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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED)
AUGUST 25, 1994
AMERICA WEST AIRLINES, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 1-10140 86-0418245
(State or other (Commission File Number) (IRS Employer
jurisdiction Identification Number)
of incorporation)
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4000 EAST SKY HARBOR BOULEVARD, PHOENIX, ARIZONA 85034
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(602)693-0800
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
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ITEM 1. CHANGES IN CONTROL OF REGISTRANT
See Item 3.
ITEM 3. BANKRUPTCY OR RECEIVERSHIP
The plan of reorganization under Chapter 11 of the U.S. Bankruptcy Code
(the "Plan of Reorganization") of America West Airlines, Inc. (the "Company")
became effective August 25, 1994. The U.S. Bankruptcy Court for the District of
Arizona had previously confirmed the Company's Plan of Reorganization on August
10, 1994.
Information reporting the material features of the plan and information
concerning the capitalization, assets and liabilities of the reorganized Company
are set forth in the Company's Report on Form 10-Q for the quarter ended June
30, 1994, the press release of the Company dated August 25, 1994, the Company's
Plan of Reorganization, as amended, the Company's restated Certificate of
Incorporation and Bylaws, and certain agreements governing the rights of
security holders of the Company, which are filed as exhibits hereto and are
incorporated herein by reference.
Information announcing the Company's alliance agreement with Continental
Airlines, Inc. executed in connection with the Company's Plan of Reorganization
is set forth in the Company's press release dated September 1, 1994 and in such
agreement, both of which are filed as exhibits hereto and are incorporated
herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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EXHIBIT
NO. DESCRIPTION
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1.1 -- The Company's Plan of Reorganization under Chapter 11 of the Bankruptcy Code,
as amended.
3.1 -- Restated Certificate of Incorporation of America West Airlines, Inc.
3.2 -- Restated By-laws of America West Airlines, Inc.
4.1 -- Indenture for $100,000,000 11 1/4% Senior Notes due 2001 dated August 25,
1994, of America West Airlines, Inc. and American Bank National Association,
as trustee.
4.2 -- Form of Senior Note (included as Exhibit A to Exhibit 4.1 above).
4.3 -- Warrant Agreement dated August 25, 1994 between America West Airlines, Inc.
and First Interstate Bank of California, N.A., as Warrant Agent.
4.4 -- Form of Warrant (included as Exhibit A to Exhibit 4.3 above).
4.5 -- Stockholders' Agreement for America West Airlines, Inc. dated August 25, 1994
among America West Airlines, Inc., AmWest Partners, L.P., GPA Group plc and
certain other Stockholder Representatives.
4.51 -- First Amendment to Stockholders' Agreement for America West Airlines, Inc.
dated September 6, 1994 among America West Airlines, Inc., AmWest Partners,
L.P., GPA Group plc and certain other Stockholder Representatives.
4.6 -- Registration Rights Agreement dated August 25, 1994 among America West
Airlines, Inc., AmWest Partners, L.P. and other holders.
4.7 -- Registration Rights Agreement dated August 25, 1994 between America West
Airlines, Inc. and GPA Group plc.
10.12 -- Alliance Agreement dated August 25, 1994 between America West Airlines, Inc.
and Continental Airlines, Inc. including the Master Ground Handling
Agreement, the Reciprocal Frequent Flyer Participation Agreement, the Code
Sharing Agreement, the Cargo Special Pro-Rate Agreement, the Reciprocal Club
Usage Agreement and the Memorandum of Understanding Concerning Technology
Transfers.
10.13 -- Alliance Agreement, as amended on August 25, 1994, between America West
Airlines, Inc. and Mesa Airlines Inc.
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Company has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMERICA WEST AIRLINES, INC.
(Registrant)
By: /s/ MARTIN J. WHALEN
_________________________________
Martin J. Whalen
Senior Vice President and General
Counsel
DATED: September 9, 1994
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EXHIBIT INDEX
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EXHIBIT
NO. DESCRIPTION
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1.1 -- The Company's Plan of Reorganization under Chapter 11 of the Bankruptcy Code,
as amended.
3.1 -- Restated Certificate of Incorporation of America West Airlines, Inc.
3.2 -- Restated By-laws of America West Airlines, Inc.
4.1 -- Indenture for $100,000,000 11 1/4% Senior Notes due 2001 dated August 25,
1994, of America West Airlines, Inc. and American Bank National Association,
as trustee.
4.2 -- Form of Senior Note (included as Exhibit A to Exhibit 4.1 above).
4.3 -- Warrant Agreement dated August 25, 1994 between America West Airlines, Inc.
and First Interstate Bank of California, N.A., as Warrant Agent.
4.4 -- Form of Warrant (included as Exhibit A to Exhibit 4.3 above).
4.5 -- Stockholders' Agreement for America West Airlines, Inc. dated August 25, 1994
among America West Airlines, Inc., AmWest Partners, L.P., GPA Group plc and
certain other Stockholder Representatives.
4.51 -- First Amendment to Stockholders' Agreement for America West Airlines, Inc.
dated September 6, 1994 among America West Airlines, Inc., AmWest Partners,
L.P., GPA Group plc and certain other Stockholder Representatives.
4.6 -- Registration Rights Agreement dated August 25, 1994 among America West
Airlines, Inc., AmWest Partners, L.P. and other holders.
4.7 -- Registration Rights Agreement dated August 25, 1994 between America West
Airlines, Inc. and GPA Group plc.
10.12 -- Alliance Agreement dated August 25, 1994 between America West Airlines, Inc.
and Continental Airlines, Inc. including the Master Ground Handling
Agreement, the Reciprocal Frequent Flyer Participation Agreement, the Code
Sharing Agreement, the Cargo Special Pro-Rate Agreement, the Reciprocal Club
Usage Agreement and the Memorandum of Understanding Concerning Technology
Transfers.
10.13 -- Alliance Agreement, as amended on August 25, 1994, between America West
Airlines, Inc. and Mesa Airlines Inc.
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Exhibit 1.1
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 CODE1
AMERICA WEST AIRLINES, INC.
Martin J. Whalen, Esq.
4000 East Sky Harbor Blvd.
Phoenix, Arizona 85034
LEBOEUF, LAMB, GREENE & MACRAE
633 17th Street, Suite 2800
Denver, Colorado
(303) 291-2600
Of Counsel:
Carl A. Eklund
John Edward Maas
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
[as modified, August 10, 1994]
ARNOLD & PORTER
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036
(202) 872-6700
Of Counsel:
Richard P. Schifter
Samuel A. Flax
Brian P. Leitch
Counsel to AmWest Partners,
L.P., Co-Proponent of this
Plan of Reorganization
- - ---------------
1As modified and confirmed by the United States Bankruptcy Court for the
District of Arizona on August 10, 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...................................... 13
3.5. Class 5 -- Allowed General Unsecured Claims................................ 13
3.6. Class 6 -- Preferred and Common Stock...................................... 14
3.7. Class 7 -- Certain Other Claims and AWA Warrants, Options
and Other Equity Interests................................................. 15
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................................................ 16
4.3. NewAWA Warrants............................................................ 16
4.4. NewAWA Senior Unsecured Notes.............................................. 16
ARTICLE 5
EXECUTORY CONTRACTS AND UNEXPIRED LEASES................................................ 17
5.1. Assumption of Certain Executory Contracts and Unexpired Leases............. 17
5.2. Rejection of Certain Executory Contracts and Unexpired Leases.............. 18
5.3. Claims Based on Rejection of Contracts or Unexpired Leases................. 18
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.....................................
18
6.1. Unimpaired Classes......................................................... 18
6.2. Class Deemed to Have Rejected the Plan..................................... 18
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............... 19
7.3. Cramdown................................................................... 19
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ARTICLE 8
MEANS FOR IMPLEMENTATION OF THE PLAN.................................................... 19
8.1. Investment Agreement....................................................... 19
8.2. Stockholders' and Registration Rights Agreements........................... 19
8.3. Delivery of Alliance Agreements............................................ 19
8.4. GPA Settlement............................................................. 19
8.5. Corporate Governance....................................................... 19
8.6. Release of Certain Claims and Actions...................................... 19
8.7. Indemnification Obligations................................................ 20
8.8. Exemption from Certain Taxes............................................... 20
8.9. Directors and Officers..................................................... 21
8.10. Revesting of Assets; No Further Supervision................................ 21
8.11. Implementation............................................................. 21
8.12. Cancellation of Securities................................................. 21
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.................................... 22
10.3. Service of Indenture Trustee............................................... 24
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.............................. 27
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............................ 28
11.1. Filing of Objections to Claims or Equity Interests......................... 28
11.2. Settlement of Objections to Claims or Equity Interests After Effective
Date....................................................................... 28
11.3. Payment or Distribution to Holders of Disputed Claims or Equity
Interests.................................................................. 28
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........................................ 29
12.4. Termination of the Creditors and Equity Committees......................... 29
12.5. Setoffs.................................................................... 30
12.6. Opt-Out.................................................................... 30
12.7. Section Headings........................................................... 30
12.8. Severability............................................................... 30
12.9. Computation of Time........................................................ 30
12.10. Governing Law.............................................................. 30
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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
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iii
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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.
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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
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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
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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.
1.40A. Disclosure Statement Order Date: June 28, 1994.
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.
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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.
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.
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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.
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.
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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.
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.
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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.
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
$1,624,584.00 due over four years with equal monthly payments of $41,331.04
commencing September 1, 1994. The holder of such Claim will retain all of the
liens securing such Claim as such liens may exist as of the Effective Date.
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 these claims
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 holders of such Claims (i) will receive promissory notes in the
aggregate principal amount of $11,000,000 with principal amortization
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over a four-year term in equal aggregate monthly principal payments of $229,167
each and interest at the Bank of America Reference Rate plus 1% per annum
commencing in September 1994, (ii) will receive a cash payment on the Effective
Date equal to the accrued interest on such loan for the period both prior to and
after the Petition Date, net of proceeds of prior sales of collateral under such
loan since the Petition Date, and (iii) will receive reimbursement of actual
costs and expenses of the holders incurred in connection with the Chapter 11
Case, but in any event not more than $185,000 plus the expenses incurred in
connection with the negotiation and documentation of the terms of this
treatment. The holders of such Claims will retain only those liens which
encumber Boeing 757 spare parts and rotables, provided that the collateral
coverage must be at least 150% of the outstanding loan balance and in the event
that the collateral coverage is, at any time, less than 150% of the outstanding
loan balance, NewAWA will promptly pledge additional collateral or prepay the
loan in an amount equal to the amount necessary to restore the collateral
coverage to not less than 150% of the outstanding loan balance. In the event
that the collateral coverage exceeds 150% of the outstanding loan balance,
NewAWA will have the right to have excess collateral of the holders' choosing be
released from the liens contemplated hereby. Collateral coverage will be
calculated monthly based on the net book value of the assets pledged as
collateral. Subject to the agreement of the parties, covenants in the applicable
loan documents will be modified to include, among other things, reasonable
financial covenants. The holders of such Claims will not assert any right of
subordination of the type contemplated by Section 3.5.3 herein and will dismiss
any claims now pending with regard to any such right. 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 these claims consists of the AWA maintenance and technical
support facility located at Phoenix Sky Harbor International Airport. On the
Effective Date, the holders of the Allowed Class 3.4 Claims will receive (i)
promissory notes in the aggregate principal amount of $29,500,000 due five
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years after the Effective Date with aggregate principal payments of $204,861 per
month and bearing interest at the Bank of America Reference Rate plus 1% per
annum and commencing in September 1994, (ii) promissory notes in the aggregate
principal amount of $6,500,000 with aggregate principal payments of $270,833 per
month and bearing interest at the Bank of America Reference Rate plus 1% per
annum and commencing in September 1994, (iii) Allowed General Unsecured Claims
in the aggregate amount of $2,000,000 and (iv) reimbursement of actual and
reasonable expenses associated with the negotiating and documenting the
treatment provided hereby. In the event that NewAWA is successful in remarketing
new or substituted tax-exempt bonds for such facility, it will use the proceeds
first to extinguish the indebtedness evidenced by such notes and, if NewAWA does
not remarket such bonds by the date one year after the Effective Date, there
will be an additional principal payment on the aggregate of $29,500,000 in notes
described above in the aggregate amount of $5,000,000 on the first Business Day
of the thirteenth month after the Effective Date. The holders of such Claims
will retain all of the liens securing such Claims to secure the aforementioned
notes as such liens may exist as of the Effective Date. Subject to agreement of
the parties, covenants in the applicable loan documents will be modified to
reflect, among other things, current projections of NewAWA performance. The
holders of such Claims will not assert any right of subordination of the type
contemplated by Section 3.5.3 herein and will dismiss any claims now pending
with regard to any such right. 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
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;
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<PAGE> 19
(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.
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
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<PAGE> 20
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.
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
(i) there shall be considered to be an aggregate of 22,100,000 shares of AWA
Common Stock and (ii) each such holder shall be considered to own the number of
shares of AWA Common Stock for which it is the beneficial owner on the
Disclosure Statement Order Date. 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, but in the event that Persons not
previously holders of AWA Common Stock purchase AWA Common Stock after the
Voting Record Date and own such AWA Common Stock on the Disclosure Statement
Order Date, each such Person shall be given the opportunity to subscribe for its
Pro Rata Share of Equity Subscription Stock and, if available, for
Over-Subscription Stock. Each holder of AWA Common Stock entitled to a Ballot
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
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<PAGE> 21
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.
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.
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<PAGE> 22
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.
(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
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<PAGE> 23
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 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
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<PAGE> 24
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 no later than 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.
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
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<PAGE> 25
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.
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
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<PAGE> 26
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 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.
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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.
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
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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 determined as provided in Section 3.6.2(b).
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 to other 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-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, as of the Disclosure Statement Order Date. 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
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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 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
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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 (a) 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, (b) 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, (c)
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, or (d) reasonable shares of money market funds which invest in
short-term United States government obligations; 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 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.
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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.
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
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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.
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.
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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.
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.
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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 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
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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 (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
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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.
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
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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;
(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
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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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PLAN OF REORGANIZATION
EXHIBIT A
INVESTMENT AGREEMENT
[EXHIBITS TO INVESTMENT AGREEMENT OMITTED]
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<PAGE> 42
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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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> 55
(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> 56
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> 57
<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> 58
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> 59
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> 60
PLAN OF REORGANIZATION
EXHIBIT B
STOCKHOLDERS' AGREEMENT
<PAGE> 61
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 62
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> 63
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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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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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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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
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<PAGE> 70
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> 71
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> 72
PLAN OF REORGANIZATION
EXHIBIT C
GPA TERM SHEET
<PAGE> 73
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 74
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> 75
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
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<PAGE> 76
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,
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<PAGE> 77
(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
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<PAGE> 78
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> 80
PLAN OF REORGANIZATION
SCHEDULE 1
SECTION 1110 STIPULATIONS
<PAGE> 81
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 82
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>
<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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<TABLE>
<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> 84
<TABLE>
<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> 85
<TABLE>
<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> 86
<TABLE>
<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> 87
<TABLE>
<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>
<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> 88
<TABLE>
<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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<TABLE>
<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>
1-8
<PAGE> 90
<TABLE>
<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> 91
<TABLE>
<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
<PAGE> 92
PG
<TABLE>
<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> 94
PLAN OF REORGANIZATION
SCHEDULE 2
CERTAIN FINAL ORDERS ON
SETTLEMENT AGREEMENTS
<PAGE> 95
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 96
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> 97
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 98
PLAN OF REORGANIZATION
SCHEDULE 3
CERTAIN ASSUMED AGREEMENTS
<PAGE> 99
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 100
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. ......................... 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. 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
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
</TABLE>
3-1
<PAGE> 101
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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
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
</TABLE>
3-2
<PAGE> 102
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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
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
</TABLE>
3-3
<PAGE> 103
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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
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
</TABLE>
3-4
<PAGE> 104
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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
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
</TABLE>
3-5
<PAGE> 105
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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
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
</TABLE>
3-6
<PAGE> 106
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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
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.
</TABLE>
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<PAGE> 107
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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 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.
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.
</TABLE>
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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
9
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.
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.
</TABLE>
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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.
Lease Agreement dated 1/17/91 between Arizona
Fueling Facilities Corporation and America West
Airlines, Inc. for lease of a portion of real
property located at the southwest corner of Van
Buren Street and 55th Avenue in Phoenix, Arizona.
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
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
</TABLE>
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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.
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
</TABLE>
3-11
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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).
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).
</TABLE>
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<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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).
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).
</TABLE>
3-13
<PAGE> 113
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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).
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).
</TABLE>
3-14
<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-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).
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).
</TABLE>
3-15
<PAGE> 115
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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).
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).
</TABLE>
3-16
<PAGE> 116
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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).
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).
</TABLE>
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<PAGE> 117
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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).
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).
</TABLE>
3-18
<PAGE> 118
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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).
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).
</TABLE>
3-19
<PAGE> 119
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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).
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).
</TABLE>
3-20
<PAGE> 120
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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).
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).
</TABLE>
3-21
<PAGE> 121
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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).
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).
</TABLE>
3-22
<PAGE> 122
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
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> 123
<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).
CANADIAN AIRLINES INTERNATIONAL......... Agreement to Utilize Canadian Airlines Information
and Dispatch Computer System dated 1/1/89, as
amended from time to time, between America West
Airlines, Inc. and Canadian Airlines International,
Ltd.
CANADIAN AIRLINES INTERNATIONAL......... Standard Ground Handling Agreement dated 1/1/85, as
amended 3/1/89, between Canadian Airlines
International, Ltd. and America West Airlines, Inc.
AERONAUTICAL RADIO, INC................. Service Agreement dated 6/3/83 between Aeronautical
Radio, Inc. and America West Airlines, Inc.
METROPOLITAN AIRPORT COMM'N............. MSP Lease and Fueling Agreement for Aviation
Fueling Facilities dated 9/21/87 and Amendments 1
through 8 between Metropolitan Airport Commission
and America West Airlines, Inc.
</TABLE>
3-24
<PAGE> 124
<TABLE>
<CAPTION>
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
<S> <C>
OFFICERS AND DIRECTORS.................. Indemnification Agreements with the following past
and present directors or officers of America West
Airlines, Inc. with the indicated dates: Edward R.
Beauvais (7/23/86); Michael J. Conway (7/26/86); O.
Mark De Michele (7/23/86); John D. Driggs
(7/23/86); John E. Gillick, Jr. (10/25/91); Arnold
H. Kroll (7/23/86); Juan O'Callahan (1/28/87); Jock
Patton (1/28/87); Arthur M. Taylor (7/23/86 and
4/25/89); Jerry J. Wisotsky (10/21/91); James C.
Clarke (11/23/93); Craig Coleman (9/17/92); James
M. King (11/23/93); Juan O'Callahan (10/21/91);
Tibor Sallay (9/17/92); Frederick W. Bradley, Jr.
(9/29/92); O. Mark De Michele (9/17/92); Samuel L.
Eichenfeld (9/17/92); William A. Franke (9/17/92);
Richard C. Kraemer (9/17/92); James T. Mcmillan
(12/21/93); A. Maurice Myers (1/1/94); John R.
Norton, III (9/17/92); John F. Tiernay (12/31/93);
Declan Treacy (12/31/93)
CERTIFICATE OF INCORPORATION AND
BY-LAWS............................... Indemnification obligations and limitations on
director liability set forth in the Restated
Certificate of Incorporation of America West
Airlines, Inc. dated 5/19/88 and Restated Bylaws of
America West Airlines, Inc., as amended to date.
LOCKHEED FINANCE CORPORATION............ Lease Agreement dated 5/4/87, as amended, between
America West Airlines, Inc. and Hughes-Avicom
International, payment rights to which have been
assigned to Lockheed Finance Corporation.
</TABLE>
3-25
<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. ## 101-1330 (the "Bankruptcy Code").
<PAGE> 2
SEVENTH: That on august 10, 1994, the United States Bankruptcy Court
for the District of Arizona confirmed a plan of reorganization (the "Plan of
Reorganization") of the Corporation adopting this Restated Certificate of
Incorporation pursuant to Section 303 of the DGCL.
EIGHTH: That this Restated Certificate of Incorporation shall become
effective on and as of (but not before) the Effective Date (as defined in the
Plan of Reorganization).
NINTH: 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.
<PAGE> 3
The total number of shares of all classes of stock which this
Corporation shall have authority to issue of 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.
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.
<PAGE> 4
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.
<PAGE> 5
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, 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.
<PAGE> 6
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 of Class A Common hold 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.
<PAGE> 7
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 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.
<PAGE> 8
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 of the
registered holder of shares of Class A Common converted.
<PAGE> 9
4.2 Preferred Stock. Except as otherwise provided in that certain
Stockholders' Agreement for America West Airlines, Inc., dated as of August 25,
19i94 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 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 deceased, 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 related
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.
<PAGE> 10
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 915) members (except for
increases above fifteen (15) members caused by a provision allowing holders of
Preferred Stock to elect additional directors in the event of nonpayment of
dividends). 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.
<PAGE> 11
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.
<PAGE> 12
The Corporation shall be managed by the Board of Directors, which shall
exercise all powers conferred under the laws of the State of Delaware. he
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.
7. COMPROMISE OR ARRANGEMENT WITH CREDITORS.
<PAGE> 13
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 an
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. ACTIONS OF STOCKHOLDERS; MEETINGS AND WRITTEN CONSENT.
<PAGE> 14
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 as provided by law or in the Bylaws (or by written consent as
provided below). 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 or any other voting agreement of even date
therewith y and between GPA Group plc and AmWest Partners, L.P., for so long as
any such agreement remains in force and effect.
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
anal 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.
<PAGE> 15
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 Corporaiton
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 Corporaiton, and may indemnify each
employee and agent of the Corporaiton and all other persons whom the
Corporation is authorized to indemnify under the provisions of the DGCL.
13. FOREIGN OWNERSHIP OF VOTING STOCK.
<PAGE> 16
At no time shall more than twenty five percent (25%) of the voting
interest of the Corporation be owned or controlled by person s 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 STOCKHOLDER.
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.
<PAGE> 17
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.
IN WITNESS WHEREOF, America West Airlines, Inc. has caused this
Restated Certificate of Incorporation to be singed by William A. Franke, its
Chairman and Chief Executive Officer, and attested by Martin J. Whalen, its
Secretary, this 17th day of August, 1994.
AMERICA WEST AIRLINES, INC.
By: /s/
------------------------------------
William A. Franke
Chairman and Chief Executive Officer
ATTEST:
/s/
- - ---------------------------------
Martin J. Whalen
Secretary
<PAGE> 1
Exhibit 3.2
RESTATED
BYLAWS
OF
AMERICA WEST AIRLINES, INC.
<PAGE> 2
TABLE OF CONTENTS
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. . . . . . . . . . . . . . . . . 2
3.07 Adjourned Meetings . . . . . . . . . . . . . . . . . 3
3.08 Quorum and Adjournment . . . . . . . . . . . . . . . 3
3.09 Majority Vote Required . . . . . . . . . . . . . . . 4
3.10 Manner of Voting . . . . . . . . . . . . . . . . . . 4
3.11 Proxies. . . . . . . . . . . . . . . . . . . . . . . 4
3.12 Presiding Officer and Secretary. . . . . . . . . . . 4
3.13 Disregard of Nomination or Proposal. . . . . . . . . 4
3.14 Inspections of Elections . . . . . . . . . . . . . . 4
4. DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.01 Powers . . . . . . . . . . . . . . . . . . . . . . . 5
4.02 Number and Classification. . . . . . . . . . . . . . 5
4.03 Nominations. . . . . . . . . . . . . . . . . . . . . 5
4.04 Resignations . . . . . . . . . . . . . . . . . . . . 6
4.05 Removal. . . . . . . . . . . . . . . . . . . . . . . 6
4.06 Vacancies. . . . . . . . . . . . . . . . . . . . . . 6
4.07 Presiding Officers and Secretary . . . . . . . . . . 6
4.08 Annual Meetings. . . . . . . . . . . . . . . . . . . 7
4.09 Regular Meetings . . . . . . . . . . . . . . . . . . 7
4.10 Special Meetings . . . . . . . . . . . . . . . . . . 7
4.11 Quorum and Powers of a Majority. . . . . . . . . . . 7
4.12 Waiver of Notice . . . . . . . . . . . . . . . . . . 7
4.13 Manner of Acting . . . . . . . . . . . . . . . . . . 7
4.14 Compensation . . . . . . . . . . . . . . . . . . . . 8
i
<PAGE> 3
4.15 Committees . . . . . . . . . . . . . . . . . . . . . . 8
4.16 Committee Procedure. . . . . . . . . . . . . . . . . . 8
4.17 Executive Committee. . . . . . . . . . . . . . . . . . 9
5. OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.01 Number . . . . . . . . . . . . . . . . . . . . . . . . 10
5.02 Election of Officers, Qualification and Term . . . . . 10
5.03 Removal. . . . . . . . . . . . . . . . . . . . . . . . 10
5.04 Resignations . . . . . . . . . . . . . . . . . . . . . 11
5.05 Vacancies. . . . . . . . . . . . . . . . . . . . . . . 11
5.06 Salaries . . . . . . . . . . . . . . . . . . . . . . . 11
5.07 The Chairman of the Board. . . . . . . . . . . . . . . 11
5.08 The President. . . . . . . . . . . . . . . . . . . . . 11
5.09 The Vice Presidents. . . . . . . . . . . . . . . . . . 11
5.10 The Secretary and the Assistant Secretary. . . . . . . 12
5.11 The Treasurer and the Assistant Treasurer. . . . . . . 12
5.12 Treasurer's Bond . . . . . . . . . . . . . . . . . . . 13
5.13 Chief Executive Officer. . . . . . . . . . . . . . . . 13
5.14 Chief Operating Officer. . . . . . . . . . . . . . . . 13
6. STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.01 Certificates . . . . . . . . . . . . . . . . . . . . . 13
6.02 Transfers. . . . . . . . . . . . . . . . . . . . . . . 14
6.03 Lost, Stolen or Destroyed Certificates . . . . . . . . 14
6.04 Record Date. . . . . . . . . . . . . . . . . . . . . . 14
6.05 Registered Stockholders. . . . . . . . . . . . . . . . 14
6.06 Additional Powers of the Board . . . . . . . . . . . . 15
7. LIMITATIONS OF OWNERSHIP BY NON-CITIZENS. . . . . . . . . . . . 15
7.01 Definitions. . . . . . . . . . . . . . . . . . . . . . 15
7.02 Policy . . . . . . . . . . . . . . . . . . . . . . . . 16
7.03 Foreign Stock Record . . . . . . . . . . . . . . . . . 16
7.04 Suspension of Voting Rights. . . . . . . . . . . . . . 16
7.05 Beneficial Ownership Inquiry . . . . . . . . . . . . . 16
8. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.01 Place and Inspection of Books. . . . . . . . . . . . . 17
8.02 Indemnification of Directors, Officers
Employees and Agents . . . . . . . . . . . . . . . . . 18
8.03 Dividends. . . . . . . . . . . . . . . . . . . . . . . 20
8.04 Execution of Deeds, Contracts, and Other
Agreements and Instruments . . . . . . . . . . . . . . 20
8.05 Checks . . . . . . . . . . . . . . . . . . . . . . . . 21
8.06 Voting Shares in Other Corporations. . . . . . . . . . 21
ii
<PAGE> 4
8.07 Fiscal Year . . . . . . . . . . . . . . . . . . . . . 21
8.08 Gender/Number . . . . . . . . . . . . . . . . . . . . 21
8.09 Paragraph Titles . . . . . . . . . . . . . . . . . . 21
8.10 Amendment . . . . . . . . . . . . . . . . . . . . . . 21
8.11 Restated Certificate of Incorporation . . . . . . . . 21
iii
<PAGE> 5
RESTATED
BYLAWS
OF
AMERICA WEST AIRLINES, INC.
(as amended through, and effective on, August 25, 1994)
1. OFFICES.
1.01 Offices. In addition to its registered office in the state of
Del aware, 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 ma)' 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 am. 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
1
<PAGE> 6
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, o! 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 lieu of a meeting in accordance with Delaware Law only in the
removal of directors in accordance with the Restated Certificate of
Incorporation of the Corporation.
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.
(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.
2
<PAGE> 7
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 (or for election of directors, with
the notice provisions set forth in Section 4.03).
(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
3
<PAGE> 8
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.
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 I 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
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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 "DGCL").
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 (except for increases above fifteen (15) caused by a
provision allowing holders of preferred stock to elect additional directors in
the event of nonpayment of dividends) and provided her that, the Stockholders'
Agreement dated as of August 25, 1994 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 may be. Election of
Directors shall be
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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 only in the removal
of directors in accordance with the Stockholders' Agreement or any other voting
agreement of even date with the Restated Certificate of Incorporation by and
between GPA Group plc and AmWest Partners, L.P., for so long as any such
agreement remains in force and effect. In the absence of 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, in good faith believe themselves
to be a majority of the remaining
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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) calendar 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.
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) calendar 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
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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 sending the Corporation in any other
capacity and from receiving compensation from the Corporation for services
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;
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
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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 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.
4.17 Executive Committee. There shall be established an Executive
Committee consisting of three (3) members. The Chairman of the Board shall be a
member and shall act as Chairman of the Executive Committee. In addition, the
Board of Directors shall elect from its members the remaining members of the
Executive Committee.
The Executive Committee shall, to the full extent of the DGCL, have and
may exercise in the internals between meetings of the Board of Directors, all
the powers of the whole Board of Directors in its management of the affairs and
business of the Corporation, except the power or authority to:
(a) amend the Restated Certificate of Incorporation;
(b) adopt any agreement of merger or consolidation;
(c) recommend to stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets;
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(d) recommend to stockholders a dissolution of the Corporation or a
revocation of a dissolution;
(e) amend these Bylaws;
(f) appoint or remove a member of any committee established by the
Board of Directors, fill vacancies on the Board of Directors,
remove an officer elected by the Board of Directors, or raise or
lower any officer's salary; or
(g) declare dividends or authorize the issuance of stock.
Meetings of the Executive Committee may be called at any time by the
Chairman of the Board and shall be held at the general office of the
Corporation or at such other place, within or without the State of Delaware, as
the Chairman of the Board may designate, on not less than one (1) day's notice
to each member of the Executive Committee, given verbally or in writing either
personally, by telephone, by facsimile transmission, by mail, by telegram or
telex.
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 a majority 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 poker to appoint one or more employees of the corporation as
divisional or
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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 Officers. 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 (I) 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 a majority 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 a majority 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.
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 the
Chairman of Board's
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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 serve as chief operating officer and 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 (except in case of meetings called by the Chairman of
the Board in accordance with Sections 4.09 or 4.10). 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 hue 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
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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.
(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 arc satisfactory to the Board of
Directors for the faithful performance of the duties of office and for the
restoration to the Corporation, in case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his or her possession or under his or her
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.
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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 net 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 all the 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 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
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Board of Directors shall fix, in advance, a record date, which shall not be
more than sixty (60) nor less than ten (l) 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 ill 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 and 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
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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)(l)(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.
(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.
16
<PAGE> 21
7.02. 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
17
<PAGE> 22
(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.
8.0 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 ',~#ere 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, allocated, when and under what conditions and regulations the
accounts and books of the Corporation (except such as ma>' be by law
specifically open to inspection or as otherwise provided b>' 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. Officer, Employees and Agents. (a)
The Corporation shall indemnify any person who was or is a company or is
threatened to be
18
<PAGE> 23
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 or
she acted in good faith and in a manner lie 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 or she 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).
19
<PAGE> 24
(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 or she shall be indemnified against expenses, including
attorney's fees, actually and reasonably paid or incurred by him or her 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 an', 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'," there used in the section shall include the estate, executors,
administrators, spouse. heirs, legatees or devisees of such person.
20
<PAGE> 25
(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.
(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
think's 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 all other written
contracts and agreements to which the Corporation shall be a party shall be
executed in its name
21
<PAGE> 26
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 tie 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 the Corporation, 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.
22
<PAGE> 27
AMERICA WEST AIRLINES, INC.
Certificate as to Bylaws
I, Martin J. Whalen, do hereby certify that (i) I am the duly elected
and qualified Secretary of America West Airlines, Inc., a Delaware corporation
(the "Company"), (ii) I have access to the Company's corporate books and
records and am familiar with the matters therein contained and herein
certified, (iii) I am authorized to execute and deliver this certificate in the
name and on behalf of the Company and (iv) attached hereto as Exhibit "A" is a
true, correct and complete copy of the Bylaws of the Company as in effect on
the date hereof.
WITNESS my signature this 25th day of August, 1994.
/s/
------------------------------
Martin J. Whalen, Secretary
<PAGE> 28
State of Delaware
Office of the Secretary of State
I. EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED
CERTIFICATE OF "AMERICA WEST AIRLINES, INC.", FILED IN THIS OFFICE ON THE
EIGHTEENTH DAY OF AUGUST, A.D. 1993, AT 3:30 O'CLOCK P.M.
/s/
----------------------------------
Edward J. Freel, Secretary of State
<PAGE> 1
Exhibit 4.1
- - --------------------------------------------------------------------------------
AMERICA WEST AIRLINES, INC.,
AND
AMERICAN BANK NATIONAL ASSOCIATION,
TRUSTEE
INDENTURE
DATED AS OF AUGUST 25, 1994
________________________
$130,000,000
11 1/4% SENIOR UNSECURED NOTES DUE SEPTEMBER 1, 2001
- - -------------------------------------------------------------------------------
<PAGE> 2
CROSS REFERENCE SHEET1
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of
August 25, 1994 among AMERICA WEST AIRLINES, INC. and AMERICAN BANK NATIONAL
ASSOCIATION, Trustee:
Section of the Act Section of Indenture
- - ------------------ --------------------
310(a)(1) and (2) . . . . . . . 6.9 and 6.10(b)
310(b) . . . . . . . . . . . . 6.8, 6.10(a), (b) and (d), 6.11 and 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
____________________
1 This Cross Reference Sheet is not part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C> <C>
ARTICLE ONE - DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Acceleration Notice" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Adjusted Consolidated Net Income" . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Affiliates" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Alliance Agreements" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Applicable Documents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Asset Sale" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authenticating Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board Resolution" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Capital Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Capitalized Lease Obligation" . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Cash Equivalents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Change of Control" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Commission" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Commodity Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Common Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Company Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Consolidated" or "consolidated," . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Corporate Trust Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Currency Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Depository" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Excess Proceeds Offer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Excess Proceeds Purchase Date" . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Exchange Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"GAAP" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Global Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Guarantee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Holder", "Holder of Securities", "Securityholder" . . . . . . . . . . . . . . . . . 5
"Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Interest Payment Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Interest Rate Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
(i)
<PAGE> 4
<TABLE>
<CAPTION>
Page
<S> <C> <C> <C>
"Investment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Investment Grade" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Lien" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Moody's" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Net Cash Proceeds" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Net Offering Proceeds" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Officers' Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Payment Restriction" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Permitted Holders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Public Offering Sale" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Purchase Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Redeemable Dividends" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Redeemable Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Redemption Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Redemption Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Refinancing Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Registration Rights Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Responsible Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Restricted Payment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"S&P" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Securities Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Security" or "Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Stated Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"TIA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Trade Payables" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"U.S. Government Obligations" . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"U.S. Legal Tender" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Voting Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Wholly Owned" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE TWO - SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.1 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.2 Execution and Authentication . . . . . . . .. . . . . . . . . . . 12
SECTION 2.3 Certificate of Authentication . . . . . . . . . . . . . . . . . . 13
</TABLE>
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SECTION 2.4 Payments of Interest . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.5 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . 14
SECTION 2.6 Mutilated, Defaced, Destroyed, Lost and Stolen Securities . . . . . . 16
SECTION 2.7 Cancellation of Securities; Destruction Thereof . . . . . . . . . . . 17
SECTION 2.8 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.9 Currency and Manner of Payments in Respect of Securities . . . . . . 17
SECTION 2.10 CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE THREE - REDEMPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.1 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.2 Selection of Securities to be Redeemed . . . . . . . . . . . . . . . 18
SECTION 3.3 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.4 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . 19
SECTION 3.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.6 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.7 Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.8 Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE FOUR - COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.1 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . 22
SECTION 4.2 Offices for Payments, etc . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.3 Appointment to Fill a Vacancy in Office of Trustee . . . . . . . . . 22
SECTION 4.4 Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.5 Reports and Information . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.6 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.7 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . 25
SECTION 4.8 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.9 Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.10 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.11 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.12 Limitation on Issuances and Dispositions of Capital Stock of
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.13 Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . 27
SECTION 4.14 Limitation on Transactions with Affiliates . . . . . . . . . . . . . 29
SECTION 4.15 Limitation on Asset Sales . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.16 Limitation on Payment Restrictions Affecting Subsidiaries . . . . . . 32
SECTION 4.17 [INTENTIONALLY OMITTED] . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.18 Limitation on Investments . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.19 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . 33
</TABLE>
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ARTICLE FIVE - SECURITYHOLDERS LISTS AND
REPORTS BY COMPANY AND THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.1 The Company to Furnish Trustee Information as to Names
and Addresses of Securityholders . . . . . . . . . . . . . . . . . . . 34
SECTION 5.2 Disclosure of Names and Addresses of Securityholders . . . . . . . . . 34
SECTION 5.3 Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE SIX - CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER. . . . . . . . . . . . . . . . . 34
SECTION 6.1 Merger or Consolidation. . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.2 Successor Corporation Substituted. . . . . . . . . . . . . . . . . . . 35
ARTICLE SEVEN - REMEDIES OF THE TRUSTEE
AND SECURITYHOLDERS ON EVENT OF DEFAULT. . . . . . . . . . . . . . . . . . . 36
SECTION 7.1 Event of Default Defined; Acceleration of Maturity; Waiver
of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.3 Application of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.4 Suits for Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.5 Restoration of Rights on Abandonment of Proceedings. . . . . . . . . . 42
SECTION 7.6 Limitations on Suits by Securityholders. . . . . . . . . . . . . . . . 42
SECTION 7.7 Unconditional Right of Securityholders to Institute Certain
Suits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.8 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.9 Control by Holders of Securities . . . . . . . . . . . . . . . . . . . 43
SECTION 7.10 Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.11 Trustees to Give Notice of Default, But May Withhold in
Certain Circumstances. . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.12 Right of Court to Require Filing of Undertaking to Pay
Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE EIGHT - CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 8.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 8.2 Certain Rights of the Trustee. . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. . . . . . . . . . . . . 47
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SECTION 8.4 Trustee and Agents May Hold Securities; Collections, etc. . . . . . . 47
SECTION 8.5 Monies Held by Trustee. . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.6 Compensation and Indemnification of Trustee and Its Prior
Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.7 Right of Trustee to Rely on Officers' Certificate, etc . . . . . . . 48
SECTION 8.8 Persons Eligible for Appointment as Trustee . . . . . . . . . . . . . 48
SECTION 8.9 Resignation and Removal; Appointment of Successor Trustee . . . . . . 49
SECTION 8.10 Acceptance of Appointment by Successor Trustee . . . . . . . . . . . 50
SECTION 8.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.12 Preferential Collection of Claims Against the Company . . . . . . . . 51
SECTION 8.13 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . 51
ARTICLE NINE - CONCERNING THE SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.1 Evidence of Action Taken by Securityholders . . . . . . . . . . . . . 52
SECTION 9.2 Proof of Execution of Instruments and of Holding of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.3 Holders to be Treated as Owners . . . . . . . . . . . . . . . . . . . 53
SECTION 9.4 Securities Owned by the Company Deemed Not Outstanding . . . . . . . 53
SECTION 9.5 Right of Revocation of Action Taken. . . . . . . . . . . . . . . . . 54
ARTICLE TEN - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.1 Amendments and Supplements Permitted Without Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.2 Amendments and Supplements Requiring Consent of Holders . . . . . . . 55
SECTION 10.3 Compliance with TIA . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.4 Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . 56
SECTION 10.5 Notation on or Exchange of Securities . . . . . . . . . . . . . . . . 57
SECTION 10.6 Trustee Protected . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE ELEVEN - SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.1 Satisfaction and Discharge of Indenture. . . . . . . . . . . . . . . 58
SECTION 11.2 Application by Trustee of Funds Deposited for Payment of
Securities; Other Miscellaneous Provisions . . . . . . . . . . . . . 62
SECTION 11.3 Repayment of Monies Held by Paying Agent . . . . . . . . . . . . . . 63
SECTION 11.4 Return of Monies Held by Trustee and Paying Agent
Unclaimed for Two Years . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.5 Indemnity for U.S. Government Obligations. . . . . . . . . . . . . . 63
</TABLE>
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ARTICLE TWELVE - MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 12.1 Incorporators, Stockholders, Officers and Directors of the
Company Exempt from Individual Liability. . . . . . . . . . . . . . . . 63
SECTION 12.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 12.3 Successors and Assigns of the Company Bound by
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 12.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 12.5 Officers' Certificates and Opinions of Counsel; Statements to
be Contained Therein. . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 12.6 Payments Due on Saturdays, Sundays and Holidays . . . . . . . . . . . . 65
SECTION 12.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 12.8 New York Law to Govern . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 12.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 12.10 Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 65
</TABLE>
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<PAGE> 9
INDENTURE, dated as of August 25, 1994, between America West Airlines,
Inc., a Delaware corporation (the "Company"), having its principal office at
4000 East Sky Harbor Blvd., Phoenix, Arizona 85034, and American Bank National
Association (the "Trustee"), having its principal office at 101 East 5th
Street, St. Paul, Minnesota 55101.
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 11#%
Senior Unsecured Notes due September 1, 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.
"Acceleration Notice" shall have the meaning set forth in Section 7.1.
"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
<PAGE> 10
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" means those certain business alliance agreements
among the Company, Continental Airlines, Inc. and Mesa Airlines, Inc. that
include, but are not limited to, code-sharing, frequent flyer, ground handling
and marketing agreements.
"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 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.
2
<PAGE> 11
"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.
"Change of Control" means (i) the acquisition at any time by any
Person (other than one or more Permitted Holders), of "beneficial ownership"
(within the meaning of Section 13(d) under the Exchange Act and the rules and
regulations promulgated thereunder) in excess of 50% of the total voting power
of the Voting Stock of the Company; (ii) the sale, lease, transfer or other
disposition, of all or substantially all of the assets of the Company to any
Person (other than one or more Permitted Holders) as an entirety or
substantially as an entirety in one transaction or a series of related
transactions; (iii) the merger or consolidation of the Company, with or into
another corporation, or the merger of another corporation into the Company, or
any other transaction, with the effect that a Person (other than one or more
Permitted Holders), has "beneficial ownership" (within the meaning of Section
13(d) under the Exchange Act and the rules and regulations promulgated
thereunder) in excess of 50% of the Voting Stock of the Company, or (if the
Company is not the surviving company in such transaction) such other
corporation, as the case may be (including indirect ownership through another
Person other than one or more Permitted Holders); or (iv) the liquidation or
dissolution of the Company. For purposes of this definition, the term Person
includes a "person" within the meaning of Section 13(d) of the Exchange Act and
the rules and regulations promulgated thereunder.
"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
3
<PAGE> 12
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.
"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.
"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 101 East 5th Street, St. Paul, Minnesota 55101.
"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.
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<PAGE> 13
"Excess Proceeds Offer" shall have the meaning set forth in Section
4.15.
"Excess Proceeds Purchase Date" shall have the meaning set forth in
Section 4.15.
"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 keep-well, 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.
"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 Capitalized Lease Obligations of
such Person, (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
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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.
"Interest Payment Date", means the first day of each March and
September, commencing March 1, 1995.
"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 thereof, any sale
with recourse against the seller or any Affiliate of the
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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.
"Material Subsidiary" means each Subsidiary that is either (a) a
"significant subsidiary" as defined in Rule 1-02(v) of Regulation S-X under the
Securities Act and the Exchange Act (as such regulation is in effect on the
date hereof) or (b) material to the financial condition or results of
operations of the Company and its Subsidiaries taken as a whole.
"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.
"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.
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"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
(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.
"Permitted Holders" means (i) AmWest Partners, L.P., (ii) TPG
Partners, L.P., (iii) Continental Airlines, Inc., (iv) Mesa Airlines, Inc., (v)
funds or accounts managed or
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advised by Fidelity Management Trust Company and its Affiliates, and their
respective successors and Affiliates.
"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.
"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.
"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
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substantially concurrently repay, refinance, 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, and
(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.
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"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 11#% Senior Unsecured
Notes due September 1, 2001 issued under this Indenture.
"Stated Maturity" means, (i) with respect to the principal of the
Securities, September 1, 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.
"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 principal 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.
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"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, a Subsidiary 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 the Company.
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. Whether or not issued on the Closing
Date, each Security shall be dated and bear interest from the Closing Date,
except as provided in Sections 2.5 and 2.6. 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. One Officer of the
Company shall sign each Security for the Company by manual or facsimile
signature, which signature shall be attested to by another Officer of the
Company (each of which Officers shall have been duly authorized by all
requisite corporate actions). 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, (a) authenticate Securities for issuance on the Closing
Date in the aggregate principal amount of $100,000,000, and (b) authenticate
Securities for issuance from time to time thereafter on or prior to October 31,
1994 in an additional aggregate principal amount not in excess of
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$30,000,000. The maximum aggregate principal amount of the Securities which
may be issued and outstanding hereunder shall be $130,000,000.
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 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, and the only 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 Closing Date, and such interest shall be payable on the
Interest Payment Dates.
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
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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.
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 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
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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 a 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.
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
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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 later of (i) the Closing Date or
(ii) the most recent date to which interest has been paid on, 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 or 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 dated the
date of its authentication, of the same principal amount, Stated Maturity date
and interest rate as, and bearing interest from the later of (i) the Closing
Date or (ii) the most recent date to which interest has been paid on, the
mutilated or defaced Security, or the Security so destroyed, lost or stolen,
and bearing a number or other distinguishing symbol not appearing on any
Security 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
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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 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.
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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 or is required to redeem Securities
pursuant to Section 3.8 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 or is required to redeem Securities pursuant to Section 3.8, as
the case may be, 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
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.
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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.
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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 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.
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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 September 1, 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, excluding amounts
redeemed under Section 3.8 hereof, from the Net Offering Proceeds
received by the Company prior to September 1, 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 September 1, 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.
If redeemed
during the
12 months beginning
September 1 Percentage
----------- ----------
1997 . . . . . . . . . . . . . . . . . . . . . 105.0%
1998 . . . . . . . . . . . . . . . . . . . . . 103.3%
1999 . . . . . . . . . . . . . . . . . . . . . 101.7%
2000 and thereafter . . . . . . . . . . . . . . 100.0%
SECTION 3.8 Mandatory Redemption. In the event that, prior to
September 1, 1997, the Company consummates a Public Offering Sale and
immediately prior to such consummation the Company has cash and Cash
Equivalents, not subject to any restriction on disposition (other than any such
restriction imposed by this Indenture), of at least $100,000,000, then the
Company shall redeem Securities at a Redemption Price equal to 104% of the
aggregate principal amount of the Securities so redeemed, plus accrued and
unpaid interest to the Redemption Date. The aggregate Redemption Price and
accrued and unpaid interest of the Securities to be so redeemed shall equal the
lesser of (a) 50% of the Net Offering Proceeds of such Public Offering Sale and
(b) the excess, if any, of (i) $20,000,000 over (ii) the amount of any Net
Offering Proceeds of any prior Public
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Offering Sale received prior to September 1, 1997 and applied to redeem
Securities pursuant to this Section 3.8.
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. 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. Presentations and surrenders may also be made at the aforementioned
office or agency in the Borough of Manhattan, the City of New York, the address
of which, from time to time, may be obtained by contacting the Corporate Trust
Office of the Trustee.
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 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
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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
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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 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.
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<PAGE> 33
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.
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 Change of Control.
(a) Upon a Change of Control, each Holder shall have the
right to require the Company to repurchase all or any part of such Holder's
Securities at a repurchase price equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any,
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<PAGE> 34
to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant Interest Payment
Date).
(b) Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder stating:
(i) that a Change of Control has occurred and
that such Holder has the right to require the Company to purchase all
or any part of such Holder's Securities at a purchase price in cash
equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase (subject to the record
Holders' right on the relevant record date to receive interest due on
the relevant Interest Payment Date);
(ii) the circumstances and relevant facts
regarding such Change of Control;
(iii) the purchase date (which shall be no earlier
than 30 days nor later than 60 days from the date such notice is
mailed); and
(iv) the instructions, consistent with this
Section 4.11, that the Company determines that a Holder must follow to
have its Securities repurchased.
(c) Holders electing to have a Security purchased will be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least 10 Business Days
prior to the purchase date. Holders will be entitled to withdraw their
election if the Company receives not later than three Business Days prior to
the purchase date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased.
(d) On the purchase date, all Securities purchased by the
Company under this Section shall be delivered by the Company to the Trustee for
cancellation, together with an Officer's Certificate requesting such
cancellation and stating that they are being delivered for cancellation in
accordance with the terms of this Section 4.11 and that the Company shall pay
the purchase price plus accrued and unpaid interest, if any, to the Holders
entitled thereto.
(e) The Company shall comply with the requirements of
Section 14(e) of the Exchange Act and any other securities laws or regulations
in connection with the repurchase of Securities pursuant to this Section 4.11.
To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section 4.11, the Company shall comply with
the applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.11 by virtue thereof.
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(f) The Trustee shall be under no obligation to ascertain
the occurrence of a Change of Control or to give notice with respect thereto
other than as provided above, upon receipt of the written notice of Change of
Control from the Company. The Trustee may conclusively assume, in the absence
of written notice to the contrary from the Company, that no Change of Control
has occurred.
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 rights 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 of the Company which is subordinated
in right of payment to the Securities or which matures after the
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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
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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 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
$10,000,000, 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 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
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Subsidiary, as the case may be, than those as might reasonably have been
obtainable 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 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 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
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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 Holder a new Security equal in principal amount
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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 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 or leased by the Company or any of its Subsidiaries after the
Closing Date, provided that such encumbrance or restriction relates only to the
property which is acquired or leased; (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
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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 4.17 [INTENTIONALLY OMITTED].
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 as contemplated by
Section 4.15 of this Indenture; (ii) Investments consisting of 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; (vi) Investments by any
Subsidiary of the Company in the Company or in any Subsidiary; (vii)
Investments by the Company for the purpose of acquiring businesses reasonably
related to the business of the Company, in an aggregate amount not exceeding
$5,000,000 in any fiscal year of the Company; (viii) Investments made by way of
any endorsement of negotiable instruments received by the Company or any
Subsidiary in the ordinary course of its business and presented by it to any
bank for collection or deposit; (ix) stock, obligations or securities received
in settlement of debts created in the ordinary course of business owing to the
company or any Subsidiary; (x) Investments by the Company in any Subsidiary for
the purpose of receivables financing; and (xi) in addition to any other
permitted investments, any other Investments by the Company in an aggregate
amount not exceeding $1,000,000 at any time.
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.
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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) semiannually 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
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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;
(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; and
(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.
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 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.
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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;
(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;
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(f) a court having jurisdiction in the premises enters
a decree or order for (i) relief in respect of the Company or any
Material 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 Material Subsidiary or for all or substantially all of the
property and assets of the Company or any Material Subsidiary or (iii)
the winding up or liquidation of the affairs of the Company or any
Material 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 Material 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 Material Subsidiary or for all
or substantially all of the property and assets of the Company or any
Material Subsidiary or (iii) effects any general assignment for the
benefit of creditors of the Company or any Material 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
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
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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.
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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 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
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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.
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 in 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
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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.
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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.
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.
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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 forbearance
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 forbearance 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 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.
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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
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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.
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
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(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 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;
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(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.
The Trustee shall have no duty to inquire as to the performance of the
Company's covenants in Article Four hereof. In addition, the Trustee shall not
be deemed to have knowledge of any Default or Event of Default, except (i) any
Default or Event of Default occurring pursuant to Section 7.1(a), 7.1(b) or
4.1, or (ii) any Default or Event of Default of which the Trustee shall have
received written notification or obtained actual knowledge.
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
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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 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 or
agent 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
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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
(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;
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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.
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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 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
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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.
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
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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
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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 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
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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 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
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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
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have consented (and not theretofore revoked such consent) to the
amendment or waiver.
(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.
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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 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.
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(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 4.1,
(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,
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(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 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
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<PAGE> 69
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, if 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 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
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<PAGE> 70
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 Holder,s 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 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
62
<PAGE> 71
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
63
<PAGE> 72
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.
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: 101 East 5th Street, St. Paul, Minnesota 55101. 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, 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.
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<PAGE> 73
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.
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.
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<PAGE> 74
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 August __, 1994.
<TABLE>
<S> <C>
AMERICA WEST AIRLINES, INC.
By: _____________________________________________
Title:
</TABLE>
Attest:
By: _____________________________________________
Title
<TABLE>
<S> <C>
AMERICAN BANK NATIONAL ASSOCIATION
By: _____________________________________________
Title:
</TABLE>
Attest:
By: _____________________________________________
Title:
66
<PAGE> 75
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this _____ of August, 1994, 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
67
<PAGE> 76
STATE OF MINNESOTA )
) ss.:
COUNTY OF ____________ )
On this _____ of August, 1994, 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 American Bank National
Association, 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
68
<PAGE> 77
EXHIBIT A
[FORM OF FACE OF SECURITY]
AMERICA WEST AIRLINES, INC.
11 1/4% SENIOR UNSECURED NOTES DUE SEPTEMBER 1, 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
September 1, 2001.
Interest Payment Dates: March 1 and September 1, commencing March 1, 1995.
Record Dates: February 15 and August 15.
This Security is continued on the reverse hereof and the additional
provisions set forth therein shall for all purposes have the same effect as if
set forth at this place.
<PAGE> 78
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:
<TABLE>
<S> <C>
AMERICA WEST AIRLINES, INC.
By:_________________________
Name:
Title:
</TABLE>
Attest:
______________________________
Assistant Secretary
[Seal]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within mentioned Indenture.
<TABLE>
<S> <C>
AMERICAN BANK NATIONAL
ASSOCIATION, as trustee
By:_________________________
Authorized Signature
</TABLE>
<PAGE> 79
AMERICA WEST AIRLINES, INC.
[FORM OF REVERSE OF SECURITY]
11 1/4% SENIOR UNSECURED NOTES DUE SEPTEMBER 1, 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 11#% 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 March 1 and September 1 of
each year commencing March 1, 1995, 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 of this
Security to, but not including, the date of repayment of such principal;
provided, however, that if payment to the Paying Agent occurs after 1:30 p.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 September 1, 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
<PAGE> 80
3. Paying Agent and Registrar.
Initially, American Bank National Association (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 August
25, 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 Sections 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 $130,000,000.
5. Optional Redemption.
The Securities may be redeemed prior to September 1, 1997 (a) 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 hereon to the Redemption Date, or (b) from time to time in
part, excluding amounts redeemed pursuant to Section 3.8 of the Indenture, from
the Net Offering Proceeds received by the Company prior to September 1, 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 September 1, 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 redeemed, set forth below, plus accrued and unpaid interest
thereon to the Redemption Date.
4
<PAGE> 81
<TABLE>
<CAPTION>
If redeemed
during the
12 months
beginning % of
September 1, 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. Mandatory Redemption.
As more fully set forth in the Indenture, under certain circumstances
the Company is required to redeem Securities with the net proceeds from one or
more Public Offering Sales at a Redemption Price equal to 104% of the aggregate
principal amount of the Securities so redeemed, plus accrued and unpaid
interest to the Redemption Date.
7. 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.
8. Put Provisions.
As provided in and subject to the terms of the Indenture, upon a
Change of Control, any Holder will have the right to cause the Company to
repurchase all or any part of the Securities of such Holder at a repurchase
price equal to 101% of the principal amount of the Securities to be repurchased
plus accrued and unpaid interest, if any, to the date of repurchase.
5
<PAGE> 82
9. 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.
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.
10. 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.
11. 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.
12. 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).
6
<PAGE> 83
13. 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.
14. 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.
15. 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 of 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.
16. 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.
17. 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
7
<PAGE> 84
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.
18. 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.
19. 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 for the issue of the Securities.
20. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the face of this Security.
21. 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).
22. 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 Harbor Blvd., Phoenix, Arizona
85034.
8
<PAGE> 85
[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:_________________________
9
<PAGE> 86
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: [ ]
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):
$_____________________.
<TABLE>
<S> <C> <C>
Date: ____________________ Your Signature: ___________________________
(Sign exactly as your name
appears on the other side of this Security)
</TABLE>
Signature Guarantee: ___________________________
10
<PAGE> 1
Exhibit 4.3
=================================================================
AMERICA WEST AIRLINES, INC.
and
FIRST INTERSTATE BANK OF CALIFORNIA,
as Warrant Agent
_______________
WARRANT AGREEMENT
Dated as of August 25, 1994
_______________
=================================================================
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
Page
<CAPTION> ----
<S> <C> <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 . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.02. Execution of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.03. Issuance, Delivery and Registration
of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.04. Transfer and Exchange of Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
WARRANT PRICE, EXPIRATION DATE AND EXERCISE
OF WARRANTS
SECTION 3.01. Warrant Price; Expiration Date . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.02. Exercise of Warrants; Common Stock
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.03. No Fractional Shares to Be Issued . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.04. Acquisition of Warrants by the
Company; Cancellation of Warrants . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.05. Notice to Holders of Bankruptcy
Court Action with regard to
Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV
ADJUSTMENT OF WARRANT PRICE, SHARES OF COMMON
STOCK PURCHASABLE AND NUMBER OF WARRANTS
SECTION 4.01. Adjustment of Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.02. Adjustment of Shares of Class B
Common Stock Purchasable Upon
Exercise of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . 17
i
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
SECTION 4.03. Election to Adjust Warrants Instead
of Shares Per Warrant . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.04. No Fractional Warrants to Be Issued . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.05. Rights Upon Consolidation,
Merger, Sale, Transfer or
Reclassification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.06. Covenant to Reserve Shares for
Issuance on Exercise . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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 . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.08. Payment of Taxes on Stock
Certificates Issued upon Exercise . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.09. Warrant Agent Not Responsible for
Adjustments or Validity of Stock . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.10. Statements on Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANTS
SECTION 5.01. No Rights as Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.02. Mutilated or Missing Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.03. Delivery of Prospectuses . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VI
CONCERNING THE WARRANT AGENT
SECTION 6.01. Payment of Certain Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6.02. Change of Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6.03. Compensation; Further Assurances . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.04. Reliance on Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.05. Proof of Actions Taken . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.06. Correctness of Statements . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.07. Validity of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.08. Use of Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.09. Liability of Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.10. Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.11. Other Transactions in Securities
of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.12. Actions as Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.13. Appointment and Acceptance of Agency . . . . . . . . . . . . . . . . . . . 30
ii
</TABLE>
<PAGE> 4
<TABLE>
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<S> <C> <C> <C>
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 7.02. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 7.03. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.04. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.05. Benefits of this Agreement . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.06. Registered Warrant Holders . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.07. Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.08. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.09. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Signatures and Seals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Exhibit A Form of Warrant Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B Schedule of Fees to Be Paid to Warrant Agent . . . . . . . . . . . . . . . . . . . . . . B-1
iii
</TABLE>
<PAGE> 5
WARRANT AGREEMENT
THIS AGREEMENT (the "Agreement") made as of August 25, 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 parnership 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
<PAGE> 6
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 and each of AmWest GenPar, Inc., Continental Airlines,
Inc., Mesa Airlines, Inc., TPG Partners, L.P., TPG Parallel I, L.P. and Air
Partners II, L.P. shall be deemed to be an Affiliate of AmWest.
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.
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.
Case: shall mean the case filed in the Bankruptcy Court
entitled "In re America West Airlines, Inc., Debtor," Chapter 11 Case No.
91-07505-PHX-RGM, under the Bankruptcy Code.
Class A Common Stock: shall mean the Class A Common Stock,
par value $.01 per share, of the Company.
Class B Common Stock: shall mean the Class B Common Stock,
par value $.01 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
2
<PAGE> 7
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 August 25, 1999.
Final Order: means an order, judgment, ruling or other decree
issued and entered by the Bankruptcy Court (as entered on the docket in the
Case), or any state or federal court or other tribunal located in one of the
states, territories, or possessions of the United States of America or the
District of Columbia, which judgment, order or other decree has not been
reversed, stayed, modified or amended, and as to which (x) the time to appeal
or to seek review, rehearing or certiorari has expired and as to which no
appeal or petition for review, rehearing or certiorari is pending or has been
timely filed, or (y) any appeal that has been or may be taken or any petition
for certiorari that has been or may be filed has been resolved by the highest
court to which the order or judgment was appealed or from which certiorari was
sought.
GPA: shall mean GPA Group plc., an Irish company, and any
direct or indirect subsidiary thereof.
Initial Exercise Date: shall mean the date on which the
Warrant Price has been approved by the Bankruptcy Court pursuant to a Final
Order.
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.
3
<PAGE> 8
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 First Interstate Bank of California
or any successor to it appointed pursuant to Section 6.02.
Warrant Agent's Office: shall mean, for so long as First
Interstate Bank of California shall be the Warrant Agent, the principal
business address of First Interstate Bank of California as specified in Section
7.03 and, thereafter, the office or agency maintained by the successor Warrant
Agent in the Borough of Manhattan, New York, New York or the principal office
of the successor Warrant Agent.
Warrant Certificates: shall have the meaning specified in
Section 2.01.
Warrant Price: shall mean (i) a price of $12.74 for each
share of Class B Common Stock issuable upon exercise of a Warrant, or (ii) if
such price is not approved by the Bankruptcy Court pursuant to a Final Order,
the per share exercise price approved by the Bankruptcy Court pursuant to a
Final Order, in each case subject to adjustment as provided herein.
Warrant Register: shall have the meaning specified in Section
2.03.
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.
4
<PAGE> 9
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.
5
<PAGE> 10
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 Distribution Agent for distribution to the
Equity Holders, 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 to the contrary contained
herein, 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 requirements of the 1933 Act and applicable state
securities laws. Until the Restricted Securities (i) cease to be Restricted
Securities or (ii) have been registered and sold or otherwise disposed of under
the 1933 Act, certificates evidencing Restricted Securities (and only such
certificates) will bear a legend in substantially the following form:
THE ISSUANCE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"1933 ACT") OR PURSUANT TO 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 AND THE RULES AND
REGULATIONS THEREUNDER 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.
6
<PAGE> 11
For purposes of this Agreement, the term "Restricted
Securities" shall mean the Warrants issued to AmWest, GPA, Lehman Brothers Inc.
and "Fidelity," as such term is defined in and pursuant to the Registration
Rights Agreement, dated as of August 25, 1994 among the Company, AmWest and the
other Holders named therein 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 by the Registered Holders with signature
guaranteed by a guarantor institution with membership in an approved signature
guarantee medallion program, 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.
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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 Initial Exercise 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.
SECTION 3.02. Exercise of Warrants; Common Stock Record Date.
(a) Commencing at the opening of business on the Initial
Exercise 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.
(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 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
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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 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).
(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 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
upon exercise.
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The Warrant Agent shall render to the Company a complete accounting setting
forth the number of Warrants exercised, 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
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<PAGE> 15
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, 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.
SECTION 3.05. Notice to Holders of Bankruptcy Court Action
with regard to Warrant Price.
(a) In the event that a Warrant Price of $12.74 for each
share of Class B Common Stock issuable upon exercise of a Warrant has not been
confirmed by a Final Order of the Bankruptcy Court as of September 7, 1994, the
Company shall promptly file with the Warrant Agent an Officers' Certificate
setting forth such fact, and promptly after such filing shall mail or cause to
be mailed a notice of such fact 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.
(b) In the event that a Warrant Price for each share of
Class B Common Stock issuable upon exercise of a Warrant is subsequently
confirmed by a Final Order of the Bankruptcy Court on or after September 7,
1994, the Company shall promptly file with the Warrant Agent an Officers'
Certificate setting forth (A) the Warrant Price so confirmed by the Bankruptcy
Court and (B) the date of such final order of the Bankruptcy Court, and
promptly after such filing shall mail or cause to be mailed a
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<PAGE> 16
notice of such Warrant Price and date of such final order 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.
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
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<PAGE> 17
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 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 judgement whose determination shall be conclusive, and described in
a statement filed with the Warrant Agent) of the assets or evidences of
indebtedness so distributed, or shares of capital stock of any class other than
Common Stock or rights to subscribe therefor so issued, 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
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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
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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 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") 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 $.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 $.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 an Officers'
Certificate (A) setting forth
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<PAGE> 20
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, 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 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
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<PAGE> 21
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 (i) the issuance of 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) the
issuance of 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) the 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
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<PAGE> 22
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 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
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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
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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 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
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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.
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
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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,
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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
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.
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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 is held by a Person to which Warrant
Certificates were originally issued pursuant to Section 2.03(a) or 2.03(c), an
indemnity agreement from such Person in lieu of a bond shall be acceptable and
no charges other than the reasonable expenses of the Company in effecting such
substitution shall be made for such substitution. All Warrant Certificates
shall be held and owned upon the express
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condition that the foregoing provisions are exclusive, with respect to the
replacement of lost, stolen, mutilated or destroyed Warrant Certificates, and
shall, to the full extent permitted by law, 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.
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
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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 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
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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
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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 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
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shares of Class B Common Stock will, when issued, be validly issued and fully
paid and nonassessable.
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.
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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 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
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benefit of their respective successors and assigns hereunder. All of the
covenants and provisions of this Agreement providing for consultation with, or
notice to or consent of AmWest (other than notice or consent provisions for the
benefit of all holders of Warrants) shall be solely for the benefit of AmWest
and its successors (for so long as they shall hold any Warrants) and thereafter
for the benefit of any assignee of Warrants held by AmWest that (i) is a
partner or former partner of AmWest or an Affiliate of such a partner or former
partner and (ii) has been designated by AmWest, by notice in writing to the
Warrant Agent and the Company as authorized to act on behalf of AmWest as
herein provided.
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, postage
prepaid or by facsimile, addressed (until another address is filed in writing
by the Warrant Agent with the Company), as follows:
First Interstate Bank of California
707 Wilshire Boulevard (W11-2)
Los Angeles, California 90017
Attention: Stock Transfer Administrator
Facsimile No.: (213) 614-2460
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
31
<PAGE> 36
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.
32
<PAGE> 37
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.
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:
FIRST INTERSTATE BANK OF CALIFORNIA
[CORPORATE SEAL]
By: ___________________________________
Name:
Title:
Attest: _____________________________
Name:
Title:
33
<PAGE> 38
EXHIBIT A
[Form of Warrant Certificate]
No. [ ]-[ ] _________ Warrants
VOID AFTER AUGUST 25, 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 Initial
Exercise Date (as such term is defined in the Warrant Agreement) and before
5:00 p.m., New York time, on August 25, 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 $.01 per share, of the Company (hereinafter called the "Class B Common
Stock") at the price of (i) $12.74 per share or (ii) if such price per share is
not approved by a Final Order of the Bankruptcy Court, the per share price
approved by the Bankruptcy Court pursuant to a Final Order (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 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, 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
A-1
<PAGE> 39
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 August 25, 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 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
A-2
<PAGE> 40
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-3
<PAGE> 41
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:
FIRST INTERSTATE BANK OF CALIFORNIA
By:___________________________
Name:
Title:
A-4
<PAGE> 42
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 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 $ .
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:
PLEASE INSERT SOCIAL SECURITY Name_______________________________
OR OTHER IDENTIFYING NUMBER (Please Print Name and Address)
OF ASSIGNEE
___________________________ Address____________________________
___________________________ Signature__________________________
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-5
<PAGE> 43
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:
____________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION,
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
A-6
<PAGE> 44
EXHIBIT B
[SCHEDULE OF FEES TO BE PAID TO WARRANT AGENT]
B-1
<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
25th day of August, 1994 by and among AmWest Partners, L.P., a
Texas limited partnership, GPA Group plc, a corporation
organized under the laws of Ireland ("GPA"), Robert A. Ewert,
David T. Obergfell and William A. Franke (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 August 10, 1994, the Bankruptcy Court entered an
order confirming 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 Robert
A. Ewert 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.,
<PAGE> 2
- 2 -
appointed in the Company's Chapter 11 case (the
"Creditors' Committee") has appointed David T. Obergfell 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 William A. Franke 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 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 and each of AmWest
GenPar, Inc., Air Partners II, L.P., Continental, Mesa, TPG
<PAGE> 3
- 3 -
Partners, L.P., and TPG Parallel I, L.P., shall be deemed to be an
Affiliate of AmWest.
"Alliance Agreements" shall have the meaning set forth in the
Investment Agreement.
"AmWest" shall mean AmWest Partners, L.P., 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., "AmWest" shall collectively include all suchgeneral and
limited partners. "AmWest Partners, L.P." refers only to such partnership
prior to dissolution.
"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)
<PAGE> 4
- 4 -
"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.
"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 in the manner set forth in
Section 2.1(b), 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:
<PAGE> 5
- 5 -
(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
prior to (but not including) the Third Annual Meeting 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. Upon dissolution, AmWest Partners,
L.P., may assign its rights underthis Section 2.1(a) jointly
or severally to any of its general or limited partners.
(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 (but not
including) 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 prior to the Third
Annual Meeting 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
<PAGE> 6
- 6 -
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
prior to the Third Annual Meeting 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
partieshereto 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.
<PAGE> 7
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(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
hereinprovided; 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.
<PAGE> 8
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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 or Affiliates that are not otherwise Affiliates of
AmWest Partners, L.P.), 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 pursuantto 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
<PAGE> 9
- 9 -
(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, subject to the Board approving such request, 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. Except to the extent
otherwise required by applicable law, the shareholder 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 by such party, 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 Partners, L.P., agrees that its
constituent documents shall at all times require that this
Agreement be binding upon all general and limited partners of
AmWest Partners, L.P., and any Affiliate of AmWest Partners,
L.P., 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 any 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 public distribution registered under
the Securities Act of 1933 (as amended, the "Securities Act"),
or sale on the open market through a "brokers' transaction,"
as that term is defined in
<PAGE> 10
- 10 -
subsection (g) of Rule 144 (as hereinafter defined), (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 Partners, L.P.) any Common Stock held by it to any of
its general or limited partners, to any Fidelity Fund, to
Lehman, 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 by
and subject to the terms of this Agreement.
4.3 AmWest covenants and agrees that, without
the prior written consent of the Company given pursuant to a
resolution duly adopted by the affirmative vote of not less
than 75% of all directors of the Company, 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, (vi) in a Public Offering; or (vii)
in any other transaction where the purchase price per share of
the Common Stock being sold or transferred therein is equal to
or less than the then-current market price per share (i.e.,
the average of the daily mean between the high and low sales
prices regular way of the shares of Common Stock on the
exchange on which shares of Common Stock are listed for ten
(10) consecutive trading days preceding the effective date of
such transaction). For purposes of the foregoing, a
transaction (the "Primary Transaction") involving any Person
will not be deemed to be related to any other transaction (the
"Other Transaction") if (i) the Other Transaction does not
involve, directly or indirectly, such Person or any Affiliate
of such Person, it being understood that, for purposes of this
clause (i), TPG Partners, L.P., TPG Parallel I, L.P., and
Continental will be deemed not to be Affiliates of one
another, and (ii) the Primary Transaction and the Other
Transaction do not involve, directly or indirectly, Persons
who are assignees, direct or indirect, of AmWest and who are
acting in concert with respect thereto, it being understood
that, for purposes of this clause (ii), Persons will be deemed
to be acting in concert when they act jointly or on a
coordinated basis pursuant to any express or tacit agreement,
arrangement or understanding.
<PAGE> 11
- 11 -
4.4 If required by applicable law, 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 ("Regulation13D-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 AUGUST 25, 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
<PAGE> 12
- 12 -
under Section 1145 of the Bankruptcy Code, shall at all times
be conspicuously stamped or marked with a legend including
substantially as follows:
THE ISSUANCE OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"1933 ACT") OR PURSUANT TO 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 AND THE RULES AND REGULATIONS THEREUNDER 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 by the
Company 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
<PAGE> 13
- 13 -
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 transfer of securities
subject to this Agreement to provide such information as
mayreasonably be requested by the Company regarding ownership
of securities, affiliations, if any, between the party
requesting transfer 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 outstanding
capital stock as of a date therein specified (the
"Determination Date") from which GPA can determine whether it
holds less
<PAGE> 14
- 14 -
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 holds at least two
percent (2%) of the voting equity securities of the Company
(on a fully diluted basis) determined as of the Determination
Date within thirty-five (35) days after delivery of such Form
10-Q, or provision of such report or statement to GPA, and to
give prompt notice of such acquisition to the Company and a
copy to the party designated in Section 7.1, as herein
provided, following the expiration of such 35-day period.
Notwithstanding anything to the contrary herein, GPA
acknowledges that the Company's continuing with its existing
procedures for the distribution of Form-10Qs to GPA
constitutes adequate 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:
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
<PAGE> 15
- 15 -
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
Robert A. Ewert:
Robert A. Ewert
3819 E. Nowata Drive
Phoenix, Arizona 85044
Fax Number: (602) 893-2239
If to
David T. Obergfell
David T. Obergfell
Vice President
Texas Commerce Bank, N.A.
1201 Elm Street, 30th Floor
P.O. Box 2320
Dallas, Texas 75221-2320
Fax Number: (214) 712-3423
If to
William A. Franke:
William A. Franke
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Fax Number: (602) 693-5517
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
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
<PAGE> 16
- 16 -
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 legally permitted.
<PAGE> 17
- 17 -
IN WITNESS WHEREOF, the parties hereto, by
their respective officers thereunto duly authorized, have
executed this Agreement as of the date first written above.
<PAGE> 18
- 18 -
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.,
its General Partner
By:__________________
Name:
Title:
GPA GROUP PLC
By:______________________
Name:
Title:
_________________________
Robert A. Ewert,
Stockholder Representative
_________________________
David T. Obergfell,
Stockholder Representative
_________________________
William A. Franke,
Stockholder Representative
<PAGE> 19
- 19 -
AMERICA WEST AIRLINES, INC.
By:__________________________
Name:
Title:
<PAGE> 20
- 1 -
EXHIBIT A
AmWest Directors
Julia Chang Bloch
Frederick W. Bradley, Jr.
James G. Coulter
John F. Fraser
John L. Goolsby
Richard C. Kraemer
A. Maurice Myers
Larry L. Risley
Richard P. Schifter
GPA Director
John F. Tierney
Independent Company Director
William A. Franke
Creditors' Committee Directors
Harrison J. Goldin
Stephen F. Bollenbach
Raymond S. Troubh
Equity Committee Director
John R. Power
<PAGE> 1
Exhibit 4.51
FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT FOR
AMERICA WEST AIRLINES, INC.
THIS FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT FOR AMERICA
WEST AIRLINES, INC. (this "Amendment") is entered into as of this 6th day of
September, 1994 by and among Air Partners II, L.P., a Texas limited
partnership, TPG Partners, L.P., a Texas limited partnership, TPG Parallel I,
L.P., a Texas limited partnership, Continental Airlines, Inc., a Delaware
corporation, Mesa Airlines, Inc., a New Mexico corporation, GPA Group plc, a
corporation organized under the laws of Ireland ("GPA"), Robert A. Ewert, David
T. Obergfell and William A. Franke (collectively, the "Stockholder
Representatives"), and America West Airlines, Inc., a Delaware corporation (the
"Company").
RECITALS:
WHEREAS, the Amwest Partners, L.P., GPA, the Stockholder
Representatives and the Company entered into that certain Stockholders'
Agreement for America West Airlines, Inc., dated as of the 25th day of August,
1994 (the "Agreement");
WHEREAS, the Agreement set forth certain rights and
obligations of the parties as stockholders and "Stockholder Representatives"
(as defined therein) of the Company;
WHEREAS, AmWest Partners, L.P., has been dissolved and its
obligations under the Agreement have been collectively assumed by TPG Partners,
L.P., TPG Parallel I, L.P., Air Partners II, L.P., Continental Airlines, Inc.,
and Mesa Airlines, Inc.; and
WHEREAS, it is the intent of the parties that the
Stockholder Representatives not be deemed, by virtue of the Agreement, to be
acting as a syndicate or group for the purpose of acquiring, holding, or
disposing of securities under Section 13(d) of the Securities Exchange Act of
1934, as amended.
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:
<PAGE> 2
1. Clause (i) of Section 2.1(h) is hereby amended to read
as follows:
(i) to vote the Common Stock held and controlled by them
(other than stock held individually by any Stockholder
Representative) 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
2. All capitalized terms used herein that are not defined
herein shall be given the meaning given to them in the Agreement.
3. Except as specifically modified by this Amendment, (a)
the terms, conditions, and covenants set forth in the Agreement are hereby
ratified and confirmed by the parties hereto and are in full force and
effect and (b) nothing herein shall in any way alter, impair, or modify
the Agreement.
4. This Amendment 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.
IN WITNESS WHEREOF, the parties hereto, by their respective
officers thereunto duly authorized, have executed this Agreement as of
the date first written above.
AIR PARTNERS II, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By:__________________
Name:
Title:
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By:__________________
Name:
<PAGE> 3
Title:
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By:__________________
Name:
Title:
CONTINENTAL AIRLINES, INC.
By:_______________________
Name:
Title:
MESA AIRLINES, INC.
By:_______________________
Name:
Title:
GPA GROUP PLC
By:_______________________
Name:
Title:
_________________________
Robert A. Ewert,
Stockholder Representative
_________________________
David T. Obergfell,
<PAGE> 4
Stockholder Representative
_________________________
William A. Franke,
Stockholder Representative
AMERICA WEST AIRLINES, INC.
By:__________________________
Name:
Title:
<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 August 25, 1994
_____________________________________________________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Registration under the Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 Shelf Registration Statements . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Demand Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.3 Piggyback Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.4 Trust Indenture Act Qualification; Rating . . . . . . . . . . . . . . . . . . . 15
2.5 Registration Terms and Procedures . . . . . . . . . . . . . . . . . . . . . . . 15
2.6 Underwritten Offerings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.7 Preparation; Reasonable Investigation . . . . . . . . . . . . . . . . . . . . . 23
2.8 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.9 Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3. Rule 144 and Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7. No Third-Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8. Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9. Nominees for Beneficial Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
12. Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
13. Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
14. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
15. Registration Rights to Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
16. Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
17. Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
18. Termination of Certain Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
19. No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
20. Requisite Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
21. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
22. Repurchase Arrangement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
</TABLE>
ii
<PAGE> 4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 25, 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"), LEHMAN BROTHERS INC., a Delaware
corporation ("Lehman"), 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 August 25, 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");
WHEREAS, the Company has filed with the SEC (as hereinafter
defined) a shelf registration statement with respect to the Securities issued
or issuable to Investor, Lehman, Fidelity and their respective Affiliates,
among others, and the SEC has declared such shelf registration statement
effective;
WHEREAS, by Order dated August 10, 1994, the Bankruptcy Court
confirmed the Plan and
WHEREAS, the Investment Agreement, the Note Purchase Agreement
and the Plan contemplate that the Company, Investor, Lehman and Fidelity will
enter into certain agreements, including, without limitation, this Registration
Rights Agreement;
NOW THEREFORE, the parties hereby agree as follows:
<PAGE> 5
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):
"Affiliate" means (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, direct 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 and each of AmWest GenPar, Inc., Continental Airlines,
Inc., Mesa Airlines, Inc. ("Mesa"), TPG Partners, L.P., TPG Parallel I, L.P.
and Air Partners II, L.P. shall be deemed to be an Affiliate of AmWest.
"Agreement" means this Registration Rights Agreement, as the
same shall be amended, modified or supplemented from time to time.
"Business Day" means any day, other than a Saturday or Sunday,
that is not a day on which banking institutions are authorized or required by
law or regulation to be closed in (a) New York, New York or (b) Phoenix,
Arizona.
"Chapter 11 Case" has the meaning ascribed to it in the
preamble.
"Class A Common" means the Class A Common Stock of the
Company, par value $.01 per share, of the Company.
"Class B Common" means the Class B Common Stock of the
Company, par value $.01 per share, of the Company.
"Commercially Reasonable Efforts", when used with respect to
any obligation to be performed or term or provision to
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<PAGE> 6
be observed hereunder, means such efforts as a prudent Person seeking the
benefits of such performance or action would make, use, apply or exercise
to preserve, protect or advance its rights or interests, provided, that
such efforts do not require such Person to incur a material financial cost
or a substantial risk of material liability unless such cost or liability
(i) would customarily be incurred in the course of performance or
observance of the relevant obligation, term or provision, (ii) is caused by
or results from the wrongful act or negligence of the Person whose
performance or observance is required hereunder or (iii) is not excessive
or unreasonable in view of the rights or interests to be preserved,
protected or advanced. Such efforts may include, without limitation, the
expenditure of such funds and retention by such Person of such accountants,
attorneys or other experts or advisors as may be necessary or appropriate
to effect the relevant action; the undertaking of any special audit or
internal investigation that may be necessary or appropriate to effect the
relevant action; and the commencement, termination or settlement of any
action, suit or proceeding involving such Person to the extent
necessary or appropriate to effect the relevant action.
"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" has the meaning ascribed to it in the preamble.
With respect to any action, demand or election as to which "Fidelity"
has the right or obligation to take action pursuant to this Agreement,
such action shall be valid if taken by the Holders of a majority in
interest of the Registrable Equity Securities and/or a majority in
principal amount of the Registrable Debt Securities, as the case may
be, held by the Fidelity Funds as of the date of such action.
"Fidelity Fund" has the meaning ascribed to it in the preamble.
"GPA" means GPA Group plc and any legal successor thereto, and
includes GPA's permitted assigns pursuant to the GPA Registration Rights
Agreement.
"GPA Demand" has the meaning ascribed to it in Section 2.2(c).
"GPA Registration Rights Agreement" means the Registration
Rights Agreement of even date herewith between the Company and GPA attached
hereto as Schedule 1, as amended from
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<PAGE> 7
time to time in accordance with the provisions thereof and hereof.
"Holders" means, subject to Section 9 hereof, the holders of
record of Registrable Securities, or, in the case of references to holders of
securities of the Company other than Registrable Securities, the record holders
of such securities.
"Indemnified Party" has the meaning ascribed to it in Section
2.8(a).
"Indenture" means that certain Indenture between the Company
and American Bank National Association, as Trustee, dated as of August 25, 1994
and relating to up to $130 million principal amount of the Notes.
"Initial Effective Date" means the date upon which the
Restated Certificate of Incorporation becomes effective in accordance with the
Plan and the General Corporation Law of the State of Delaware.
"Initial Registrable Debt Securities" means the $100 million
principal amount of the Notes issued on the date of this Agreement and held by
any Fidelity Fund or any of their respective assignees or Affiliates or any
transferee (direct or indirect) of such Persons.
"Initial Shelf Registration Statement" has the meaning
ascribed to it in Section 2.1(a).
"Loss" has the meaning ascribed to it in Section 2.8(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 materially affects 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 15% 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.
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<PAGE> 8
"Notice of Demand" means a request by Investor or Fidelity, 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(d). 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.
"Person" means a natural person, a corporation, a partnership,
a trust, a joint venture, any regulatory authority or any other entity or
organization.
"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).
"Plan" has the meaning ascribed to it in the preamble.
"Registrable Debt Securities" means, collectively, the Initial
Registrable Debt Securities and the Secondary Registrable Debt Securities. 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 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.
5
<PAGE> 9
"Registrable Equity Securities" means the equity securities
acquired by Investor, Lehman, any Fidelity Fund or any of their respective
assignees or Affiliates pursuant to the Plan or held 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 a Warrant 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 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 of all jurisdictions in which the securities
are to be registered 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 all such
jurisdictions, (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 reasonable fees and
disbursements incurred by the Holders of the Registrable Securities being
registered (including, without limitation, the
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<PAGE> 10
reasonable fees and disbursements for one counsel or firm of counsel selected
by the Requisite Holders of Registrable Debt Securities and Registrable Equity
Securities acting together), (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 a registration or
other relevant action, as the case may be, 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 a registration or other relevant action, as the case may be.
"Restated Certificate of Incorporation" means the restated
Certificate of Incorporation adopted by the Company pursuant to the Plan in
accordance with Section 303 of the General Corporation Law of the State of
Delaware.
"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.
"Secondary Effective Date" means the date upon which the
Secondary Registrable Debt Securities are issued by the Company.
"Secondary Registrable Debt Securities" means the Notes, if
any, issued subsequent to the date of this Agreement and held by any Fidelity
Fund, Lehman or any of their respective assignees or Affiliates or any
transferee (direct or indirect) of such Persons.
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<PAGE> 11
"Secondary Shelf Registration Statement" has the meaning
ascribed to it in Section 2.1(b).
"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(c).
"Shelf Registration Statements" shall mean, collectively, the
Initial Shelf Registration Statement and the Secondary Shelf Registration
Statement, and in singular form shall mean either the Initial Shelf
Registration Statement or the Secondary Shelf Registration Statement.
"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).
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor statute, and the rules and
regulations promulgated thereunder.
"Warrant" means a Warrant to Purchase Class B Common Stock of
America West Airlines, Inc. issued pursuant to the Warrant Agreement dated as
of even date herewith between the Company and First Interstate Bank of
California, as Warrant Agent, and any warrant issued in substitution or
exchange therefor.
2. Registration under the Securities Act.
2.1 Shelf Registration Statements.
(a) Filing of Initial Shelf Registration Statement. If, as
of the Initial Effective Date, (i) the effectiveness of the shelf registration
statement covering all of the Registrable Equity Securities and the Initial
Registrable Debt Securities (the "Initial Shelf Registration Statement") has
been suspended or the Initial Shelf Registration Statement is otherwise not
effective or (ii) the securities covered under the Initial Shelf Registration
Statement shall not qualify under all blue sky or other securities laws, the
Company shall use Commercially Reasonable Efforts to cause such Initial Shelf
Registration Statement to be effective as soon as practicable and to qualify
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<PAGE> 12
such securities under all blue sky and other securities laws as soon as
practicable.
(b) Filing of Secondary Shelf Registration Statement. If, as
of the Secondary Effective Date, (i) the effectiveness of the shelf
registration statement covering all of the Secondary Registrable Debt
Securities (the "Secondary Shelf Registration Statement") has been suspended or
the Secondary Shelf Registration Statement is otherwise not effective or (ii)
the securities covered under the Secondary Shelf Registration Statement shall
not qualify under all blue sky or other securities laws, the Company shall use
Commercially Reasonable Efforts to cause such Secondary Shelf Registration
Statement to be effective as soon as practicable and to qualify such securities
under all blue sky and other securities laws as soon as practicable.
(c) Continuous Effectiveness of Shelf Registration
Statements. Once a Shelf Registration Statement is effective pursuant to
Section 2.1(a) or 2.1(b), the Company shall use Commercially Reasonable Efforts
to cause such Shelf Registration Statement to remain continuously effective
until the earlier of (i) the third (3rd) anniversary of (A) in the case of the
Initial Shelf Registration Statement, the Initial Effective Date or (B) in the
case of the Secondary Shelf Registration Statement, the Secondary Effective
Date and (ii) in either case, 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 (such period with
respect to the Initial Shelf Registration Statement or the Secondary Shelf
Registration being defined as the "Shelf Period" with respect to such Shelf
Registration Statement); provided, however, that with respect to each such
Shelf Registration Statement (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 on
any one occasion, and not in any event to exceed sixty (60) days in the
aggregate) suspend use of such Shelf Registration Statement at any time if the
continued effectiveness thereof would require the Company to disclose a
material financing, acquisition or other corporate 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 each such Shelf Registration Statement during
any period (not to exceed forty-five (45) days in the aggregate) if each of the
Company and the Requisite Holders of each of the Registrable Equity Securities,
if any, and the Registrable Debt Securities covered by such Shelf Registration
Statement consents in writing to such suspension for such period, provided,
further, that Investor and any of its Affiliates (other than Mesa) shall not
participate in any such consent and that any Registrable Equity
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<PAGE> 13
Securities or Registrable Debt Securities held by such parties shall not be
taken into account for the purpose of such consent.
(d) Underwritten Offering. If the Requisite Holders of
each of the Registrable Equity Securities and the Registrable Debt Securities
covered by the Initial Shelf Registration Statement and the Secondary Shelf
Registration Statement, if any, acting together, so elect, the offering of
Registrable Securities pursuant to such Shelf Registration Statements 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 applicable to
the Initial Shelf Registration Statement, Investor may provide
the Company with a Notice of Demand (with a copy to GPA); and
(ii) if at any time during the Shelf Period the Initial
Shelf Registration Statement is not effective during a
continuous period of ten (10) days for any reason (other than
under the circumstances and during the periods permitted by
the first proviso in Section 2.1(c)), each of Investor and
Fidelity may, at any time prior to the renewed effectiveness
of such Initial Shelf Registration Statement or any
replacement Shelf Registration Statement for such Initial
Shelf Registration Statement, provide the Company with a
Notice of Demand (with a copy to GPA) (which, in the case of
Investor, shall be in addition to its right to provide the
Company with a Notice of Demand pursuant to clause (i) above).
Upon receipt of a Notice of Demand, the Company shall use Commercially
Reasonable 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 notice provided under Section 2.2(d)), 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),
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<PAGE> 14
effected (A) one (1) registration of Registrable Securities with respect to a
registration requested pursuant to Section 2.2(a)(i) and (B) two (2)
registrations of Registrable Securities with respect to a registration
requested pursuant to Section 2.2(a)(ii); and (ii) in any period during which
the Company has suspended registration pursuant to the first proviso in Section
2.1(c).
(c) GPA Demand Registration. If GPA exercises its right to a
demand registration (the "GPA Demand") pursuant to Section 2.2 of the GPA
Registration Rights Agreement, then the Company shall provide Investor and each
of its Affiliates which have been designated by Investor by notice to the
Company to be given notice of the GPA Demand (pursuant to the proviso to
Section 11 or otherwise), with a copy of such demand within five (5) Business
Days of its receipt thereof, and Investor may (but shall not be obligated to)
provide the Company with a Notice of Demand pursuant to Section 2.2(a) within
twenty-one (21) days of Investor's receipt of a copy of the GPA Demand and
thereby void the GPA Demand and obligate the Company to effect a registration
of Registrable Securities pursuant to Section 2.2(a)
(d) Notice to certain non-Requesting Holders. Upon receipt
of any Notice of Demand from a Requesting Holder or any GPA Demand, the Company
will give prompt (but in any event within fifteen (15) days after such receipt)
notice to all Holders of Registrable Securities of such Notice of Demand or GPA
Demand and of such Holders' rights under this Section 2.2. Upon the request of
any such Holder made within fifteen (15) 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 Efforts to
effect the registration of all Registrable Securities which the Company has
been so requested to register pursuant to the Notice of Demand or GPA Demand.
The participation of Investor, any Fidelity Fund, Lehman or any of their
respective Affiliates or transferees, direct or indirect, in a GPA Demand
pursuant to this Section 2.2(d) shall (i) be subject to the provisions of
Section 2.3(a) and 2.3(c) hereof and (ii) with respect to Investor, or Fidelity
shall not be considered a Notice of Demand pursuant to Section 2.2(a) and shall
have no effect on such parties' right to provide the Company with a Notice of
Demand pursuant thereto.
(e) Priority in Demand Registrations. If (i) a registration
pursuant to this Section 2.2 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
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<PAGE> 15
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 each of
Investor, any Fidelity Fund, Lehman or 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; second, such Registrable Securities
requested to be included in such registration by the direct or indirect
transferees of Registrable Securities held by Investor, any Fidelity Fund,
Lehman, or 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 securities requested to be included in such registration
by GPA or any of its Affiliates, pursuant to the GPA Registration Rights
Agreement, pro rata on the basis of the amount of such securities so proposed
to be sold and so included by such parties; fourth, such securities requested
to be included in such registration by the direct or indirect transferees of
securities held by GPA or any of its Affiliates, pursuant to the GPA
Registration Rights Agreement, pro rata on the basis of the amount of such
securities so proposed to be sold and so included by such parties, and fifth,
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 parties.
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, with the exception of a registration pursuant to a GPA Demand) 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 Efforts to effect the
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<PAGE> 16
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 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 (except for any right to demand
registration which may be exercised pursuant to the last clause of subsection
(i) of the preceding sentence) 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 (other than a registration made
pursuant to a GPA Demand) 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, Lehman, 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
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<PAGE> 17
be included in such registration by the direct or indirect transferees of
Registrable Equity Securities held by Investor, Lehman, 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; fourth, such securities requested to be included in such registration
by GPA or any of its 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; fifth, such securities requested to be included in such registration
by the direct and indirect transferees of such securities held by GPA or any of
its 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; and sixth,
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.
(c) Priority in Piggyback Registrations Pursuant to a GPA
Demand. If (i) a registration pursuant to this Section 2.3 is made pursuant to
a GPA Demand and 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 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, such securities requested to be included in such registration
by GPA or any of its 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; second, such securities requested to be included in such registration
by the direct and indirect transferees of such securities held by GPA or any of
its 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 Investor, Lehman, 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; fourth, such
Registrable Equity Securities requested to be included in such registration by
the direct or indirect transferees of Registrable Equity Securities held by
Investor, Lehman, 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; and fifth, all other securities
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<PAGE> 18
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 Initial Shelf Registration Statement to be
effective, the Company shall qualify the Indenture under the Trust Indenture
Act, and shall use Commercially Reasonable 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, subject to the first proviso in Section 2.1(c) hereof and to Section
2.5(g)(vii) hereof, remains effective for the earlier of six (6) months
(subject to extension as contemplated by the last sentence of Section
2.5(h)(ii)) or the distribution of the securities covered by such registration
statement; provided, however, that if (i) after such registration statement has
been declared effective, the marketing of Registrable Securities offered
pursuant to such registration statement is materially disrupted or adversely
affected as a result of 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
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<PAGE> 19
in connection with such registration have not been satisfied (for reasons other
than a wrongful or bad faith act, omission or misrepresentation by the
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 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 fifty
percent (50)% of the reasonable out-of-pocket fees and expenses paid by the
Company hereunder or (ii) the Requesting Holder elects to terminate such
registration due to the occurrence of a Material Adverse Change; provided,
however, that during the term of this Agreement only one such withdrawal shall
be permitted pursuant to the preceding proviso.
(g) Registration Procedures. In connection with the
Company's obligations to register Registrable Securities pursuant to this
Agreement, the Company will use Commercially Reasonable Efforts to effect such
registration so as to permit the sale of any Registrable Securities included in
such registration in
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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 practicable) file
with the SEC the requisite registration statement containing all
information required thereby to effect such registration and
thereafter use Commercially Reasonable 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 seven
(7) 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
information relating to such Holder or the plan of distribution of the
Registrable Securities 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 applicable Shelf Period in the case of a
Shelf Registration Statement or six (6) 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
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
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<PAGE> 21
such amendment and supplement thereto (in each case excluding all
exhibits and documents incorporated by reference, which exhibits and
documents shall be furnished to any such Person upon request), such
number of copies of the prospectus (which in the case of Shelf
Registration Statements, shall be substantially the same prospectus
for both such Shelf Registration Statements) 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 Efforts to register or
qualify all Registrable Securities and other securities covered by
such registration statement under (A) with respect to the Shelf
Registration Statements, 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 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 Registrable Equity
Securities or 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
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<PAGE> 22
offering, dated the date of the closing under the underwriting
agreement), and
(B) unless otherwise precluded under applicable
accounting rules, 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 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 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
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<PAGE> 23
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 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; in each case subject to the applicable listing
requirements of the respective securities exchange or NASDAQ;
(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 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 Efforts to cause such order to be lifted as
promptly as practicable;
(xiii) 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
20
<PAGE> 24
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
(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 or the agreement pursuant to
which the Secondary Registrable Debt Securities are acquired on an
initial issue by any Fidelity Fund or Lehman) 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;
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(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); and
(xix) in connection with an underwritten offering, participate,
to the extent reasonably requested by the Requisite Holders of the
securities included in the offering or the managing underwriter for
the offering, in customary efforts to sell the securities under the
offering.
(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, Lehman, 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 that such reference be in a form
reasonably satisfactory to such Holder or 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) (the period from the date on which such Holder receives a
Suspension Notice to the date on which such Holder receives copies of the
supplemental or amended prospectus being herein called the "Suspension
Period"). The Company shall take such actions as are necessary to end the
Suspension Period as promptly as practicable. In the event the Company shall
give any such notice, the periods referred to in Section 2.5(c) and 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.
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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
(A) the Company and (B) to the Requisite Holders of each of the Registrable
Equity Securities and the Registrable Debt Securities included in such
offering, acting together, (provided that the Company shall not be required to
have in effect more than one underwriting agreement at any one time in
connection with the Shelf Registration Statements) and (ii) to contain such
representations and warranties by the Company and such Holders 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, Lehman 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.
(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
Sections 2.3(b) and 2.3(c), 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 Company and the Requisite Holders of each of the
Registrable Equity Securities included in such offering, 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
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underwriting agreement be conditions precedent to the obligations of such
Holders thereunder.
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 of securities provided for as described herein
(including, without limitation, under a Shelf Registration Statement or any
replacement Shelf Registration Statement), its directors, officers,
shareholders, employees, investment advisers, agents and Affiliates, either
direct or indirect (and each such Affiliate's 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, to the extent that 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
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<PAGE> 28
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 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 (in
accordance with the notice provisions contained in Section 10 for
Persons who are parties to this Agreement) with a sufficient number of
copies of the same for delivery 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. Each Holder
participating in a Shelf Registration Statement filed pursuant to Section 2.1
agrees to (and the Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Sections
2.2 or 2.3 and
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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 securities included in any such offering
regarding its agreement to) indemnify and hold harmless and reimburse (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 based upon any untrue statement or alleged untrue statement of a material
fact contained in any such Shelf Registration Statement or other registration
statement pursuant to which securities of such Holder are 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 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,
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<PAGE> 30
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 exists 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 one
additional counsel or firm of counsel for such indemnified 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 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.
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<PAGE> 31
(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, (i) as of the Initial Effective Date, the Initial
Shelf Registration Statement has been suspended or is not otherwise effective
or (ii) as of the Secondary Effective Date, the Secondary Shelf Registration
Statement has been suspended or is not otherwise effective, the Company shall
pay liquidated damages to each Holder covered or to be covered by each such
suspended or ineffective Shelf Registration Statement in an amount equal to (A)
in the case of Registrable Debt Securities, $.10 per $1,000 outstanding
principal amount of such Registrable Debt Securities and (B) in the case of
Registrable Equity Securities, $.40 per 1,000 shares (or, in the case of any
Warrant, $.40 per 1,000 shares based on the number of shares
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<PAGE> 32
issuable upon exercise of such Warrant), for each week specified in
subsection (g) below.
(b) If the suspension or ineffectiveness referred to in
clause (a) above shall not have been cured within ninety (90) days after the
Initial Effective Date or the Secondary Effective Date, as the case may be, the
daily liquidated damages set forth in clause (a) above shall increase to 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, $.65 per 1,000 shares (or in the
case of any Warrant, $.65 per 1,000 shares based on the number of shares
issuable upon exercise of the Warrant), for each week specified in subsection
(g) below.
(c) If the suspension or ineffectiveness referred to in
clause (a) above shall not have been cured within one hundred and eighty (180)
days after the Initial Effective Date or the Secondary Effective Date, as the
case may be, the daily liquidated damages set forth in clause (a) above shall
increase to 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, $.90 per
1,000 shares (or in the case of any Warrant, $.90 per 1,000 shares based on the
number of shares issuable upon exercise of the Warrant), for each week
specified in subsection (g) below.
(d) If a stop order is imposed or if for any other reason the
effectiveness of a Shelf Registration Statement is suspended during the Shelf
Period applicable to such Shelf Registration Statement, the Company shall pay
liquidated damages to each Holder covered or to be covered by such Shelf
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, $.40 per 1,000 shares (or in the case of any Warrant, $.40 per
1,000 shares 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
a 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 such Shelf Registration Statement was otherwise suspended, the
daily liquidated damages set forth in clause (d) above shall increase to 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, $.65 per 1,000 shares (or in the
case of any Warrant, $.65 per 1,000 shares based on the number of
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<PAGE> 33
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
a 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 such Shelf Registration Statement was otherwise
suspended, the daily liquidated damages set forth in clause (d) above shall
increase to 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, $.90 per
1,000 shares (or in the case of any Warrant, $.90 per 1,000 shares 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 on the earlier of the
date after the SEC reinstates the effectiveness of the relevant Shelf
Registration Statement or otherwise declares such 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. 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 in immediately available funds by
wire transfer to each Holder of at least ten percent (10%) of Registrable
Equity Securities (but not less than an aggregate of 2,000,000 shares of Class
A Common, Class B Common and shares issuable upon exercise of Warrants) or at
least ten percent (10%) of the aggregate principal amount of Registrable Debt
Securities (but not less than $10 Million of aggregate principal amount of
Registrable Debt Securities) entitled to receive such liquidated damages to the
accounts designated by such Holders, and all other Holders entitled to receive
such funds, shall be paid by check mailed to such other Holders at the address
shown in the records of the Company for such Holders; provided that for
purposes of this Section 2.9(g), all Fidelity Funds shall be considered a
single Holder.
(h) Notwithstanding any of the provisions of this Section
2.9, no liquidated damages shall be payable (i) during any period of time that
(A) a Shelf Registration Statement or any replacement Shelf Registration
Statement is suspended by the Company pursuant to the first proviso in Section
2.1(c), or (B) the Company is precluded from using or qualifying a Shelf
Registration Statement as a result of a change to the rules or regulations of
the SEC applicable thereto with which the Company is unable to comply after
exercising Commercially Reasonable
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<PAGE> 34
Efforts to so comply; and (ii) to any party, if, as a result of such party's
acts or omissions, the Company is precluded from using or qualifying a Shelf
Registration Statement.
(i) 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 a
Shelf Registration Statement by reason of the failure of such Shelf
Registration Statement 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, Lehman and/or any Fidelity Fund may reasonably
request, all to the extent required from time to time to enable Investor,
Lehman 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, Lehman
and/or any Fidelity Fund, the Company will deliver to Investor, Lehman 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,
Lehman and/or such Fidelity Fund, deliver to Investor, Lehman 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 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,
Lehman 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).
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<PAGE> 35
4. Term. This Agreement shall enter into force on the date
hereof and shall continue in full force and effect, subject to Section 18
hereof, until the eighth (8th) anniversary of the date hereof.
5. Amendments and Waivers. This Agreement may be amended,
supplemented or modified at any time; provided that each of (i) the Requisite
Holders of each of the Registrable Equity Securities and the Registrable Debt
Securities then outstanding and (ii) the Company has provided its written
consent to such amendment, supplement or modification; provided, however, that
no such amendment, supplement or modification which would prejudice the rights
expressly granted to Fidelity or any Fidelity Fund as a named party hereto
shall be effective without the written consent of Fidelity or such Fidelity
Fund, as the case may be; and provided further, that no such amendment,
supplement or modification which would prejudice the rights expressly granted
to Lehman as a named party hereto shall be effective without the written
consent of Lehman. 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, Lehman, any Fidelity Fund, (ii) any
transferee, direct or indirect, of any of the Registrable Securities held by
Investor, Lehman, any Fidelity Fund or any of their respective Affiliates, or
(iii) any other Person entitled to notice of the registration of Registrable
Securities under Sections 2.2(d) 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
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<PAGE> 36
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.
10. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
(i) delivered personally, (ii) by facsimile transmission, (iii) by Federal
Express or other nationally recognized courier service or (iv) 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, Esq.
Fax No.: (602) 693-5904
with a copy to:
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: David G. Elkins, Esq.
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<PAGE> 37
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
and to:
Mesa Airlines, Inc.
2325 30th Street
Farmington, New Mexico 87401
Attention: Gary E. Risley, Esq.
with a copy to:
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske, Esq.
Fax No: (216) 586-7864
If to Lehman, to:
Lehman Brothers Inc.
Three World Financial Center
New York, NY 10285
Attention: John K. Sweeney
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10023
Attention: John R. Cannell, Esq.
Fax No: (212) 455-2502
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
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<PAGE> 38
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 C. Hodges Taylor, P.C.
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 provided to the Company and the other parties hereto by notice
as herein provided and referencing this Agreement. 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 courier service or
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 each of the other
parties executing this Agreement.
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) and permitted assigns. In addition, each of Investor,
Lehman, any Fidelity Fund, and each of their respective Affiliates may assign
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,
provided, however, that any such assignment by Investor to one or more of its
Affiliates which results in the liquidation of its entire interest in the
Registrable Securities, either upon dissolution or otherwise, shall include a
designation of the transferee Affiliate or Affiliates who shall thereafter have
the right and authority to
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<PAGE> 39
exercise any notice or consent rights on the part of Investor set forth in this
Agreement, and each other holder of Registrable Securities by means of an
assignment by Investor shall be bound by the actions taken by such designated
Affiliate(s), and provided further that any assignee which accepts the benefits
of this Agreement shall be deemed to have accepted and be bound by all
obligations on the part of the assignor hereunder. No such assignment shall be
binding upon or obligate the Company to any such assignee unless and until (A)
the Company shall have received notice of such assignment as herein provided,
which notice shall (i) reference this Agreement and (ii) set forth the name and
address of any assignee for the purpose of any notices hereunder or (B) such
assignee can establish its beneficial or record ownership of any Registrable
Securities and shall have provided the Company with the information called
for by clause (A)(ii) of this Section 11.
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; and (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.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
15. Registration Rights to Others. Except for registration
rights granted by the Company to GPA under that certain Registration Rights
Agreement of even date herewith (the "GPA Registration Rights Agreement"), 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 the Requisite Holders of each of the Registrable
Equity Securities and the Registrable Debt Securities then outstanding, which
consent shall not be unreasonably withheld; provided, however, that the
foregoing restriction shall not be applicable (i) to the grant by the Company
of "piggyback" registration rights which are subordinate in priority to the
rights of Holders of Registrable Securities pursuant to Sections 2.2(d) and
2.3(b), and (ii) to any grant of
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<PAGE> 40
any demand registration rights by the Company after exercise or termination of
all demand registration rights set forth in Section 2.2, provided, however,
that in regard to any such grant of demand registration rights each of Investor,
each Fidelity Fund, Lehman and each of their respective Affiliates shall have
the right during the term of this Agreement to subscribe to or otherwise
participate in such rights on equal terms, and on a pro rata basis, with the
parties granted such rights. 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, Lehman 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 hereof, the rights of any party hereto with respect
to the breach of any provision hereof, and any obligation accrued as of the
date of termination (including any obligation accrued under Section 2.9 hereof)
shall survive termination of this Agreement.
19. No Inconsistent Agreements. The Company will not
hereafter enter into, modify, amend or waive any agreement with respect to its
securities if such agreement, modification, amendment or waiver would conflict
with the rights granted pursuant to this Agreement to the Holders of
Registrable Securities. Without limiting the generality of the foregoing and
subject to Section 18 hereof, the Company will not amend, modify or waive, or
permit the amendment, modification or waiver of Sections 2.1, 2.2 or 2.3 of the
GPA Registration Rights Agreement without the prior written consent of the
Requisite Holders of
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<PAGE> 41
each of the Registrable Equity Securities and the Registrable Debt Securities
then outstanding, provided, however, that Investor and any of its Affiliates
(other than Mesa) shall not participate in any such consent and that any
Registrable Equity Securities or Registrable Debt Securities held by such
parties shall not be taken into account for the purpose of such consent.
20. Requisite Holders. Each of the parties hereto agrees
that the Company may, in connection with the taking of any action permitted to
be taken hereunder with the consent or approval of the Requisite Holders of the
Registrable Equity Securities or Registrable Debt Securities, rely in good
faith on a certificate from any such holder or holders stating that it holds or
is acting on behalf of a majority in interest of the Registrable Equity
Securities or a majority in principal amount of the Registrable Debt
Securities, as the case may be.
21. 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.
22. Repurchase Arrangement. Notwithstanding anything
contained in this Agreement to the contrary, the parties hereto agree and
acknowledge that all rights of Fidelity Copernicus Fund, L.P. ("Copernicus")
under this Agreement in respect of Registrable Debt Securities held by
Copernicus shall inure to the benefit of and be enforceable by Copernicus,
Lehman Government Securities Inc. or any other transferee (including any
counterparty) of such Registrable Debt Securities, in each case as contemplated
by the repurchase arrangement described under "Plan of Distribution" as set
forth in the Company's S-1 Registration Statement filed with the SEC on June
26, 1994, as amended, provided that the Company shall have no obligations under
this Agreement with respect to any such Person other than Copernicus unless and
until it shall have been provided the notice of assignment or information
regarding ownership as set forth in Section 11 of this Agreement.
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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:_________________________
Name:
Title:
LEHMAN BROTHERS INC.
By:_________________________
Name:
Title:
<PAGE> 43
BELMONT CAPITAL PARTNERS II, L.P.
By:_________________________
By:_________________________
Name:
Title:
BELMONT FUND, L.P.
By:_________________________
By:_________________________
Name:
Title:
FIDELITY COPERNICUS FUND, L.P.
By:_________________________
By:_________________________
Name:
Title:
<PAGE> 1
Exhibit 4.7
==============================================================================
REGISTRATION RIGHTS AGREEMENT
BETWEEN
AMERICA WEST AIRLINES, INC.,
AND
GPA GROUP PLC
DATED AS OF AUGUST 25, 1994
=============================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C> <C> <C>
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Registration under the Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1. Shelf Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3. Piggyback Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.4. Registration Terms and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.5. Underwritten Offerings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.6. Preparation; Reasonable Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3. Rule 144 and Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7. No Third-Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8. Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11. Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
12. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
13. Registration Rights to Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
14. Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
15. Termination of Certain Rights and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
16. No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
17. Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
18. Requisite Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
19. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
</TABLE>
<PAGE> 3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 25, 1994
between 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"), and GPA Group plc, an Irish public limited company ("GPA").
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, 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"), the Company will issue to GPA
and its respective Affiliates (as defined herein) (i) 900,000 shares of Class B
Common Stock of the Company and (ii) 1,384,615 Warrants to purchase Class B
Common Stock of the Company (collectively, the "GPA Securities");
WHEREAS, as a condition to GPA's participation in the
transactions contemplated by the Plan of Reorganization, the Company has filed
with the SEC (as hereinafter defined) a shelf registration statement that
includes the GPA Securities and is undertaking to have such shelf registration
statement declared effective;
WHEREAS, by Order dated August 10, 1994, the Bankruptcy Court
confirmed the Plan of Reorganization; and
WHEREAS, the Plan of Reorganization contemplates that the
Company and GPA will enter into certain agreements, including, without
limitation, this Registration Rights Agreement;
NOW THEREFORE, the parties hereby agree as follows:
1. Definitions. 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):
"Affiliate" means (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 profite interests of such or greater direct or
indirect equity interest and (ii) when used with regerence 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 regerence to any Person,
shall also mean any other Person that, directly or indirectly, controls
or is contrilled 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
<PAGE> 4
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 GPA or any of its Affiliates
and each of AmWest GenPar, Inc., Continental Airlines, Inc., Mesa Airlines,
Inc., TPG Partners, L.P., TPG Parallel I, L.P. and Air Partners II, L.P. shall
be deemed to be an Affiliate of AmWest.
"Agreement" means this Registration Rights Agreement, as the
same shall be amended, modified or supplemented from time to time.
"AmWest" means AmWest Partners, L.P., a Texas limited
partnership or, if applicable, any partner, Affiliate, direct or indirect
subsidiary or any Successor thereof.
"AmWest Registration Rights Agreement" means the Registration
Rights Agreement of even date herewith among the Company, AmWest and the other
holders named therein, as amended from time to time in accordance with the
provisions thereof and hereof.
"Chapter 11 Case" has the meaning ascribed to it in the
preamble.
"Class B Common" means the class B Common Stock, par value
$.01 per share, of the Company.
"Commercially Reasonable Efforts", when used with respect to
any obligation to be performed or term or provision to be observed hereunder,
means such efforts as a prudent Person seeking the benefits of such performance
or action would make, use, apply or exercise to preserve, protect or advance
its rights or interests, provided, that such efforts do not require such Person
to incur a material financial cost or a substantial risk of material liability
unless such cost or liability (i) would customarily be incurred in the course
of performance or observance of the relevant obligation, term or provision,
(ii) is caused by or results from the wrongful act or negligence of the Person
whose performance or observance is required hereunder or (iii) is not excessive
or unreasonable in view of the rights or interests to be preserved, protected
or advanced. Such efforts may include, without limitation, the expenditure of
such funds and retention by such Person of such accountants, attorneys or other
experts or advisors as may be necessary or appropriate to effect the relevant
action; the undertaking of any special audit or internal investigation that may
be necessary or appropriate to effect the relevant action; and the
commencement, termination or settlement of any action, suit or proceeding
involving such Person to the extent necessary or appropriate to effect the
relevant action.
"Demand Registration" means any registration of Registrable
Securities under the Securities Act effected in accordance with Section 2.2.
"Effective Date" means the date upon which the Restated
Certificate of Incorporation becomes effective in accordance with the Plan of
Reorganization and the General Corporation Law of the State of Delaware.
"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" and "Fidelity Fund" shall have the meanings given
such terms in the AmWest Registration Rights Agreement.
2
<PAGE> 5
"Holders" means the holders of record of Registrable
Securities, or, in the case of references to holders of securities of the
Company other than Registrable Securities, the record holders of such
securities.
"Indemnified Party" has the meaning ascribed to it in Section
2.7(a).
"Loss" has the meaning ascribed to it in Section 2.7(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 materially affects 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 15% 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.
"Notice of Demand" means a request by GPA 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 securities included in such
registration pursuant to Section 2.2(d). 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 securities by the Company pursuant to this Agreement, GPA and
any other Holders that are entitled to participate in, and are participating in
or seeking to participate in, such registration.
"Person" means a natural person, a corporation, a partnership,
a trust, a joint venture, any regulatory authority or any other entity or
organization.
"Piggyback Registration" means any registration of Registrable
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 Equity Securities" shall have the meaning given
such term in the AmWest Registration Rights Agreement.
"Registrable Securities" means the equity securities acquired
by GPA or any of its Affiliates pursuant to the Plan of Reorganization or
subsequently acquired by any transferee (direct or indirect) of such Person,
including, without limitation, (a) any shares of 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 a Warrant and (d) any securities
issued or issuable with respect to any such Class B Common or Warrants by way
of stock dividend or stock split or in connection with a
3
<PAGE> 6
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular Registrable Securities, once
issued such securities shall cease to be Registrable Securities when (i) 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, (ii) such securities shall have been distributed in
accordance with Rule 144, (iii) the Company has caused to be delivered an
opinion of counsel in accordance with Section 2.2(b) that such securities are
distributable (without volume limitation) 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 securities shall not require registration or qualification under the
Securities Act or any similar state law then in force.
"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 of all jurisdictions in which the securities
are to be registered 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 all such
jurisdictions, (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 reasonable fees and disbursements
incurred by the Holders of the Registrable Securities being registered
(including, without limitation, the reasonable fees and disbursements for one
counsel or firm of counsel selected by the Requisite Holders of Registrable
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.
"Requisite Holders" means any Holder or Holders of a majority
in interest of the securities to be included in the relevant registration [or,
in the case of a registration pursuant to Section 2.2(a) hereof, a majority in
interest of Registrable Securities.]
"Restated Certificate of Incorporation" means the restated
Certificate of Incorporation adopted by the Company pursuant to the Plan of
Reorganization in accordance with Section 303 of the General Corporation Law of
the State of Delaware.
"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.
4
<PAGE> 7
"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(a).
"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
2.4(h).
"Suspension Period" has the meaning ascribed to it in Section
2.4(h).
"Warrant" means a Warrant to Purchase Class B Common Stock of
America West Airlines, Inc. issued pursuant to the Warrant Agreement dated as
of even date herewith between the Company and First Interstate Bank of
California, as Warrant Agent, and any warrant issued in substitution or
exchange therefor.
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 effectiveness of the shelf registration statement
covering all of the Registrable Securities (the "Shelf Registration Statement")
has been suspended or the Shelf Registration Statement is otherwise not
effective or (ii) the securities covered under the Shelf Registration Statement
shall not qualify under all blue sky or other securities laws, the Company
shall use Commercially Reasonable Efforts to cause such Shelf Registration
Statement to be 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 is effective pursuant to
Section 2.1(a), the Company shall use Commercially Reasonable 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 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 on any one occasion, and not in any event to
exceed sixty (60) days in the aggregate) suspend use of the Shelf Registration
Statement at any time if the continued effectiveness thereof would require the
Company to disclose a material financing, acquisition or other corporate
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
5
<PAGE> 8
2Statement during any period in accordance with the provisions of Section
2.1(b)(y) of the AmWest Registration Rights Agreement.
(c) Underwritten Offering. If GPA so elects, 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 it shall 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
subsections (b) and (c) below,
(i) at any time after the Shelf Period, GPA may
(so long as it or any of its Affiliates holds Registrable
Securities to be included in the registration) provide the
Company with a Notice of Demand (with a copy to AmWest); and
(ii) if at any time during the Shelf Period the
Shelf Registration Statement is not effective during a
continuous period of 10 days for any reason (other than under
the circumstances and during the periods permitted by the
proviso to Section 2.1(b)), GPA may, at any time prior to
renewed effectiveness of such Shelf Registration Statement,
provide the Company with a Notice of Demand (which shall be in
addition to its right to provide the Company with a Notice of
Demand (with a copy to AmWest) pursuant to clause (i) above).
Upon receipt of a Notice of Demand, the Company shall, subject to the
provisions of Sections 2.2(b) and 2.2(c), use Commercially Reasonable 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 pursuant to the Notice of Demand, for disposition in
accordance with the intended method or methods of disposition specified in the
Notice of Demand.
(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 2.4(c), effected (A) one (1) registration of Registrable
Securities with respect to a registration requested pursuant to Section
2.2(a)(i) or (B) one (1) registration of Registrable Securities with respect to
a registration requested pursuant to Section 2.2(a)(ii); (ii) during any period
in which the Company would be permitted to suspend registration pursuant to the
proviso in Section 2.1(b); (iii) during any period if the Company and GPA agree
in writing to suspend such registration for such period; or (iv) if (A) within
fourteen (14) days after the giving of a Notice of Demand, the Company causes
6
<PAGE> 9
to be delivered to GPA, in exchange for all of GPA's Registrable Securities, new
certificates therefor duly issued and not bearing any legend restricting
further transfer.
(c) AmWest Demand Registration Rights. If the Company
is unable to furnish the opinion of counsel pursuant to Section 2.1(b)(iv) and
if within twenty-one (21) days after AmWest's receipt of a Notice of Demand by
GPA, AmWest (or any successor or other holder of such right) exercises its
right to a demand registration pursuant to Section 2.2(a) of the AmWest
Registration Rights Agreement, then GPA's Notice of Demand shall be deemed
revoked; provided, however that GPA shall have the right to request that the
Company include Registrable Securities held by GPA in the demand registration
requested by AmWest in accordance with and subject to Section 2.3 hereof and
Section 2.2 of the AmWest Registration Rights Agreement. If a Notice of Demand
made by GPA is deemed revoked pursuant to this Section 2.2(c), the Company
shall continue to be obligated to effect a registration requested by GPA
pursuant to Section 2.2(a).
(d) Notice to certain non-Requesting Holders. Upon
receipt of any Notice of Demand from GPA, the Company will give prompt (but in
any event within fifteen (15) days after such receipt) notice to all Holders of
Registrable Securities and all other Holders of securities entitled to
participate in such registration including holders of Registrable Equity
Securities under the AmWest Registration Rights Agreement, of such Notice of
Demand and of such Holders' rights to have securities included in such
registration (subject to priorities in registration rights set forth in this
Agreement and the AmWest Registration Rights Agreement). Upon the request of
any such Holder made within fifteen (15) days after the receipt by such Holder
of any such notice (which request shall specify the securities intended to be
disposed of by such Holder and the intended method or methods of disposition
thereof), the Company will (subject to any priorities in registration rights
among the various Holders) use Commercially Reasonable Efforts to effect the
registration of all securities which the Company has been so requested to
register pursuant to the Notice of Demand.
(e) Priority in Demand Registrations. If (i) a
registration pursuant to this Section 2.2 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 GPA 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 GPA, 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 GPA and its 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; second, such Registrable Securities requested to be included in such
registration by all other Holders of Registrable Securities pro rata on the
basis of the amounts of such securities to be sold and so proposed to be sold
and so requested to be included by such Holders; third such Registrable Equity
Securities requested to be included in such registration by AmWest, Fidelity,
Lehman Brothers Inc. ("Lehman") or any of their respective Affiliates
under the AmWest Registration Rights Agreement 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 fourth, such Registrable Equity Securities
requested to be included in such registration by other Holders of Registrable
Equity Securities under the AmWest Registration Rights Agreement pro rata on
the basis of the amounts of such securities so proposed to be sold and so
requested to be included by such parties, and fifth, such other securities of
the Company whose
7
<PAGE> 10
holders have registration rights which would permit inclusion in such offering
and which are 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 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 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 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 Efforts to effect the registration under the
Securities Act of all Registrable 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 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 Registrable 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 GPA 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 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 (except for any right to demand registration which may be exercised
pursuant to the last clause of subsection (i) of the preceding sentence) or
shall relieve the Company of its obligation to effect any registration under
such Sections.
(b) Priority in Primary Piggyback Registrations. If (i)
a registration pursuant to this Section 2.3 involves an underwritten offering
of the securities being registered 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 AmWest, Lehman, or any Fidelity Fund or any of their
respective Affiliates under the
8
<PAGE> 11
AmWest Registration Rights Agreement 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 other holders of such securities under the AmWest
Registration Rights Agreement 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; fourth, such Registrable Securities requested to be included in such
registration by GPA or any of its 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; fifth 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; and sixth, 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.
(c) Priority in Secondary Piggyback Registrations. If
(i) a registration pursuant to this Section 2.3 involves an underwritten
secondary offering of the securities being registered for sale for the account
of AmWest, Fidelity or any of their respective Affiliates or transferees
pursuant to the AmWest Registration Rights Agreement, 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 Persons 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 such Persons, 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
securities proposed to be sold for the account of AmWest, Lehman, any Fidelity
Fund or any of their respective Affiliates under the AmWest Registration Rights
Agreement 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; second, such
Registrable Equity Securities requested to be included in such registration by
other holders of such securities under the AmWest Registration Rights Agreement
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
Securities requested to be included in such registration by GPA or any of its
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; fourth, 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, and fifth,
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. 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 GPA (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).
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(b) Registration Expenses. Subject to Section 2.4(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, subject to the proviso in Section 2.1(b) and to Section 2.5(g)(vii)
hereof, remains effective for the earlier of six (6) months or the distribution
of the securities covered by such registration statement; provided, however,
that if (i) after such registration statement has been declared effective, the
marketing of Registrable Securities offered pursuant to such registration
statement is materially disrupted or adversely affected as a result of 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 GPA 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 GPA 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, GPA so elects, the offering of
Registrable Securities pursuant to such Section shall be in the form of an
underwritten offering. If GPA 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 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 2.4(c) unless (i) GPA and any Participating
Holders shall have paid or reimbursed the Company for fifty percent (50)% of
the reasonable out-of-pocket fees and expenses paid by the Company hereunder or
(ii) GPA elects to terminate such registration due to the occurrence of a
Material Adverse Change; provided, however, that during the term of this
Agreement only one such withdrawal shall be permitted pursuant to the preceding
proviso.
(g) Registration Procedures. In connection with the
Company's obligations to register Registrable Securities pursuant to this
Agreement, the Company will use Commercially Reasonable Efforts to effect such
registration so as to permit the sale of any Registrable Securities
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<PAGE> 13
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 practicable) file
with the SEC the requisite registration statement containing all
information required thereby to effect such registration and
thereafter use Commercially Reasonable 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 seven
(7) 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
information relating to such Holder or the plan of distribution of the
Registrable Securities 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 six (6) 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
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 excluding all exhibits and documents
incorporated by reference, which exhibits and documents shall be
furnished to any such Person upon request), 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 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
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<PAGE> 14
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 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 Registrable 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) unless otherwise precluded under applicable
accounting rules, 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 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
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<PAGE> 15
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 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 Efforts to (A) list, on
or prior to the effective date of such registration statement, all
Registrable Securities covered by such registration statement on any
securities exchange on which any of the Registrable 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 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 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 Efforts to cause such order to be lifted as
promptly as practicable;
(xiii) 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;
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(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
(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) 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); and
(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.
(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
GPA or any of its Affiliates by name or otherwise as the holder of any
securities of the Company, then such Holder shall have the right to require
that such reference be in a form reasonably satisfactory to such Holder or in
the event that
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<PAGE> 17
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) (the period from the date on which such Holder receives a
Suspension Notice to the date on which such Holder receives copies of the
supplemented or amended prospectus being herein called the "Suspension Period").
The Company shall take such actions as are necessary to end the Suspension
Period as promptly as practicable. In the event the Company shall give any
such notice, the periods referred to in Section 2.5(c) and 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.
2.5. 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 GPA (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 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 2.7. GPA (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.
(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
Sections 2.3(b) and (c), arrange for such underwriters to include all of the
Registrable Securities to be offered and sold by such Holder or Holders among
the securities to be distributed by such underwriters. The Holders of
Registrable 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 Company and the Requisite Holders, and the Requisite Holders 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 prece-
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<PAGE> 18
dent to the obligations of such underwriters under such underwriting agreement
be conditions precedent to the obligations of such Holders thereunder.
2.6. 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 underwriter s' or agents'
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
2.7. 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 provided for as described herein
(including, without limitation, under the Shelf Registration Statement or any
replacement Shelf Registration Statement), its directors, officers,
shareholders, employees, investment advisers, agents and Affiliates, either
direct or indirect (and each such Affiliate's 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, to the extent that 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 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
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<PAGE> 19
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 (in accordance with the notice provisions contained
in Section 10 for Persons who are parties to this Agreement) with a
sufficient number of copies of the same for delivery 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. (i) The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Sections 2.1, 2.2 or 2.3 and as a
condition to indemnifying such sellers pursuant to this Section 2.7, that the
Company shall have received an undertaking reasonably satisfactory to it from
each prospective seller of such securities, and (ii) each Holder participating
in the Shelf Registration Statement or any replacement Shelf Registration
Statement agrees, to indemnify and hold harmless and reimburse (in the same
manner and to the same extent as set forth in paragraph (a) of this Section
2.7) 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 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 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 2.7(b) shall
be several, and not joint and several, among such indemnifying parties.
Notwithstanding anything in this Section 2.7(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
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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 2.7, 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 2.7, 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 exists 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
one additional counsel or firm of counsel for such indemnified 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 any Losses for any settlement made
without its consent, which consent shall not be unreasonably withheld.
(d) Other Indemnification. The provisions of this
Section 2.7 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 2.7 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
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this Section 2.7, 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 2.7(f) to the contrary, no indemnifying party (other than the
Company) shall be required pursuant to this Section 2.7(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.
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 GPA may reasonably request, all to the extent
required from time to time to enable GPA 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 GPA, the Company
will deliver to GPA a written statement as to whether it has complied with such
requirements and will, at its expense, forthwith upon the request of GPA,
deliver to GPA 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 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 GPA, (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 be effective on the date
hereof and, subject to Section 15 hereof, shall continue in full force and
effect until the eighth (8th) anniversary of the date hereof.
5. Amendments and Waivers. This Agreement may be
amended, supplemented or modified at any time; provided that each of (i) GPA
(so long as GPA or its Affiliates hold
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<PAGE> 22
Registrable Securities), (ii) the Holders (which may include GPA) of at least
fifty-one percent (51%) in interest of Registrable Securities, 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 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 and their
respective Successors 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 GPA, (ii) any Holder [of Registrable Securities] entitled to
notice of the registration of securities under this Agreement and (iii) any
Participating Holder entitled to indemnity under Section 2.7.
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. Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to have been
duly given only (i) if delivered personally (ii) by facsimile transmission,
(iii) by Federal Express or other nationally recognized courier service or (iv)
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
With a copy to:
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
20
<PAGE> 23
600 Travis
Houston, Texas 77002
Attention: David G. Elkins
If to AmWest, 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 GPA, to:
GPA Group plc
GPA House
Shannon, County Clare
Ireland
Telecopier: 011-353-61-360503
Attention: Patrick H. Blaney and
Corporate Secretary
With a copy to:
Paul, Hastings, Janofsky & Walker
399 Park Avenue
New York, New York 10022
Telecopier: (212) 319-4090
Attention: Marguerite R. Kahn
With respect to any other Holder of Registrable Securities or
other holder of securities entitled to receive notice, requests or other
communications hereunder, such notices, requests and other communications shall
be sent to the addresses and facsimile numbers provided to the Company and the
other parties hereto by notice as herein provided and referencing this
Agreement. 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 9, be deemed given upon receipt,
and (iii) if delivered by courier service or mail in the manner described above
to the address as provided in this Section 9, 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 9). 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 9 specifying such
change to each of the other parties executing this Agreement.
10. Assignment. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties, the Holders of
Registrable Securities and their respective
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<PAGE> 24
Successors (including, in the case of the Company, the Company as reorganized
pursuant to the Plan of Reorganization) and permitted assigns. GPA may assign
(by written instruments in form reasonably acceptable to the parties) any of
its rights hereunder (in whole or in part) to one or more Affiliates, but
otherwise may not assign any of its rights hereunder to any Person, provided,
however, that each transferee of Registrable Securities shall be entitled
(subject to priorities in registration rights) to participate in an
underwritten offering of securities being registered pursuant to Sections
2.2(d) and 2.3 hereof and, with respect to any such participation, to have all
of the rights of a Holder of Registrable Securities provided in this Agreement.
11. 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.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
13. Registration Rights to Others. As of the date
hereof, the Company has not granted to any other holder of its securities
rights with respect to the registration of securities of the Company under the
Securities Act other than rights granted pursuant to the AmWest Registration
Rights Agreement.
14. 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.
15. Termination of Certain Rights and Obligations. The
rights and obligations hereunder of GPA shall terminate with respect to GPA at
such time as neither GPA nor any of its Affiliates holds Registrable
Securities, provided that the provisions of Section 2.7, the rights of any
party hereto with respect to the breach of any provision hereof and any
obligation accrued as of the date of termination shall survive termination of
this Agreement.
16. No Inconsistent Agreements. The Company will not
hereafter enter into, modify, amend or waive any agreement with respect to its
securities if such agreement, modification or waiver would conflict with the
rights granted pursuant to this Agreement to the Holders of Registrable
Securities. Specifically, and subject to Section 15 hereof, the Company (i)
will not amend, or modify or permit the amendment or modification of provisions
contained in Sections 2.2 or 2.3 of the AmWest Registration Rights Agreement
and dealing with priority of participation in registrations without the prior
written consent of GPA, and (ii) the Company will give prompt notice to GPA of
any demand registration rights hereafter granted by the Company to any Person
during the term of this Agreement.
17. Specific Performance. 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
22
<PAGE> 25
remedy and (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.
18. Requisite Holders. Each of the parties hereto agrees that the
Company may, in connection with the taking of any action permitted to be taken
hereunder with the consent or approval of the Requisite Holders of the
securities to be included in the relevant registration, rely in good faith on a
certificate from such holder or holders stating that it holds or is acting on
behalf of a majority in interest of such securities.
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.
IN WITNESS WHEROF, 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: _____________________
GPA GROUP plc
By: ___________________________
Name: _____________________
Title: ____________________
23
<PAGE> 1
EXHIBIT 10.12
CODE SHARING AGREEMENT
This Agreement is made this 29th day of June, 1994, by and between
CONTINENTAL AIRLINES, INC. ("CAL"), a Delaware corporation, and AMERICA WEST
AIRLINES, INC. ("AWA"), Debtor and Debtor-in-Possession, a Delaware corporation.
RECITALS
CAL and AWA are each certificated air carriers providing air transportation
services in their respective areas of operation.
CAL and AWA desire to cooperate in the coordination of schedules by
allowing AWA to market its flight operations under the CO* designator and CAL to
market its flight operations under the HP* designator.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein contained, CAL and AWA hereby agree as follows:
1. Schedules to be Operated. It is the intent of the parties to share
their two letter designator codes, "CO*" in the case of CAL and "HP*" in the
case of AWA. CAL operated Shared Code Segments (as herein defined) will be
marketed under not only CAL's "CO" designator code but also under AWA's "HP*"
designator code, and AWA operated Shared Code Segments will be marketed under
not only AWA's "HP" designator code, but also under CAL's "CO*" designator code.
Schedule 1 hereto sets forth the flight segments where shared code segments
("Shared Code Segments") will operate at the commencement of this Agreement and
some of the Shared Code Segments that will be operated in the future; however,
it is the intent of the carriers to designate, to the maximum extent permitted
by law, all flights operated by either as Share Code Segments during the term of
this Agreement. The carriers shall meet together every six months that this
Agreement is in effect to discuss the appropriateness of expanding or
contracting the list of city pairs on Schedule 1.
2. Code Sharing Licenses.
(a) CO* License.
(i) Grant of License. Subject to the terms and conditions of this
Agreement, CAL hereby grants to AWA a nonexclusive, nontransferable,
revocable license to use the CO* designator code on all of its flights
operated as a Shared Code Segments. (AWA flights flown using the CO*
code are hereinafter referred to as "CO* Flights").
(ii) Control of CO* Flights. AWA shall have sole responsibility
for and control over, and CAL shall have no responsibility for, control
over or obligations or duties with respect to, each and every aspect of
AWA's operations including, without limitation, scheduling (except as
provided in Section 12 hereto), pricing (except as provided in Section
13 hereto), planning of flight itineraries and routings, reservations,
reservations control/yield management, dispatch, fueling, weight and
balance, flight release, maintenance, and flight operations and
compliance with applicable rules and regulations.
(b) HP* License.
(i) Grant of License. Subject to the terms and conditions of this
Agreement, AWA hereby grants to CAL a nonexclusive, nontransferable,
revocable license to use the HP* designator code on all of its flights
operated as a Shared Code Segment. (CAL flights flown using the HP* code
are hereinafter referred to as "HP* Flights").
(ii) Control of HP* Flights. CAL shall have sole responsibility
for and control over, and AWA shall have no responsibility for, control
over or obligations or duties with respect to, each and every aspect of
CAL's operations including, without limitation, scheduling (except as
provided in
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<PAGE> 2
Section 12 hereto), pricing (except as provided in Section 13 hereto),
planning of flight itineraries and routings, reservations,
reservations control/yield management, dispatch, fueling, weight and
balance, flight release, maintenance, and flight operations and
compliance with applicable rules and regulations.
3. Confidential Information. Neither AWA nor CAL shall disclose to the
other carrier or be required to disclose by the other carrier any information
relating to its scheduling (except as provided in Section 12 hereto), pricing,
inventory control or flight profitability. Neither AWA nor CAL shall disclose
the terms of this Agreement or any proprietary information with respect to the
other obtained as a result of this Agreement, either during the term hereof or
thereafter except as may be required by law or by any order of a court or
administrative agency, and then on ten days' notice to the other. The parties
hereto recognize that, in the course of the performance of each of the
provisions hereof, each carrier may be given and may have access to confidential
and proprietary information of the other carrier, including proposed schedule
and fare changes, statistical data regarding loads and fares, sales and
promotional programs and other operating and competitive information
("Confidential Information"). Each carrier shall preserve, and shall ensure that
each of its officers, agents, consultants and employees who receive Confidential
Information preserve, the confidentiality of the other carrier's Confidential
Information.
4. Quality of Service. Each carrier shall perform its service with respect
to its flights operated under the designation of the other carrier in a timely,
expert and quality manner. Each carrier agrees that, in conducting flight
operations under the designator of the other carrier, it will employ prudent
safety and loss prevention policies.
5. Audit.
(a) CAL Audit. CAL shall have the right, at its own cost, to inspect,
review, and observe AWA's operations of CO* Flights, and/or to conduct a
full safety and/or service audit of AWA's operations, manuals and
procedures reasonably related to CO* Flights, at such intervals as CAL
shall reasonably request. In the exercise of such right, CAL does not
undertake any responsibility for the performance of AWA's operations. CAL
shall coordinate its safety and service audits with AWA so as to avoid
disruptions of AWA's operations. Any safety audit may include, without
limitation, maintenance and operation procedures, crew planning,
reservations, passenger and baggage handling, customer service, personnel
records, spare parts, inventory records, training records and manuals,
flight, flight training and operational personnel records. This paragraph
shall not entitle CAL access to AWA's records, documents or systems
relating to its pricing, inventory control or flight profitability.
(b) AWA Audit. AWA shall have the right, at its own cost, to inspect,
review, and observe CAL's operations of HP* Flights, and/or to conduct a
full safety and/or service audit of CAL's operations, manuals and
procedures reasonably related to HP* Flights, at such intervals as AWA
shall reasonably request. In the exercise of such right, AWA does not
undertake any responsibility for the performance of CAL's operations. AWA
shall coordinate its safety and service audits with CAL so as to avoid
disruptions of CAL's operations. Any safety audit may include, without
limitation, maintenance and operation procedures, crew planning,
reservations, passenger and baggage handling, customer service, personnel
records, spare parts, inventory records, training records and manuals,
flight, flight training and operational personnel records. This paragraph
shall not entitle AWA access to CAL's records, documents or systems
relating to its pricing, inventory control or flight profitability.
6. Public Relations. In the event of any irregularity in Shared Code
Segments' operations, including, without limitation, any event causing damage to
persons or property, the operating carrier shall identify itself as being
operated independently of the carrier whose code is being used, and as being
solely responsible for its operations. Either carrier may state that it holds a
code sharing license from the other carrier and that it obtains certain services
from the other carrier if third parties inquire as to such relationship.
7. Irregularities in Operations. AWA shall promptly notify CAL of all
irregularities involving a CO* Flight which result in any damage to persons or
property as soon as such information is available and shall furnish to CAL as
much detail as practicable. CAL shall promptly notify AWA of all irregularities
involving a
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<PAGE> 3
HP* Flight which result in any damage to persons or property as soon as such
information is available and shall furnish to AWA as much detail as practicable.
8. Reporting Obligation.
(a) Changes in Service. Each carrier shall give the other carrier 60
days advance notice (or notice as far in advance as possible if 60 days is
impracticable) of any intended (i) changes to its operating specifications,
or (ii) material changes to the manner of conducting its business or the
nature of its product. In the event any such change materially affects the
value or risk to the other carrier of this Code Sharing Agreement in the
other carrier's reasonable judgment, the other carrier shall be entitled to
terminate this agreement if the change is implemented.
(b) Correspondence from Government Authorities. AWA shall immediately
provide CAL copies of any correspondence received from government authority
which, with respect to CO* Flights, references (i) any alleged
noncompliance with rules or regulations affecting air transportation, or
(ii) any investigation of AWA performed or proposed by any government
authority, including, without limitation, any communication issued by a
government authority concerning the airworthiness of AWA's aircraft, the
compliance of AWA's personnel with required operational or training
procedures or any other matter relating to the safe operation of AWA
aircraft.
CAL shall immediately provide AWA copies of any correspondence
received from any government authority which, with respect to HP* Flights,
references (i) any alleged noncompliance with rules or regulations
affecting air transportation, or (ii) any investigation of CAL performed or
proposed by any government authority, including, without limitation, any
communication issued by a government authority concerning the airworthiness
of CAL's aircraft, the compliance of CAL's personnel with required
operational or training procedures or any other matter relating to the safe
operation of CAL aircraft.
(c) Notice of Complaints. AWA shall monthly furnish CAL a summary of
complaints, notices or violation, request to cease activity or similar
correspondence which reasonably relate to CO* Flights and which are
received by AWA from passengers, any government authority, or other
parties. CAL shall monthly furnish AWA a summary of complaints, notices or
violation, request to cease activity or similar correspondence which
reasonably relate to HP* Flights and which are received by CAL from
passengers, any government authority, or other parties. Each carrier shall
comply with the other carrier's reasonable requests for actual copies of
any such documents.
9. Flight Display.
(a) All Shared Code Segments will be included in the availability and
fare displays of all computerized reservations systems in which CAL and AWA
participate, the Official Airline Guide (to the extent agreed upon) and
CAL's and AWA's internal reservation systems, under the shared code as well
as the operator's own code, to the extent possible. CAL and AWA will take
the appropriate measures necessary to ensure the display of Shared Code
Segments in accordance with the preceding sentence.
(b) CAL and AWA will disclose and identify the Shared Code Segments to
the public as actually being a flight of and operated by the operating
carrier, in at least the following ways:
(i) a symbol will be used in timetables and computer reservation
system indicating that Shared Code Segments are actually operated by the
other carrier;
(ii) to the extent reasonable, messages on airport flight
information displays will identify the operator of flights shown as
Shared Code Segments;
(iii) CAL and AWA advertising concerning Shared Code Segments and
CAL and AWA reservationists will disclose the operator of each flight;
and
(iv) in any other manner prescribed by law.
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<PAGE> 4
10. Terms and Conditions of Carriage and Claims Procedures.
(a) In all cases the contract of carriage between a passenger and a
carrier will be that of the carrier whose designator code is used and not
that of the carrier operating the Shared Code Flight.
(b) The carriers will use existing IATA procedures when handling and
settling claims made by customers in connection with Shared Code Segments.
11. Irregularity Handling.
(a) In the event of flight delays, cancellations or other schedule
irregularities that affect Shared Code Segments, the operating carrier will
inform the carrier whose designator is also used of all pertinent
information concerning an irregularity for customer information purposes.
(b) The parties agree that they will cooperate in all available ways
to accommodate passengers experiencing flight irregularities and that
neither will forbear from providing such assistance because the other may
have been responsible for the flight irregularity. In the event of a flight
irregularity, the carrier causing or experiencing the irregularity shall
bear all related costs associated with accommodating the passengers who
have been delayed. The carriers will review existing procedures for
accommodating interline passengers with respect to flight irregularities
and oversales to determine their adequacy for the purposes of this
Agreement and will make such adjustments in existing procedures as they
find necessary or appropriate.
12. Airport Operational Assistance. CAL and AWA will cooperate to
coordinate and maintain their schedules to minimize the waiting time and to
maximize convenience of passengers who are connecting from a CAL to AWA flight
segment (or vice versa). Each carrier will provide the other with the airport
operational assistance that is required to assure schedule compatibility for
Shared Code Segments for which a Through Fare (as such term is hereinafter
defined) may be applicable. The carriers will use their respective best efforts
to align gates and ticket counter space where Shared Code Segments operate.
13. Pricing and Capacity Control of Shared Code Segments.
[CONFIDENTIAL PORTION DELETED]
15. Compliance with Laws and Regulations. CAL and AWA each represent,
warrant, and agree that performance of its respective obligations under this
Agreement shall be conducted and all of its personnel shall at all times meet,
be in full compliance with and have all required licenses under any and all
applicable statutes, orders, rules and regulations, and satisfy all applicable
insurance requirements, whether in effect or hereafter promulgated of the United
States National Transportation Safety Board, Department of Transportation of
Federal Aviation Administration, Department of Defense of any country or
territory with jurisdiction over the Shared Code Segments.
16. Independent Parties.
(a) Independent Contractors. It is expressly recognized and agreed
that each carrier, in its performance and otherwise under this Agreement,
is and shall be engaged and acting as an independent contractor and in its
own independent and separate business; that each carrier shall retain
complete and exclusive control over its staff and operations and the
conduct of its business; and that each carrier shall bear and pay all
expenses, costs, risks and responsibilities incurred by it in connection
with its obligations under this Agreement. Neither CAL nor AWA nor any
officer, employee, representative, or agent of CAL or AWA shall in any
manner, directly or indirectly, expressly or by implication, be deemed to
be, or make any representation or take any action which may give rise to
the existence of, any employment, agent, partnership, or other like
relationship as between CAL and AWA but each carrier's relationship as
respects the other carrier in connection with this Agreement is and shall
remain that of an independent contractor.
(b) Status of Employees. The employees, agents and/or independent
contractors of AWA shall be employees, agents, and independent contractors
of AWA for all purposes, and under no circumstances
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<PAGE> 5
shall be deemed to be employees, agents or independent contractors of CAL.
The employees, agents and independent contractors of CAL for all purposes,
and under no circumstances shall be deemed to be employees, agents or
independent contractors of AWA. In its performance under this Agreement,
each carrier shall act as an independent contractor and not as an agent for
the other. CAL shall have no supervisory power or control over any
employees, agents or independent contractors employed by AWA, and AWA shall
have no supervisory power or control over any employees, agents and
independent contractors employed by CAL.
(c) Liability For Employee Costs. Each carrier, with respect to its
own employees (hired directly or through a third party), accepts full and
exclusive liability for the payment of worker's compensation and/or
employer's liability (including insurance premiums where required by law)
and for the payment of all taxes, contributions or other payments for
unemployment compensation, vacations, or old age benefits, pensions and all
other benefits now or hereafter imposed upon employers with respect to its
employees by any government or agency thereof or any other party (whether
measured by the wages, salaries, compensation or other remuneration paid to
such employees or otherwise) and each carrier further agrees to make such
payments and to make and file all reports and returns, and to do everything
necessary to comply with the laws imposing such taxes, contributions or
other payments.
17. Indemnification and Insurance.
(a) Indemnification.
(i) AWA hereby assumes liability for, and shall indemnify, defend,
protect, save and hold harmless CAL, its officers, agents, and employees
from and against any and all liabilities, claims, judgments, damages,
and losses, including all costs, fees, and expenses incidental thereto,
of every type and nature whatsoever, including without limitation those
involving (i) death of or injury to any person including, but not
limited to, AWA's officers, employees and agents, (ii) loss of, damage
to, or destruction of any property whatsoever, including any loss of use
thereof, and (iii) trademark, service mark or trade name infringement,
provided that such liabilities, claims, judgments, damages or losses are
caused by or arise out of (or are alleged to be caused by or arise out
of) any alleged acts or omissions of AWA or its officers, employees, or
agents which are in any way related to the services contemplated by this
Agreement. CAL shall give AWA prompt notice of any claim made or suit
instituted against CAL which, if successful, would result in
indemnification of CAL hereunder, and CAL shall have the right to
compromise or participate in the defense of same to the extent of its
own interest.
(ii) CAL hereby assumes liability for, and shall indemnify, defend,
protect, save and hold harmless AWA, its officers, agents, and employees
from and against any and all liabilities, claims, judgments, damages,
and losses, including all costs, fees, and expenses incidental thereto,
of every type and nature whatsoever, including without limitation those
involving (i) death of or injury to any person including, but not
limited to, CAL's officers, employees and agents, (ii) loss of, damage
to, or destruction of any property whatsoever, including any loss of use
thereof, and (iii) trademark, service mark or trade name infringement,
provided that such liabilities, claims, judgments, damages or losses are
caused by or arise out of (or are alleged to be caused by or arise out
of) any alleged acts or omissions of CAL or its officers, employees, or
agents which are in any way related to the services contemplated by this
Agreement. AWA shall give CAL prompt notice of any claim made or suit
instituted against AWA which, if successful, would result in
indemnification hereunder, and AWA shall have the right to compromise or
participate in the defense of same to the extent of its own interest.
(b) Insurance Coverage.
(i) Each carrier shall, at all time during the term of this
Agreement, maintain in full force and effect policies of insurance as
follows:
1. Comprehensive Airline Liability Insurance, including Aircraft
Third Party, Passenger, including Passengers' Baggage and Personal
Effects, Cargo and Mail Legal Liability for a
5
<PAGE> 6
Combined Single Limit (CSL) of not less than $500 million per
occurrence per Aircraft. In respect of Personal Injury the
maximum limit is $25 million per offense and in the aggregate.
The minimum amounts of insurance coverage required under this
paragraph 1 shall be per occurrence, combined single limit for all
coverage required under this paragraph 1.
<TABLE>
<S> <C> <C>
2. Workmen's Compensation Insurance Per Accident
(Company Employee) Statutory
3. Employer's Liability $1,000,000 (combined single limit)
</TABLE>
(ii) Subject to Section 17(b)(i) above, each carrier as appropriate
shall cause the policies of insurance described in such Section 17(b)(i)
to be duly and properly endorsed by that carrier's insurance
underwriters as follows:
1. as to the policies of insurance described in paragraphs
(b)(i)1 and (b)(i)2 of Section 17:
(A) to provide that any waiver of rights of subrogration
against other parties by one party will not affect the coverage
provided thereunder with respect to the other party; and
(B) to provide that the one party's underwriters shall waive
any and all subrogation rights against the other party, its
directors, officers, agents, employees and other authorized
representatives, except for gross negligence or wilful
misconduct, with regard to any breach of warranty on the part of
the other party or to provide other evidence of such waiver or
recourse against the other party, its directors, officers,
agents, employees and other authorized representatives.
(C) to provide that each party, its directors, officers,
agents, employees and other authorized representatives shall be
endorsed as named insured parties thereunder, except for gross
negligence or wilful misconduct; and
(D) to provide that said insurance shall be primary
insurance and to acknowledge that any other insurance policy or
policies of each party shall be secondary or excess insurance.
2. as to policies of insurance described in paragraph (b)(i)1 of
Section 17 to provide a breach of warranty clause to said policies;
and
(iii) Each party shall cause each of the insurance policies
referred to in Section 17(b)(i) to be duly and properly endorsed to
provide that said policy or policies or any part or parts thereof shall
not be canceled, terminated or materially altered, changed or amended by
each party's insurance underwriters, until after 30 days' prior notice
to the other party, such notice period to commence when such other party
actually receives such notice.
(iv) Simultaneously with the commencement of this Agreement, and
from time to time thereafter upon request by either party, the other
party shall furnish to the requesting party evidence reasonably
satisfactory to the requesting party of the aforesaid insurance coverage
and endorsements, including certificates certifying that the aforesaid
insurance and endorsements are in full force and effect. Initially, this
evidence shall be a certificate of insurance required hereunder.
(v) In the event either party fails to maintain in full force and
effect any of the insurance and endorsements required in terms of these
sections, the other party shall have the right (but not the obligation)
to procure and maintain such insurance or any part thereof. The cost of
such insurance shall be payable by the first party to the other party
upon demand by the other party. The procurement of such insurance or any
part thereof by the other party shall not discharge or excuse the first
party's obligation to comply with the provisions of Sections 17(b)(i)
and 17(b)(ii)
(c) Survival of Rights and Obligations. The rights and obligations of
Section 18(a) shall survive the expiration or termination of this
Agreement.
6
<PAGE> 7
18. Term and Termination.
(a) Term. Unless the carriers agree to an earlier commencement date,
the term of this Agreement shall commence as soon as practicable after the
date that is the later of the date that this Agreement is signed by both
parties or the date that the investment agreement between AWA and AmWest
partners, L.P. (the "Investment Agreement") is consummated and shall
continue until the date immediately preceding the tenth anniversary of the
commencement date, unless earlier terminated as provided herein, and shall
continue thereafter until either carrier gives the other carrier notice of
termination at least 90 days prior to the effective date of such
termination. In no event shall termination or expiration pursuant to this
Section 18(a) be effective unless such 90 days' notice is provided.
(b) Termination as a Result of Changes of Law. In the event there is
any change in treaties, statutes or regulations of air transportation that
materially affects the rights and/or obligations presently in force with
respect to the air transportation services of CAL or AWA or both, relating
to CO* or HP* Flights, then the carriers will consult, within 30 days after
any of the occurrences described herein, in order to determine or seek
mutual agreement as to what, if any changes to this Agreement are necessary
or appropriate, including but not limited to the early termination and
cancellation of this Agreement.
(c) Other Termination Rights. In addition to any other provisions of
this Agreement, this Agreement may be terminated, without liability, as
follows:
(i) By either carrier on 30 days' prior written notice, if the
other carrier has breached any material provision of this Agreement
unless such other carrier cures such breach within such 30 day period;
(ii) By either carrier immediately on notice, if the other carrier
shall be dissolved or shall fail to maintain its corporate existence in
good standing, or shall have its authority to operate as a scheduled
airline suspended or revoked, either in whole or with respect to the CO*
or HP* Flights, or shall cease operations as a scheduled airline.
(iii) By either carrier immediately on notice if the other carrier
shall be cited by any government authority for any significant
noncompliance with a material law, rule or regulation with respect to
the marketing or operation of a CO* or HP* Flight;
(iv) By either carrier immediately on notice, in the event that the
commencement date of this Agreement is prior to the date that the
Investment Agreement is consummated, if the Investment Agreement is
terminated prior to its having been consummated;
(v) Except for AWA's currently pending Chapter 11 proceeding, by
either carrier if a petition is filed by or against the other carrier
under bankruptcy law, or any other law providing for the relief of
debtors, and the affected party does not succeed in having such petition
lifted or stayed within sixty days from the date of entry; the carrier
at its option may cancel this Agreement immediately and exercise such
other remedies as may be available at law and/or in equity;
(vi) By either carrier on six months' prior written notice, if a
carrier, foreign or domestic, that competes with the terminating carrier
on a material basis, acquires majority ownership of or substantial
control over the other carrier.
(vii) By CAL immediately on notice if
1. AWA shall fail to maintain any of its aircraft in an
airworthy condition and conduct its flight operations in accordance
with the standards, rules and regulations promulgated by any
government authority; or
2. AWA shall have a completion factor of less then 80% during
any 20 day period with respect to CO* Flights (including in such
calculations all flights canceled less than one week prior to the
date of its scheduled operation and excluding flights not completed
due to weather or labor stoppages); and
7
<PAGE> 8
(viii) By AWA immediately on notice if
1. CAL shall fail to maintain any of its aircraft in an
airworthy condition and conduct its flight operations in accordance
with the standards, rules and regulations promulgated by any
government authority; or
2. CAL shall have a completion factor of less then 80% during
any 20 day period with respect to HP* Flights (including in such
calculations all flights canceled less than one week prior to the
date of its scheduled operation and excluding flights not completed
due to weather or labor stoppages).
19. Booking Fee. The carrier operating over any segment of a Shared Code
Flight will be responsible for any booking fee relating to such segment charges
by the vendor of a computer reservation system used to create a booking on that
flight. If the booking fee relating to such segment is billed to the carrier
whose designator code is also used for that flight, the operating carrier will
reimburse the carrier whose designator code is also used for that flight.
20. Entire Agreement, Waivers and Amendments. This Agreement constitutes
the entire understanding of the carriers with respect to the subject matter
hereof superseding all prior discussions and agreements, written or oral. This
Agreement may not be amended, nor may any of its provisions be waived, except by
writing signed by both carriers. No delay on the part of either carrier in
exercising any right power or privilege hereunder shall operate as a waiver
hereof, nor shall any waiver operate as a continuing waiver of any right, power
or privilege.
21. Notices. All notices given hereunder shall be in writing delivered by
hand, certified mail, telex, or telecopy to the carriers at the following
addresses:
If to CAL:
Continental Airlines, Inc. Telephone No.: 713-834-2950
2929 Allen Parkway Telecopier No.: 713-520-6329
Houston, Texas 77019
Attention: Vice Chairman & CEO
With copy to:
Continental Airlines, Inc. Telephone No.: 713-834-5149
2929 Allen Parkway Telecopier No.: 713-834-5161
Houston, Texas 77019
Attention: Senior Vice President
and General Counsel
If to AWA:
America West Airlines, Inc. Telephone No.: (602) 693-5880
4000 E. Sky Harbor Blvd. Telecopier No.: (602) 693-5950
Phoenix, AZ 85034
Attention: President & COO
With copy to:
America West Airlines, Inc. Telephone No.: (602) 693-5750
4000 E. Sky Harbor Blvd. Telecopier No.: (602) 593-5904
Phoenix, AZ 85034
Attention: Vice President
and General Counsel
22. Successors and Assigns. Neither carrier may assign its rights or
delegate its duties under this Agreement without the prior written consent of
the other carrier, and any such purported assignment or delegation shall be
void. This Agreement shall be binding on the lawful successors of each carrier.
8
<PAGE> 9
23. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
24. Headings. The headings in this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
25. Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall constitute one agreement.
26. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to
principles of choice or conflicts of law.
27. Equal Opportunity. EEO clauses contained at 11 C.F.R. sec.sec. 60-1.4,
60-250.4 and 60-741.4 are hereby incorporated by reference. Each party shall
comply with all equal opportunity laws and regulations which apply to or must be
satisfied by that party as a result of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
CONTINENTAL AIRLINES, INC. AMERICA WEST AIRLINES, INC.
By: /s/ BARRY P. SIMON By: /s/ A. MAURICE MYERS
- - ------------------------------- -------------------------------
Title: Senior Vice President Title: President & CEO
- - ------------------------------- -------------------------------
9
<PAGE> 10
SCHEDULE 1
INITIAL SHARED CODE SEGMENTS
[CONFIDENTIAL PORTION DELETED]
10
<PAGE> 11
SCHEDULE 2
[CONFIDENTIAL PORTION DELETED]
11
<PAGE> 12
CARGO SPECIAL PRORATE AGREEMENT
BETWEEN
CONTINENTAL AIRLINES
AND
AMERICA WEST AIRLINES
1. It is hereby agreed between America West Airlines (HP) and Continental
Airlines (CO), to establish a special proration agreement for cargo traffic as
described in Paragraph 2 below.
2. Special prorating applies to transportation of cargo moving jointly via
CO and HP over at least one of the sections identified in Schedule A and
Schedule B.
3. Division of revenue shall be handled directly between CO's headquarter
office and HP's headquarter office according to the terms and conditions of this
agreement; settlement may occur through the Airline Clearing House.
4. Each carrier will set prices for their existing online products and for
the transfer product independently of the other carrier. Each carrier shall be
able to offer the destinations of the other carrier, as identified in Schedules
A and B, as if those points were online cities in their respective systems. Each
carrier has the option to independently file these rates with ATPCO.
5. Movement of dangerous goods, live animals and high value shipments are
excluded from this agreement. Perishables are included under this agreement, but
are subject to embargo for the period of October 1, 1994 through December 31,
1994.
6. Joint transportation revenues shall be allocated to the sections on the
following basis:
(a) WHEN HP AWB 401 IS USED:
CO shall receive the amount per Schedule A for CO sections, and HP
shall receive the revenue remaining.
(b) WHEN CO AWB 005 IS USED:
HP shall receive the amount per Schedule B for HP sections, and
CO shall receive the revenue remaining.
7. Transportation of company material for both CO and HP shall be included
under this agreement, per terms and conditions in Schedule C.
<PAGE> 13
Page 2 of 2
8. The collecting carrier shall be responsible for claims for loss, damage
or service failure. If fault is determined to be the other carrier, the
collecting carrier shall have the right to bill for such claims through the
Airline Clearing House.
9. The issuing carrier's published rules tariffs will apply.
10. This agreement supersedes all other agreements. The effective date of
this agreement is 01 October 1994.
11. This agreement shall remain in effect until amended or cancelled by
either party by giving 30 days written notice to the headquarter office of the
other party.
12. This agreement is made in duplicate, an original each to be filed at
the below signatories' offices.
<TABLE>
<S> <C>
CONTINENTAL AIRLINES, INC. AMERICA WEST AIRLINES, INC.
BY: BY:
- - --------------------------------------------- ---------------------------------------------
TITLE: TITLE:
- - --------------------------------------------- ---------------------------------------------
BY: DATE:
- - --------------------------------------------- ---------------------------------------------
TITLE:
- - ---------------------------------------------
DATE:
- - ---------------------------------------------
</TABLE>
<PAGE> 14
SCHEDULE A
PAGE 1 OF 1
CONTINENTAL AIRLINES PRORATE REQUIREMENT FROM
AMERICA WEST AIRLINES
WHEN SHIPMENT ON HP AWB PREFIX 401
BULK FREIGHT
[CONFIDENTIAL PORTION DELETED]
Additionally, the following commonly operated city pairs shall be included
in this schedule as back-up for severe backlog situations:
<TABLE>
<CAPTION>
MINIMUM
REVENUE RATE
BETWEEN: SHARE PER LB.
- - -------- ------- -------
[CONFIDENTIAL PORTION DELETED]
<S> <C> <C>
</TABLE>
These rates apply to shipments tendered on an HP air waybill, and HP has
prior or subsequent carriage, with the exception of city pairs listed for severe
backlog.
All rates in U.S. dollars, all weights in pounds.
Chargeable weight shown on air waybill shall be used for calculation of
revenue due CO.
The above rates apply to on-line cities served by Continental Airlines at
the time of tender.
Continental Express cities are excluded from this schedule.
Movement of Human Remains shipments are subject to originating carrier
tariff rules and rates, with revenue distribution based on standard mileage
proration.
EFFECTIVE: 01 October 1994
EXPIRING: 30 Days' written notice
<PAGE> 15
SCHEDULE B
PAGE 1 OF 1
AMERICA WEST AIRLINES PRORATE REQUIREMENT FROM
CONTINENTAL AIRLINES
WHEN SHIPMENT ON CO AWB PREFIX 005
BULK FREIGHT
<TABLE>
<CAPTION>
MINIMUM
REVENUE RATE
BETWEEN THE FOLLOWING CITIES: SHARE PER LB.
- - ----------------------------- ------- -------
[CONFIDENTIAL PORTION DELETED]
<S> <C> <C>
</TABLE>
Additionally, the following commonly operated city pairs shall be included
in this schedule as back-up for severe backlog situations:
<TABLE>
<CAPTION>
MINIMUM
REVENUE RATE
BETWEEN: SHARE PER LB.
- - -------- ------- -------
[CONFIDENTIAL PORTION DELETED]
<S> <C> <C>
</TABLE>
These rates apply to shipments tendered on a CO air waybill, and CO has
prior or subsequent carriage, with the exception of city pairs listed for severe
backlog.
All rates in U.S. dollars, all weights in pounds.
Chargeable weight shown on air waybill shall be used for calculation of
revenue due HP.
The above rates apply to on-line cities served by America West Airlines at
the time of tender.
America West Express cities are excluded from this schedule.
Movement of Human Remains shipments are subject to originating carrier
tariff rules and rates, with revenue distribution based on standard mileage
proration.
EFFECTIVE: 01 October 1994
EXPIRING: 30 Days' written notice
<PAGE> 16
SCHEDULE C
PAGE 1 OF 1
COMPANY MATERIAL
TRANSPORTATION AGREEMENT
Continental Airlines (CO) and America West Airlines (HP) jointly agree to
transport each others' company materials (COMAT) at no charge, according to the
following terms:
1. Each COMAT shipment must be accompanied by a completed COMAT air
waybill, or standard domestic air waybill clearly marked, "COMAT".
2. This schedule is valid within the contiguous 48 states only.
3. Continental Express cities and America West Express cities are excluded
from this schedule.
4. The transportation of empty blood/tissue/urine sample containers for
return to original shipper shall be considered COMAT and transported on
either carrier at no charge.
EFFECTIVE: 01 October 1994
EXPIRING: 30 Days' written notice
<PAGE> 17
AMERICA WEST AIRLINES/CONTINENTAL AIRLINES
RECIPROCAL CLUB USAGE AGREEMENT
This Agreement is entered into as of this 25th day of August, 1994 by and
between America West Airlines, Inc., a Delaware corporation, having its chief
executive offices at 4000 East Sky Harbor Boulevard, Phoenix, Arizona, 85034
("America West") and Continental Airlines, Inc., a Delaware corporation, having
its chief executive offices at 2929 Allen Parkway, Houston, Texas 77019
("Continental").
RECITALS:
WHEREAS, America West maintains two (2) private club facilities ("Phoenix
Clubs") located in Phoenix Sky Harbor International Airport for the use of its
bona fide club members and guests;
WHEREAS, Continental maintains private club facilities ("Presidents
Clubs"), with hub locations as outlined on the list attached hereto as Exhibit
A and incorporated herein by reference, for the use of its bona fide club
members and guests;
WHEREAS, each of the parties desires to provide its respective club
members, guests and qualifying passengers (herein collectively referred to as
"members") the opportunity to utilize the club facilities of the other in
accordance with the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and mutual obligations
hereinafter set forth, America West and Continental agree as follows:
1. SCOPE.
a. This Agreement shall govern the usage of the clubs operated by each
party at designated locations, as set forth on Exhibit A.
b. For purposes of this Agreement, America West's Phoenix Clubs at Phoenix
Sky Harbor Airport shall be additionally identified by signage as Continental's
Presidents Club. The Presidents Club locations as indicated on Exhibit A will
display a sign welcoming Phoenix Club members.
<PAGE> 18
c. This Agreement shall be limited to clubs operated by America West and
Continental. Any other current or future club sharing agreements by either party
with another airline are not a part of, and are specifically excluded from, this
Agreement.
d. Any change or restriction by America West or Continental which affects a
club member's ability to access the clubs of the other party shall be
communicated in writing in advance by both parties.
e. America West and Continental may amend their policies and rules
concerning their clubs at any time as long as any such amendments do not
discriminate against the members of the club of the other party.
f. If, during the term of this Agreement, America West opens a Phoenix Club
or other similar private club facilities at Las Vegas or Columbus, such clubs
will be subject to the terms and conditions of this Agreement with the exception
that America West will only be required to provide signage welcoming Presidents
Club members.
2. TERM:
a. The term of this Agreement shall not commence until the later of the
date that the Investment Agreement between the parties has been consummated as
provided for in that agreement or the date that this Agreement is signed by both
parties
b. The term of this Agreement shall be for a period of two (2) years from
the commencement date.
c. In the event that either party: (i) materially breaches any of its
duties or obligations hereunder which breach shall not be substantially cured
within thirty (30) days after written notice is given to the breaching party
specifying the breach, or (ii) commits a material breach in the performance of
any of its duties or obligations hereunder to which the breaching party is able
to demonstrate to the reasonable satisfaction of the other party that such
breach cannot reasonably be cured within thirty (30) days and fails to proceed
promptly after being given written notice specifying the breach to commence
during said breach and thereafter to proceed with all due diligence to
substantially cure the same, then the party not in breach may, by giving written
notice thereof then the party not in breach may, by giving written notice
thereof to the other party, terminate this Agreement as of the date specified in
such notice of termination.
d. This Agreement may be terminated immediately in the event there is a
change in control of either party.
2
<PAGE> 19
3. USAGE/AMENITIES/RESERVATION OF RIGHTS:
a. Each party shall make available for use, on a non-exclusive basis, its
respective private clubs, as set forth on Exhibit A, to the other party's
members. Usage of the club facilities by each party's members shall be limited
to the normally scheduled hours of operation of each club facility.
b. Any fees or conditions applicable to the use or provision of amenities
that are or may be in effect at a particular club facility shall be applicable
to each party's members utilizing the facility pursuant to this Agreement.
c. Use of each party's club conference room shall be made available to
respective party's members on a space available basis. All fees incurred by
members in conjunction with such conference room use shall be charged in
accordance with each party's existing pricing structure and member terms and
conditions.
d. Each party and its respective members shall abide by the rules and
regulations governing each particular club facility. A copy of each party's club
rules is attached hereto and marked as Exhibit B and Exhibit C, and both are
incorporated herein by reference.
e. Each party in its sole discretion reserves the right to change the
operating hours of its respective club facilities, and additionally reserves the
right to close all or some of its respective club facilities for holiday
periods. Either party may cease operation of a club facility at any particular
location in its sole discretion without obligation to the other party.
4. ELIGIBLE MEMBERS/PASSENGERS/GUEST POLICY:
a. The following individuals shall be permitted access to the Phoenix Club
facilities:
i. Bona fide members and guests of Continental's Presidents Club
facilities including Chairman's Circle members;
ii. Continental international BusinessFirst passengers;
iii. SAS Royal Viking Club cardholders, SAS customers in C/J/F/P class
of service and valid one-time SAS guest passes;
iv. Air Canada Maple Leaf Club cardholders, Diners Club/EnRoute Gold
Maple Leaf Club cardholders, Aeroplan Elite cardholders, Air
Canada First or Executive Class transborder customers, and valid
one-time Air Canada guest passes;
3
<PAGE> 20
v. Continental passengers bearing Continental one-time guest passes;
vi. American Express Platinum card holders;
b. The following individuals shall be permitted access to the Presidents
Club facilities:
i. Bona fide members and guests of the America West Phoenix Club
facilities;
ii. America West passengers bearing America West one-time visit
cards;
iii. America West First Class ticket holders (Houston only).
c. Guest Policy: A member's immediate family or two guests may accompany a
member into either party's club facility(ies). Immediate family shall be defined
as the member's spouse, son(s) and/or daughter(s).
5. SIGNAGE:
Each party will provide space at its clubroom for display of signage
provided by the other party in a manner agreed upon by both parties. The cost of
signage will be borne by the party providing the signage.
6. REPORTING:
Each party shall document the usage of their respective club facilities by
the other party's members and exchange usage data on a monthly basis. For
documentation purposes, upon entrance to the club facility, club representatives
will request that members and/or qualifying passengers present their membership
credentials and/or ticket. Club representatives will record: passenger name,
status (i.e. member, family member, guest, one-time guest pass, first/business
class passenger), flight number and date on a "Visitation Register", a copy of
which is set forth as Exhibit D. A copy of the Visitation Registers will be
forwarded by each party, along with a monthly recap report relating to member
usage, by the fifteenth (15th) of each month following the month of usage.
7. FEES:
[Confidential Portion Deleted]
4
<PAGE> 21
8. REVENUE:
Any incidental revenues received by either party as a result of
usage of club amenities by either party's respective member shall not be
considered a part of this Agreement and are the sole and exclusive income of
such party.
9. PROMOTION/ADVERTISEMENT:
Either party may choose to advertise/promote the benefits of this
reciprocal club usage Agreement provided that all copy generated for advertising
purposes, whether print, radio or television, receives the prior written
approval of the other party. It is agreed that any advertisement or promotion
which contains any trademark/servicemark or copyright of either party will be
appropriately identified as a registered trademark/servicemark or copyright.
10. INDEMNIFICATION:
The party operating the club facilities will defend and indemnify the other
party and their respective directors, officers, employees and agents
(collectively "Indemnitees") against and hold each Indemnitee harmless from all
liabilities, damages, losses, claims, suits, judgments, costs and expenses
(including reasonable attorney's fees) for injury to or death of any person or
damage to or destruction of any property arising out of participation in the
respective club program, except that such indemnification shall not extend to
acts of gross negligence or willful misconduct by the indemnified party.
11. NOTICE:
Any notice required to be sent under this Agreement will be sent by first
class mail, postage pre-paid, or any other more expedient written means.
Notices to America West should be addressed as follows:
America West Airlines, Inc.
4000 E. Sky Harbor Blvd.
Phoenix, AZ 85034
Attention: Rose Ceglia, Director
Frequent Traveler Marketing
HY-FTM
5
<PAGE> 22
Notices to Continental should be addressed as follows:
Continental Airlines, Inc.
2929 Allen Parkway
Suite 1389
Houston, TX 77019
Attention: David Grizzle
Vice President
Marketing
Notices sent via electronic means (e.g., telex, facsimile) will be
effective immediately if received prior to 5:00 p.m. local time of the
recipient. All other notices will be effective the first business day after
receipt.
12. CHOICE OF LAW:
This Agreement shall be governed in accordance with the laws of the State
of New York.
13. ASSIGNMENT:
This Agreement may not be assigned by either party absent written consent
by the other party.
14. COMPLIANCE WITH APPLICABLE LAWS:
Each party will comply with all federal, state and local laws and
regulations with respect to its respective club facilities and the products and
services to be provided by each party hereunder.
15. ENTIRE AGREEMENT:
This Agreement constitutes the entire understanding of both America West
and Continental regarding the subject matter of this Agreement. The parties have
executed this Agreement by their authorized representatives as of the dates
below.
<TABLE>
<S> <C>
AMERICA WEST AIRLINES, INC. CONTINENTAL AIRLINES, INC.
by: by:
- - ------------------------------------------------------ ------------------------------------------------------
Title: Title:
- - ------------------------------------------------------ ------------------------------------------------------
Date: Date:
- - ------------------------------------------------------ ------------------------------------------------------
</TABLE>
6
<PAGE> 23
EXHIBIT A
[Confidential Portion Deleted]
EXHIBIT B
Phoenix Club Membership Brochure
EXHIBIT C
President's Club Rules Brochure
EXHIBIT D
Sample Phoenix Club Guest Registry
7
<PAGE> 24
RECIPROCAL FREQUENT FLYER PROGRAM PARTICIPATION AGREEMENT
This Agreement is made this 25th day of August, 1994, by and between
Continental Airlines, Inc., a Delaware corporation ("CAL"), and America West
Airlines, Inc., Debtor and Debtor-in-Possession, a Delaware corporation ("AWA").
RECITALS
CAL and AWA are each certificated air carriers providing air transportation
services in their respective areas of operation.
CAL and AWA have entered into a "Code Sharing Agreement" whereby CAL will
market its flight operations under the HP* designator code and AWA will market
its flight operations under the CO* designator code.
CAL and AWA each maintain frequent flyer programs, "OnePass" in the case
of CAL and "FlightFund" in the case of AWA, whereby members of such programs
earn reward miles for miles flown on the airlines participating in the program
that may be redeemed for various travel related awards.
CAL and AWA desire to allow members of their respective frequent flyer
programs ("OP Members" in the case of CAL and "FF Members" in the case of AWA)
to earn miles in their respective programs when members travel on flights
operated by the other carrier that are utilizing its designator code.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein contained, CAL and AWA hereby agree as follows:
1. Mileage Accrual. CAL and AWA will permit OP Members to accrue the
greater of [Confidential Portion Deleted] miles or the number of actual miles
flown in OnePass for travel on flights that are designated as CO* Flights (as
such term is defined in the Code Sharing Agreement) in the same manner as OP
Members accrue miles in OnePass on CAL operated flights utilizing the CO
designator code. AWA and CAL will permit FF Members to accrue the greater of
[Confidential Portion Deleted] miles or the number of actual miles flown in
FlightFund for travel on flights that are designated as HP* Flights (as such
term is defined in the Code Sharing Agreement) in the same manner as FF Members
accrue miles in FlightFund on AWA operated flights utilizing the HP designator
code.
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<PAGE> 25
2. RECORDING OF MILEAGE CREDIT.
a. AWA shall require each OP Member who desires to accrue mileage in
OnePass and is traveling on a flight designated as a CO* Flight to submit a
OnePass identification card (or such other indicia of membership as CAL may
advise) prior to boarding any flight designated as a CO* Flight. CAL shall
require each FF Member who desires to accrue mileage in FlightFund and is
traveling on a flight designated as an HP* Flight to submit a FlightFund
identification card (or such other indicia of membership as AWA may advise)
prior to boarding any flight designated as an HP* Flight.
b. Each carrier shall transmit to the other carrier by computer tape, or by
means of data transmission (modem), all pertinent data necessary to enable each
carrier to credit mileage. Each carrier shall provide this data in a format
compatible with the other carrier's computer systems and upon receipt of such
data shall credit the members' account. Data to be provided shall include member
name and identification number, carrier code, date of travel, flight number,
city pair and class of service booked and flown. The tape with this information
will be delivered or transmitted daily as noted below:
HP* activity tapes to:
America West Airlines
1930 West University, 52N-ISD
Tempe, Arizona 85281
Attn: Tape Librarian
CO* activity tapes to:
Electronic Data Systems
Tape Librarian
9014 Research Drive
Charlotte, North Carolina 28262
If transmissions are via modem, carriers will establish mutually agreeable
procedures.
c. Individuals who are members of the frequent flyer programs of both
carriers will not be permitted to accrue miles in both programs for travel on
the same flight. Such members shall only be permitted to accrue miles in the
program of the carrier of their election.
2
<PAGE> 26
d. Miles earned by members for flights on Shared Code Segments will be
treated by each carrier in the same manner as any other miles earned or redeemed
in such carrier's program.
3. MILEAGE CHARGE, PAYMENT AND RECONCILIATION.
a. Mileage Charge. AWA will pay to CAL, in accordance with 3.b. below, an
amount equal to the number of actual miles flown by OP Members electing to
receive OnePass miles on flights designated as CO* Flights, multiplied by
$[Confidential Portion Deleted]. CAL will pay, in accordance with 3.b. below, to
AWA an amount equal to the number of actual miles flown by FF Members electing
to receive FlightFund miles on flights designated as HP* Flights, multiplied by
$[Confidential Portion Deleted].
b. Payment. Beginning the first full month that this Agreement is in
effect, and each month thereafter, each carrier will pay the other carrier,
through the Airline Clearing House, the amount due pursuant to 3.a. above for
actual miles flown during the previous month. Neither carrier will invoice the
other carrier for miles until after such time as the miles have been actually
posted.
c. In no case will either carrier be required to pay the other carrier,
pursuant to Section 3.b., more than $500,000 during any calendar year, provided
that if a carrier is owed more than $500,000 during a calendar year and the
other carrier does not pay the carrier an amount equal to the deficiency within
30 days of demand thereof, the carrier that is owed money may terminate this
Agreement by providing the other carrier with 120 days notice of such
termination.
d. Each carrier will provide a monthly report to the other carrier which
tracks the number of miles posted to its members' accounts for activity related
to Shared Code Segments. This report will contain the number of (i) actual and
bonus miles posted (e.g. minimum miles, class of service, double miles, elite
member bonuses, etc.), (ii) city pair, (iii) ticket booking code (Y, F, Q,
etc.), (iv) miles rejected, and (v) retroactive mileage credited. Additionally,
a printout of rejected and retroactively credited transactions will accompany
this report. Such report shall be furnished 30 days after the end of the monthly
period for which such report relates.
e. Requests by members of either carrier's frequent flyer program made
after the date of travel for mileage on Shared Code Segments during the most
recent six (6) month period will be processed by the Service Center of the
carrier that operates the frequent flyer program in which the member seeks to
accrue miles on an on-going basis. The number of retroactive requests that are
credited will be processed by each carrier on a weekly basis. Miles will be
added retroactively only when a copy of the ticket and original boarding pass
or ticket jacket is received by the Service Center. Such documents will be
maintained for one (1) year so that each carrier has the ability to audit them
at its reasonable request.
3
<PAGE> 27
f. In the event that an original boarding pass or ticket jacket is not
provided, retroactive credit will only be credited after a member's request is
reviewed by both carriers and procedural steps have been taken to ensure that a
member does not receive credit for a single transaction in both programs.
4. MILEAGE REDEMPTION.
[Confidential Portion Deleted]
5. REWARD TRAVEL CHARGES, PAYMENT AND RECONCILIATION.
a. Reward Travel Charge. [Confidential Portion Deleted]
b. Reward Travel Payment. Each month during the term hereof, AWA will pay
CAL, through the Airline Clearing House, the amount due pursuant to 5.a. above
for reward travel during the previous month.
c. Reward Travel Reconciliation. Each carrier will comply with the ticket
reconciliation and accounting procedures set forth in Exhibit C hereto.
6. PROGRAM RULES.
a. CAL's obligation to provide OnePass miles to OP Members is subject to
the OP Members' compliance with the terms and conditions set forth in the
OnePass Members' Guide, as such may be amended and supplemented by CAL from time
to time. AWA's obligation to provide FlightFund miles to FF Members and to
permit FF Members to redeem FlightFund miles for reward travel on flights
operated by CAL is subject to the FF Members' compliance with the terms and
conditions set forth in the FlightFund Members' Guide, as such may be amended
and supplemented by AWA from time to time.
b. Each carrier will seek written approval from the other carrier of
substantial changes to program rules, award levels and copy that affect the
other carrier. Neither carrier will unreasonably withhold its approval or
substantive comments as to the sufficiency of any advertising copy of the other.
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<PAGE> 28
7. Advertising and Promotional Efforts. During the term of this Agreement,
and at no cost to the other carrier, either carrier, on a periodic basis, may
actively promote its participation in the other carrier's frequent flyer
program.
a. The carriers may choose to advertise such participation in various
media, which may include, but not be limited to, print, radio, television
and member communications.
b. All copy generated must receive prior written approval by the carrier's
designee.
c. It is agreed that any advertising or promotion which contains any
trademark, service mark or copyright of either carrier will be appropriately
identified as a registered trademark, service mark or copyright.
d. Direct access to and use of either carrier's membership name lists,
including preferred status members, for cross marketing purposes outside of the
usual program communications, are subject to further discussion and are not a
part of this Agreement.
e. The carriers agree to meet and discuss short and long term marketing
plans.
8. Additional Frequency Marketing Opportunities.
a. CAL and AWA agree that this travel relationship is not an exclusive
Agreement. Therefore, each carrier, at its discretion, may maintain and promote
other airline relationships through its frequent flyer program.
b. While this Agreement addresses the terms and conditions for
participation in each carrier's frequent flyer program, both carriers agree to
explore other joint possibilities of developing and implementing additional
marketing relationships, programs and strategies designed to create incremental
demand for each carrier's products and services. Separate fees may be required
for such participation and will not conflict in any way with this Agreement or
the Code Sharing Agreement between both carriers.
9. Continuation of Programs. Nothing herein contained shall obligate
either carrier to continue operation of its frequent flyer program and either
carrier may terminate its program without penalty by providing the other carrier
with 180 days' advance notice of such program termination.
5
<PAGE> 29
10. Program Administration and Reward Ticket Issuance.
a. Each carrier shall administer its frequent flyer program and all rules
and regulations that apply to its members. Reward ticket issuance procedures
will be mutually agreed upon by both carriers.
b. Each carrier reserves the right to alter its frequent flyer program at
any time and in any manner consistent with this Agreement, but shall not
modify or amend the mileage accrual or reward levels which affect the other
carrier without advance notice.
c. Each carrier will be responsible for communicating directly with its
frequent flyer members to resolve problems regarding reward travel on the other
carrier. However, the carriers will cooperate to the extent reasonable and
necessary to resolve any customer service issues involving reward travel.
d. Both carriers will take prompt and reasonable steps to train their
customer service and accounting personnel regarding the other carrier's program.
This training will include how to: capture and track transactions, issue reward
tickets for travel on the other carrier, refer a passenger regarding specific
program information and execute any other customer service that supports the
frequent flyer programs. This training will include initial as well as recurrent
efforts to ensure administrative efficiency.
11. Future Review
a. The carriers will meet on an annual basis and review the charges
hereunder for redeemed and accrued miles to determine whether the charges should
be adjusted or not. In addition, if the frequent flyer program of either carrier
changes such that the charges hereunder do not produce the results contemplated
herein, the carriers, upon request by the carrier operating the unchanged
program, will meet to determine whether the charges should be adjusted or not.
If, pursuant to meetings held pursuant to this Section it is determined that
adjustment of the charges is necessary, the carriers shall negotiate in good
faith to determine what charges are unable to agree on appropriate charges, the
dispute will be submitted to a committee consisting of an equal number of
members of each carrier's senior management for final resolution.
b. If, during the first 90 days after program members are able to accrue or
redeem miles pursuant this Agreement, either carrier receives a significant
number of complaints from its frequent flyer program members concerning its
participation in this Agreement, then, upon written notice from the carrier
receiving
6
<PAGE> 30
the complaints within 30 days after the end of such 90 day period, the
carriers will meet to discuss the action that must be taken in order to
correct the problem(s) that gives rise to the complaints. If the carriers
are unable to agree on a solution, the carriers will submit the dispute
to a committee consisting of an equal number of members of each carrier's
senior management for final resolution.
12. INDEPENDENT PARTIES. It is expressly recognized and agreed that each
carrier, in its performance and otherwise under this Agreement, is and shall be
engaged and acting as an independent contractor and in its own independent and
separate business; that each carrier shall retain complete and exclusive control
over its staff and operations and the conduct of its business; and that each
carrier shall bear and pay all expenses, costs, risks and responsibilities
incurred by it in connection with its obligations under this Agreement. Neither
CAL nor AWA nor any officer, employee, representative, or agent of CAL or AWA
shall in any manner, directly or indirectly, expressly or by implication, be
deemed to be, or make any representation or take any action which may give rise
to the existence of, any employment, agent, partnership, of other like
relationship as between CAL and AWA but each carrier's relationship as respects
the other carrier in connection with this Agreement is and shall remain that of
an independent contractor.
13. INDEMNITY. Each carrier agrees to indemnify, reimburse and hold
harmless the other carrier and its directors, officers, employees and agents
(collectively, the "Indemnified Party") from and against any claim (including,
without limitation, those based on strict liability and tort), losses,
liabilities, demands, suits, judgments, causes of action, awards or decisions in
all judicial, administrative or arbitration proceedings, whether civil or
criminal, penalties, fines and other sanctions and any costs or expenses in
connection therewith, including reasonable attorneys' fees and expenses, which
result from, are based upon or arise in any manner out of (i) air transportation
provided by the indemnifying carrier, (ii) the promotion of either frequent
flyer program or the indemnified carrier by the indemnifying carrier (it being
understood that the foregoing indemnification shall not extend to any promotion
by the indemnifying carrier of the indemnified carrier that is approved by the
indemnified carrier), (iii) any breach of this Agreement, or (vi) the
administration of the indemnifying carrier's frequent flyer program. Each
carrier shall give the other carrier prompt notice of any claim made or suit
instituted against it which, if successful, would result in indemnification by
the other carrier hereunder, and the Indemnified Party shall have the right to
compromise or participate in the defense of same to the extent of its own
interest.
14. TERM AND TERMINATION.
a. Term. Unless the carriers agree to an earlier commencement date, the
term of this Agreement shall commence as soon as practicable after the date that
is the later of the date that this Agreement is signed by both parties or the
date that the investment agreement between AWA and AmWest Partners, L.P. (the
"Investment Agreement") is consummated and shall continue until the date
immediately preceding the tenth anniversary of the commencement date, unless
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<PAGE> 31
earlier terminated as provided herein, and shall continue thereafter until
either carrier gives the other carrier notice of termination at least 90 days
prior to the effective date of such termination. In no event shall termination
or expiration pursuant to this Section 14(a) be effective unless such 90 days'
notice is provided.
b. Termination as a Result of Changes of Law. In the event there is any
change in treaties, statutes or regulations of air transportation that
materially affects the rights and/or obligations presently in force with respect
to the air transportation services of CAL or AWA or both, relating to CO* or HP*
Flights, then the carriers will consult, within 30 days after any of the
occurrences described herein, in order to determine or seek mutual agreement as
to what, if any changes to this Agreement are necessary or appropriate,
including but not limited to the early termination and cancellation of this
Agreement.
c. Other Termination Rights. In addition to any other provisions of this
Agreement, this Agreement may be terminated, without liability, as follows:
(1) By either carrier on 30 days' prior written notice, if the other
carrier has breached any material provision of this Agreement unless such
other carrier cures such breach within such 30 day period;
(2) By either carrier immediately on notice, if the other carrier
shall be dissolved or shall fail to maintain its corporate existence in
good standing, or shall have its authority to operate as a scheduled
airline suspended or revoked, either in whole or with respect to the CO* or
HP* Flights, or shall cease operations as a scheduled airline;
(3) By either carrier immediately on notice if the other carrier shall
be cited by any government authority for any significant noncompliance with
a material law, rule or regulation with respect to the marketing or
operation of a CO* or HP* Flight;
(4) By either carrier immediately on notice, in the event that the
commencement date of this Agreement is prior to the date that the
Investment Agreement is consummated, if the Investment Agreement is
terminated prior to its having been consummated;
(5) By either carrier if a petition is filed by or against the other
carrier under bankruptcy law, or any other law providing for the relief of
debtors, and the affected party does not succeed in having such petition
lifted or stayed within sixty days from the date of entry; the carrier at
its option may cancel this Agreement immediately and exercise such other
remedies as may be available at law and/or in equity;
8
<PAGE> 32
(6) By either carrier on six months' prior notice, if a carrier,
foreign or domestic, that competes with the terminating carrier on a
material basis, acquires majority ownership of or substantial control over
the other carrier.
(7) By either carrier on 180 days' prior notice, if it terminates its
frequent flyer program.
(8) By either carrier, after this Agreement has been in effect for
two (2) years, without cause on 180 days' prior notice.
d. All notices to active members of the termination of either carrier's
participation in the other carrier's program will be the sole responsibility of
the carrier who operates the program to which the member belongs and shall be
undertaken at such carrier's sole cost and expense.
e. Upon termination of this Agreement, then:
(1) Effective on the termination date AWA will not process reward
requests for travel to destinations served by CAL as defined in Exhibit A
for FF Members.
(2) For a period of twelve (12) months after the effective date of
such termination, CAL will continue to honor any valid reward ticket
issued on or before the termination date of this Agreement.
15. Audit and Control System.
a. Upon request from either carrier, the other carrier will provide the
requesting carrier with such reasonable audit and verification documentation as
the requesting carrier may reasonably require in order to verify, to the extent
possible, the following:
(1) the accuracy of members' account information;
(2) the extent to which processing and administrative internal controls
effectively safeguard members' account information; and
(3) the continuing assurance that transactions will be properly
processed and reported.
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<PAGE> 33
b. When problems with the data reporting have been identified, the carrier
creating the problem will correct the deficiencies, promptly and without charge.
A deficiency is defined as a condition which results in any, or all of the
following, due to tape or data transmission related problems or manual tracking
procedures:
(1) loss of data
(2) incorrect processing
(3) unauthorized data alteration
(4) incorrect reporting
c. For eighteen (18) months following the effective termination date of
this Agreement, either carrier shall have the right, during reasonable times and
upon reasonable request, to audit the records maintained by the other carrier
relating to the program participation herein and to copy or make extracts from
any and all books and records of the other carrier relating to such carrier's
performance hereunder.
16. CONFIDENTIALITY.
a. Except in a proceeding to enforce any of the provisions of this
Agreement, neither carrier (the "User") will, without the prior written consent
of the other carrier (the "Owner"), publicize or disclose to any third party,
either directly or indirectly, any of the following ("Confidential
Information"):
(1) Any of the terms or conditions of this Agreement other than those
terms and conditions required to be disclosed to program members hereunder;
or
(2) Any confidential or proprietary information or data received from
the Owner (which has been clearly and conspicuously marked "Confidential")
except information that is or becomes generally available to the public
other than as a result of disclosure by the User or is, or becomes,
available to the User on a nonconfidential basis from a source other than
the Owner which source, to the User's knowledge, is not prohibited from
disclosing such information to the User by a legal, contractual or
fiduciary obligation to the Owner.
(3) Information provided by oral communications, computer tapes, data
transmissions and other non-written forms will be
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<PAGE> 34
considered confidential unless otherwise stated by the carrier providing
the information.
(4) If either carrier is served with subpoena or other legal process
requiring the production or disclosure of any confidential information,
that carrier will immediately notify the Owner, and will use its best
efforts to permit the Owner, at its sole cost and expense, a reasonable
period of time to intervene and contest disclosure or production.
(5) Upon termination of this Agreement, the User must return any and
all confidential information received from the Owner.
(6) Each party shall restrict all confidential information to
respective employees on a "need to know" basis.
17. ENTIRE AGREEMENT WAIVERS AND AMENDMENTS. This Agreement constitutes
the entire understanding of the carriers with respect to the subject matter
hereof superseding all prior discussions and agreements, written or oral. This
Agreement may not be amended, nor may any of its provisions be waived, except by
writing signed by both carriers. No delay on the part of either carrier in
exercising any right power or privilege hereunder shall operate as a waiver
hereof, nor shall any waiver operate as a continuing waiver of any right, power
or privilege.
18. NOTICES. All notices given hereunder shall be in writing delivered by
hand, certified mail, telex, or telecopy to the carriers at the following
addresses:
<TABLE>
<S> <C>
If to CAL:
Continental Airlines, Inc. Telephone No.: 713-834-2950
2929 Allen Parkway Telecopier No.: 713-520-6329
Houston, Texas 77019
Attention: Vice Chairman & CEO
With copy to:
Continental Airlines, Inc. Telephone No.: 713-834-5149
2929 Allen Parkway Telecopier No.: 713-834-5161
Houston, Texas 77019
Attention: Senior Vice President
and General Counsel
</TABLE>
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<PAGE> 35
If to AWA:
America West Airlines, Inc. Telephone No.: (602) 693-5880
4000 E. Sky Harbor Blvd. Telephone No.: (602) 693-5990
Phoenix, AZ 85034
Attention: President & COO
With copy to:
America West Airlines, Inc. Telephone No.: (602) 693-5750
4000 E. Sky Harbor Blvd. Telephone No.: (602) 693-5904
Phoenix, AZ 85034
Attention: Senior Vice President
and General Counsel
19. SUCCESSORS AND ASSIGNS. Neither carrier may assign its rights or
delegate its duties under this Agreement without the prior written consent of
the other carrier, and any such purported assignment or delegation shall be
void. This Agreement shall be binding on the lawful successors of each carrier.
20. SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
21. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
22. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which taken together shall constitute one agreement.
23. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to
principles of choice or conflicts of law.
24. EQUAL OPPORTUNITY. EEO clauses contained at 11 C.F.R. Sections 60-1.4,
60-250.4 and 60-741.4 are hereby incorporated by reference. Each party shall
comply with all equal opportunity laws and regulations which apply to or must be
satisfied by that party as a result of this Agreement.
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<PAGE> 36
25. Non-Waiver. The right of either carrier to require strict performance
and observance of any obligations hereunder will not be affected in any way by
any previous waiver, forbearance or course of dealing.
26. Compliance with Applicable Laws. Each carrier will comply with all
federal, state and local laws and regulations with respect to its respective
role in connection with the program and the products and services to be provided
by such carrier hereunder.
27. Force Majeure. Neither CAL nor AWA will be liable for delays in
performance caused by acts of God, war, strike, labor dispute, work stoppage,
fire or any other cause, whether similar or dissimilar, beyond the control of
the carrier whose performance is delayed.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
<TABLE>
<S> <C>
CONTINENTAL AIRLINES, INC. AMERICA WEST AIRLINES, INC.
By: By:
- - --------------------------------------------- ---------------------------------------------
Title: Title:
- - --------------------------------------------- ---------------------------------------------
</TABLE>
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<PAGE> 37
EXHIBIT A
REWARD TRAVEL ON CAL FLIGHTS
1. REWARD DESTINATIONS
FF Members may redeem FlightFund miles for travel on CAL flights from a CAL
North American gateway to the following destinations:
Europe
Hawaii
Asia
2. REWARD LEVELS
FF Members will be able to redeem miles for travel on CAL flights at the
following roundtrip levels:
<TABLE>
<CAPTION>
TRAVEL AREA (1) COACH (1) FIRST
----------- --------- ---------
<S> <C> <C>
Between the Continental
United States & Hawaii 50,000 TBD
Between the Continental
United States & Asia 65,000 TBD
Between the Continental
United States & Europe 65,000 N/A
</TABLE>
3. REDEMPTION PROCEDURES
FF Members may only redeem FlightFund miles for reward travel on CAL
flights by submitting a request to AWA in accordance with the terms and
conditions applicable to FF Members. AWA will contact CAL via telephone or
reservation system to request reward travel for FF Members on CAL flights. CAL
will have specific staff dedicated to FlightFund reward requests and respond to
reward requests within 48 hours of receipt of the request. Once properly
confirmed, all reward travel reservations will be honored by CAL. AWA will issue
all FlightFund reward tickets. Once issued, all reward tickets will be valid for
one year. CAL will not impose any restrictions on advance booking of reward
travel and changes to previously confirmed reservations will be accepted up to
the day prior to departure from the point of origin.
A-1
<PAGE> 38
4. CAPACITY RESTRICTIONS
CAL may reasonably restrict the number of seats on an CAL flight available
for travel pursuant to a FlightFund reward ticket, but AWA shall have access
equal to reward seats provided to OP Members. CAL may impose blackout dates for
FlightFund Reward travel, provided that such blackout dates correspond to the
blackout dates applicable to OP Members.
5. QUALITY OF SERVICE
CAL shall provide service to FF Members traveling on CAL flights pursuant
to FlightFund rewards to the same extent and in the same manner that it provides
service to OP Members on CAL flights. In the event of a current day flight
cancellation, CAL or AWA will reaccommodate FlightFund or OnePass reward travel
exclusively on flights operated by either CAL or AWA.
A-2
<PAGE> 39
EXHIBIT B
REWARD TRAVEL CHARGE
For flights operated by either carrier as Shared Code Segments or, when
there is system-wide domestic code sharing pursuant to the Code Sharing
Agreement, all flights, the charge per mile flown is as follows:
<TABLE>
<S> <C>
Coach to all except Hawaii
Coach to Hawaii [ CONFIDENTIAL PORTION DELETED ]
BusinessFirst to Hawaii
</TABLE>
For flights operated by either carrier as other than Shared Code Segments
prior to system-wide domestic code sharing pursuant to the Code Sharing
Agreement, the charge per mile flown is as follows:
<TABLE>
<S> <C>
Coach to all except Hawaii
Coach to Hawaii [ CONFIDENTIAL PORTION DELETED ]
BusinessFirst to Hawaii
</TABLE>
B-1
<PAGE> 40
EXHIBIT C
AWARD TICKET RECONCILIATION
ACCOUNTING PROCEDURES
1. AWA agrees that off-line reward tickets for travel on CAL will be issued
by AWA on AWA's ticket stock.
2. Reward tickets will include a discrete fare basis code so that the usage
of reward travel tickets can be tracked.
3. On a monthly basis AWA will provide CAL with the number of reward
tickets issued by date, award level and city pair. Such reports will be provided
30 days after the end of the month for which such report relates.
4. CAL will include in its monthly Interline Billing Invoice to AWA, the
lifted reward travel flight coupons which are reported for purposes of
settlement through the Airlines Clearing House (ACH).
5. Reward tickets will be compared to flown reward travel.
C-1
<PAGE> 41
MASTER GROUND HANDLING AGREEMENT
This agreement is made this day of August 22, 1994, by and between
Continental Airlines, Inc., a Delaware corporation ("CAL"), and America
West Airlines, Inc., Debtor and Debtor-in-Possession, a Delaware corporation
("AWA").
RECITALS
CAL and AWA are each certificated air carriers providing air transportation
services in their respective areas of operation.
CAL and AWA are each capable of providing various ground handling services,
including customer service, ramp service line maintenance, maintenance of ground
support equipment and aircraft cleaning, and have the facilities and equipment
necessary to perform such services (collectively, the "Services") at airports
where they operate.
CAL and AWA each desire to consolidate various ground handling services,
facilities and equipment at airports where both airlines operate in order to
take advantage of certain synergy opportunities.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein contained, CAL and AWA hereby agree as follows:
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<PAGE> 42
1. DEFINITIONS.
a. Handling Company: The airline providing the Services.
b. Carrier: The airline receiving the Services.
2. SERVICES TO BE PROVIDED AND LOCATIONS. The airlines will mutually
determine what Services will be provided by one airline for the other airline at
locations where both airlines conduct air carrier operations. The locations
where both airlines conduct operations are set forth in Exhibit A hereto. The
factors that will be considered in determining which airline provides Services
at a particular location will be the number of flights that each airline
operates at the location, the overall savings that may be realized, the presence
of third party constraints, the number of locations that an airline provides or
is likely to provide Services for the other airline, and any legitimate business
concerns. The Services to be provided at each location shall be described
according to Annex A of the SGHA of April 1993, and attached hereto as
Exhibit C.
3. PRICING.
[Confidential Portion Deleted]
2
<PAGE> 43
[Confidential Portion Deleted]
3
<PAGE> 44
[Confidential Portion Deleted]
b. The Handling Company shall provide full disclosure of the costing of
services to the Carrier upon request.
c. For purposes of Section 3.a. hereof, the incremental cost to the
Handling Company of providing the Services will be the sum of the costs
below that are incremental to the Handling Company as a result of
providing the Services for the Carrier, and for purposes of Section
3.a.(1) hereof, the applicable mark up shall be as indicated below.
(1) [Confidential Portion Deleted]
(2) [Confidential Portion Deleted]
4
<PAGE> 45
(3) [Confidential Portion Deleted]
(4) [Confidential Portion Deleted]
(5) [Confidential Portion Deleted]
(6) [Confidential Portion Deleted]
(7) [Confidential Portion Deleted]
5
<PAGE> 46
(8) [Confidential Portion Deleted]
d. In addition to the payment referred to in Section 3.a. hereof, the
Carrier shall pay the Handling Company a fee for the use of non-incremental
facility space equal to one half the difference between (i) the monthly cost of
rent and facility maintenance and operating charges that the Carrier incurred
prior to the Handling Company's commencing providing Services for the Carrier at
a location and (ii) the monthly direct cost of incremental facilities plus any
amount of monthly rent and facility maintenance and operating cost that the
Carrier is required to pay at such location for space that is not being used as
a result of the Handling Company's providing Services for the Carrier.
e. Handling in the case of technical landings for other than commercial
purposes will be charged at 50% of the average turn rate provided that a
physical change of load is not involved.
6
<PAGE> 47
f. Handling in case of return to ramp will not be charged extra, provided
that a physical change of load is not involved.
g. Handling in case of return to ramp involving a physical change of load
will be charged in the same manner as in the case of technical landing in
accordance with Sub-Paragraph 3.e.
h. The Carrier will reimburse the Handling Company for any overtime expense
incurred as a result of the Carrier operating a flight, the actual departure
time of which is more than two (2) hours later than scheduled departure time.
Labor rates to be used will be listed in Annex B.
4. CHANGE EVENTS. The costs set forth in Exhibit B, as well as those set
forth in this Agreement will be reviewed and adjusted, if necessary, at the
conclusion of every six month period, upon the occurrence of a schedule change
by Carrier, Handling Company or any material change in Handling Company's
labor cost (collectively, the events giving rise to an adjustment in cost
are referred to as "Change Events").
5. EQUIPMENT. The Carrier shall be responsible for providing to the
Handling Company any incremental ground equipment necessary for the Handling
Company to be able to perform Services for the Carrier at a location. The
Handling Company shall maintain the ground equipment in the same manner that it
maintains its own
7
<PAGE> 48
ground equipment. The Carrier shall pay the maintenance and operating expense
for such Carrier supplied ground equipment in accordance with section 3.c(2)
hereof. Such Carrier supplied ground equipment shall at all times be considered
the property of Carrier.
6. FORMAL AGREEMENT. At such time as the airlines agree on the Services
that will be provided at a location, the airlines will execute an agreement
substantially in the form of Exhibit B which is the 1993 version of the Standard
Ground Handling Agreement (SGHA), Simplified Procedure, published by the
International Air Transport Associations (IATA). Exhibit B sets forth the
general terms and conditions upon which each airline will provide Services to
the other airline.
7. INDEPENDENT PARTIES. It is expressly recognized and agreed that each
airline, in its performance and otherwise under this Agreement, is and shall be
engaged and acting as an independent contractor and in its own independent and
separate business; that each airline shall retain complete and exclusive control
over its staff and operations and the conduct of its business; and that each
airline shall bear and pay all expenses, costs, risks and responsibilities
incurred by it in connection with its obligations under this Agreement. Neither
CAL nor AWA nor any officer, employee, representative, or agent of CAL or AWA
shall in any manner, directly or indirectly, expressly or by implication, be
8
<PAGE> 49
deemed to be, or make any representation or take any action which may give rise
to the existence of, any employment, agent, partnership, or other like
relationship as between CAL and AWA but each airline's relationship as respects
the other airline in connection with this Agreement is and shall remain that of
an independent contractor.
8. TERM AND TERMINATION.
a. Term. Unless the airlines agree to an earlier commencement date, the
term of this Agreement shall commence as soon as practicable after the date that
is the later of the date that this Agreement is signed by both parties or the
date that the investment agreement between AWA and AmWest Partners, L.P. (the
"Investment Agreement") is consummated and shall continue until the date
immediately preceding the tenth anniversary of the commencement date, unless
earlier terminated as provided herein, and shall continue thereafter until
either airline gives the other airline notice of termination at least 90 days
prior to the effective date of such termination. In no event shall termination
or expiration pursuant to this Section 7a be effective unless such 90 days'
notice is provided.
b. Termination as a Result of Changes of Law. In the event there is any
change in treaties, statutes or regulations of air transportation that
materially affects the rights and/or obligations presently in force with respect
to the air
9
<PAGE> 50
transportation services of CAL or AWA or both, relating to CO* or HP* Flights,
then the airlines will consult, within 30 days after any of the occurrences
described herein, in order to determine or seek mutual agreement as to what, if
any changes to this Agreement are necessary or appropriate, including but not
limited to the early termination and cancellation of this Agreement.
c. Other Termination Rights. In addition to any other provisions of this
Agreement, this Agreement may be terminated, without liability, as follows:
(1) By either airline on 30 days' prior written notice, if the other
airline has breached any material provision of this Agreement unless such
other airline cures such breach within such 30 day period;
(2) By either airline immediately on notice, if the other airline
shall be dissolved or shall fail to maintain its corporate existence in
good standing, or shall have its authority to operate as a scheduled
airline suspended or revoked, or shall cease operations as a scheduled
airline.
(3) By either airline immediately on notice, in the event that the
commencement date of this Agreement is prior to the date that the
Investment Agreement is consummated if the Investment Agreement is
terminated prior to this having been consummated.
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(4) Except to AWA's currently pending Chapter 11 proceeding, by either
airline if a petition is filed by or against the other airline under bankruptcy
law, or any other law providing for the relief of debtors, and the affected
party does not succeed in having such petition lifted or stayed within sixty
days from the date of entry; either airline, at its option, may cancel this
Agreement immediately and exercise such other remedies as may be available at
law and/or in equity
(5) By either airline on six month's prior written notice, if an airline,
foreign or domestic, that competes with the terminating airline on a material
basis, acquires majority ownership of or substantial control over the other
airline.
9. ENTIRE AGREEMENT WAIVERS AND AMENDMENTS. This Agreement, together with
any Annex Agreements as set forth in the format demonstrated in Exhibit B,
constitutes the entire understanding of the airlines with respect to the subject
matter hereof superseding all prior discussions and agreements, written or oral.
This Agreement may not be amended, nor may any of its provisions be waived,
except by writing signed by both airlines. No delay on the part of either
airline in exercising any right power or privilege hereunder shall operate as a
waiver hereof, nor shall any waiver operate as a continuing waiver of any right,
power or privilege.
11
<PAGE> 52
10. NOTICES. All notices given hereunder shall be in writing delivered by
hand, certified mail, telex, or telecopy to the airlines at the following
addresses:
<TABLE>
<S> <C>
If to CAL:
Continental Airlines, Inc. Telephone No.: 713-834-2950
2929 Allen Parkway Telephone No.: 713-520-6329
Houston, Texas 77019
Attention: Vice Chairman & CEO
With copy to:
Continental Airlines, Inc. Telephone No.: 713-834-5149
2929 Allen Parkway Telephone No.: 713-834-5161
Houston, Texas 77019
Attention: Senior Vice President
and General Counsel
If to AWA:
America West Airlines, Inc. Telephone No.: 602-693-5880
4000 E. Sky Harbor Blvd. Telephone No.: 602-693-5950
Phoenix, Arizona 85034
Attention: President & CEO
With copy to:
America West Airlines, Inc. Telephone No.: 602-693-5750
4000 E. Sky Harbor Blvd. Telephone No.: 602-693-5904
Phoenix, Arizona 85034
Attention: Sr. Vice President and
General Counsel
</TABLE>
11. SUCCESSORS AND ASSIGNS. Neither airline may assign its rights or
delegate its duties under this Agreement without the prior written consent of
the other airline, and any such purported assignment or delegation shall be
void. This Agreement shall be binding on the lawful successors of each airline.
12
<PAGE> 53
12. SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
13. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
14. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which taken together shall constitute one agreement.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the law of the State of New York without reference to principles
of choice or conflicts of law.
16. EQUAL OPPORTUNITY. EEO clauses contained at 11 C.F.R. #60-1.4, 60-250.4
and 60-741.4 are hereby incorporated by reference. Each party shall comply with
all equal opportunity laws and regulations which apply to or must be satisfied
by that party as a result of this Agreement.
17. HANDLING STANDARDS. The Handling Company agrees to provide services in
accordance with the minimum standards as
13
<PAGE> 54
outlined in Exhibit B. Failure to maintain these performance standards in every
category for a calendar month will result in a reduction of the charges of five
percent for the period; likewise, if the minimum standards are exceeded in every
category a five percent incentive bonus will be awarded the handling company.
Following are the standards:
a. Standards for cities where the Carrier has under 25 flights per day:
[Confidential Portion Deleted]
18. SETTLEMENT OF ACCOUNTS. The Handling Company shall present invoices to
the Clearing House (ACH) monthly in arrears for all services performed.
Concurrently therewith, the Handling Company shall send or deliver copies of
such invoices to the Carrier's local station manager. The Carrier shall not
oppose clearance of any invoice by the Clearing House, but reserve the right to
subsequently adjust any difference which may arise in
14
<PAGE> 55
connection therewith, provided such adjustments are in accordance with ACH
rules.
19. DISPUTE RESOLUTION. In the event that the Handling Company does not
perform to the standards set forth in this Agreement, the Carrier and Handling
Company agree to resolve any service dispute as follow:
a. First, the field representatives of both Carrier and the Handling
Company shall negotiate in good faith to resolve any service standard dispute.
b. Second, if such dispute is not resolved within ten days by the field
representative, the Carrier and the Handling Company will schedule a
review committee meeting consisting of senior management personnel
authorized to resolve the dispute.
20. TRANSFER OF SERVICES. The Handling Company may subcontract certain
services to be provided hereby only with the prior written consent of the
Carrier, which will not be unreasonably withheld. The Carrier will reimburse the
Handling Company for the expense of such subcontract at cost plus 10%.
21. FLIGHT SCHEDULE. Each airline will provide the other airline with 90
days' prior notice (or notice as far in advance as possible if 90 days is
impracticable) of any change by it to the flight schedule established pursuant
to Annex B hereto. Upon notice of a schedule change, the airlines shall attempt
to resolve any problems that result from such change in a commercially
15
<PAGE> 56
reasonable manner so that the detrimental effects of such change are minimized.
If after the airlines attempt to resolve such problems, the schedule change is
unacceptable to the Carrier, the Carrier may terminate the agreement applicable
to the location on 30 days notice delivered no later than 30 days after the
schedule change.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
CONTINENTAL AIRLINES INC. AMERICA WEST AIRLINES, INC.
<TABLE>
<S> <C> <C> <C>
/s/ Charles /s/ Marty J. Whalen
BY: ___________________________________ BY: ___________________________________
/s/ Exec. Vice President Sr. Vice President
TITLE: ___________________________________ TITLE: ___________________________________
August 25, 1994 August 25, 1994
DATE: ___________________________________ DATE: ____________________________________
</TABLE>
16
<PAGE> 57
EXHIBIT A
LOCATIONS
[confidential portion deleted]
17
<PAGE> 58
EXHIBIT B
STANDARD GROUND HANDLING AGREEMENT -- SIMPLIFIED PROCEDURE
ANNEX B.1.1 -- LOCATION(S), AGREED SERVICES, FACILITIES AND CHARGES
to the Standard Ground Handling Agreement (SGHA) of April 1993
between: AMERICA WEST AIRLINES, INC.
having its principal office at:
4000 E. Sky Harbor Boulevard
Phoenix, Arizona 85034,
and hereinafter referred to as the ["Carrier" or
"Handling Company"]
and: CONTINENTAL AIRLINES, INC.
having its principal office at:
2929 Allen Parkway
Houston, Texas 77019,
and hereinafter referred to as the ["Handling
Company" or "Carrier"]
effective from:
This Annex for the location [Location where Carrier will provide Ground
Handling for the other Carrier]
is valid from and replaces:
PREAMBLE: This Annex B is prepared in accordance with the simplified procedure
whereby the Carrier and the Handling Company agree that the terms of the Main
Agreement and Annex A of the SGHA of April 1993 as published by the
International Air Transport Association shall apply as if such terms were
repeated here in full. The terms of the Master Ground Handling Agreement between
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<PAGE> 59
America West Airlines, Inc. and Continental Airlines Inc., dated August 22,
1994, also applies as if such terms were repeated here in full and in cases of
conflict supersede the terms of the SGHA.
PARAGRAPH 1. HANDLING CHARGES
1.1 The Handling company shall provide the services of Annex A enumerated below
for the Carrier's scheduled operations:
[List of Services to be Provided]
1.2 Handling Fee
1.2.1 For the performance of services enumerated in Sub-Paragraph 1.1, the
Handling Company shall charge the Carrier the following monthly fee
such as has been calculated in accordance to the pricing standards as
recorded in the Master Agreement.
$ /Flight
or a monthly minimum of
$ /Month
whichever is greater.
(List any additional Handling Fees here which apply from the Main Agreement.)
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<PAGE> 60
PARAGRAPH 2. ADDITIONAL SERVICES
2.1 (List additional services not recorded in 1.1)
2.2 Handling Fees:
2.2.1 (List fees for additional services here. All fees listed should
be consistent with the fee structure stated in the Master
Handling Agreement.)
PARAGRAPH 3. FACILITY SPACE
3.1 (List facility space provided here.)
3.2 (List cost of facility space.)
PARAGRAPH 4. FLIGHT SCHEDULE
4.1 Effective dates
4.2 A/C FREO ETA ETD FREO A/C
PARAGRAPH 5. HANDLING STANDARDS
Incentive Penalty
Station On-Time Departures
First Flight On-Time Departures
Mishandled Baggage
Aircraft Damage
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<PAGE> 61
PARAGRAPH 6. DURATION, MODIFICATION AND TERMINATION
6.1 Notwithstanding the provisions of Paragraph 8 Term and Termination, of
the Master Ground Handling Agreement, this Annex shall remain in effect for a
period of two years from the date that this Annex is effective and shall remain
in effect thereafter until cancelled by either party upon 60 days notice of such
cancellation. In addition to the rights that either party may have pursuant to
the termination provisions of the Master Ground Handling Agreement, either party
may cancel this Annex if the party ceases operations at the airport where the
services are being provided hereunder, in the case of "Change of Events" the
amended price is such that the Carrier wishes to terminate the Agreement, the
Handling Company is unable to meet the agreed upon Handling Standards of the
Carrier or by the Handling Company if the Handling Company's operations at the
airport where the services are being provided hereunder are reduced to such and
extent that the maintenance of ground handling capabilities is no longer
prudent.
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<PAGE> 62
IN WITNESS WHEREOF, the parties hereto have each caused this Annex B to be
signed and delivered by its duly authorized officer, as of the date indicated
below.
CONTINENTAL AIRLINES, INC. AMERICA WEST AIRLINES, INC.
By: By:
- - --------------------------------- ---------------------------------
Title: Title:
- - --------------------------------- ---------------------------------
Date: Date:
- - --------------------------------- ---------------------------------
22
<PAGE> 63
Exhibit C
Airport Handling Manual
- - --------------------------------------------------------------------------------
AHM 810 -- ANNEX A
IATA STANDARD GROUND HANDLING AGREEMENT (APRIL 1993)
STANDARD GROUND HANDLING AGREEMENT
ANNEX A -- GROUND HANDLING SERVICES
to the Standard Ground Handling Agreement
effective from:
between:
hereinafter referred to as "the Carrier" or "the Handling Company", as the case
may be,
and:
hereinafter referred to as "the Handling Company" or "the Carrier", as the case
may be.
This Annex A
is valid from:
and replaces:
TABLE OF CONTENTS
DEFINITIONS
SECTION 1. REPRESENTATION AND ACCOMMODATION
1.1 General
1.2 Disbursements
1.3 Accommodation
SECTION 2. LOAD CONTROL AND COMMUNICATIONS
2.1 Load Control
2.2 Communications
SECTION 3. UNIT LOAD DEVICE CONTROL
3.1 Handling
3.2 Administration
SECTION 4. PASSENGERS AND BAGGAGE
4.1 General
4.2 Departure
4.3 Arrival
4.4 Baggage Handling
4.5 Remote/Off Airport Services
SECTION 5. CARGO AND MAIL
5.1 Cargo Handling -- General
5.2 Export Cargo
5.3 Import Cargo
5.4 Transfer Cargo
5.5 Post Office Mail
SECTION 6. RAMP
6.1 Marshalling
6.2 Parking
6.3 Ramp to Flight Deck Communication
6.4 Loading and Unloading
6.5 Starting
6.6 Safety Measures
6.7 Moving of Aircraft
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<PAGE> 64
Ground Handling Agreements
- - --------------------------------------------------------------------------------
AHM 810 -- ANNEX A (CONTINUED)
SECTION 7. AIRCRAFT SERVICING
7.1 Exterior Cleaning
7.2 Interior Cleaning
7.3 Toilet Service
7.4 Water Service
7.5 Cooling and Heating
7.6 Snow and Ice Removal
7.7 Cabin Equipment
7.8 Storage of Cabin Material
SECTION 8. FUEL AND OIL
8.1 Fuelling and/or Defuelling
8.2 Replenishing of Oils and Fluids
SECTION 9. AIRCRAFT MAINTENANCE
9.1 Routine Services
9.2 Non-routine Services
9.3 Material Handling
9.4 Parking and Hangar Space
SECTION 10. FLIGHT OPERATIONS AND CREW ADMINISTRATION
10.1 General
10.2 Flight Preparation at the Airport of Departure
10.3 Flight Preparation at a Point Different from the Airport of
Departure
10.4 In-flight Assistance
10.5 Post-flight Activities
10.6 In-flight Re-despatch
10.7 Crew Administration
SECTION 11. SURFACE TRANSPORT
11.1 General
11.2 Special Transport
SECTION 12. CATERING SERVICES
12.1 Liaison and Administration
12.2 Catering Ramp Handling
12.3 Storage
12.4 Cleaning Services
12.5 Preparation
SECTION 13. SUPERVISION AND ADMINISTRATION
13.1 Supervisory Functions
13.2 Administrative Functions
SECTION 14. SECURITY
14.1 Passengers and Baggage
14.2 Cargo and Mail
14.3 Catering
14.4 Aircraft, Ramp and Other Designated Areas
14.5 Additional Security Services
24
<PAGE> 65
Airport Handling Manual
- - --------------------------------------------------------------------------------
AHM 810 -- ANNEX A (CONTINUED)
DEFINITIONS
For the sake of clarity, the following definitions apply:
AIRPORT TERMINAL means all buildings used for arrival and departure
handling of aircraft.
ARRANGE (or MAKE ARRANGEMENTS FOR) implies that the Handling Company may
request an outside agency to perform the service in question. The charge of
the outside agency shall be paid by the Carrier. The Handling Company
assumes no liability toward the Carrier for such arrangements.
CARGO includes the Carrier's service cargo and company mail.
LOADS means baggage, cargo, mail and any aircraft supplies including
ballast.
AS MUTUALLY AGREED or BY MUTUAL AGREEMENT, it is recommended that, whenever
this terminology is used, such items be supported by specific documentation
or reference.
OWNING CARRIER means a carrier who is the owner or lessee of a Unit Load
Device.
PASSENGERS includes the Carrier's service and free passengers.
PROVIDE implies that the Handling Company itself assumes responsibility for
the provision of the service in question.
RECEIVING CARRIER means a carrier who receives a Unit Load Device from a
transferring carrier at a transfer point.
TECHNICAL LANDING is a landing for other than commercial reasons where no
physical change of load occurs.
TRANSFERRING CARRIER means a carrier who transfers a Unit Load Device to a
receiving carrier at a transfer point.
TRANSIT FLIGHT is an aircraft making an intermediate landing for commercial
reasons where a change of load occurs.
TRUCK HANDLING means loading and/or unloading a truck operating as a Truck
Service.
TRUCK SERVICE means a service operated by truck on behalf of an airline
carrying loads documented in accordance with the applicable IATA and/or
ICAO rules, regulations and procedures.
In the Main Agreement and in Annex A, the word "aircraft" will read "truck"
and "flight" will read "truck service" when it concerns the handling of a
truck as meant under the above definitions.
In Section 5, Sub-Section 5.3.1(a) of Annex A, the word "vehicle" means a
conveyance of any kind to be used within the ramp area for transport of
cargo between warehouse and truck or between two trucks or between two
warehouses.
TURNROUND FLIGHT is an aircraft terminating a flight and subsequently
originating another flight following a complete change of load.
UNIT LOAD DEVICES (ULDs) means devices which interface directly with an
aircraft restraint system and are registered by the IATA ULD Technical
Board.
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<PAGE> 66
Ground Handling Agreements
- - --------------------------------------------------------------------------------
AHM 810 -- ANNEX A (CONTINUED)
<TABLE>
<S> <C>
SECTION 1. REPRESENTATION AND ACCOMMODATION
1.1 General
1.1.1 If required, arrange guarantee or bond to facilitate the Carrier's activities. Cost
for provisions of such guarantee or bond may be recharged to the Carrier.
1.1.2 Liaise with local authorities.
1.1.3 Indicate that the Handling Company is acting as handling agent for the Carrier.
1.1.4 Inform all interested parties concerning movements of the Carrier's aircraft.
1.2 Disbursements
1.2.1 As mutually agreed, pay, on behalf of the Carrier, airport, customs, police and other
charges relating to the services performed.
1.2.2 As mutually agreed, pay, on behalf of the Carrier, out-of-pocket expenses, for
example, accommodation, transport and catering charges.
1.2.3 As mutually agreed, pay Denied Boarding Compensation on behalf of the Carrier.
1.3 Accommodation
1.3.1 Provide office space for accommodation of the Carrier's representative(s).
SECTION 2. LOAD CONTROL AND COMMUNICATIONS
2.1 Load Control
2.1.1 Convey and deliver flight documents between the aircraft and appropriate airport
buildings.
2.1.2 (a) Prepare
(b) Sign
(c) Distribute
(d) Clear
(e) File
as appropriate, documents, for example, loading instructions, loadsheets, balance
charts, Captain's load information and manifests, in accordance with local or
international regulations or as reasonably required by the Carrier.
2.1.3 (a) Compile
(b) Despatch
statistics, returns and reports, as mutually agreed.
2.2 Communications
2.2.1 (a) Compile
(b) Despatch and receive
all messages in connection with the services performed by the Handling Company, using
the Carrier's originator code or double signature procedure, as applicable. Inform
the Carrier's representative of the contents of such messages. Charges for
transmitting messages may be recharged to the Carrier.
2.2.2 Maintain a message file containing all above mentioned messages pertaining to each
flight for ninety days.
2.2.3 (a) Provide
(b) Operate
suitable means of communication between the ground station and the Carrier's
aircraft.
SECTION 3. UNIT LOAD DEVICE CONTROL
3.1 Handling
3.1.1 (a) Provide
or
(b) Arrange for
suitable storage space for Unit Load Devices, as mutually agreed.
</TABLE>
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<PAGE> 67
Airport Handling Manual
- - --------------------------------------------------------------------------------
AHM 810 -- ANNEX A (CONTINUED)
<TABLE>
<S> <C>
3.1.2 Apply correct storage and handling techniques in accordance with the Carrier's
requirements.
3.1.3 Take appropriate action to prevent theft or unauthorized use of, or damage to the
Carrier's Unit Load Devices in the custody of the Handling Company. Notify the
Carrier immediately of any damage to or loss of such items.
3.2 Administration
3.2.1 Maintain a stock record of all Unit Load Devices received and despatched in a
suitable manner, as mutually agreed.
3.2.2 Issue Control Receipts when Unit Load Devices are transferred to or from the owning
carrier on the instructions of the delivering carrier.
3.2.3 Compile and despatch Stock Check Messages (SCM), as mutually agreed.
3.2.4 Compile and despatch Unit Load Device Control Messages (UCM), according to UCM
procedure.
3.2.5 Prepare Unit Load Device Receipt (LUC) for all transfers of Unit Load Devices and
obtain signature(s) of the transferring and receiving carrier(s) or approved third
parties and distribute copies according to the Carrier's Instructions.
3.2.6 Handle lost, found and damaged Unit Load Device matters and notify the Carrier of
such irregularities.
SECTION 4. PASSENGERS AND BAGGAGE
4.1 General
4.1.1 Inform passengers and/or public about time of arrival and/or departure of Carrier's
aircraft and surface transport.
4.1.2 Make arrangements for stopover, transfer and transit passengers and their baggage and
inform them about services available at the airport.
4.1.3 When requested by the Carrier,
(a) provide
or
(b) arrange for
special equipment, facilities and specially trained personnel, as available, for
assistance to
(1) unaccompanied minors.
(2) disabled passengers.
(3) VIPs.
(4) transit without visa passengers (TWOVs).
(5) deportees.
(6) others, as specified.
Additional costs may be recharged to the Carrier.
4.1.4 Take care of passengers when flights are interrupted, delayed or cancelled, according
to instructions given by the Carrier. If instructions do not exist, deal with such
cases according to the practice of the Handling Company.
4.1.5 If applicable, arrange storage of baggage in the Customs' bonded store if required
(any fees to be paid by the passenger).
4.1.6 Notify the Carrier of complaints and claims made by the Carrier's clients and, by
special arrangement, process such claims, as mutually agreed.
4.1.7 Handle lost, found and damaged property matters, as mutually agreed.
4.1.8 Report to the Carrier any irregularities discovered in passenger and baggage
handling.
4.1.9 Make available the Handling Company's special lounge facilities, as specified in
Annex(es) B.
4.1.10 (a) Provide
or
(b) Arrange for
personnel and/or facilities for porter service.
4.2 Departure
4.2.1 Check and ensure that tickets are valid for the flight(s) for which they are
presented. The check shall not include the fare.
</TABLE>
27
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Ground Handling Agreements
- - --------------------------------------------------------------------------------
AHM 810 -- ANNEX A (CONTINUED)
<TABLE>
<S> <C>
4.2.2 By mutual agreement, check travel documents (passports, visas, vaccination and other
certificates) for the flight(s) concerned, but without the Handling Company having
any liability.
4.2.3 (a) Weigh and/or measure (as applicable), and tag checked and unchecked baggage.
(b) Effect the conveyance of checked baggage from the baggage check-in position to
the baggage sorting area.
Additional costs for baggage requiring special handling may be recharged to the
Carrier.
4.2.4 Enter baggage figures on passengers' ticket(s), detach applicable flight coupon(s)
and issue boarding pass(es)
(a) for initial flight.
(b) for subsequent flight(s).
4.2.5 By mutual agreement, make out excess baggage ticket(s), collect excess baggage
charge(s) and detach applicable excess baggage coupon(s).
4.2.6 Where applicable, collect Airport Service Charges from departing passengers
accounting therefor to the appropriate authorities.
4.2.7 Carry out the Carrier's seat allocation or selection system
(a) for initial flight.
(b) for subsequent flight(s).
4.2.8 Direct passengers through controls to the aircraft.
4.2.9 Carry out head check of passengers upon embarkation. (Count to be compared with
aircraft documents.)
4.2.10 Handle Denied Boarding Compensation cases, as agreed with the Carrier.
4.2.11 Provide facility for accepting and processing of unaccompanied baggage.
4.3 Arrival
4.3.1 Direct passengers from aircraft through controls to the terminal landside area.
4.3.2 Deliver baggage in accordance with local procedures.
4.4 Baggage Handling
4.4.1 Handle baggage in the baggage sorting area.
4.4.2 Prepare for delivery onto flights
(a) bulk baggage.
(b) Unit Load Devices.
4.4.3 Establish the weight of built-up Unit Load Devices.
4.4.4 (a) Offload bulk baggage from vehicles.
(b) Break down and/or empty Unit Load Devices.
(c) Check incoming baggage for transfer connections.
4.4.5 (a) Sort transfer baggage.
(b) Store transfer baggage for a period to be mutually agreed prior to despatch.
4.4.6 (a) Provide
or
(b) Arrange for
transport of transfer baggage to the sorting area of the receiving carrier.
4.4.7 Handle crew baggage, as mutually agreed.
4.5 Remote/Off Airport Services
4.5.1 Inform passengers/public about time of arrival/departure.
4.5.2 Receive departing passengers and baggage.
4.5.3 Carry out passenger and baggage handling as described in Sub-Sections 4.1 and 4.2,
where applicable.
4.5.4 Direct departing passengers to connecting transport to the airport.
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4.5.5 Receive passengers ex transport from the airport.
4.5.6 Deliver baggage to passengers in accordance with local procedures.
SECTION 5. CARGO AND MAIL
5.1 Cargo Handling -- General
Physical Handling
5.1.1 (a) Provide facilities for handling of cargo, protecting cargo from weather.
(b) Take appropriate action to prevent theft of, or damage to, cargo.
5.1.2 Provide, as locally available, essential equipment and storage facilities for
perishables, live animals, valuables, news films, dangerous goods and other special
shipments.
5.1.3 Store cargo for a period to be mutually agreed.
5.1.4 Obtain receipt upon delivery of cargo.
Document Handling
5.1.5 Check all documents to ensure shipment may be carried in accordance with the
Carrier's requirements. The check shall not include the rates charged.
Customs Control
5.1.6 Place cargo under Customs control, if required, and clear discrepancies in accordance
with local regulations.
5.1.7 Present to Customs, as required, cargo for physical examination.
Irregularities Handling
5.1.8 Take immediate action in accordance with the Carrier's and/or local authorities'
instructions in respect of irregularities, damage or mishandling of dangerous goods
and other special shipments.
5.1.9 Report to the Carrier any irregularities discovered in cargo handling.
5.1.10 Handle lost, found and damaged cargo matters, as mutually agreed.
5.1.11 (a) Notify the Carrier of complaints and claims, giving supporting data.
(b) Process such claims, as mutually agreed.
Miscellaneous
5.1.12 Take appropriate action to prevent theft or unauthorised use of, or damage to the
Carrier's pallets, containers, nets, straps, tie-down rings and other material in the
custody of the Handling Company. Notify the Carrier immediately of any damage to or
loss of such items.
5.1.13 (a) Provide
or
(b) Arrange for
handling of specialised cargo products, as mutually agreed.
5.1.14 Handle diplomatic mail, as mutually agreed.
5.1.15 Handle company mail, as mutually agreed.
5.2 Export Cargo
Physical Handling
5.2.1 Accept cargo in accordance with the Carrier's instructions, ensuring that
(a) shipments are "ready for carriage".
(b) the weight and volume of the shipments are checked.
5.2.2 Tally and assemble for despatch, cargo up to capacity available on the Carrier's
flights.
5.2.3 Prepare
(a) bulk cargo
(b) Unit Load Devices
for delivery onto flights.
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5.2.4 Establish the weight of
(a) bulk load
(b) built-up Unit Load Devices
and provide the load control unit with deadload weights.
Document Handling
5.2.5 (a) Prepare cargo manifests.
(b) Provide the load control unit with Special Load Notification, as required.
(c) Split air waybill sets. Forward applicable copies of manifests and air waybills,
as mutually agreed.
(d) Where applicable, return copy of air waybill to shipper, endorsed with flight
details.
Customs Control
5.2.6 Obtain Customs export clearance.
5.2.7 Prepare Customs documentation, for example, for cross-border truck services, as
mutually agreed.
5.3 Import Cargo
Physical Handling
5.3.1 (a) Offload bulk cargo from vehicles, when applicable.
(b) Break down and/or empty Unit Load Devices.
(c) Check incoming cargo against air waybills and manifests.
5.3.2. Release cargo to the consignee or agent upon proper release by Customs and other
government agencies, as required.
Document Handling
5.3.3 Notify consignee or agent of arrival of shipments in accordance with applicable
instructions.
5.3.4 (a) Provide
or
(b) Arrange for
facilities for collection of "Charges Collect" as shown on the air waybills and
extend credit to consignees or agents, as mutually agreed.
Irregularities Handling
5.3.5 Take action in accordance with applicable instructions when consignee refuses
acceptance or payment.
5.4 Transfer Cargo
5.4.1 Identify transfer cargo.
5.4.2 Prepare transfer manifests for cargo to be transported by another carrier.
5.4.3 (a) Provide
or
(b) Arrange for
transport to the receiving carrier's warehouse on or in the close proximity of the
airport of arrival, of transfer cargo under cover of Transfer Manifest.
5.4.4 Accept/prepare transfer cargo for onward carriage.
5.5 Post Office Mail
Physical Handling
5.5.1 Check incoming mail against Post Office mail documents.
5.5.2 Deliver mail to postal authorities against Post Office mail documents for receipt.
5.5.3 Accept and check outgoing mail from postal authorities against Post Office mail
documents receipt.
5.5.4 Handle transfer mail.
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Document Handling
5.5.5 Distribute Incoming/outgoing Post Office mail documents.
Irregularities Handling
5.5.6 Handling lost, found and damaged mail matters and report all irregularities to the
Carrier and postal authorities in accordance with local practices.
5.5.7 Maintain a file on all mail matters including irregularities for a period to be
mutually agreed.
SECTION 6. RAMP
6.1 Marshalling
6.1.1 (a) Provide
or
(b) Arrange for
marshalling at arrival and/or departure.
6.2 Parking
6.2.1 (a) Provide
(b) Position and/or remove
wheelchocks.
6.2.2 Position and/or remove
(a) landing gear locks.
(b) engine blanking covers.
(c) pilot covers.
(d) surface control locks.
(e) tallstands and/or aircraft tethering
6.2.3 (a) Provide
(b) Position and remove
(c) Operate
suitable ground power unit for supply of necessary electrical power. Any time limit
to be specified in Annex(es) B.
6.3 Ramp to Flight Deck Communication
6.3.1 Provide headsets.
6.3.2 Perform ramp to flight deck communication
(a) during tow-in and/or push-back.
(b) during engine starting.
(c) for other purposes.
6.4 Loading and Unloading
6.4.1 (a) For a period to be mutually agreed, provide
(b) Position and remove
(1) suitable passenger steps.
(2) suitable loading bridges.
(3) flight deck steps.
6.4.2 Provide
(a) passenger
(b) crew
transport between aircraft and airport terminals.
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6.4.3 (a) Provide
(b) Operate
suitable equipment for loading and/or unloading.
6.4.4 (a) Provide
(b) Operate
suitable equipment for transport of loads between agreed points on the airport, as
required. (Equipment to be released and/or made available, as mutually agreed.)
6.4.5 Assemble/deliver/receive loads
6.4.6 (a) Unload loads from aircraft, returning lashing materials to the Carrier.
(b) Load, stow and secure loads in the aircraft in accordance with the Carrier's
instructions and procedures. (Lashing materials may be charged at cost.)
(c) Operate in-plane loading system in accordance with the Carrier's instructions.
6.4.7 Load, stow and secure perishables, live animals, valuables, news films, dangerous
goods and other special shipments in accordance with the Carrier's instructions.
6.4.8 Redistribute loads in aircraft according to Carrier's instructions.
6.4.9 (a) Open and secure aircraft hold doors.
(b) Secure and lock aircraft hold doors when loading is complete.
6.4.10 Refill the Carrier's ballast bags with ballast approved by the Carrier.
6.4.11 Provide filled ballast bags
6.4.12 Arrange for safeguarding of all loads with special attention to valuables and
vulnerable cargo during loading/unloading and during transport between aircraft and
airport terminal(s).
6.5 Starting
6.5.1 (a) Provide
(b) Position and remove
(c) Operate
appropriate unit(s) for engine starting.
6.5 Safety Measures
6.6.1 (a) Provide
(b) Position and remove
(c) Operate
suitable fire-fighting equipment and other protective equipment, as required.
6.7 Moving of Aircraft
6.7.1 (a) Provide
(b) Position and remove
suitable tow-in and/or push-back equipment. (Towbar to be provided by the Carrier
unless otherwise agreed.)
(c) Tow in and/or push back aircraft according to the Carrier's instructions.
(d) Tow aircraft between other agreed points according to the Carrier's instructions.
6.7.2 Move aircraft under its own power in accordance with the Carrier's instructions.
SECTION 7. AIRCRAFT SERVICING
7.1 Exterior Cleaning
7.1.1 Perform exterior cleaning of flight deck windows.
7.1.2 Perform reasonable cleaning of aircraft integral steps.
7.1.3 Wipe excess oil from engine nacelles and landing gear.
7.1.4 Clean wings, controls, engine nacelles and landing gear.
7.1.5 Clean cabin windows.
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7.2 Interior Cleaning
7.2.1 Clean and tidy flight deck according to the Carrier's instructions and, if specified,
under the control of a person authorised by the Carrier, by
(a) emptying ash trays.
(b) disposing of litter.
(c) clearing waste from seat back stowages and racks.
(d) wiping crew tables.
(e) cleaning and tidying seats.
(f) mopping floor.
(g) cleaning windscreen on inside, as requested.
7.2.2 Clean and tidy, as appropriate, by
(a) emptying ash trays
(b) disposing of litter
(c) clearing waste from seat back and over head stowages
(d) wiping tables
(e) cleaning and tidying seats and passenger service units
(f) cleaning the floors (carpets and surrounds)
(g) wiping surfaces in pantries, galleys (sinks and working surfaces) and toilets
(wash basins, bowls, seats, mirrors and surrounds)
(h) removing, as necessary, an contamination caused by airsickness, spilled food or
drink and offensive stains,
in
(1) crew compartments (other than flight deck).
(2) lounges.
(3) bars, pantries, galleys.
(4) passenger cabins.
(5) toilets.
(6) cloakrooms.
(7) vestibules.
7.2.3 Clean and tidy pantry/galley fixtures and empty and clean refuse bins.
7.2.4 Clean floor and floor covers extensively.
7.2.5 Clean cabin fixtures and fittings.
7.2.6 Clean cabin windows.
7.2.7 Clean
(a) cargo holds.
(b) cargo cabins.
(c) Unit Load Devices.
7.2.8 Fold and stow blankets.
7.2.9 Make up berths.
7.2.10 Change
(a) head rest covers
(b) pillow covers.
Covers to be supplied by the Carrier.
7.2.11 Distribute in
(a) cabin
(b) toilets
Items provided by the Carrier.
7.2.12 Disinfect and/or deodorize aircraft (materials may be supplied by the Carrier).
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7.3 Toilet Service
7.3.1 (a) Provide
(b) Position and remove toilet servicing unit.
(c) Empty, clean, flush toilets and replenish fluids in accordance with the Carrier's
instructions.
7.4 Water Service
7.4.1 (a) Provide
(b) Position and remove water servicing unit.
(c) Replenish water tanks with drinking water, the standard of which is to meet the
Carrier's requirements.
7.5 Cooling and Heating
7.5.1 (a) Provide
(b) Position and remove.
(c) Operate cooling unit.
7.5.2 (a) Provide
(b) Position and remove.
(c) Operate heating unit.
7.6 Snow and Ice Removal
7.6.1 Remove snow from the aircraft without de-icing.
7.6.2 (a) Provide
(b) Position and remove.
(c) Operate de-icing unit.
7.7 Cabin Equipment
7.7.1 Rearrange cabin by
(a) removing
(b) installing
cabin equipment, for example, seats and cabin divider.
7.7.2 Handle in-flight entertainment matters, as mutually agreed.
7.8 Storage of Cabin Material
7.8.1 Provide suitable storage space for the Carrier's cabin material, as mutually agreed.
7.8.2 Take periodic inventory
7.8.3 (a) Provide
or
(b) Arrange for replenishment of stocks.
SECTION 8. FUELS AND OIL
8.1 Fuelling and/or Defuelling
8.1.1 Liaise with fuel suppliers.
8.1.2 (a) Inspect the Carrier's fuel product deliveries for contamination, prior to
storage, in accordance with the Carrier's instructions. Notify the Carrier of
results.
(b) Inspect fuel vehicles and/or appliances for contamination. Notify the Carrier of
results.
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8.1.3 If applicable, supervise the placement of the Carrier's product into storage at
(a) the Handling Company's facility.
(b) a storage facility designated by the Carrier.
8.1.4 Supervise fuelling/defuelling operations.
8.1.5 Prepare aircraft for fuelling/defuelling.
8.1.6 Drain water from aircraft fuel tanks.
8.1.7 Receive the Carrier's product from storage in quantities requested.
8.1.8 (a) Provide
(b) Position, remove and operate
approved fuelling/defuelling equipment.
8.1.9 Fuel/defuel the aircraft with quantities of products requested by the Carrier's
designated representative.
8.1.10 Check and verify the delivered fuel quantity.
8.1.11 Deliver the completed fuel order(s) to the Carrier's designated representative.
8.1.12 Maintain records of all fuelling/defuelling operations and provide the Carrier with
an inventory and usage summary in accordance with the Carrier's instructions.
8.2 Replenishing of Oils and Fluids
8.2.1 Liaise with suppliers.
8.2.2 Perform or supervise replenishing operations.
8.2.3 (a) Provide
(b) Operate
special replenishing equipment.
SECTION 9. AIRCRAFT MAINTENANCE
9.1 Routine Services
9.1.1 Perform line inspection in accordance with the Carrier's current instructions.
9.1.2 Enter in the aircraft log and sign for the performance of the line inspection.
9.1.3 Enter remarks in the aircraft log regarding defects observed during the inspection.
9.1.4 Perform pre-flight check immediately before aircraft departure.
9.1.5 Provide skilled personnel to assist the flight crew or ground staff in the
performance of the inspection.
9.2 Non-routine Services
9.2.1 Rectify defects entered in the aircraft log as reported by the crew or revealed
during the inspection, to the extent requested by the Carrier.
However, major repairs must be especially agreed upon between the Carrier and the
Handling Company.
9.2.2 Enter in the aircraft log and sign for the action taken.
9.2.3 Report technical irregularities and actions taken to the Carrier's maintenance base
in accordance with the Carrier's instructions.
9.2.4 Maintain the Carrier's technical manuals, handbooks, catalogues, etc.
9.2.5 Provide engineering facilities, tools and special equipment to the extent available.
9.3 Material Handling
9.3.1 (a) Obtain Customs' clearance for
(b) Administer
the Carrier's spare parts, power plants and/or equipment.
9.3.2 Provide periodic inspection of the Carrier's spare parts and/or spare power plant.
9.3.3 Provide suitable storage space for the Carrier's spare parts and/or special
equipment.
9.3.4 Provide suitable storage space for the Carrier's spare power plant.
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9.4 Parking and Hangar Space
9.4.1 (a) Provide
or
(b) Arrange for
suitable parking space.
9.4.2 (a) Provide
or
(b) Arrange for
suitable hangar space.
SECTION 10. FLIGHT OPERATIONS AND CREW ADMINISTRATION
10.1 General
10.1.1 Inform the Carrier of any known project affecting the operational services and
facilities made available to its aircraft in the areas of responsibility specified in
Annex(es) B.
10.1.2 Keep up-to-date all necessary manuals and instructions that the Carrier must provide
and ensure that all prescribed forms are available.
10.1.3 After consideration of the Carrier's instructions, suggest the appropriate action to
pilot-in-command in case of operational irregularities, taking into account the
meteorological conditions, the ground services and facilities available, aircraft
servicing possibilities and the overall operational requirements.
10.1.4 Maintain a trip file by collecting all documents specified by the Carrier, all
messages received or originated in connection with each flight and dispose of this
file as instructed by the Carrier.
10.2 Flight Preparation at the Airport of Departure
10.2.1 Arrange for the provision of the meteorological documentation and aeronautical
information for each flight.
10.2.2 Analyse the operational conditions and
(a) prepare or request
(b) sign
(c) make available
the operational flight plan according to the instructions and data provided by the
Carrier.
10.2.3 (a) Prepare or request
(b) Sign
(c) File
the Air Traffic Services (ATS) Flight Plan.
10.2.4 Furnish the crew with an adequate briefing.
10.2.5 (a) Prepare
(b) Sign
the fuel order.
10.2.6 Hand out flight operation forms as specified by the Carrier and obtain signature of
the pilot-in-command, where applicable.
10.2.7 Supply the appropriate local ground handling unit with the required weight and fuel
data.
10.2.8 (a) Obtain
(b) Monitor/Manage
the Carrier's slot time allocation with the appropriate ATS.
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10.3 Flight Preparation at a Point Different from the Airport of Departure
10.3.1 Analyse the operational conditions and
(a) prepare or request
(b) sign
(c) make available
the operational flight plan according to the instructions and data provided by the
Carrier.
10.3.2 Send to the Carrier or its representative at the airport of departure
(a) the operational flight plan
(b) the ATS Flight Plan
as specified in Annex(es) B, including information for crew briefing.
10.4 In-flight Assistance
10.4.1 Follow up the progress of the flight against flight movement messages, flight plan
messages and position reports received.
10.4.2 Provide information on flight progress to the Carrier's ground handling
representative.
10.4.3 Assist the flight as requested and/or deemed necessary to facilitate its safe and
efficient conduct in accordance with the flight plan.
10.4.4 Monitor movement of the flight within VHF range and provide assistance, as necessary.
10.4.5 Take immediate and appropriate action in case of in-flight irregularity, according to
the Carrier's instructions (written or verbal).
10.4.6 Log and notify as specified by the Carrier any incident of an operational nature
(delays, diversions, engine trouble, etc.).
10.4.7 Perform in-flight assistance, including re-despatch until adjacent area is able to
accept responsibility if, for reasons of communications failure, weather phenomena,
safety of aircraft or emergency it is undesirable to stop these services at the area
boundary specified in Annex(es) B. Similar conditions may make it desirable to
transfer these services to the next area before the area boundary is crossed.
10.4.8 Provide assistance to the flight, as required, beyond the VHF range.
10.5 Post-flight Activities
10.5.1 Obtain a debriefing from incoming crews, distributing reports or completed forms to
offices concerned, whether governmental or the Carrier's.
10.6 In-flight Re-despatch
10.6.1 Analyse meteorological information and the operational flight conditions for
re-despatch, calculating and planning it according to the data provided by the
aircraft in flight, and informing the pilot-in-command about the results thus
obtained.
10.7 Crew Administration
10.7.1 Perform crew administration services, as mutually agreed.
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SECTION 11. SURFACE TRANSPORT
11.1 General
11.1.1 Make all necessary arrangements for the transport of
(a) crews
(b) passengers
(c) baggage
(d) cargo and/or mail
between
(1) airport and town terminal.
(2) airport and other agreed points.
(3) separate terminals at the same airport.
11.2 Special Transport
11.2.1 Make all necessary arrangements for special transport within the limit of local
possibilities.
SECTION 12. CATERING SERVICES
12.1 Liaison and Administration
12.1.1 Liaise with the Carrier's catering supplier.
12.1.2 Handle requisitions made by the Carrier's authorised representative.
12.1.3 Complete stock returns and other documentation.
12.1.4 Maintain stocks at agreed levels.
12.1.5 Pack and despatch catering items, as agreed.
12.2 Catering Ramp Handling
12.2.1 Unload/load and stow catering loads from/on aircraft.
12.2.2 Transfer catering loads on aircraft.
12.2.3 Transport catering loads between aircraft and agreed points.
12.3 Storage
12.3.1 Provide, according to the Carrier's requirements,
(a) bonded
(b) unbonded
(c) air conditioned
(d) cold
(e) deep freeze
storage accommodation.
12.3.2 Store the Carrier's
(a) spare catering equipment.
(b) consumable material.
(c) food stock.
(d) bar stock.
12.4 Cleaning Services
12.4.1 Empty, wash and clean removable catering equipment.
12.4.2 Arrange for cleaning and/or laundering of cabin blankets and linen.
12.4.3 Remove and, as required, destroy food and material left over from incoming flights in
accordance with local regulations and/or the Carrier's instructions.
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12.5 Preparation
12.5.1 Refill removable containers with hot and/or cold drinking water, the standard of
which is to meet the Carrier's requirements.
12.5.2 Prepare and assemble for delivery
(a) materials and unprocessed articles
(b) bar and/or catering supplies and other goods
in accordance with agreed specifications.
SECTION 13. SUPERVISION AND ADMINISTRATION (of services provided by others)
13.1 Supervisory Functions (pre-flight, on-flight and post-flight)
13.1.1 Attend at the airport as necessary to supervise and coordinate the ground handling
services contracted by the Carrier with third party(ies).
13.1.2 Cooperate with the Carrier's designated representative, as required.
13.1.3 Ensure that the handling company(ies) is (are) timely informed about operational
date, including alterations.
13.1.4 Check availability and preparedness of staff, equipment, supplies and services of the
Handling Company(ies) to perform the ground handling services.
13.1.5 Check preparation for documentation.
13.1.6 Ensure that prompt notification of the Carrier's requirements is given to all
interested parties.
13.1.7 Check that all loads including necessary documents will be ready in time to be loaded
on the flight.
13.1.8 Meet aircraft upon arrival and contact crew.
13.1.9 Receive briefing from crew and give information about irregularities, changes in
schedule or other matters.
13.1.10 Supervise and coordinate the ground handling services, deciding non-routine matters,
as required.
13.1.11 Check despatch of operational messages.
13.1.12 Check tracings of baggage, cargo, mail and lost and found articles. Follow up, if
necessary.
13.1.13 Note irregularities in station log and inform the Carrier's designated representative
in accordance with the relevant directives.
13.2 Administrative Functions
13.2.1 Establish and maintain local procedures in accordance with the Carrier's
requirements.
13.2.2 As required, take action on all communications addressed to the Carrier.
13.2.3 Prepare, forward and file reports/statistics/documents and perform any other
administrative duty that may be required by the Carrier or local conditions.
13.2.4 Maintain the Carrier's manuals, circulars, etc., connected with the performance of
the services.
13.2.5 Check and sign on behalf of the Carrier invoices, supply orders, handling charge
notes, work orders, etc., as agreed with the Carrier.
SECTION 14. SECURITY
14.1 Passengers and Baggage
14.1.1 (a) Provide
or
(b) Arrange for
(1) passenger interview,
(2) pre check-in/check-in procedures,
(3) pre boarding/boarding procedures,
as mutually agreed.
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14.1.2 (a) Provide
or
(b) Arrange for
facilities for security clearance of baggage.
14.1.3 (a) Provide
or
(b) Arrange for
passenger and baggage reconciliation.
14.1.4 (a) Provide
or
(b) Arrange for
handling of unidentified baggage, as required.
14.1.5 (a) Provide
or
(b) Arrange for
security clearance of passenger and unchecked baggage.
14.1.6 (a) Provide
or
(b) Arrange for
baggage identification.
14.2 Cargo and Mail
14.2.1 (a) Provide
or
(b) Arrange for
security clearance upon acceptance.
14.2.2 (a) Provide
or
(b) Arrange for
(1) secure storage.
(2) physical examination.
(3) screening.
(4) decompression.
14.3 Catering
14.3.1 (a) Provide
or
(b) Arrange for
security services, as mutually agreed.
14.4 Aircraft, Ramp and Other Designated Areas
14.4.1 (a) Provide
or
(b) Arrange for
control of access to
(1) designated areas.
(2) aircraft.
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14.4.2 (a) Provide
or
(b) Arrange for
search of the aircraft.
14.4.3 (a) Provide
or
(b) Arrange for
security during transport of loads to/from the aircraft.
14.5 Additional Security Services
14.5.1 (a) Provide
or
(b) Arrange for
additional security services, as mutually agreed.
Signed the................................... Signed the...................................
at........................................... at...........................................
for and on behalf of......................... for and on behalf of.........................
by........................................... by...........................................
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MEMORANDUM OF UNDERSTANDING
CONCERNING TECHNOLOGY TRANSFERS
BETWEEN
CONTINENTAL AIRLINES, INC. ("CONTINENTAL")
AND AMERICA WEST AIRLINES, INC. ("AMERICA WEST")
1. PURPOSE:
The airline industry is heavily dependent on data processing technology and
the carriers must constantly refresh and update their automation base and
capabilities. Accordingly, Continental and America West expect to make
significant investments from time to time in application software development,
new technology services, and new technology implementation. Continental and
America West wish to take advantage of opportunities to co-fund the development
of new software applications. This Memorandum of Understanding ("MOU") is
intended to provide a conceptual foundation upon which the parties may agree to
jointly share in the development costs of new software applications or other
synergistic opportunities common to both in data processing technology.
2. SCOPE AND INTENT:
For purposes of this MOU, the term "Technology" shall mean applications
software and hardware, and/or telecommunications and other systems services,
and all documentation relating thereto. However, the term "Technology" shall
not include the CRS software or documentation or any other software or
documentation owned exclusively by System One or marketed by the Airline
Products and Services Division of EDS. Continental and America West each
understand and intend to make their technology available to the other party to
the extent contractually and legally permissible. Each party understands it
will be necessary to cooperate to achieve cost savings for future software
development and to realize operational synergies between both organizations.
All technology transfers shall be in accordance with and subject to the terms
and conditions to be specified for each technology transfer project.
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<PAGE> 83
3. PROCEDURES:
Within ninety (90) days from the Effective Date, the parties will begin
substantive discussions to (i) develop a formal process for evaluating projects,
(ii) develop a mechanism to develop a procedure to track Technology transfers
and (iii) develop guidelines to identify the benefits that may be realized by
each of the parties from the cooperative exchange of technology.
Status Reviews. Each party shall designate an individual as a
representative to meet on no less than a semi-annual basis to (i) review the
status of ongoing projects, (ii) identify objectives for joint development
projects.
Specific Technology licensing and joint development efforts will be
documented and the exchange of information will be pursuant to a master
technology transfer and licensing agreement, the form of which shall be agreed
upon by the parties.
4. TECHNOLOGY TRANSFER:
The party obtaining Technology ("Recipient") shall be responsible for all
costs of implementation of the technology in its organization. The party
providing the technology ("Provider") shall grant such licenses that are
reasonably commercially appropriate.
Each project pursuant to which one party licenses technology to the other
party shall include, without limitation, specific terms with respect to (i)
Technology to be licensed, (ii) deliverables, (iii) tasks to be performed by
each party and, (iv) approximate schedule for completion of each task and the
transfer process, (v) estimated out-of-pocket expenses to be paid by the
receiving party.
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<PAGE> 84
In the event that the Technology to be transferred or any part of the
Technology is third party software, the party providing such software shall be
under no obligation to make such Technology available to the receiving party
without obtaining the third party's permission for such transfer. The receiving
party shall be solely responsible for obtaining all necessary rights from such
third party and shall be solely responsible for all cost related thereto. The
providing party, upon request of the receiving party shall use its commercially
reasonable efforts to obtain said permission from the third party, but shall not
be required to incur any out of pocket expenses to do so. In the event that the
receiving party is unable to obtain the necessary rights from the third party,
the providing party will be under no further obligation with respect to such
Technology.
5. DEVELOPMENT:
In the event a party is planning a stand-alone information systems
development project estimated to cost more than $200,000.00 the planning party
will notify the other party. The parties will undertake to determine whether a
joint development activity would be beneficial to both parties. If a joint
development project is determined to be beneficial, the parties will enter good
faith negotiations leading to an agreement to proceed jointly with the project.
If the parties cannot reach an agreement to jointly develop the project, that
decision shall be documented with defined reasons for the decision and signed by
both parties.
Each development project to which the parties agree shall include, without
limitation, specific terms with respect to (i) description of the software to be
developed, (ii) the deliverables, (iii) the tasks to be performed by each party,
(iv) the projected time schedule for completing each task and project, (v)
resources each party will provide, and (vi) costs of which each party will be
responsible.
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6. SYNERGY BENEFITS:
The parties understand that the goal for both parties is to identify
Technology transfers that will synergistically benefit both parties. The synergy
benefits need not be equal for both parties. The parties shall determine such
synergy benefits as follows:
Technology Transfer Benefits. The primary benefit to the receiving party
from a Technology transfer shall be the difference between the fair market value
of the Technology transferred and the costs incurred by the receiving party. The
fair market value shall be the lesser of the cost of acquiring similar
technology from a third party and the cost of developing similar technology
internally. The secondary benefit to the receiving party shall be the reduction
in implementation costs and time resulting from the existence of an operational
technology and the use of existing training materials, cut-over strategies or
test systems. This secondary benefit shall be determined by evaluating the time
and implementation cost savings, if any, and the benefits associated with the
implementation of the Technology as are identified in the business justification
supporting such implementation.
Joint Development Benefits. In the event the parties mutually agree to
carry out joint development projects, the synergy benefit to either party shall
be the difference between that party's portion of the shared costs and the costs
which would have been incurred by that party had that party undertaken the
development on a stand-along basis.
Annual Benefits Determination. At the end of each calendar year, the
senior information technology executives of both parties or their designated
representatives, shall jointly quantify the synergy benefits to each party for
that year.
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7. CONFIDENTIAL INFORMATION:
The parties hereto understand that the Technology of each will be
considered confidential information proprietary to the party supplying the
information. All information deemed proprietary by the supplying party shall be
marked "Confidential and Proprietary" to place the receiving party on notice as
to the nature of the information. Any information provided by the supplying
party marked confidential and proprietary shall not be deemed confidential
information should that information (i) be lawfully in the public domain, (ii)
generally known and disclosed to the receiving party, lawfully by a third party,
(iii) be lawfully in the receiving party's possession prior to the receiving
party's receipt of the information pursuant to this agreement, or (iv)
independently developed by the receiving party and such independent development
is factually documented.
Confidentiality. Each party will safeguard the proprietary and
confidential materials supplied to it by the other party to the same degree and
extent that the party safeguards its own proprietary and confidential
information of the same or similar nature. Confidential and Proprietary
information received by a party shall not be disclosed to any third party
without the prior consent of the party providing the Confidential and
Proprietary information. The party receiving the Confidential and Proprietary
information will disseminate the information only to those employees who have
the need to know the contents of such information to discharge their employment
duties.
Non-Disclosure Agreements. Each party acknowledges that Confidential and
Proprietary information will be exchanged pursuant to Technology transfer
projects between the parties. The transfer of confidential information on each
project shall be pursuant to a Confidentiality and Non-Disclosure Agreement, the
terms of which shall be agreed upon by the parties.
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Ownership. All Confidential and Proprietary information of a party shall
remain the property of owning or developing party.
8. TERM AND TERMINATION
Term. Unless the parties agree to an earlier commencement date, the term
of this MOU shall commence as soon as practicable after the date that is the
later of the date that this MOU is signed by both parties or the date that the
investment agreement between America West and AmWest Partners, L.P. (the
"Investment Agreement") is consummated and shall continue until the date
immediately preceding the fifth anniversary of the commencement date, unless
earlier terminated as provided herein, and shall continue thereafter until
either party gives the other party notice of termination at least ninety (90)
days prior to the effective date of such termination. In no event shall
termination or expiration pursuant to this paragraph be effective unless such
ninety (90) days' notice is provided.
Termination. In addition to any other provisions of this MOU, this MOU may
be terminated, without liability, as follows:
(i) By either party on thirty (30) days' prior written notice, if the
other party has breached any material provision of this MOU unless
such other party cures such breach within such thirty (30) day
period;
(ii) By either party immediately on notice, if the other party shall be
dissolved or shall fail to maintain its corporate existence in
good standing, or shall have its authority to operate as a
scheduled airline suspended or revoked, or shall cease operations
as a scheduled airline;
(iii) By either party immediately on notice, in the event that the
commencement date of this MOU is prior to the date that the
Investment Agreement is consummated, if the Investment Agreement
is terminated prior to its having been consummated;
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(iv) Except for America West's currently pending Chapter 11 proceeding,
by either party if a petition is filed by or against the other
party under bankruptcy law, or any other law providing for the
relief of debtors, and the affected party does not succeed in
having such petition lifted or stayed within sixty (60) days from
the date of entry; the party at its option may cancel this MOU
immediately and exercise such other remedies as may be available at
law and/or in equity;
(v) By either party on six (6) months' prior written notice, if an air
carrier, foreign or domestic, that competes with the terminating
party on a material basis, acquires majority ownership of or
substantial control over the other party;
(vi) By either party on thirty (30) days' prior written notice, if the
Code Sharing Agreement between the parties hereto, dated June 29,
1994, is terminated prior to its expiration date.
9. INDEPENDENT PARTIES
Independent Contractors. It is expressly recognized and agreed that each
party, in its performance and otherwise under this MOU, is and shall be engaged
and acting as an independent contractor and in its own independent and separate
business; that each party shall retain complete and exclusive control over its
staff and operations and the conduct of its business; and that each party shall
bear and pay all expenses, costs, risks and responsibilities incurred by it in
connection with its obligations under this MOU. Neither Continental nor America
West nor any officer, employee, representative, or agent of Continental or
America West shall in any manner, directly or indirectly, expressly or by
implication, be deemed to be, or make any representation or take any action
which may give rise to the existence of any employment, agent, partnership, of
other like relationship as between Continental and America West but each party's
relationship as respects the other party in connection with this MOU is and
shall remain that of an independent contractor.
7
<PAGE> 89
Status of Employees. The employees, agents and/or independent contractors
of America West shall be employees, agents and independent contractors of
America West for all purposes, and under no circumstances shall be deemed to be
employees, agents or independent contractors of Continental. The employees,
agents and independent contractors of Continental shall be employees, agents and
independent contractors of Continental for all purposes, and under no
circumstances shall be deemed to be employees, agents or independent contractors
of America West. In its performance under this MOU, each party shall act as an
independent contractor and not as an agent for the other. Continental shall have
no supervisory power or control over any employees, agents or independent
contractors employed by America West, and America West shall have no supervisory
power or control over any employees, agents and independent contractors employed
by Continental.
Liability for Employee Costs. Each party, with respect to its own
employees (hired directly or through a third party), accepts full and exclusive
liability for the payment of worker's compensation and/or employer's liability
(including insurance premiums where required by law) and for the payment of all
taxes, contributions or other payments for unemployment compensation,
vacations, or old age benefits, pensions and all other benefits now or
hereafter imposed upon employers with respect to its employees by any
government or agency thereof or any other party (whether measured by the wages,
salaries, compensation or other remuneration paid to such employees or
otherwise) and each party further agrees to make such payments and to make and
file all reports and returns, and to do everything necessary to comply with the
laws imposing such taxes, contributions or other payments.
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<PAGE> 90
10. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
This MOU constitutes the entire understanding of the parties with respect
to the subject matter hereof superseding all prior discussions and agreements,
written or oral. This MOU may not be amended, nor may any of its provisions
be waived, except by writing signed by both parties. No delay on the part of
either party in exercising any right power or privilege hereunder shall operate
as a waiver hereof, nor shall any waiver operate as a continuing waiver of any
right, power or privilege.
11. NOTICES
All notices given hereunder shall be in writing delivered by hand,
certified mail, telex, or telecopy to the parties at the following addresses:
<TABLE>
<S> <C>
If to CAL:
Continental Airlines, Inc. Telephone No. (713) 834-2950
2929 Allen Parkway Telecopier No. (713) 520-6329
Houston, Texas 77019
Attention: Vice Chairman & CEO
With copy to:
Continental Airlines, Inc. Telephone No. (713) 834-5149
2929 Allen Parkway Telecopier No. (713) 834-5161
Houston, Texas 77019
Attention: Senior Vice President and General Counsel
If to AWA:
America West Airlines, Inc. Telephone No. (602) 693-5880
4000 E. Sky Harbor Blvd. Telecopier No. (602) 693-5950
Phoenix, Arizona 85034
Attention: President & COO
With copy to:
America West Airlines, Inc. Telephone No. (602) 693-5750
4000 E. Sky Harbor Blvd. Telecopier No. (602) 693-5904
Phoenix, Arizona 85034
Attention: Vice President and General Counsel
9
</TABLE>
<PAGE> 91
12. SUCCESSORS AND ASSIGNS
Neither party may assign its rights or delegate it duties under this MOU
without the prior written consent of the other party, and any such purported
assignment or delegation shall be void. This MOU shall be binding on the lawful
successors of each party.
13. SEVERABILITY
Any provision of this MOU which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
14. HEADINGS
The headings in this MOU are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
15. COUNTERPARTS
This MOU may be executed in counterparts, all of which taken together shall
constitute one agreement.
16. GOVERNING LAW
This MOU shall be governed by and construed in accordance with the laws of
the State of New York without reference to principles of choice or conflicts of
law.
<TABLE>
<S> <C>
CONTINENTAL AIRLINES, INC. AMERICA WEST AIRLINES, INC.
By: By:
- - ------------------------------------------ ------------------------------------------
Title: Title:
- - ------------------------------------------ ------------------------------------------
Date: Date:
- - ------------------------------------------ ------------------------------------------
10
</TABLE>
<PAGE> 1
EXHIBIT 10.13
AGREEMENT
BETWEEN
AMERICA WEST AIRLINES, INC.
AND
MESA AIRLINES, INC.
<PAGE> 2
AMERICA WEST EXPRESS
SERVICE AGREEMENT
AGREEMENT made this 4th day of September, 1992 by and between America West
Airlines, Inc. ("AWA"), Debtor-In-Possession, a Delaware corporation having a
principal place of business at 4000 East Sky Harbor Boulevard, Phoenix, Arizona,
and Mesa Airlines, Inc. ("Contractor"), a New Mexico corporation having a
principal place of business at 2325 E. 30th Street, Farmington, New Mexico:
WITNESSETH:
WHEREAS, AWA holds a certificate of public convenience and necessity issued
by the Department of Transportation ("DOT") authorizing AWA to engage in the
interstate and overseas air transportation of persons, property and mail between
all points in the United States, its territories and possessions;
WHEREAS, Contractor holds a certificate of public convenience and necessity
issued by the Department of Transportation ("DOT") authorizing it to engage in
the interstate air transportation of persons, property and mail between all
points in the United States, its territories and possessions;
WHEREAS, AWA owns various trademarks, service marks and logos, including
"America West Airlines" and distinctive exterior color decor and patterns on its
aircraft, hereinafter referred to individually and collectively as the "AWA
Trademarks;"
WHEREAS, Contractor wishes to acquire a non-exclusive license to use one or
more of AWA's Trademarks in connection with the scheduled air transportation
services operated by Contractor pursuant to this Agreement, including the use of
the "HP" designator code used to identify, in computer systems and elsewhere,
Contractor's scheduled flights operated pursuant to this Agreement;
WHEREAS, Contractor desires to operate, and AWA is willing to contract for,
AMERICA WEST EXPRESS operations in the manner and to the extent hereinafter
described;
NOW, THEREFORE, for and in the consideration of the foregoing premises and
the mutual covenants and obligations hereinafter set forth, the parties to this
Agreement hereby agree as follows:
ARTICLE 1 -- COMPLIANCE WITH REGULATIONS
Contractor hereby represents, warrants, and agrees that all air
transportation services performed by it pursuant to this Agreement or otherwise
shall be conducted in full compliance with any and all applicable statutes,
orders, rules, and regulations, whether now in effect of hereafter promulgated,
of all governmental agencies having jurisdiction over Contractor's operations,
including but not limited to, the Federal Aviation Administration ("FAA") and
the DOT. Contractor's compliance with such governmental statutes, orders, rules,
and regulations shall be the sole and exclusive obligation of Contractor, and
AWA will have no obligations or responsibilities, whether direct or indirect,
with respect to such matters.
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<PAGE> 3
ARTICLE 2 -- AIR SERVICES TO BE PROVIDED BY CONTRACTOR
Section 2.01 Schedules To Be Operated
(a) Throughout the term of this Agreement and any amendment or extension
thereof, Contractor shall schedule and operate, subject to Paragraph 2.01(c)
below, AMERICA WEST EXPRESS service in the following markets:
<TABLE>
<CAPTION>
MINIMUM # OF
MARKETS FREQUENCIES
- - --------------------------------------------------------------------------- ------------
<S> <C> <C> <C>
Bullhead City, AZ -- Phoenix, AZ.......................................
Lake Havasu, AZ -- Phoenix, AZ.......................................
Prescott, AZ -- Phoenix, AZ.......................................
Kingman, AZ -- Phoenix, AZ.......................................
Fort Huachuca, AZ -- Phoenix, AZ.......................................
Flagstaff, AZ -- Phoenix, AZ.......................................
Yuma, AZ -- Phoenix, AZ.......................................
Farmington, NM -- Phoenix, AZ.......................................
Gallup, NM -- Phoenix, AZ.......................................
Durango, CO -- Phoenix, AZ.......................................
Grand Junction, CO -- Phoenix, AZ.......................................
Palm Springs, CA -- Phoenix, AZ.......................................
Telluride, CO -- Phoenix, AZ.......................................
</TABLE>
(b) All published schedules to be operated by Contractor pursuant to
Section 2.01(a) above or to add new markets other than those listed in Section
2.01(a) above must be submitted to AWA at least 30 days prior to the effective
date of such schedule. Contractor agrees that in the development of its
schedules, it shall consult with AWA and use its best reasonable efforts to
ensure that the primary needs of both local and connecting traffic in AWA
markets are being met. AWA shall not have the right to approve or disapprove
such schedules. AWA retains the right to withhold the use of its code, logo or
trademarks from any flight operated by the Contractor. AWA shall timely file
Contractor's code-shared schedules with its own schedules in accordance with
industry standards provided Contractor's schedules are timely received by AWA.
(c) Notwithstanding anything to the contrary contained in this Section
2.01, Contractor shall be entitled to operate additional services under its own
name in the markets covered by this Agreement; provided that any aircraft used
in providing such services shall not bear AWA's logo or markings.
(d) Contractor shall be the sole and exclusive air carrier authorized by
AWA to operate as AMERICA WEST EXPRESS (or operate by similar AWA turbo-prop
feeder-operation-designation) for all AMERICA WEST EXPRESS flights serving the
Phoenix hub. In consideration of their exclusive air carrier status, Contractor
shall have a right of first refusal to institute any new services (cities or
flights) which are forecast by AWA to be profitable. Such services shall be
inaugurated within 90 days of recommendation by AWA. If Contractor refuses to
provide the requested service, AWA shall have the right to contract with another
carrier to operate that route as an AMERICA WEST EXPRESS, provided that the
service shall be the same as that proposed to Contractor. Contractor shall have
the right of first refusal to provide service to any additional major cities or
hubs wherein AWA may desire to establish a code-sharing agreement. Contractor
shall have 30 days from the time it is offered the additional agreement to
accept or decline such opportunity. If accepted, Contractor shall have 120 days
to prepare itself to fulfill its obligations at the additional city or hub.
(e) Contractor may withdraw from, reduce service, or suspend service in any
of its AMERICA WEST EXPRESS markets listed in Section 2.01(a) after
[CONFIDENTIAL PORTION DELETED]
Contractor shall then give 30 days' notice to AWA of its desire to affect
service to that market.
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<PAGE> 4
(f) Inauguration of services listed in Section 2.01(a) will be accomplished
according to the transition schedule contained in Exhibit A, made a part of this
agreement and attached hereto.
Section 2.02 Aircraft To Be Used
(a) Contractor will provide the scheduled air services described in Section
2.01 with short-to-medium range, multi-engine, turbine-propeller aircraft. Such
aircraft shall have a minimum of 19 seats and appropriate capacity for passenger
baggage, freight and mail.
(b) Upon filing a Plan of Reorganization with the Bankruptcy Court,
Contractor shall begin to repaint its aircraft used in connection with the
services provided under this Agreement with exterior color decor and Trademarks
to be designed by AWA in consultation with Contractor. The Contractor shall
provide the paint and other materials for the exterior aircraft decor and AWA
shall paint the aircraft in its painting facility. Any change to the exterior
color decor and pattern of the aircraft subsequent to the original design shall
be made at the expense of AWA. AWA understands that the flowage of Contractor's
aircraft prevents Contractor from painting all of its aircraft in AWA colors.
Contractor will attempt to maximize the utilization of AWA painted aircraft on
code-shared routes. AWA understands that on occasion an AWA-colored aircraft may
be used in Contractor's "Mesa" system due to aircraft flowage requirements.
In addition to the use of the AWA Trademarks on its aircraft, Contractor
shall use and display a suitable sign on the exterior of its aircraft
identifying Contractor as the operator of the services being provided pursuant
to this Agreement. The use and display of such sign shall be in compliance with
any applicable FAA rule or directive, shall be visible to passengers approaching
the aircraft for boarding and shall be subject to the prior written approval of
AWA as to its nature, size and location on Contractor's aircraft.
Section 2.03 Flight Crews To Be Used
All services performed by Contractor pursuant to this Agreement shall be
operated with crews consisting of a captain or pilot, and a first officer or
co-pilot. All such crew members shall at all times meet all currently applicable
governmental requirements, as such requirements may be amended from time to time
during the life of this Agreement, and shall be fully licensed and qualified for
the services to be performed hereunder.
ARTICLE 3 -- SUPPORT SERVICES AND FACILITIES
Section 3.01 General Provision
AWA and Contractor shall provide support services and facilities to the
extent and in the manner set forth in the subsequent sections of this Article 3.
Such support services and facilities, when furnished by AWA, shall be furnished
only with respect to Contractor's scheduled air services described in Article 2.
Section 3.02 Communications and Reservations
Reservation telephone lines will be maintained by AWA at the points listed
in Article 2 connecting those cities with AWA's reservations center.
Reservations for passengers using the services described in Article 2 and
connecting reservations to AWA or to other air carriers will be made by AWA on a
non-discriminatory basis in accordance with AWA's established methods and
procedures. For passengers originating their travel at points other than those
served by Contractor pursuant to Article 2, either on AWA's system or on the
systems of other airlines, connecting reservations to the services of Contractor
will also be made on a non-discriminatory basis in accordance with currently
established industry methods and procedures. In all cases, AWA will confirm the
reservations of Contractor's passengers through the entire itinerary of their
scheduled trips. When a contact number is supplied by the passengers making such
reservations, AWA will assume the responsibility of notifying passengers of any
changes in Contractor's schedules or operations, provided that Contractor
furnishes AWA with sufficient advance notice of such changes. Contractor will
provide AWA with parameters of Contractor's flight capacity and discount seat
inventory levels and AWA will use its best efforts to accommodate Contractor's
directions as to these levels.
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<PAGE> 5
Section 3.03 Operations
(a) In the event of flight delays, cancellations or other schedule
irregularities affecting Contractor's scheduled services, and as soon as
information concerning such irregularities is available, Contractor shall notify
AWA's flight control center and furnish AWA such information in as much detail
as possible.
(b) Contractor shall be solely responsible for, and AWA shall have no
obligations or duties with respect to the dispatch of Contractor's flights
operated pursuant to this Agreement or otherwise. For the purposes of this
Section 3.03(b), the term "flight dispatch" shall include, but shall not be
limited to, all planning of flight itineraries and routings, fueling and flight
release.
(c) From time to time, and solely upon request of Contractor or its flight
crews, AWA shall provide to Contractor at its cost, such U.S. Weather Bureau
information or data as may be available to AWA; provided that, in furnishing any
such weather information or data to Contractor, neither AWA nor its employees or
agents will be responsible or liable for the accuracy thereof.
Section 3.04 Services
(a) AWA will provide the following services at Sky Harbor International
Airport (PHX) in Phoenix, Arizona:
(1) check-in and ticketing of passengers of AWA's ticket counters and
Fast Check facilities;
(2) use of AWA's passenger facilities by Contractor's passengers;
(3) passenger holding facilities and boarding gates;
(4) interline transfer of baggage, mail, and freight in accordance
with currently established industry methods and procedures;
(5) such security facilities, personnel, and passenger screening
procedures which may be required (a) by applicable orders, rules, and
regulations of the FAA, and (b) by AWA's FAA-approved aircraft security
plan for passengers originating at PHX; and
(6) arrangements, made at Contractor's request and its sole cost and
expense, for alternate transportation, meals, lodging, and other
accommodations for Contractor's passengers as the need therefore may arise
from time to time due to schedule irregularities in Contractor's
operations.
(b) Contractor shall provide its own services and facilities at all
airports other than Phoenix, Arizona and will provide the following services at
PHX:
(1) all passenger screening for passengers arriving on Contractor's
flights in PHX;
(2) all ramp activities for Contractor's flights; and,
(3) check-in Ticketing and Boarding of passengers at its gate or gates
in PHX.
(c) Contractor shall purchase from AWA, at AWA's cost, the CRT's and
reservations lines necessary at each Station.
Section 3.05 Terms of Transportation, Sales and Timetables
(a) AWA's Terms of Transportation, with certain exceptions as listed
therein, shall be applicable to services provided by Contractor pursuant to this
Agreement. Such Terms of Transportation shall at all times be available for
public inspection at Contractor's corporate offices and at each airport ticket
counter and sales office maintained and operated by or on behalf of Contractor.
(b) AWA and Contractor agree that each carrier is authorized to sell air
transportation of passengers and property on the schedule flights operated by
the other carrier utilizing the AWA ticket stock, airbill, forms and other
documentation. Contractor will issue tickets on its own ticket stock and
airbills only for tickets or airbills issued at Contractor's counter or for
non-revenue passengers.
4
<PAGE> 6
(c) The party issuing a ticket or exchange order for passenger
transportation shall
[CONFIDENTIAL PORTION DELETED]
(d) With respect to airbills issued by Contractor for transportation of
property on Contractor, AWA and other air carriers, and with respect to inbound
collect shipments, handled by Contractor, Contractor shall retain possession of
all cash proceeds collected and received by Contractor throughout the month in
connection with such transactions and all such cash proceeds shall be remitted
to AWA through the Clearing House in accordance with the procedures set forth in
the currently effective Manual of Procedures issued by said Clearing House, but
in no event later than the 28th day of the month following the month in which
such monies or proceeds were collected. Inbound C.O.D. shipments shall be
handled in accordance with established AWA policy. In addition, Contractor shall
prepare and furnish to AWA all written reports, accounts and documents that AWA
may require, on a weekly basis or at such lesser frequency as AWA may prescribe,
at its sole discretion, from time to time during the life of this Agreement.
(e) AWA and Contractor, by mutual agreement, may establish such new or
different passenger and air freight sales and accounting procedures as may be
required by experience or changed circumstances. In addition, AWA and Contractor
by mutual agreement, may establish alternative or modified passenger sales and
accounting procedures in order to accommodate tickets or exchange orders by air
carriers which are not participants in the Clearing House.
(f) Each party shall assume full liability for and shall indemnify, defend,
protect, save, and hold harmless the other party, its directors, officers,
agents, and employees from any and all liabilities, damages, claims, suits,
judgments, and all related expenses or losses on account of the loss,
misapplication, theft or forgery of passenger tickets, exchange orders, airbills
or other supplies furnished by or on behalf of each party to the other, or the
proceeds thereof, whether or not such loss is occasioned by the insolvency of
either the purchaser of the aforesaid passenger tickets, exchange orders,
airbills or other documents or of a bank in which the party may have deposited
such proceeds. Each party's responsibility hereunder for passenger tickets,
exchange orders, airbills, and other supplies shall commence immediately upon
delivery of said passenger tickets, exchange orders, airbills, and other
supplies into the possession of that party or any duly authorized officer, agent
or employee of the party. Each party shall furnish the other party prompt and
timely notice of any claims made, or suits instituted against it which in any
way may result in the indemnification hereunder, and the indemnifying party
shall have the right to compromise or participate in the defense of same to the
extent of its own interest.
(g) AWA will include the schedule air services provided by Contractor
pursuant to Article 2 in its public timetables (including Contractor's
connecting schedules on the same basis as it does its own). All references in
AWA's public timetables to Contractor's AMERICA WEST EXPRESS services shall also
contain notations indicating that such scheduled services are performed by
Contractor as an independent contractor under the appropriate AWA Trademarks.
Section 3.06 Advertising
The parties will establish for the purpose of advertising the AWA product
in the cities served by Contractor under this Agreement, a pool funded by each
of the parties by each contributing to this pool. Contractor shall decide on the
amount of its contribution, up to one percent (1%) of the revenue it derives
from markets covered under this Agreement. Contractor will advise AWA of the
amount and percentage of its contribution. AWA will then contribute the same
percentage of revenue it derives under this Agreement, and advise Contractor of
the percentage and amount. Contractor will then develop and propose an
advertising program to be funded by the contribution which will then be
submitted to AWA for approval.
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<PAGE> 7
ARTICLE 4 -- JOINT PASSENGER FARES AND DIVISION OF REVENUES
Section 4.01 Joint Fares
Joint (through) passenger fares involving travel on AWA and Contractor
shall be established as mutually agreed upon by AWA and Contractor and published
by AWA. [Confidential Portion Deleted].
Section 4.20 Local Fares
Contractor shall establish and AWA shall publish local fares applicable to
AMERICA WEST EXPRESS markets and Contractor shall [Confidential Portion
Deleted].
ARTICLE 5 -- AIR FREIGHT RATES
Section 5.01 Joint Air Freight Rates
Throughout the life of this Agreement, AWA and Contractor shall establish
and maintain joint air freight rates, including rates covering general
commodity, small package, and priority air freight shipments.
Section 5.02 Compensation to Carrier for Air Freight
For the transportation of air freight on the scheduled services to be
operated by Contractor pursuant to Article 2 above, the Contractor will receive
[Confidential Portion Deleted]. Changes in Contractor-established local rates
must be provided to AWA 45 days in advance of the effective date.
ARTICLE 6 -- U.S. MAIL
Contractor will execute separate contracts with the U.S. Postal Service
(USPS).
ARTICLE 7 -- LIABILITY, INDEMNIFICATION AND INSURANCE
Section 7.01 Contractor Shall Act As An Independent Contractor
(a) The employees, agents, and/or independent contractors of Contractor
engaged in performing any of the services Contractor is to perform pursuant to
this Agreement shall be employees, agents, and independent contractors of
Contractor for all purposes, and under no circumstances shall be deemed to be
employees, agents or independent contractors of AWA. In its performance under
this Agreement, Contractor shall act, for all purposes, as an independent
contractor and not as an agent for AWA. AWA shall have no supervisory power or
control over any employees, agents or independent contractors engaged by
Contractor in connection with its performance hereunder, and all complaints or
requested changes in procedures shall, in all events, be transmitted by AWA to a
designated officer of Contractor. Nothing contained in this Agreement is
intended to limit or condition Contractor's control over its operations or the
conduct of its business as a commuter air carrier, and Contractor and its
principals assume all risks of financial losses which may result from the
operation of the air services to be provided by Contractor hereunder.
(b) The employees and agents of AWA engaged in performing any of the
services AWA is to perform pursuant to this Agreement shall be employees and
agents of AWA for all purposes, and under no circumstances shall be deemed to be
employees and agents of Contractor. Contractor shall have no supervision or
control over any such AWA employees and agents and any complaint or requested
change in procedure shall be transmitted by Contractor to AWA's designated
representative.
Section 7.02 Liability and Indemnification
(a) Each party hereto assumes full responsibility for any and all liability
to its own directors, officers, employees, or agents on account of injury, or
death resulting from or sustained in the performance of their respective
services under this Agreement.
(b) Contractor shall indemnify, defend, protect, save, and hold harmless
AWA, its directors, officers, employees, and agents from and against any and all
liabilities, claims, demands, suits, judgments, damages,
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<PAGE> 8
and losses (including the costs, fees, and expenses in connection therewith and
incident thereto), brought against AWA, its directors, officers, employees or
agents by or on behalf of any director, officer, employee, agent or independent
contractor of Contractor or anyone else claiming through such persons, or by
reason of damage or destruction of property of any such person, or injury to or
death of such person, caused by or arising out of any act or omission of
Contractor occurring while this Agreement is in effect. AWA shall give
Contractor prompt and timely notice of any claim made or suit instituted against
AWA which in any way results in indemnification hereunder, and Contractor shall
have the right to compromise or participate in the defense of same to the extent
of its own interest.
(c) AWA shall indemnify, defend, protect, save, and hold harmless
Contractor, its directors, officers, employees, and agents from and against any
and all liabilities, claims, demands, suits, judgments, damages, and losses
(including the costs, fees, and expenses in connection therewith and incident
thereto), brought against Contractor, its directors, officers, employees or
agents by or on behalf of any director, officer, employee, agent or independent
contractor of AWA or anyone else claiming through such persons, or by reason of
damage or destruction of property of any such person, or injury to or death of
such person, caused by or arising out of any act or omission of AWA occurring
while this Agreement is in effect. Contractor shall give AWA prompt and timely
notice of any claim made or suit instituted against Contractor which in any way
results in indemnification hereunder, and AWA shall have the right to compromise
or participate in the defense of same to the extent of its own interest.
(d) Each party, with respect to its own employees, accepts full and
exclusive liability for the payment of workers' compensation and/or employer's
liability insurance premiums with respect to such employees, and for the payment
of all taxes, contributions or other payments for unemployment compensation or
old-age benefits, pensions or annuities now or hereafter imposed upon employers
by the government of the United States or by any state or local governmental
body with respect to such employees measured by the wages, salaries,
compensation or other remuneration paid to such employees, or otherwise, and
each party further agrees to make such payments and to make and file all reports
and returns, and to do everything necessary to comply with the laws imposing
such taxes, contributions or other payments.
Section 7.03 Insurance Coverage
(a) In consideration of the privileges granted herein, Contractor shall, at
all times during the effectiveness of this Agreement, commencing with the first
day thereof, have and maintain in full force and effect policies of insurance
reasonably satisfactory to the other, of the types of coverages, including
coverage on all aircraft described in Section 2.02, and in the minimum amounts
stated below with companies reasonably satisfactory to AWA and under terms and
conditions reasonably satisfactory to AWA as follows:
<TABLE>
<C> <S> <C> <C>
1. AIRCRAFT LIABILITY AND GROUND LIABILITY $50,000,000 Per Occurrence Combined
INSURANCE (Including Comprehensive Public Single Limit of Liability
Liability)
a. Bodily Injury and Personal Injury -- Included in Combined Single Limit
Passengers
b. Bodily Injury and Personal Included in Combined Single Limit
Injury -- Third Parties
c. Property Damage Included in Combined Single Limit
</TABLE>
The minimum amounts of insurance coverages required for Contractor under
this paragraph 1 shall be $50,000,000 per occurrence, combined single limit for
all coverages required under this paragraph 1, provided, however, that before
Contractor adds aircraft with more than 19 seats to its AMERICA WEST EXPRESS
operations hereunder, Contractor shall obtain insurance coverage of $100,000,000
per occurrence per aircraft having greater than 19 seats. AMERICA WEST EXPRESS
shall obtain insurance coverage of $100,000,000 per occurrence or $1 million per
seat, whichever is greater.
7
<PAGE> 9
<TABLE>
<CAPTION>
PER ACCIDENT
-----------------------------------------
<C> <S> <C> <C>
2. WORKERS' COMPENSATION INSURANCE: (Company Statutory
Employees)
3. EMPLOYERS' LIABILITY: (Company Employees) $100,000
4. ALL RISK HULL INSURANCE ON AIRCRAFT PERFORMING Replacement cost or Such Lesser Amount As
SERVICES HEREUNDER: May Be Consented To By AWA
5. BAGGAGE LIABILITY: $1,250 (Per Passenger)
6. CARGO LIABILITY: $100,000 Any One Aircraft
$100,000 Any One Disaster With Terms,
Limitations, and Conditions Acceptable To
AWA
</TABLE>
(b) The parties hereby agree that from time to time during the life of this
Agreement, the parties may negotiate with the other to have and maintain amounts
set forth in paragraph (a) above, should the circumstances and conditions of
operations under this Agreement be deemed, in a reasonable person's judgment, to
require reasonable increases in any or all of the foregoing minimum insurance
coverages.
Section 7.04 Additional Requirement
(a) The Contractor shall cause the policies of insurance described in
Section 7.03 to be duly and properly endorsed by that party's insurance
underwriters as follows:
(1) as to the policies of insurance described in paragraphs 1, 2, 3,
4, 5, and 6 of said Section 7.03(a):
(A) to provide that any waiver of rights of subrogation against
other parties by the covered party will not affect the coverage provided
hereunder with respect to the other party; and
(B) with respect to the services performed by the parties pursuant
to this Agreement to provide that the covered party's underwriters shall
waive any and all subrogation rights against the other, its directors,
officers, agents, and employees without regard to any breach of warranty
on the part of Contractor or to provide other evidence of such waiver of
recourse against the other party, its directors, officers, agents, or
employees as shall be acceptable to AWA.
(2) as to policies of insurance described in paragraph 1, 5, and 6 of
said Section 7.03(a):
(A) to provide that the other party, its directors, officers,
agents, and employees shall be endorsed as Additional Insured parties
thereunder; and
(B) to provide that said insurance shall be primary insurance and
to acknowledge that any other insurance policy or policies of the other
party shall be secondary or excess insurance;
(3) as to policies of insurance described in paragraphs 1 and 4 of
said Section 7.03(a) to provide a breach of warranty clause to said
policies acceptable to AWA;
(4) as to policies of insurance described in paragraph 1 only of said
Section 703(a):
(A) to provide, with respect to claims in favor of the other party,
its directors, officers, agents and employees against the covered party,
its directors, officers, agents and employees, that the other party, its
directors, officers, agents and employees shall not be deemed to be
insured under the said insurance policies, and to this end to provide a
cross-liability clause as though separate policies were issued for each
party and to provide a reciprocal cross-liability clause in favor of
each other; and
(B) to provide contractual liability insurance coverage for
liability assumed by Contractor under this Agreement.
(5) as to policies of insurance described in paragraph 4 above of said
Section 7.03(a), to provide that said Aircraft Hull Insurance shall be on
an agreed value basis, and shall not be subject to more than
8
<PAGE> 10
the standard market deductibles without the consent of the other party; in
the event of loss, settled on the basis of a total loss, all losses shall
be payable in full;
(6) as to any insurance obtained directly from foreign underwriters,
to provide that the non-covered party may maintain against the covered
party's underwriters a direct action in the United States upon said
insurance policies and to this end provide a standard service of suit
clause designating a United States attorney in Phoenix, Arizona or
Farmington, New Mexico.
(b) The Contractor shall cause each of the insurance policies referred to
in Section 7.03 to be duly and properly endorsed to provide that said policy or
policies or any part or parts thereof shall not be cancelled, terminated or
materially altered, changed or amended by the insurance underwriters until after
30 days' written notice to the other party, which 30-day notice period shall
commence to run from the date such notice is actually received by the other
party.
(c) Upon the effective date of this Agreement, and from time to time
thereafter upon request, the Contractor shall furnish to AWA evidence
satisfactory to AWA of the aforesaid insurance coverages and endorsements,
including certificates certifying that the aforesaid insurance policy or
policies with the aforesaid policy limits are duly and properly endorsed as
aforesaid and are in full force and effect.
(d) In the event the Contractor fails to maintain in full force and effect
any of the insurance and endorsements described in Sections 7.03 and 7.04, AWA
shall have the right (but not the obligation) to procure and maintain such
insurance or any part thereof. The cost of such insurance shall be payable by
the defaulting party to the other upon demand. The procurement of such insurance
or any part thereof by the Contractor does not discharge or excuse the
defaulting party's obligation to comply with the provisions of Sections 7.03 and
7.04. The Contractor agrees not to cancel, terminate or materially alter, change
or amend any of the policies referred to in Section 7.03 until after providing
30 days' advance written notice to AWA of its intent to so cancel, terminate or
materially alter, change or amend said policies of insurance, which 30-day
notice period shall commence to run from the date notice is actually received by
the party.
ARTICLE 8 -- CONSIDERATION, RECORDS AND REPORTS
Section 8.01 Consideration
(a) For and in consideration of the reservations services to be provided to
Contractor hereunder, the non-exclusive, non-transferable license granted to
Contractor authorizing the specified uses of AWA's Trademarks and other valuable
consideration provided by this Agreement, Contractor shall pay to AWA
[CONFIDENTIAL PORTION DELETED]
year. AWA shall bill Contractor for such Service Charges through the Clearing
House referred to in Article 3 in accordance with the procedures set forth in
the currently effective Manual of Procedures issued by said Clearing House, but
in no event later than the 28th day of month following the month in which
services were provided. In the event Contractor fails to pay AWA in full all
Service Charges payable hereunder when due, Contractor agrees to pay to AWA, in
addition to such Service Charges, interest on the unpaid balance of such Service
Charges computed at the rate per annum of one percent (1%) plus the prime rate
which the Chase Manhattan Bank (National Association) from time to time charges
at its principal office in New York on short-term loans to large businesses with
the highest credit standing, with a minimum rate per annum of 10 percent, from
the due date thereof to the date of payment. It is hereby mutually agreed and
understood by the parties hereto that the aforesaid Service Charges
[CONFIDENTIAL PORTION DELETED]
AWA will use only the personnel in its employ and the equipment and facilities
which it owns or leases. In the event AWA is required to employ, retain or
otherwise furnish additional personnel or obtain, by purchase,
9
<PAGE> 11
lease or otherwise any additional facilities or equipment, or incur in any
manner whatsoever any expenses or disbursements in connection with its
performance of this Agreement in excess of the personnel, facilities or
equipment being provided in the normal course of business, Contractor shall
reimburse AWA in full, through the Clearing House for the actual costs of such
additional personnel, facilities and/or equipment, and for any actual expenses
or disbursements incurred by AWA in connection with its performance under this
Agreement; provided that, prior to incurring any such additional costs or
expenses or making any such disbursements, AWA shall first obtain a written
approval therefor from Contractor.
(b) All payments and/or reimbursements contemplated in this Article shall
be deemed to be in addition to and not in lieu of any other payments and/or
reimbursements required of either party hereto by other articles of this
Agreement.
Section 8.02 Records and Reports
(a) Upon either party's request, and until such time as the party advises
the other that such reports are no longer necessary, each party shall furnish to
the requesting party, within 60 days following the close of the first three
fiscal quarters of the party, unaudited financial statements including the
party's current corporate balance sheets and profit and loss statements, and
within 120 days after the close of its fiscal year, each party shall furnish the
other with audited financial statements of such party (or its parent company)
including, either separately or on a consolidated basis, the balance sheet and
profit and loss statements of that party. The appropriate reports filed on Form
10-Q or 10-K shall be satisfactory to fulfill such obligation.
(b) Each party shall also promptly furnish the other with a copy of every
report that it prepares and is required to submit to the FAA, National
Transportation Safety Board ("NTSB") or any other governmental agency, relating
to any accident or incident involving an aircraft used by it in performing
services under this Agreement, when such accident or incident is claimed to have
resulted in the death of or substantial injury to any person or the loss of,
damage to, or destruction of any property.
(c) Each party shall promptly notify the other in writing of (i) any change
in or relinquishment of control of it, (ii) any agreement contemplating such a
change or relinquishment with a copy of such agreement, if in writing, to the
other party, or (iii) any change or contemplated change in the Chief Executive
Officer position of it.
ARTICLE 9 -- EFFECTIVE DATE, TERMINATION AND CANCELLATION
Section 9.01 Effective Date and Term
(a) This Agreement will become effective on October 1, 1992 and will
continue in effect thereafter for a period of ten years, unless it is terminated
at an earlier date pursuant to one or more of the provisions of this Article 9.
The AMERICA WEST EXPRESS service described in Section 2 shall commence on the
dates specified in Section 2 and the applicable reservations and ticketing
services shall be made available 30 days in advance of the start of such
services.
(b) In the event there is any change in the statutes governing the economic
regulation of air transportation, or in the applicable rules, regulations or
order of the DOT or some successor agency or department of the government having
jurisdiction over air transportation which change or changes materially affect
the rights and/or obligations presently in force with respect to the air
transportation services of AWA or Contractor, or both, then the parties hereto
will consult, within 30 days after any of the occurrences described herein, in
order to determine what, if any, changes to this Agreement are necessary or
appropriate, including but not limited to, the early termination and
cancellation of this Agreement. If the parties hereto are unable to agree
whether any change or changes to this Agreement are necessary and proper, or as
to the terms of such changes, or whether this Agreement should be cancelled in
light of the occurrences described above, and such failure to reach agreement
shall continue for a period of 30 days following the commencement of the
consultations provided for by this Section 9.01(c), then this Agreement may be
cancelled by either AWA or Contractor upon providing the other party a minimum
of 90 days' written notice of such cancellation.
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<PAGE> 12
Section 9.02 Termination
(a) In addition to the foregoing provisions of this Article, this Agreement
may be cancelled or terminated by either AWA or Contractor if there is an
assignment of this Agreement or any of its rights, duties or obligations created
hereunder with respect to any party to this Agreement without the written
consent of the other party. In the event that this Agreement is assigned,
whether by operation of law or otherwise, without such consent having been given
in writing, the party not making the assignment shall have the right immediately
to terminate the Agreement by telegraphic or written notice to the other party.
If AWA merges, combines or consolidated with another carrier, or if
substantially all of AWA's assets are acquired by another carrier and the "HP"
designator code or the AMERICA WEST EXPRESS will thereafter not be used for the
services of AWA or such other carrier at the Hub, Contractor shall have the
right to use, in accordance with this Agreement, such replacement or substitute
designator code and related trademarks as are utilized by AWA or such other
acquiring or new carrier for its primary services at the Hub. A merger,
combination, or consolidation by or with another person, company or corporation
by Contractor shall be considered an assignment by Contractor; provided,
however, a merger, combination, or consolidation by or with a subsidiary or
affiliate of Contractor or with another corporation in which Contractor is the
surviving corporation and in which there is no substantial change in the
ownership or control of Contractor shall not be considered an assignment by
Contractor.
(b) Recognizing that AWA is presently operating as a Chapter 11 company,
under reorganization, in the event that Contractor shall file a voluntary
petition in bankruptcy or that proceedings in bankruptcy shall be instituted
against it and such party shall be adjudged bankrupt, or that a court shall take
jurisdiction of such party and its assets pursuant to proceedings brought under
the provisions of any federal reorganization act, or that a receiver of such
party's assets shall be appointed and such taking or appointment shall not be
stayed or vacated within a period of 60 days, or if AWA should change to a
Chapter 7 proceeding or re-enter bankruptcy after its discharge from its current
bankruptcy, the other party may thereupon terminate this Agreement by 15 or more
days' prior written notice to the other party.
(c) Except as otherwise provided herein, if either party shall fail to
perform, keep, and observe any of the terms, covenants or conditions herein
contained on the part of such party to be performed, kept or observed, the
non-breaching party may give the breaching party notice in writing to correct
such condition or cure such default and, if any such condition or default shall
continue for 30 days after the receipt of such notice by the breaching party
and, if within such period of time the breaching party has not prosecuted with
diligence the correction of such condition or default, the non-breaching party
may then terminate this Agreement upon 15 or more days' prior written notice,
and this Agreement shall thereupon cease and expire at the end of such 15 or
more days in the same manner and to the same effect as if it were the expiration
of the original term.
(d) If either party is required by the FAA or DOT to suspend a substantial
portion of its operations for any safety reason, and has not resumed a major
portion of such operations hereunder within 30 days of suspension, the other
party may terminate this Agreement upon five or more days' prior written notice.
(e) AWA, in addition to the other provisions of this section and Section
9.01 above, may terminate this Agreement upon not less than 30 days' written
notice to the other party hereto should any one of the following conditions
occur during the time this Agreement is in effect:
(1) if, during any two consecutive calendar months during the life of
this Agreement, Contractor's flight completion factor shall fall below 97%
due to cancellations attributable to maintenance or operational
deficiencies within Contractor's normal management control;
(2) if, for any two consecutive calendar months during the life of
this Agreement, Contractor's on-time performance falls below the lower of
either: a.) 75 percent of arrivals within 15 minutes; or b.) AWA's actual
on-time performance during the same period;
(3) if, Contractor fails to comply with the trademark license
provisions of Article 11 of this Agreement;
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(f) Either AWA or Contractor may terminate this Agreement without cause at
any time after the third year from the effective date hereof upon 180 days'
written notice to the other party.
(g) Any early termination or cancellation of one or more of the provisions
of this Article 9 shall not be construed so as to relieve any party hereto of
any debts or monetary obligations to the other party that shall have accrued
hereunder prior to the effective date of such termination or cancellation.
Section 9.03 Force Majeure
Neither AWA nor Contractor shall be liable for any failure to perform under
this Agreement if such failure is due to causes beyond its control, including,
but not limited to, acts of God or the public enemy, fire, floods, epidemics,
quarantine or strikes; provided, however, that the foregoing shall not apply to
the obligations described under Article 7 of this Agreement.
ARTICLE 10 -- USE OF CONTRACTOR'S AIRCRAFT
In the event that aircraft owned and/or operated by Contractor bearing the
AMERICA WEST EXPRESS are available and can be utilized without adversely
affecting in any manner the regular scheduled services operated pursuant to
Section 2, such aircraft may be used:
(1) for non-scheduled planeload passenger charters; or
(2) for scheduled or non-scheduled services limited to the
transportation of freight and/or mail in markets other than the markets
described in Section 2.01; or
(3) on an emergency basis in operations in other parts of Contractor's
system not covered by this Agreement.
ARTICLE 11 -- TRADEMARK LICENSE FOR OPERATIONS TO BE CONDUCTED
BY CONTRACTOR PURSUANT TO THIS AGREEMENT
Section 11.01 Grant of Trademark License
Contractor will conduct all operations described in Section 2 above, and
any additional operations undertaken by subsequent amendment hereto under the
servicemark "AMERICA WEST EXPRESS" and shall utilize the AMERICA WEST EXPRESS
Servicemarks consisting of the exterior color decor and patterns on its aircraft
as prescribed by AWA. AWA hereby grants to Contractor a non-exclusive, non-
transferable license to use such AMERICA WEST EXPRESS Servicemarks in connection
with the services to be rendered by Contractor under this Agreement; provided,
however, that subject to the provisions of Section 202(b) hereof, at any time
during the life of this Agreement, AWA may alter, amend or revoke the license
hereby granted and require Contractor's use of any new or different AWA
Servicemarks in conjunction with the air transportation services provided
hereunder as AWA may determine in the exercise of its sole discretion and
judgment.
Section 11.02 Terms and Conditions Governing Trademark License
(a) Contractor hereby acknowledges AWA's ownership of the AWA Servicemarks,
further acknowledges the validity of the AWA Servicemarks, and agrees that it
will not do anything in any way to infringe or abridge AWA's rights in its
Servicemarks or directly or indirectly to challenge the validity of the AWA
Servicemarks.
(b) Contractor agrees that, in providing the services to be provided under
this Agreement in conjunction with one or more of the AWA Servicemarks, it will
conform to such customer service standards (including professional appearance
guidelines and uniform standards; ground equipment appearance standards; ticket
counter and gate area image standards; and other reasonable quality control
measures) as may be reasonably prescribed by AWA either specifically in this
Agreement or by subsequent communications to Contractor. AWA shall have the
rights, through such agents or representatives as it may designate, to inspect
the services and standards being performed by Contractor under this Agreement,
and in the event that, in AWA's opinion,
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<PAGE> 14
there has been some deviation from such services and/or standards, Contractor
agrees upon written notice from AWA to rectify promptly any such deviation.
(c) Contractor shall not, without AWA's express written consent, advertise
the services to be rendered hereunder, nor make use of the AWA Servicemarks
referred to in Section 11.01 above in any advertising. AWA shall have absolute
discretion to withhold its consent concerning any and all such advertising and
use of the AWA Servicemarks in advertising by Contractor. In the event AWA
approves the use of such AWA Servicemarks in any advertising, such advertising
shall identify AWA as the owner of such servicemark(s), and to the extent that
any mark is registered, shall so specify.
(d) To the extent that Contractor is licensed to use the mark "AMERICA WEST
EXPRESS," Contractor will use said mark only in the mark "AMERICA WEST EXPRESS"
and then only in conjunction with the services specifically embraced by this
Agreement.
(e) Nothing in this Agreement shall be construed to give Contractor the
exclusive right to use the AWA Servicemarks, or to abridge AWA's right to use
and/or to license its Servicemarks, and AWA hereby reserves the right to
continue use of the AWA Servicemarks as AWA may desire.
(f) No term or provision of this Agreement shall be construed to preclude
the use of the servicemarks "AMERICA WEST EXPRESS" or the aircraft exterior
color decor and patterns by other individuals or corporations not covered by
this Agreement so long as such use does not place such persons so authorized in
direct competition with Contractor in the markets covered by this Agreement,
subject to Contractor's right of first refusal set forth in Article 2.
(g) Should this Agreement be cancelled or otherwise terminated for any
reason as set forth in Article 9 hereof, the AWA Servicemarks shall revert to
AWA and shall not thereafter be used by Contractor in connection with any
operations of Contractor.
ARTICLE 12 -- ENTIRE AGREEMENT, AMENDMENT, NOTICES AND TITLES
Section 12.01 Entire Agreement and Amendments
(a) This Agreement represents the entire agreement between the parties
hereto unless subsequently amended as hereinafter provided, and said Agreement
shall not be modified or cancelled by mutual agreement or in any manner except
by an instrument in writing, executed by the parties or their respective
successors in interest.
(b) The parties hereto may by mutual agreement amend any provision of this
Agreement, or delete or add any provision to this Agreement by an instrument in
writing, executed by each of the parties or their authorized representatives or
successors in interest. Any amendment, deletion or additions executed as
prescribed herein shall become a part of and shall be construed as part of this
Agreement.
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Section 12.02 Notices and Miscellaneous Provisions
(a) Any and all given notices, approvals or demands required or permitted
to be given by the parties hereto shall be sufficient if sent by certified mail,
postage prepaid, or facsimile machine or in person to AWA addressed to:
AMERICA WEST AIRLINES, INC.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
ATTN: Peter J. Otradovec
Vice President-Planning
and to Contractor, addressed to:
MESA AIRLINES, INC.
2325 East 30th Street
Farmington, New Mexico 87401
ATTN: Larry L. Risley
President/Chief Executive Officer
or to such other addresses in the continental United States as the parties may
specify by notice as provided herein.
(b) Description titles contained in this Agreement are for convenience only
and shall not control or affect the meaning or construction of any provision of
this Agreement.
(c) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New Mexico.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
entered into and signed as of the day and year first written above.
AMERICA WEST AIRLINES, INC.
/s/ MICHAEL J. CONWAY
--------------------------------------
Name: Michael J. Conway
Title: President
Attest:
/s/ PETER OTRADOVEC
- - --------------------------------------
Peter Otradovec
MESA AIRLINES, INC.
/s/ LARRY L. RISLEY
--------------------------------------
Name: Larry L. Risley
Title: President and Chief Executive
Officer
Attest:
/s/ GARY RISLEY
- - --------------------------------------
Gary Risley
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EXHIBIT A
AMERICA WEST EXPRESS SERVICE AGREEMENT
BETWEEN AMERICA WEST AIRLINES, INC. AND MESA AIRLINES, INC.
Exhibit A set forth the transition schedule for the operation of flights
with an HP* code.
<TABLE>
<CAPTION>
TRANSITION FROM
-----------------------
HP TO HP* YV TO HP*
--------- ---------
<S> <C> <C> <C>
Bullhead City, AZ................... BHC 15-Nov-92
Durango, CO......................... DRO 01-Oct-92
Farmington, NM...................... FMN 01-Oct-92
Flagstaff, AZ....................... FLG 01-Nov-92
Fort Huachuca, AZ................... FHU 01-Nov-92
Gallup, NM.......................... GUP 01-Oct-92
Grand Junction, CO.................. GJT 01-Oct-92
Kingman, AZ......................... IGM 15-Oct-92
Lake Havasu, AZ..................... HII 15-Nov-92
Palm Springs, CA.................... PSP 01-Dec-92
Prescott, AZ........................ PRC 15-Oct-92
Telluride, CO....................... TEX Seasonal
Yuma, AZ............................ YUM 01-Oct-92
</TABLE>
16
<PAGE> 18
AMENDMENT TO AGREEMENT BETWEEN
AMERICA WEST AIRLINES, INC.
AND MESA AIRLINES, INC.
THIS AMENDMENT entered into this 31st day of March, 1993, by and between
America West Airlines, Inc. ("AWA"), Debtor-in-Possession, a Delaware
corporation, having its principal place of business at 4000 East Sky Harbor
Boulevard, Phoenix, Arizona, and Mesa Airlines, Inc. ("Contractor"), a New
Mexico corporation, having its principal place of business at 2325 East 30th
Street, Farmington, New Mexico.
WHEREAS, the parties have previously entered into a Service Agreement,
dated the 4th day of September, 1992 and
WHEREAS, Contractor desires to expand the number of gates under its control
at Sky Harbor International Airport (PHX), and AWA is agreeable to sub-leasing
additional PHX facilities to Contractor, and the parties find it necessary to
amend their original agreement to reflect that change,
NOW, THEREFORE, for and in consideration of the foregoing premises, the
parties agree to amend their original agreement as follows:
(1) [CONFIDENTIAL PORTION DELETED]
(2) All other provisions of the original agreement shall remain in
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
entered into and signed as of the day and year first written above.
AMERICA WEST AIRLINES, INC. MESA AIRLINES, INC.
By: /s/ PETER OTRADOVEC By: /s/ BLAINE JONES
______________________________ ______________________________
Title: Vice President - Planning Title: CFO/Treasurer
<PAGE> 19
SECOND AMENDMENT TO THE AGREEMENT BETWEEN
AMERICA WEST AIRLINES, INC.
AND MESA AIRLINES, INC.
THIS AMENDMENT entered into this 31st day of July, 1993, by and between
America West Airlines, Inc. ("AWA"), a Delaware corporation,
Debtor-in-Possession, having its principal place of business at 4000 East Sky
Harbor Boulevard, Phoenix, Arizona, and Mesa Airlines, Inc. ("Contractor"), a
New Mexico corporation, having its principal place of business at 2325 East 30th
Street, Farmington, New Mexico.
WHEREAS, the parties have previously entered into a Service Agreement,
dated the 4th day of September, 1992, which was amended on March 31, 1993, and
WHEREAS, AWA and Contractor desire to establish
[CONFIDENTIAL PORTION DELETED]
NOW, THEREFORE, for and in consideration of the foregoing premises, the
parties agree to amend their original agreement as amended, as follows:
(1) Article 3 -- SUPPORT SERVICES AND FACILITIES shall be amended to
include a new section 3.07.
[CONFIDENTIAL PORTION DELETED]
(2) All other provisions of the original agreement, as previously
amended, shall remain in force and effect.
IN WITNESS WHEREOF, the parties have caused this amendment to be entered
into and signed as of the day and year first written above.
AMERICA WEST AIRLINES, INC. MESA AIRLINES, INC.
Debtor-In-Possession
By: /s/ PETER OTRADOVEC By: /s/ BLAINE JONES
_________________________________ _______________________________
Title: Vice President - Planning Title: CFO/Treasurer
<PAGE> 20
[LOGO]
March 31, 1994
Mr. Larry L. Risley
President and Chief Executive Officer
Mesa Airlines, Inc.
2225 East 30th Street
Farmington, New Mexico
Re: AMERICA WEST EXPRESS CODE-SHARE AGREEMENT ADDENDUM
Dear Mr. Risley:
[CONFIDENTIAL PORTION DELETED]
6. The provisions of this Addendum will expire on June 30, 1994, unless the
parties agree in writing to an extension or modification of these terms.
7. All other terms and conditions of the Code-Share Agreement between Mesa and
AWA, as amended, shall remain in full force and effect.
Sincerely,
/s/
- - --------------------------------------
PETER J. OTRADOVEC
Agreed to by:
Mesa Airlines, Inc.
/s/
- - --------------------------------------
By: LARRY L. RISLEY
President and Chief Executive
Officer
Date: 4-18-94
---------------------------------
<PAGE> 21
THIRD AMENDMENT TO THE AGREEMENT BETWEEN
AMERICA WEST AIRLINES, INC.
AND MESA AIRLINES, INC.
THIS THIRD AMENDMENT entered into this 25th day of August, 1994, by and
between America West Airlines, Inc. ("AWA"), a Delaware corporation, having its
principal place of business at 4000 East Sky Harbor Boulevard, Phoenix, Arizona,
and Mesa Airlines, Inc. ("Contractor"), a New Mexico corporation, having its
principal place of business at 2325 East 30th Street, Farmington, New Mexico.
WHEREAS, the parties have previously entered into a Service Agreement,
dated the 4th day of September, 1992, which was amended on March 31, 1993, and
again on July 31, 1993, and
WHEREAS, AWA and Contractor desire to extend the term of that Agreement so
as to be coterminous with the Code-share Agreement entered into between AWA and
Continental Airlines, Inc.,
NOW, THEREFORE, for and in consideration of the foregoing premises, the
parties agree to amend their original agreement as amended, as follows:
1) Article 9 -- EFFECTIVE DATE, TERMINATION AND CANCELLATION shall be
amended by amending Section 9.01(a) to read as follows:
Section 9.01 Effective Date and Term
(a) This Agreement will become effective on October 1, 1992 and will
continue in effect thereafter until August 25, 2004, unless it is terminated at
an earlier date pursuant to one or more of the provisions of this Article 9.
The AMERICA WEST EXPRESS service described in Section 2 shall commence on the
dates specified in Section 2 and the applicable reservations and ticketing
services shall be made available 30 days in advance of the start of such
services.
<PAGE> 22
2) Section 9.02 Termination shall be amended by deleting paragraph (f).
3) All other provisions of the original agreement, as previously amended,
shall remain in force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be entered
into and signed as of the day and year first written above.
<TABLE>
<S> <C>
AMERICA WEST AIRLINES, INC. MESA AIRLINES, INC.
BY: BY:
- - ----------------------------------- ------------------------------------
TITLE: TITLE:
- - ----------------------------------- ------------------------------------
</TABLE>
