrant) for
each week specified in subsection (g) below.
(g) The liquidated damages payable to any Holder set forth in this
Section 2.9 shall begin accruing on the date on which the event triggering
such liquidated damages occurs and shall cease to accrue (i) with respect
to clauses (a) through (c) above, on the earlier of the date after the SEC
declares the Shelf Registration Statement to be effective and the date
after the SEC declares effective a registration statement effected pursuant
to Section 2.2 covering such Holder's Registrable Securities and (ii) with
respect to clauses (d) through (f) above, on the date after reinstatement
of the effectiveness of the Shelf Registration Statement. The Company will
pay the liquidated damages due with respect to any Registrable Securities
at the end of each month during which such damages accrue. Liquidated
damages shall be paid to the Holders entitled to receive such liquidated
damages by wire transfer in immediately available funds to the accounts
designated by such Holders.
(h) The parties hereto agree that (i) the liquidated damages provided
for in this Section 2.9 constitute a reasonable estimate of the damages
that will be suffered by each Holder covered or to be covered by the Shelf
Registration Statement by reason of the failure of the Shelf Registration
Statement to be filed, to be declared effective and to remain effective in
accordance with this Agreement and (ii) such liquidated damages shall be
the sole remedy of each such Holder with respect to the matters set forth
in this Section 2.9.]
3. Rule 144 and Rule 144A. (a) The Company will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder and will take such further action
as Investor and/or any Fidelity Fund may reasonably request, all to the extent
required from time to time to enable Investor and/or such Fidelity Fund to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144, (ii) Rule 144A or (iii)
any similar rule or regulation hereafter adopted by the SEC. Upon the request of
Investor and/or any Fidelity Fund, the Company will deliver to Investor and/or
such Fidelity Fund a written statement as to whether it has complied with such
requirements and will, at its expense, forthwith upon the request of Investor
and/or such Fidelity Fund, deliver to Investor and/or such Fidelity Fund a
certificate, signed by the Company's principal financial officer, stating (A)
the Company's name, address and telephone number (including area code), (B) the
Company's Internal Revenue Service identification number, (C) the
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<PAGE> 19
Company's SEC file number, (D) the amount of shares of each class of capital
stock outstanding as shown by the most recent report or statement published by
the Company, and (E) whether the Company has filed the reports required to be
filed under the Exchange Act for a period of at least ninety (90) days prior to
the date of such certificate and in addition has filed the most recent annual
report required to be filed thereunder.
(b) If at any time the Company is not required to file reports in
compliance with either Section 13 or Section 15(d) of the Exchange Act, the
Company at its expense will, forthwith upon the request of Investor and/or
any Fidelity Fund, (i) make available adequate current public information
with respect to the Company within the meaning of paragraph (c)(2) of Rule
144 and (ii) deliver the information required by Section (d) of Rule 144A
(such information to be "reasonably current" within the meaning of Section
(d)(4)(ii) of Rule 144A).
4. Term. This Agreement shall enter into force on the date hereof and
shall continue in full force and effect until the [sixth (6th)] [twelfth (12th)]
anniversary of the date hereof.
5. Amendments and Waivers. This Agreement may be amended, supplemented or
modified at any time; provided that (i) each of Investor and each Fidelity Fund
(so long as it or any of its Affiliates holds Registrable Securities), (ii) each
Holder of at least percent ( %) in interest of Registrable Equity
Securities and percent ( %) in aggregate principal amount of
Registrable Debt Securities then outstanding and (iii) the Company has provided
its written consent to such amendment, supplement or modification. Any term or
condition of this Agreement may be waived at any time by the party that is
entitled to the benefit thereof, but no such waiver shall be effective unless
set forth in a written instrument duly executed by or on behalf of the party
waiving such term or condition. No waiver by any party of any term or condition
of this Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same term or condition of this Agreement on any
future occasion.
6. Entire Agreement. This Agreement supersedes all prior discussions and
agreements between the parties with respect to the subject matter hereof
(including, without limitation, Section 11 of the Investment Agreement) and
contains the sole and entire agreement between the parties hereto with respect
to the subject matter hereof.
7. No Third-Party Beneficiary. The terms and provisions of this Agreement
are intended solely for the benefit of each party, their respective Successors
or permitted assigns and it is not the intention of the parties to confer
third-party beneficiary rights upon any other Person other than (i) any
Affiliate of Investor or Fidelity, (ii) any transferee, direct or indirect, of
any of the Registrable Securities held by Investor or Fidelity or (iii) any
other Person entitled to notice of the registration of Registrable Securities
under Sections 2.2(c) or 2.3(a), to indemnity under Section 2.8 [or to
liquidated damages under Section 2.9].
8. Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, (i) such
provision will be fully severable, (ii) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom and (iv) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible.
9. Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election, be treated as the holder of such
Registrable Securities for purposes of request or other action by any Holder or
Holders pursuant to this Agreement or any determination of any amount of shares
of Registrable Securities held by any Holder or Holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities. For purposes of this Agreement, "beneficial ownership" and
"beneficial owner" refer to beneficial ownership as defined in Rule 13d-3
(without regard to the 60-day provision in paragraph (d)(1)(i) thereof) under
the Exchange Act.
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10. Notices. All notices, requests and other communications hereunder must
be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
If to the Company, to:
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
Fax No.: (602) 693-5904
If to Investor, to:
AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax No.: (817) 871-4010
If to Fidelity, to:
Fidelity Management Trust Company
82 Devonshire Street, MS F7E
Boston, Massachusetts 02109
Attention: Daniel S. Harmetz
Fax No.: (617) 227-2536
and to:
Fidelity Management Trust Company
82 Devonshire Street, MS F7D
Boston, Massachusetts 02109
Attention: Wendy Schnipper-Clayton, Esq.
Fax No.: (617) 570-7688
with a copy to:
Goodwin, Procter & Hoar
Exchange Place
Boston, Massachusetts 02109-2881
Attention: Laura Hodges Taylor
Fax No.: (617) 523-1231
With respect to any other holder of Registrable Securities entitled to
receive notice, requests or other communications hereunder, such notices,
requests and other communications shall be sent to the addresses and telecopy
numbers set forth in SCHEDULE 1 hereto (as it may be amended, modified or
supplemented from time to time). All such notices, requests and other
communications will (i) if delivered personally to the address as provided in
this Section 10, be deemed given upon delivery, (ii) if delivered by facsimile
transmission to the facsimile number as provided in this Section 10, be deemed
given upon receipt, and (iii) if delivered by mail in the manner described above
to the address as provided in this Section 10, be deemed given upon receipt (in
each case regardless of whether such notice, request or other communication is
received by any other Person to whom a copy of such notice is to be delivered
pursuant to this Section 10). Any Person from time to time may change its
address, facsimile number or other information for the purpose of notices to
that Person by giving notice in accordance with this Section 10 specifying such
change to the Company and the Investor.
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<PAGE> 21
11. Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties and their respective Successors
(including, in the case of the Company, the Company as reorganized pursuant to
the Plan of Reorganization) and permitted assigns. In addition, each of Investor
and Fidelity may assign [(by written instrument)] any of its rights hereunder
(in whole or in part) to one or more Affiliates or to one or more direct or
indirect transferees of its Registrable Securities.
12. Descriptive Headings. The descriptive headings of the several sections
and paragraphs of this Agreement are inserted for convenience of reference only
and do not define or limit the provisions hereof or otherwise affect the meaning
hereof.
[13. Specific Performance. [Except with respect to the matters set forth
in Section 2.9], the parties agree that, to the extent permitted by law, (i) the
obligations imposed on them in this Agreement are special, unique and of an
extraordinary character, and that in the event of a breach by any such party
damages would not be an adequate remedy; (ii) each of the other parties shall be
entitled to specific performance and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled at law or in equity;
and (iii) any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief is hereby
waived.]
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. Registration Rights to Others. [The Company shall not provide to any
other holder of its securities rights with respect to the registration of such
securities under the Securities Act without the prior written consent of
Investor and each Fidelity Fund (so long as they or their Affiliates hold
Registrable Securities).] The Company represents and warrants that, other than
as provided herein, it has not granted to any other Person rights with respect
to the registration of any Registrable Securities or any other securities issued
or to be issued by it.
16. Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement or where any provision hereof is validly asserted as
a defense, the successful party shall, to the extent permitted by applicable
law, be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
17. Limitation of Liability. Each party to this Agreement acknowledges and
agrees that (i) this Agreement is not executed on behalf of or binding upon any
of the trustees, officers, directors, partners or shareholders of any Fidelity
Fund individually, but is binding only upon the assets and property of each
Fidelity Fund and (ii) the obligations of each Fidelity Fund hereunder are
several and not joint. With respect to the obligations of any Fidelity Fund
arising out of this Agreement, each party to this Agreement shall look for
payment or satisfaction of any claim solely to the assets and property of such
Fidelity Fund.
18. Termination of Certain Rights. The rights and obligations hereunder of
each of Investor and each Fidelity Fund shall terminate with respect to such
party at such time when neither it nor any of its respective Affiliates holds
Registrable Securities, provided that the provisions of Section 2.8 shall
survive termination of this Agreement.
19. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all of
which shall together constitute one and the same instrument.
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<PAGE> 22
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
AMERICA WEST AIRLINES, INC.
By:__________________________________
Name:
Title:
AMWEST PARTNERS, L.P.
By [AmWest GenPar Inc.]
its General Partner
[By ]
By:___________________________________
Name:
Title:
[LIST EACH FIDELITY FUND]
By:___________________________________
Name:
Title:
19
