Exhibit 10.163
FORM OF
$161,000,000
LOAN AGREEMENT
DATED AS OF SEPTEMBER 27, 2005
AMONG
US AIRWAYS, INC.
AND
AMERICA WEST AIRLINES, INC.,
AS BORROWERS,
US AIRWAYS GROUP, INC.,
AS GUARANTOR,
AIRBUS FINANCIAL SERVICES,
AS INITIAL LENDER AND LOAN AGENT
AND
▇▇▇▇▇ FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION
AS COLLATERAL AGENT
[Subject to Completion]
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS.............................................. 1
SECTION 1.1 DEFINED TERMS...................................................................... 1
SECTION 1.2 COMPUTATION OF TIME PERIODS........................................................ 21
SECTION 1.3 ACCOUNTING TERMS AND PRINCIPLES.................................................... 21
SECTION 1.4 CERTAIN TERMS...................................................................... 22
ARTICLE II THE LOANS.................................................................................... 22
SECTION 2.1 THE LOANS.......................................................................... 22
SECTION 2.2 BORROWING PROCEDURES............................................................... 24
SECTION 2.3 SCHEDULED REPAYMENT OF THE LOANS................................................... 24
SECTION 2.4 EVIDENCE OF DEBT; USE OF PROCEEDS.................................................. 25
SECTION 2.5 OPTIONAL PREPAYMENTS............................................................... 27
SECTION 2.6 MANDATORY PREPAYMENTS.............................................................. 28
SECTION 2.7 INTEREST........................................................................... 29
SECTION 2.8 FEES............................................................................... 30
SECTION 2.9 PAYMENTS AND COMPUTATIONS.......................................................... 30
SECTION 2.10 CERTAIN PROVISIONS GOVERNING THE LOANS............................................. 31
SECTION 2.11 CAPITAL ADEQUACY................................................................... 34
SECTION 2.12 SUBSTITUTION OF LENDERS............................................................ 35
SECTION 2.13 TAXES.............................................................................. 36
SECTION 2.14 PRO RATA TREATMENT AND PAYMENTS.................................................... 40
ARTICLE III CONDITIONS TO CLOSING AND FUTURE FUNDINGS................................................... 40
SECTION 3.1 CONDITIONS PRECEDENT............................................................... 40
ARTICLE IV REPRESENTATIONS AND WARRANTIES............................................................... 45
SECTION 4.1 ORGANIZATION, POWERS, QUALIFICATION; AIR CARRIER LICENSES, FRANCHISES AND
PERMITS............................................................................ 45
SECTION 4.2 AUTHORIZATION OF BORROWING, ETC.................................................... 46
SECTION 4.3 FINANCIAL CONDITION................................................................ 47
SECTION 4.4 NO MATERIAL ADVERSE EFFECT......................................................... 48
SECTION 4.5 TITLE TO PROPERTIES; LIENS......................................................... 48
SECTION 4.6 LITIGATION; ADVERSE FACTS.......................................................... 48
SECTION 4.7 TAX RETURNS........................................................................ 48
SECTION 4.8 NO DEFAULT OR EVENT OF DEFAULT..................................................... 49
SECTION 4.9 GOVERNMENTAL REGULATION............................................................ 49
SECTION 4.10 EMPLOYEE BENEFIT PLANS............................................................. 49
SECTION 4.11 COMPLIANCE WITH LAWS............................................................... 49
SECTION 4.12 SECURITY DOCUMENTS................................................................. 49
SECTION 4.13 CONCERNING THE COLLATERAL.......................................................... 50
SECTION 4.14 REPRESENTATIONS AND WARRANTIES OF THE COLLATERAL AGENT............................. 51
ARTICLE V COVENANTS..................................................................................... 52
SECTION 5.1 FINANCIAL STATEMENTS AND OTHER INFORMATION......................................... 52
SECTION 5.2 CORPORATE EXISTENCE................................................................ 54
SECTION 5.3 PAYMENT OF TAXES................................................................... 55
SECTION 5.4 MAINTENANCE OF PROPERTIES; INSURANCE............................................... 55
SECTION 5.5 INSPECTION......................................................................... 55
SECTION 5.6 COMPLIANCE WITH LAWS, ETC.......................................................... 55
SECTION 5.7 FURTHER ASSURANCES................................................................. 56
SECTION 5.8 EMPLOYEE BENEFIT PLANS............................................................. 56
SECTION 5.9 FAA MATTERS; CITIZENSHIP........................................................... 56
SECTION 5.10 DELIVERY OF POST-RECORDING FAA OPINION............................................. 56
SECTION 5.11 SOFTWARE........................................................................... 56
SECTION 5.12 COMPLIANCE WITH MORTGAGE........................................................... 56
SECTION 5.13 PROHIBITION ON LIENS............................................................... 56
SECTION 5.14 MERGER OR CONSOLIDATION............................................................ 59
SECTION 5.15 CERTAIN APPROVALS UNDER THE ATSB LOAN AGREEMENT.................................... 59
ARTICLE VI EVENTS OF DEFAULT............................................................................ 60
SECTION 6.1 EVENTS OF DEFAULT.................................................................. 60
SECTION 6.2 REMEDIES........................................................................... 62
ARTICLE VII THE LOAN AGENT AND THE COLLATERAL AGENT..................................................... 62
SECTION 7.1 AUTHORIZATION AND ACTION........................................................... 62
SECTION 7.2 AGENT'S RELIANCE, ETC.............................................................. 63
SECTION 7.3 AGENT AND AFFILIATES............................................................... 63
SECTION 7.4 REPRESENTATIONS OF THE LENDERS..................................................... 64
SECTION 7.5 EVENTS OF DEFAULT.................................................................. 64
SECTION 7.6 LOAN AGENT'S AND COLLATERAL AGENT'S RIGHT TO INDEMNITY............................. 64
SECTION 7.7 INDEMNIFICATION OF LOAN AGENT AND COLLATERAL AGENT................................. 64
SECTION 7.8 SUCCESSOR LOAN AGENT AND COLLATERAL AGENT.......................................... 65
SECTION 7.9 COLLATERAL AND GUARANTEE MATTERS................................................... 66
ARTICLE VIII GUARANTEE.................................................................................. 66
SECTION 8.1 GUARANTEE.......................................................................... 66
SECTION 8.2 NO SUBROGATION..................................................................... 66
SECTION 8.3 AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS................................... 67
SECTION 8.4 GUARANTEE ABSOLUTE AND UNCONDITIONAL............................................... 67
SECTION 8.5 REINSTATEMENT...................................................................... 68
SECTION 8.6 PAYMENTS........................................................................... 68
ARTICLE IX MISCELLANEOUS................................................................................ 69
SECTION 9.1 AMENDMENTS, WAIVERS, ETC........................................................... 69
SECTION 9.2 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS............................. 70
SECTION 9.3 COSTS AND EXPENSES................................................................. 73
SECTION 9.4 INDEMNITIES........................................................................ 73
SECTION 9.5 RIGHT OF SET-OFF................................................................... 74
ii
SECTION 9.6 JOINT AND SEVERAL LIABILITY; MAXIMUM LIABILITY; WAIVER OF SUBROGATION.............. 74
SECTION 9.7 SHARING OF PAYMENTS, ETC........................................................... 76
SECTION 9.8 NOTICES, ETC....................................................................... 77
SECTION 9.9 NO WAIVER; REMEDIES................................................................ 77
SECTION 9.10 GOVERNING LAW...................................................................... 77
SECTION 9.11 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS..................................... 77
SECTION 9.12 WAIVER OF JURY TRIAL............................................................... 78
SECTION 9.13 MARSHALING; PAYMENTS SET ASIDE..................................................... 78
SECTION 9.14 SECTION TITLES..................................................................... 78
SECTION 9.15 EXECUTION IN COUNTERPARTS.......................................................... 78
SECTION 9.16 SEVERABILITY....................................................................... 79
SECTION 9.17 CONFIDENTIALITY.................................................................... 79
SECTION 9.18 APPOINTMENT OF INDENTURE TRUSTEE................................................... 79
Annexes
Annex A - Notice Addresses
Annex B - Lending Office
Annex C - Lender Commitments
Schedules
Schedule 1.1(a) - Existing Pass Through Certificates
Schedule 1.1 (b) - Specified Engines
Schedule 4.12 - Financing Statements, Filings and Recordings
Schedule 5.13 - Liens
Exhibits
Exhibit A - Form of Assignment and Assumption
Exhibit B - Form of Note
Exhibit C - Form of Notice of Borrowing
iii
LOAN AGREEMENT, dated as of September 27, 2005, among US AIRWAYS,
INC., a Delaware corporation ("US Airways"), AMERICA WEST AIRLINES, INC., a
Delaware corporation ("America West", and together with US Airways, the
"Borrowers", and each, a "Borrower"); US Airways Group, Inc., a Delaware
corporation, as guarantor (the "Guarantor"); AIRBUS FINANCIAL SERVICES as the
initial lender (together with its successors and permitted assigns, the "Initial
Lender"), as loan agent for the Lenders (in such capacity, together with its
successors and permitted assigns, the "Loan Agent"), and ▇▇▇▇▇ FARGO BANK
NORTHWEST, NATIONAL ASSOCIATION, as collateral agent (in such capacity, together
with its successors and permitted assigns, the "Collateral Agent").
WITNESSETH:
WHEREAS, on September 12, 2004 (the "Petition Date"), the Guarantor
and each of its domestic subsidiaries as of such date, including US Airways
(collectively, the "Debtors") filed voluntary petitions (the "Cases") for relief
under the Bankruptcy Code with the United States Bankruptcy Court for the
Eastern District of Virginia, Alexandria Division (the "Bankruptcy Court") and
continued in possession of their property and in the management of their
businesses pursuant to Bankruptcy Code Sections 1107 and 1108;
WHEREAS, on May 19, 2005, the Guarantor, Barbell Acquisition Corp.,
a Delaware corporation and Wholly-Owned Subsidiary of the Guarantor (the "Merger
Sub"), and America West Holdings, Corporation entered into an Agreement and Plan
of Merger (the "Merger Agreement");
WHEREAS, (x) the Bankruptcy Court has entered an order (the
"Confirmation Order") confirming the Plan of Reorganization under Chapter 11 of
the Bankruptcy Code (as in effect on the date of confirmation thereof pursuant
to the Confirmation Order, the "Plan of Reorganization") and (y) the Effective
Time (as defined in the Merger Agreement) has occurred, and the Borrowers have
requested that the Lenders make available to the Borrowers the Loans for the
purposes specified herein; and
WHEREAS, the Lenders are willing to make available to the Borrowers
the Loans upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
SECTION 1.1 DEFINED TERMS. As used in this Agreement, the following
terms have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"A319/A320/A321 Purchase Agreement" means the A319/A320/A321
Purchase Agreement, dated as of October 31, 1997, as amended, between AVSA,
S.A.R.L. and the Guarantor.
"A319/A320 Purchase Agreement" means the A319/A320 Purchase
Agreement, dated as of September 12, 1997, as amended, between AVSA, S.A.R.L.
and America West.
"A330/A340 Purchase Agreement" means the A330/A340 Purchase
Agreement dated as of November 24, 1998, as amended, between AVSA, S.A.R.L. and
the Guarantor.
"A321 Airbus Financings" mean the note purchase agreements, trust
indenture and mortgages, secured notes and related loan documents entered into
between Aviateur International Limited, as initial lender, and certain
Affiliates, on the one hand, US Airways Inc., on the other hand, and U.S. Bank
National Association (as successor in interest to State Street Bank and Trust
Company of Connecticut, N.A.), as Indenture Trustee, as amended or supplemented
from time to time, providing for the mortgage loan financing of five (5) Airbus
A321 model aircraft bearing FAA registration numbers N184US, N185UW, N186US,
N187US and N188US, respectively.
"A321 Aircraft" means, individually or collectively as the context
may require, the Airbus A321 aircraft having FAA registration numbers N184US,
N185UW, N186US, N187US, and N188US.
"A350/A340 Financing Letter Agreement" means the A350/A330 Financing
Letter Agreement dated as of September 27, 2005, as amended, among AVSA,
S.A.R.L. and the Obligors.
"Actual Knowledge" means, with respect to any Person, actual
knowledge of a vice president or more senior officer of such Person or any other
officer of such Person having responsibility for the transactions contemplated
by the Loan Documents.
"Affiliate" means, with respect to any Person, any other Person
that, directly or indirectly, controls, is controlled by or is under common
control with such Person. For the purposes of this definition, "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" means this Loan Agreement.
"Aggregate Original Principal Amount" means the aggregate
outstanding principal amount of the Loans on the earliest of (x) the close of
business on December 31, 2007, (y) the date the Commitments are fully utilized
and (z) the date when the Commitments are terminated.
"Airbus" means Airbus S.A.S.
"Aircraft Mortgage" means the five (5) Trust Indenture and Mortgages
dated the date hereof between US Airways and US Bank National Association, as
Indenture Trustee, providing for second mortgages on the A321 Aircraft, as
supplemented or amended from time to time.
"Aircraft Related Equipment" means aircraft (including aircraft
engines installed thereon) in the fleet of any Obligor or any of their
Subsidiaries, spare aircraft engines and propellers, spare parts, aircraft
parts, simulators and other training devices, and passenger loading bridges or
other flight or ground equipment and Aircraft Related Facilities.
"Aircraft Related Facilities" means (i) airport terminal facilities,
including without limitation, baggage systems, loading bridges and related
equipment, building, infrastructure and maintenance, club rooms, apron, fueling
systems or facilities, signage/image systems, administrative offices,
information technology systems and security systems, (ii) airline support
facilities, including without limitation, cargo, catering, mail, ground service
equipment, ramp control, deicing, hangars, aircraft parts/storage, training and
reservations facilities and (iii) all equipment used in connection with the
foregoing.
"Applicable Interest Rate" means, for each Loan and for each
Interest Period, a rate per annum equal to LIBOR for such Interest Period plus
the Applicable Margin.
"Applicable Margin" means [To be agreed by the parties]
"Asset Sale" means, with respect to any property, any sale, transfer
or other disposition (including by way of merger, consolidation, exchange of
assets or sale leaseback transactions or by reason of any condemnation or other
taking or permanent requisition) of such property, in one transaction or a
series of related transactions, by any Obligor or any of its Subsidiaries to any
Person other than such Obligor or any of its Subsidiaries; provided that sales
of spare parts subject to the Lien of the Spare Parts Mortgage which are made
pursuant to Section 3.02(b)(4) thereof shall not constitute Asset Sales.
"Assignment and Assumption" means an Assignment and Assumption
entered into by a Lender and an Assignee, in substantially the form of Exhibit A
or any other form approved by the Loan Agent.
"ATSB" means the Air Transportation Stabilization Board, or any
successor thereto.
"ATSB Loan Agreements" means (i) the Amended and Restated Loan
Agreement, dated as of September 27, 2005, among US Airways, the Guarantor, the
other subsidiaries of the Guarantor party thereto, the lenders from time to time
party thereto, the Loan Administrator and agents party thereto, and the ATSB,
and (ii) the Amended and Restated Loan Agreement, dated as of September 27,
2005, among America West, the Guarantor, the other subsidiaries of the Guarantor
party thereto, the lenders from time to time party thereto, the Loan
Administrator and agents party thereto, and the ATSB, each as in effect on the
Closing Date.
"AWA Holdings" means America West Holdings Corporation.
"Bankruptcy Code" means Title 11 of the United States Code as now
and hereafter in effect, or any successor statute.
"Bankruptcy Court" has the meaning specified in the recitals hereto.
"Borrower" has the meaning specified in the preamble to this
Agreement.
"Borrowing" means the borrowing of a Loan on the Closing Date or on
another Funding Date.
"Business Day" means any day other than a Saturday, Sunday, or other
day on which commercial banks in New York, New York, Dublin, Ireland, or
Phoenix, Arizona are authorized or required by law to remain closed; provided
that when used in connection with LIBOR, the term "Business Day" shall mean any
day on which banks in London, England are open for dealings in dollar deposits
in the interbank market.
"Business Plan" means the business plan of the Borrowers dated as of
July 7, 2005, provided to the Loan Agent.
"Cape Town Convention" means the Convention on International
Interests in Mobile Equipment and the Protocol to the Convention on Matters
Specific to Aircraft Equipment signed in Cape Town on 16 November 2001.
"Capital Lease," as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is required to be accounted for as a capital lease on the
balance sheet of that Person, and the amount of Indebtedness represented by such
lease shall be the capitalized amount of the obligations evidenced thereby
determined in accordance with GAAP.
"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 Agreement.
"Cases" has the meaning specified in the recitals hereto.
"Cash" means money, currency or a credit balance.
"Cash Equivalents" has the meaning given in the ATSB Loan
Agreements.
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means the property comprising the collateral security
provided by the Collateral Documents.
"Collateral Documents" means, collectively, (i) the Aircraft
Mortgages, as amended or supplemented from time to time, (ii) the Spare Parts
Mortgage and Security Agreement, (iii) the Engine Mortgage and Security
Agreement, (iv) the Purchase Agreement Security Agreement, and (v) such other
security documents as may be executed and delivered by the Obligors pursuant to
the terms of Section 5.6.
"Commitments" is a collective reference to the Tranche A
Commitments, the Tranche B Commitments, the Tranche C Commitments, the Tranche D
Commitments and the Tranche E Commitments. The initial aggregate amount of the
Commitments is $161,000,000.
"Commodity Agreement" means any agreement or arrangement designed to
protect any Obligor or any of their Subsidiaries against fluctuations in the
prices of commodities used by any Obligor or any of their Subsidiaries in the
ordinary course of its business.
"Confirmation Order" has the meaning specified in the recitals
hereto.
"Consummation of the Plan" means substantial consummation of the
Plan of Reorganization within the meaning of Section 1101(2) of the Bankruptcy
Code.
"Contractual Obligation," as applied to any Person, means any
provision of any equity security issued by that Person or of any material
indenture, mortgage, deed of trust, contract, undertaking, agreement or other
material instrument to which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is subject.
"Cross-Collateral" shall mean (i) all collateral security supporting
payment of the Cross-Default Obligations, and (ii) all right, title and
interest, if any, of any Obligor in, to or with respect to predelivery payments
or deposits made under any
aircraft purchase agreement between any Obligor or any of its Affiliates, on the
one hand, and Airbus or any of its Affiliates, on the other hand.
"Cross-Default Obligations" means all Obligations of any Obligor (i)
held, directly or indirectly (through a trustee or otherwise) by Airbus or any
Affiliate under or with respect to (A) the A321 Airbus Financings, or (B) the
Other Loan Agreement or any other lease, loan, trade receivable, or other
extension of credit between Airbus or any of its Affiliates, on the one hand,
any Obligor or any of its Affiliates, on the other hand, whether such lease,
loan, trade receivable, or other extension of credit is direct or is indirect
through a lease, structured financing or otherwise, including without
limitation, any Pass Through Certificates listed on Schedule 1.1(a) or acquired
in an original issuance after the Closing Date, or (C) any aircraft purchase
agreement between any Obligor, on the one hand, and Airbus or any of its
Affiliates, on the other hand, or (ii) under any Principal Credit Facility. For
purposes of this definition, the term "Obligations" shall mean with respect to
any of the agreements referred to in clauses (A), (B) or (C) of the preceding
sentence, the unpaid principal of and interest thereon (including interest
accruing after the maturity thereof and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Obligor, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
and all other obligations and liabilities of the Obligors thereunder, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
therewith, or any other document made, delivered or given in connection herewith
or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement designed to protect any Obligor or any of its
Subsidiaries against fluctuations in currency values.
"Debtors" has the meaning specified in the recitals thereto.
"Default" means any event which with the passing of time or the
giving of notice or both would, unless cured or waived, become an Event of
Default.
"Designated Locations" has the meaning specified in the Spare Parts
Security Agreement.
"Dollars" and the sign "$" each mean the lawful money of the United
States of America.
"Effective Date" means the date on which the conditions precedent
set forth in Section 3.1(a), (j) and (p) have been satisfied, but not later than
December 2, 2005.
"Engine Mortgage and Security Agreement" means the Engine Mortgage
and Security Agreement dated as of the date hereof between America West and the
Collateral Agent.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means, as applied to either Borrower, (i) any
corporation which is, or was at any time, a member of a controlled group of
corporations within the meaning of Section 414(b) of the Code of which such
Borrower is a member; (ii) any trade or business (whether or not incorporated)
which is a member of a group of trades or businesses under common control within
the meaning of Section 414(c) of the Code of which such Borrower is a member;
and (iii) any member of an affiliated service group within the meaning of
Section 414(m) or (o) of the Code of which such Borrower, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is a member.
"ERISA Event" means (a) any "reportable event," as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which reporting is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA); (c) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan; (d) the
incurrence by Guarantor or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e)(i) the
receipt by Guarantor or any ERISA Affiliate from the PBGC of a notice of
determination that PBGC intends to seek termination of any Plan or to have a
trustee appointed for any Plan, or (ii) the filing by Guarantor or any ERISA
Affiliate of a notice of intent to terminate any Plan; (f) the incurrence by
Guarantor or any of its ERISA Affiliates of any liability (i) with respect to
the withdrawal from a Multiemployer Plan pursuant to Sections 4063 and 4064 of
ERISA, (ii) with respect to a facility closing pursuant to Section 4062(e) of
ERISA, or (iii) with respect to the withdrawal or partial withdrawal from any
Multiemployer Plan; or (g) the receipt by Guarantor or any ERISA Affiliate of
any notice concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
"Event of Default" has the meaning specified in Section 6.1.
"Event of Loss" has the meaning specified in the Engine Mortgage and
Security Agreement or in the Aircraft Mortgages.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"FAA" means the Federal Aviation Administration.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any successor thereto.
"Final Order" means an order or judgment of the Bankruptcy Court, or
other court of competent jurisdiction, as entered on the docket in the Cases or
the docket of any other court of competent jurisdiction, that has not been
reversed, stayed, modified or amended, and as to which the time to appeal or
seek reargument, reconsideration, or certiorari has expired and no appeal,
motion for reconsideration or reargument or petition for certiorari has been
timely taken, or as to which any appeal that has been taken or any petition for
certiorari, motion for reconsideration or reargument 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 reargument, reconsideration, or certiorari was sought and
the time to take any further appeal, petition for certiorari or move for
reargument shall have expired.
"Fiscal Year" means the Borrowers' fiscal year referenced in the
financial statements to be delivered by the Borrowers pursuant to Section 5.1.
"Funding Date" means each date on which one or more Borrowings of
Loans is made in accordance with Sections 2.1 and 2.2.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GECC" means General Electric Capital Corporation.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative functions
of or pertaining to government.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness 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 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 of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), including any pledge of assets to secure
indebtedness of another or (iii) to maintain working capital, equity capital or
any other financial statement condition or liquidity or level of income or cash
flow of such other Person so as to enable such Person to pay such Indebtedness.
The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" has the meaning specified in the preamble to this
Agreement.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication), (i) all obligations 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 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 (x) Trade Payables and similar obligations incurred in the
ordinary course of business and (y) earn-outs and other contingent payouts in
respect of acquisitions; (v) all Capital Lease obligations of such Person (the
amount of the Indebtedness in respect of Capital Lease obligations to be
determined as provided in the definition of Capital Lease in this Section 1.1);
(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 in the case of Indebtedness issued without recourse to such Persons, the
amount of such Indebtedness shall be the lesser of (A) the fair market value of
such asset at such date of determination and (B) the stated principal amount of
such Indebtedness, provided, however, that if such Indebtedness is assumed by
such Person or provides for recourse against such Person, the amount of such
Indebtedness shall be the greater of (A) and (B) above; (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 and to the extent treated as a liability under GAAP, obligations
under Currency Agreements, Interest Rate Agreements and Commodity Agreements
(ix) the capitalized amount of remaining lease payments owing by such Person
under Synthetic Leases that would appear on the balance sheet of such Person if
such lease were treated as a Capital Lease; (x) the aggregate amount of
uncollected accounts receivable of such Person subject at such time to a sale of
receivables (or similar transaction) to the extent such transaction is effected
with recourse to such Person (whether or not such transaction would be reflected
on the balance sheet of such Person in accordance with GAAP); (xi) the
Indebtedness of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer to the extent such Indebtedness
is recourse to such Person; and (xii) all prepaid forward sales in bulk of
dividend miles or available seat miles or like transactions other than in the
ordinary course of business. 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.
"Indemnified Liabilities" has the meaning specified in Section 9.4.
"Indemnified Taxes" has the meaning specified in Section 2.13(a).
"Indemnitees" has the meaning specified in Section 9.4.
"Indenture Trustee" means U.S. Bank National Association, Indenture
Trustee under the Aircraft Mortgages, and its successors.
"Initial Lender" has the meaning specified in the preamble to this
Agreement.
"Intercreditor Agreement" means the intercreditor agreement with
GECC as described in Section 3.1(e).
"Interest Payment Date" has the meaning specified in Section 2.7(b).
"Interest Period" means, for each Loan, (a) initially, the period
commencing on September 26, 2005 and ending on the last day of the current
Interest Period for any other Tranche then outstanding, or if no other Tranche
is then outstanding, ending three months after the initial Funding Date, and (b)
thereafter, a period commencing on the last day of the immediately preceding
Interest Period therefor and ending three months thereafter; provided, however,
that:
(i) the final scheduled Interest Period shall end on the
Loan Maturity Date;
(ii) if any Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless the result of such extension would be
to extend such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business Day
and for the avoidance of doubt, interest computation shall be adjusted
accordingly;
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month;
and
(iv) each "Interest Period" beginning after the
occurrence and during the continuance of an Event of Default shall be for
a period duration of one month.
"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 any Obligor or any of
their Subsidiaries against fluctuations in interest rates or under which any
Obligor or any of their Subsidiaries is a party or a beneficiary on the date of
this Agreement or becomes a party or a beneficiary thereafter.
"IRS" means the Internal Revenue Service of the United States or any
successor thereto.
"Lenders" mean (i) the Initial Lender, and (ii) each financial
institution or other entity that from time to time becomes a party hereto as a
lender hereunder pursuant to an Assignment and Assumption, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and Assumption
or otherwise.
"Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Lending Office" opposite its name on Annex B or on
the Assignment and Assumption by which it became a Lender or such other office
of such Lender as such Lender may from time to time specify to the Borrowers and
the Loan Agent.
"LIBOR" means the rate per annum (rounded to the nearest 1/100 of
1%) equal to the quotation that appears on page 3750 of the Telerate Screen (or
otherwise on such screen or on such other screen, page or service as may replace
the Telerate Screen) as of 11:00 A.M., London time, two Business Days prior to
the beginning of the applicable Interest Period as the rate for dollar deposits
to be delivered on the first day of such Interest Period and maintained for such
Interest Period (or, in the case of the initial Interest Period, for three
months) in an amount comparable to the principal amount of the Loan. In the
event that such rate does not so appear on the Telerate Screen (or otherwise as
aforesaid), the "LIBOR" for purposes of this definition shall be the arithmetic
average (rounded to the nearest 1/100 of 1%) of the offered quotation to
first-class banks in the interbank Eurodollar market by each Reference Bank in
London for dollar deposits of amounts in same day funds comparable to the
principal amount of the Loan, with maturities comparable to the applicable
Interest Period (or, in the case of the initial Interest Period, for three
months) determined as of 11:00 A.M. (London time) on the date which is two
Business Days prior to the commencement of such Interest Period. If any one or
more of the Reference Banks shall not furnish such timely information to the
Loan Agent for the purpose of determining any such interest rate, the Loan Agent
shall determine such interest rate on the basis of timely information furnished
by the remaining Reference Bank or Reference Banks.
"Lien" means, with respect to any asset, any lien, mortgage, pledge,
assignment for security purposes, security interest, charge, hypothecation,
lease or encumbrance of any kind on or of such asset (including any conditional
sale or other title retention agreement and any lease in the nature thereof, any
easement, right of way or other encumbrance on title to real property and any
agreement to give any security interest).
"Loan" means any loan made by a Lender pursuant to this Agreement.
"Loan Agent" has the meaning specified in the preamble to this
Agreement.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Other Loan Agreement, the Other Loan Agreement Notes, the Collateral Documents,
the Intercreditor Agreement and each certificate, agreement or document executed
by the Borrowers and delivered to the Loan Agent or the Lenders in connection
with or pursuant to this Agreement.
"Loan Maturity Date" means December 31, 2010, except that if such
date is not a Business Day, then the Loan Maturity Date shall be the immediately
succeeding Business Day.
"Material Adverse Change" means a material adverse change in the
financial condition of any Obligor between the Effective Date and the date of
provision of the relevant Loan which would materially and adversely affect such
Obligor's ability to perform any of its payment or other material obligations
under any Loan Document.
"Merger Agreement" has the meaning specified in the recitals hereto.
"Merger Sub" has the meaning specified in the recitals hereto.
"Material Adverse Effect" means, with respect to the Obligors, (a)
an event of the type described in Section 6.1(f) or 6.1(g), or (b) the cessation
of commercial passenger service by either Borrower for a period of ten Business
Days, other than as a result of the action of any Governmental Authority, or (c)
a material adverse effect on (i) the validity or enforceability of any material
provision of this Agreement or any of the other Loan Documents or any of the
material rights or remedies of the Loan Agent, the Collateral Agent or the
Lenders hereunder or thereunder, or (ii) the Lien of the Collateral Documents.
"MOU" means that certain Memorandum of Understanding between AVSA,
S.A.R.L., the Guarantor, and the Borrowers, dated as of May 18, 2005.
"Multiemployer Plan" means a multiemployer plan as defined Section
4001(a)(3) of ERISA, and in respect of which Guarantor or any ERISA Affiliate is
(or with the application of Section 4212(c) of ERISA would be) (a) an "employer"
as defined in Section 3(5) of ERISA or (b) a "seller" as defined in Section 4204
of ERISA.
"Net Cash Proceeds" means, with respect to any Asset Sale, the cash
proceeds of such Asset Sale, net of (i) reasonable and customary brokerage
commissions and other reasonable and customary fees and expenses (including
reasonable fees and expenses of counsel, investment bankers, accountants and
other professionals, consultants and advisors) 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 Guarantor, the Borrowers and their
respective Subsidiaries, taken as a whole, (iii) payments made to repay
Indebtedness or any other obligation outstanding at the time of such Asset Sale
(or any related expenses required to be paid to third parties pursuant to
documentation related to the financing of the assets subject to such Asset Sale)
that (A) is secured by a Lien on the property or assets sold and (B) is required
by its terms to be paid as a result of such Asset Sale and (iv) appropriate
amounts to be provided by any Obligor 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, but limited to the period of the required reserve.
"Net Insurance Proceeds" means an amount equal to: (i) any cash
payments or proceeds received by an Obligor under any casualty insurance policy
in respect of a covered loss thereunder constituting an Event of Loss with
respect to tangible, real or personal property, minus (ii) (a) any actual and
reasonable costs incurred by an Obligor in connection with the adjustment or
settlement of any claims of an Obligor in respect thereof (including reasonable
fees and expenses of counsel), (b) provisions for all taxes payable as a result
of such event without regard to the consolidated results of operations of
Guarantor, the Borrowers and their respective Subsidiaries, taken as a whole,
(c) the amount of any Indebtedness secured by a Lien on any property subject to
such covered loss and any related expenses of third parties, in each case,
required by the documentation related to such Indebtedness to be discharged or
paid from the proceeds thereof and (d) any amounts required to be paid to any
Person (other than an Obligor) owning a beneficial interest in the property
subject to such loss.
"Non-Consenting Lender" has the meaning specified in Section 9.1(c).
"Non-U.S. Person" means a Person that is not a United States person
as defined in section 7701(a)(30) of the Code.
"Note" has the meaning specified in Section 2.4(d).
"Notice of Borrowing" has the meaning specified in Section 2.2(a).
"Obligations" means the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and interest
accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to any Obligor,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans and all other obligations and liabilities of the
Obligors to the Loan Agent, the Collateral Agent, the Indenture Trustee or to
any Lender, whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement or any other Loan Document, whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including all fees, charges and disbursements of counsel to the Loan
Agent, the Collateral Agent or to any Lender that are required to be paid by any
Obligor pursuant hereto) or otherwise.
"Obligor" means Guarantor or either Borrower.
"Officer's Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its chairman of the board
(if an officer), president, one of its vice presidents, chief financial officer,
controller, treasurer or assistant treasurer or an assistant secretary.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) under which such
Person is Lessee, that is not a Capital Lease.
"Other Loan Agreement" means, the Loan Agreement, dated as the date
hereof, among the parties hereto, providing for secured loans in the maximum
amount of $89,000,000.
"Other Loan Agreement Notes" means the "Notes" (as defined in the
Other Loan Agreement).
"Other Obligations" means the "Obligations" (as defined in the Other
Loan Agreement).
"Other Taxes" has the meaning specified in Section 2.13(b).
"Participant" has the meaning specified in Section 9.2(c)(i).
"Pass Through Certificates" means the US Airways 2001-1C Trust
Certificates and any other certificates issued under a similarly structured
financing sponsored by an Obligor or an Affiliate thereof. References to amounts
"due and payable" on a given date, when used with respect to Pass Through
Certificates shall refer to amounts legally due and payable thereunder or to
amounts expected to be distributed on or before such date to the holders
thereof, and "default" when used with respect to Pass Through Certificates shall
have a correlative meaning.
"Permitted Acquisition Financing" means Indebtedness incurred by an
Obligor in connection with an acquisition, merger or consolidation which is
permitted under Section 6.5 and/or 6.9 (as applicable) of the ATSB Loan
Agreements if and to the extent used (i) to refinance existing Indebtedness of
the Person acquired or Indebtedness secured by the assets acquired or (ii) to
pay consideration or related expenses in connection with such transaction.
"Permitted Encumbrances" means the following types of Liens (other
than any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Code
or by ERISA) as applied to property
(i) Liens for taxes, assessments or governmental charges
or claims the payment of which is either (a) not delinquent for a period
of more than 30 days or (b) being contested in good faith by appropriate
proceedings, if such reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made therefor, as set forth in
Section 5.3;
(ii) statutory Liens of landlords and Liens of carriers,
vendors, warehousemen, repairmen, mechanics and materialmen and other
Liens imposed by law incurred in the ordinary course of
business for sums either (a) not delinquent for a period of more than
thirty (30) days or (b) being contested in good faith by appropriate
proceedings, if such reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made therefor;
(iii) (A) Liens incurred or deposits (other than with
respect to the Plans described in Section 4.10) made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the performance
of tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds, reimbursement obligations and chargeback rights of Persons
performing services for an Obligor or a Subsidiary of an Obligor
(including Liens securing Trade Payables arising from the Obligors' and
their Subsidiaries' use in the ordinary course of business, consistent
with past practice, of credit advance facilities to purchase goods and
services) and other similar obligations (exclusive of obligations for the
payment of borrowed money) and (B) Liens arising or granted in the
ordinary course of business in favor of Persons performing credit card
processing services, travel charge processing services or clearinghouse
services for any Obligor or any of their Subsidiaries, including IATA,
Diners Club, Discover Card, NPC, ARC and American Express, so long as such
Liens are on cash and Cash Equivalents that are subject to holdbacks by,
or are pledged (in lieu of such holdbacks) to, such Persons to secure
amounts that may be owed to such Persons under the Obligors' or their
Subsidiaries' agreements with them in connection with their provision of
credit card processing, travel charge processing or clearinghouse services
to the Obligors or any of their Subsidiaries;
(iv) with respect to real property, easements,
rights-of-way, restrictions, minor defects, encroachments or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of an Obligor or any of its Subsidiaries;
(v) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods in the ordinary course of
business;
(vi) any interest or title of a lessor in property
leased by an Obligor or any of their Subsidiaries under any Capital Lease
obligation or Operating Lease which, in each case, is not prohibited under
this Agreement;
(vii) Liens in favor of collecting or payor banks and
other banks providing cash management services, in each case, having
a right of setoff, revocation, refund or chargeback against money or
instruments of any Obligor or any of their Subsidiaries on deposit with or
in possession of such bank arising for the payments of bank fees and other
similar amounts owed in the ordinary course of business;
(viii) Liens of creditors of any Person to whom any
Obligor's or any of their Subsidiaries' assets are consigned for sale in
the ordinary course of business;
(ix) Liens incurred or deposits made in connection with
the Trust Agreements;
(x) any renewal of or substitution for any Lien
permitted by any of the preceding clauses,; provided that the Indebtedness
secured is not increased nor the Lien extended to any additional assets;
(xi) licensing or sublicensing of intellectual property
in the ordinary course of business of the Obligors or their Subsidiaries;
(xii) Liens arising from precautionary UCC and similar
financing statements relating to Operating Leases not otherwise prohibited
under any Loan Document; and
(xiii) Liens created under the Collateral Documents.
"Permitted Invoice" means invoices for amounts due in respect of
goods and services purchased by the Guarantor or any of its Affiliates from
Airbus or any of its Affiliates.
"Permitted Refinancing Indebtedness" has the meaning given in the
ATSB Loan Agreements.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, estate, trust, limited liability company,
unincorporated association, joint venture or other entity, or a Governmental
Authority.
"Petition Date" has the meaning specified in the recitals hereto.
"Plan" means any "employee benefit plan" as defined in section 3(3)
of ERISA which is, or was at any time, maintained or contributed to or required
to be contributed to by the Borrowers or any of their ERISA Affiliates, other
than a multiemployer plan, within the meaning of section 4001(a)(3) of ERISA.
"Plan Effective Date" means the date on which the Plan of
Reorganization became effective as provided therein.
"Plan of Reorganization" has the meaning specified in the recitals
hereto.
"Pledged Engines" means the "Engines" (as defined in the Engine
Mortgage and Security Agreement).
"Pledged Spare Parts" has the meaning specified in the Spare Parts
Mortgage and Security Agreement.
"Principal Credit Facility" shall mean, for any Obligor, (i) any
credit agreement to which it is a party guaranteed (or otherwise supported) in
whole or in part by the ATSB, and (ii) from and after the date on which any such
ATSB credit facility of a Borrower is repaid, refinanced or replaced, the
refinancing or replacing credit, note, bond or other loan facility (or, in the
absence of, or after the repayment, refinancing or replacement of, any such
refinancing or replacing facility, then the largest recourse credit, note or
other loan or note facility or issuance of the relevant Obligor from time to
time), other than any such facility or issuance which is secured by and is for
the purpose of financing or refinancing Aircraft Related Equipment and other
than any such facility or issuance which cannot be accelerated or terminated
upon nonperformance or default thereunder.
"Pro Forma Balance Sheet" has the meaning given in Section 4.3(a).
"Proposed Change" has the meaning specified in Section 9.1(c).
"Purchase Agreement Security Agreement" means the Purchase Agreement
Security Agreement, dated as of the date hereof, between the Borrower and the
Collateral Agent.
"Reference Banks" means Citibank, N.A., Calyon and JPMorgan Chase
Bank, and each of their respective successors.
"Register" has the meaning specified in Section 2.4(e).
"Replacement Secured Financing" means any financing transaction,
whether structured as Indebtedness, sale-leaseback or otherwise, (a) which is
secured by any of the Obligors' (i) Slots, (ii) rotable, repairable and
expendable spare parts, (iii) aircraft, or (iv) spare engines, in each case
which immediately prior to such transaction constituted Collateral for purposes
of the ATSB Loan Agreements and (b) which satisfies the further definitional
requirements set forth in the ATSB Loan Agreements.
"Requisite Lenders" means, collectively, Lenders having greater than
fifty percent (50%) of (i) the aggregate principal amount of Loans then
outstanding plus the aggregate unused Commitments then in effect or, (ii) prior
to the making of the initial Loan, the aggregate Commitments in effect.
"Responsible Officer" means, with respect to any Person, any of the
Chief Executive Officer, Executive Vice Presidents and Chief Financial Officer
of such Person,
but in any event, with respect to financial matters, the Chief Financial
Officer, Treasurer or Controller of such Person.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto that is a nationally
recognized rating agency.
"SEC" means the United States Securities and Exchange Commission, or
any United States Governmental Authority succeeding to the functions of such
Securities and Exchange Commission.
"Senior Mortgages" shall mean each of the "Senior Engine Mortgage"
and the "Senior Spare Parts Mortgage," each as defined in the Spare Parts
Mortgage and Security Agreement or the Engine Mortgage and Security Agreement
"Slot Regulations" means 49 U.S.C. Section 40103 and 14 C.F.R.
Sections 93.211 - 93.227, and any amendment, supplement or other modification
thereto, or successor, replacement or substitute federal law or regulation
concerning the right or operational authority to conduct landing or takeoff
operations at any airports.
"Slots" means all of the rights and operational authority granted
under the Slot Regulations and now or hereafter acquired or held by each Obligor
to conduct one instrument flight rule landing or takeoff operation in a
specified time period at ▇▇▇▇▇▇ ▇▇▇▇▇▇ Washington National Airport, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ International Airport, LaGuardia Airport, or any other airport.
"Software" has the meaning specified in the Spare Parts Security
Agreement.
"Solvent" means, with respect to any Person, that as of the date of
determination (a) the then fair saleable value of the business of such Person is
not less than the amount that will be required to pay the probable liabilities
on such Person's then existing debts as they become absolute and matured
considering all financing alternatives and potential asset sales reasonably
available to such Person; (b) such Person's capital is not unreasonably small in
relation to its business or any contemplated or undertaken transaction; and (c)
such Person does not intend to incur, or believes that it will not incur, debts
beyond its ability to pay such debts as they become due. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"Spare Parts Mortgage and Security Agreement" means the Spare Parts
Mortgage and Security Agreement dated as of the date hereof between America West
and the Collateral Agent.
"Specified Engines" means the Pledged Engines listed on Schedule
1.1(b), each of which is eligible for the benefits of Section 1110 of the
Bankruptcy Code.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association, limited liability company, trust or estate, joint
venture or other business entity of which more than 50% of the issued and
outstanding shares of Voting Stock at the time of determination are owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
"Taxes" means any and all present or future taxes, levies, fees,
duties, imposts, deductions, charges or withholdings of any nature, and all
interest, penalties and other liabilities thereon or computed by reference
thereto imposed, levied, collected, withheld or assessed by any Governmental
Authority.
"Title 49" shall mean Title 49 of the United States Code, as amended
and in effect from time to time, and the regulations promulgated pursuant
thereto.
"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.
"Tranche" means a Tranche of the Loans, consisting of Tranche A
Loans, Tranche B Loans, Tranche C Loans, Tranche D Loans and Tranche E Loans.
"Tranche A Loan" has the meaning specified in Section 2.1(a).
"Tranche A Commitment" means, as to any Lender, the obligation of
such Lender to make Tranche A Loans hereunder in a principal amount not to
exceed the amount set forth opposite such Lender's name in Annex C, subject to
the provisions of Section 2.14. The aggregate amount of the Tranche A
Commitments is initially $50,000,000; provided that when and if the aggregate
amount of Borrowings is $161,000,000, the aggregate amount of the Tranche A
Commitments shall be reduced by the aggregate unused amount of the Tranche A
Commitment of the Lenders at such time.
"Tranche A Commitment Reduction Amount" means the aggregate amount
by which the Tranche A Commitments of the Lenders are reduced pursuant to the
proviso to the definition of the term "Tranche A Commitment", as set forth in
the notice of the Loan Agent delivered pursuant to Section 2.10(a).
"Tranche A Note" means a promissory note evidencing Tranche A Loans,
substantially in the form of Exhibit B hereto.
"Tranche B Loan" has the meaning specified in Section 2.1(b).
"Tranche B Commitment" means, as to any Lender, the obligation of
such Lender to make Tranche B Loans hereunder in a principal amount not to
exceed the amount set forth opposite such Lender's name in Annex C, subject to
the provisions of Section 2.14. The aggregate amount of the Tranche B
Commitments is initially $27,000,000; provided that when and if the aggregate
amount of Borrowings is
$161,000,000, the aggregate amount of the Tranche B Commitments shall be reduced
by the aggregate unused amount of the Tranche B Commitment of the Lenders at
such time.
"Tranche B Commitment Reduction Amount" means the aggregate amount
by which the Tranche B Commitments of the Lenders are reduced pursuant to the
proviso to the definition of the term "Tranche B Commitment", as set forth in
the notice of the Loan Agent delivered pursuant to Section 2.10(a).
"Tranche B Note" means a promissory note evidencing Tranche B Loans,
substantially in the form of Exhibit B hereto.
"Tranche C Loan" has the meaning specified in Section 2.1(c).
"Tranche C Commitment" means, as to any Lender, the obligation of
such Lender to make Tranche C Loans hereunder in a principal amount not to
exceed the amount set forth opposite such Lender's name in Annex C, subject to
the provisions of Section 2.14. The aggregate amount of the Tranche C
Commitments is initially $10,000,000; provided that when and if the aggregate
amount of Borrowings is $161,000,000, the aggregate amount of the Tranche C
Commitments shall be reduced by the aggregate unused amount of the Tranche C
Commitment of the Lenders at such time.
"Tranche C Commitment Reduction Amount" means the aggregate amount
by which the Tranche C Commitments of the Lenders are reduced pursuant to the
proviso to the definition of the term "Tranche C Commitment", as set forth in
the notice of the Loan Agent delivered pursuant to Section 2.10(a).
"Tranche C Note" means a promissory note evidencing Tranche C Loans,
substantially in the form of Exhibit B hereto.
"Tranche D Loan" has the meaning specified in Section 2.1(d).
"Tranche D Commitment" means, as to any Lender, the obligation of
such Lender to make Tranche D Loans hereunder in a principal amount not to
exceed the amount set forth opposite such Lender's name in Annex C, subject to
the provisions of Section 2.14. The aggregate amount of the Tranche D
Commitments is initially $10,000,000; provided that when and if the aggregate
amount of Borrowings is $161,000,000, the aggregate amount of the Tranche D
Commitments shall be reduced by the aggregate unused amount of the Tranche D
Commitment of the Lenders at such time.
"Tranche D Commitment Reduction Amount" means the aggregate amount
by which the Tranche D Commitments of the Lenders are reduced pursuant to the
proviso to the definition of the term "Tranche D Commitment", as set forth in
the notice of the Loan Agent delivered pursuant to Section 2.10(a).
"Tranche D Note" means a promissory note evidencing Tranche D Loans,
substantially in the form of Exhibit B hereto.
"Tranche E Loan" has the meaning specified in Section 2.1(e).
"Tranche E Commitment" means, as to any Lender, the obligation of
such Lender to make Tranche E Loans hereunder in a principal amount not to
exceed the amount set forth opposite such Lender's name in Annex C, subject to
the provisions of Section 2.14. The aggregate amount of the Tranche E
Commitments is initially $153,000,000; provided that when and if the aggregate
amount of Borrowings is $161,000,000, the aggregate amount of the Tranche E
Commitments shall be reduced by the aggregate unused amount of the Tranche E
Commitment of the Lenders at such time.
"Tranche E Commitment Reduction Amount" means the aggregate amount
by which the Tranche E Commitments of the Lenders are reduced pursuant to the
proviso to the definition of the term "Tranche E Commitment", as set forth in
the notice of the Loan Agent delivered pursuant to Section 2.10(a).
"Tranche E Note" means a promissory note evidencing Tranche E Loans,
substantially in the form of Exhibit B hereto.
"Trust Agreements" means all special purpose trust funds established
by any Obligor to manage the collection and payment of amounts collected by the
Obligors for the express benefit of third-party beneficiaries identified as such
in the ATSB Loan Agreements.
"United States Citizen" has the meaning specified in Section 4.1(b).
"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 (or Persons performing similar functions) irrespective of whether or not
at the time stock of any such class or classes will have or might have such
voting power by the reason of the happening of any contingency.
"Wholly-Owned" denotes a Subsidiary all of the Voting Stock 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 Person named.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2 COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding" and the word "through" means "to and including."
SECTION 1.3 ACCOUNTING TERMS AND PRINCIPLES. All accounting terms
not specifically defined herein shall be construed in conformity with GAAP and
all accounting determinations required to be made pursuant hereto shall, unless
expressly otherwise provided herein, be made in conformity with GAAP.
SECTION 1.4 CERTAIN TERMS.
(a) The words "herein," "hereof" and "hereunder" and similar
words refer to this Agreement as a whole, and not to any particular Article,
Section, subsection or clause in, this Agreement.
(b) Except as otherwise expressly provided, references in this
Agreement to an Exhibit, Schedule, Article, Section, subsection or clause refer
to the appropriate Exhibit or Schedule to, or Article, Section, subsection or
clause in this Agreement.
(c) Each agreement defined in this Article I shall include all
appendices, exhibits and schedules thereto. If the prior written consent of any
Person is required hereunder for an amendment, restatement, supplement or other
modification to any such agreement and the consent of each such Person is
obtained, references in this Agreement to such agreement shall be to such
agreement as so amended, restated, supplemented or modified. If no such consent
is required, references in this Agreement shall be to such agreement as so
amended, restated, supplemented, or modified.
(d) References in this Agreement to any statute shall be to
such statute as amended or modified and in effect at the time any such reference
is operative.
(e) The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of time
periods.
ARTICLE II
THE LOANS
SECTION 2.1 THE LOANS.
(a) Tranche A Loans. On the terms and subject to the
conditions contained in this Agreement and in reliance upon the representations
and warranties of the Obligors set forth herein, each Lender agrees to make one
or more Loans to the Borrowers (each, a "Tranche A Loan") on Funding Dates
occurring on or after the date of delivery of the last A319/A320 Aircraft
currently on order by America West and not rescheduled in accordance with
paragraph 5 of the MOU, as requested by a Borrower in a Notice of Borrowing
given in accordance with Section 2.2 in an amount not to exceed, in the
aggregate for all Tranche A Loans made by such Lender on all Funding Dates, the
Tranche A Commitment of such Lender. No Tranche A Loan shall be made prior to
the date of delivery of the last A319/A320 aircraft on order by America West on
the date hereof and not rescheduled in accordance with paragraph 5 of the MOU.
The last such aircraft is currently scheduled to be delivered in February 2006.
There may be multiple Borrowings of Tranche A Loans. Tranche A Loans repaid or
prepaid may not be reborrowed hereunder.
(b) Tranche B Loans. On the terms and subject to the
conditions contained in this Agreement and in reliance upon the representations
and warranties of the Obligors set forth herein, each Lender further agrees to
make one or more Loans to the Borrowers (each, a "Tranche B Loan") on the
Closing Date and on each other Funding Date requested by a Borrower in a Notice
of Borrowing given in accordance with Section 2.2 in an amount not to exceed, in
the aggregate for all Tranche B Loans made by such Lender on all Funding Dates,
the Tranche B Commitment of such Lender. No Tranche B Loan, when combined with
the aggregate amount of prior Tranche B Loans, shall exceed the principal and
interest amount paid or prepaid under the Airbus A321 Financings from and after
the date of the MOU (May 18, 2005) to and including the Funding Date for such
Tranche B Loan (including, for the avoidance of doubt, principal and interest to
be paid with the proceeds of the proposed Tranche B Loan). No Tranche B Loan
shall be made unless all amounts which are due and payable on the Funding Date
for such Tranche B Loan under the A321 Airbus Financings have been, or
immediately following the application of the proceeds of such Tranche B Loan
will have been, paid in full. There may be multiple Borrowings of Tranche B
Loans. Tranche B Loans repaid or prepaid may not be reborrowed hereunder.
(c) Tranche C Loans. On the terms and subject to the
conditions contained in this Agreement and in reliance upon the representations
and warranties of the Obligors set forth herein, each Lender further agrees to
make one or more Loans to the Borrowers (each, a "Tranche C Loan") on the
Closing Date and each other Funding Date requested by a Borrower in a Notice of
Borrowing given in accordance with Section 2.2 in an amount not to exceed, in
the aggregate for all Tranche C Loans made by such Lender on all Funding Dates,
the Tranche C Commitment of such Lender. No Tranche C Loan shall be made prior
to the due date for the payment of the Permitted Invoices with respect to which
such Tranche C Loan is being made. Each Tranche C Loan shall be in an amount not
to exceed the aggregate amount of all Permitted Invoices not used to support
prior Borrowings of Tranche C Loans. No Tranche C Loan shall be made until at
least thirty (30) days after all issued and outstanding Permitted Invoices
relating to such Tranche C Loan have been paid in full. Copies of the Permitted
Invoices supporting each Tranche C Loan shall be attached to the applicable
Notice of Borrowing. There may be multiple Borrowings of Tranche C Loans.
Tranche C Loans repaid or prepaid may not be reborrowed hereunder.
(d) Tranche D Loans. On the terms and subject to the
conditions contained in this Agreement and in reliance upon the representations
and warranties of the Obligors set forth herein, each Lender further agrees to
make one or more Loans to the Borrowers (each, a "Tranche D Loan") on any
Funding Date, as requested by a Borrower in a Notice of Borrowing given in
accordance with Section 2.2 in an amount not to exceed, in the aggregate for all
Tranche D Loans made by such Lender on all Funding Dates, the Tranche D
Commitment of such Lender. There may be multiple Borrowings of Tranche D Loans.
Tranche D Loans repaid or prepaid may not be reborrowed hereunder.
(e) Tranche E Loans. On the terms and subject to the
conditions contained in this Agreement and in reliance upon the representations
and
warranties of the Obligors set forth herein, each Lender further agrees to make
one or more Loans to the Borrowers (each, a "Tranche E Loan") on the Closing
Date and on each other Funding Date requested by a Borrowing in a Notice of
Borrowing given in accordance with Section 2.2 in an amount not to exceed, in
the aggregate for all Tranche E Loans made by such Lender on all Funding Dates,
the Tranche E Commitment of such Lender. There may be multiple Borrowings of
Tranche E Loans. Tranche E Loans repaid or prepaid may not be reborrowed
hereunder.
(f) Final Funding Date. No Funding Date shall occur after
December 31, 2007.
SECTION 2.2 BORROWING PROCEDURES.
(a) Each Borrowing shall be made on notice given by a Borrower
to the Loan Agent not later than 11:00 a.m. (New York City time) at least two
Business Days prior to the applicable Funding Date. Each such notice shall be in
substantially the form of Exhibit C (a "Notice of Borrowing") or be given by
telephone and confirmed in writing within one Business Day following such
notice, in each case, specifying (A) the proposed Funding Date, (B) the
aggregate amount of the proposed Borrowing (which must be in a minimum amount of
$1,000,000 or a whole multiple of $100,000 above that amount), or if less, the
remaining undrawn amount of the Loan, (C) the Tranche designations of the
various Loans to be made on the proposed Funding Date, and (D) the corporate
credit rating of the Guarantor and its consolidated Subsidiaries then most
recently published by S&P. The Notice of Borrowing shall be irrevocable. A
Notice of Borrowing with respect to a Tranche C Loan shall be accompanied by
copies of Permitted Invoices. Each Notice of Borrowing shall be accompanied by a
copy of any Notice of Borrowing (as defined therein) given under the Other Loan
Agreement for Borrowings on the same date.
(b) The Loan Agent shall give to the Lenders prompt notice of
the Loan Agent's receipt of a Notice of Borrowing and the Applicable Interest
Rate with respect thereto. Each Lender shall, subject to the terms of any
mutually agreed funding agreement, severally, before 11:00 a.m. (New York City
time) on the date of the proposed Borrowing, make available to the Loan Agent at
the account referenced in Section 2.9(a), in immediately available funds, an
amount equal to its ratable portion of each Tranche of the proposed Borrowing.
After the Loan Agent's receipt of such funds, the Loan Agent will make such
funds available to the particular Borrower which is actually to apply such funds
in accordance with Section 2.4(f). The failure of any Lender to make its ratable
portion of any Loan as required hereunder shall not relieve any other Lender of
its obligations to make its ratable portion of such Loan or any other Loan as
required hereunder.
SECTION 2.3 Scheduled Repayment of the Loans. The Borrowers shall
repay the Loans on the dates and in the amounts set forth below by paying such
amounts to the Loan Agent in accordance with Section 2.9 and such payments shall
be allocated among the Lenders and the Loan Agent as set forth in Section 2.9:
PERCENTAGE OF AGGREGATE
DATE: ORIGINAL PRINCIPAL AMOUNT
March 31, 2008 One Twelfth (1/12th)
June 30, 2008 One Twelfth (1/12th)
September 30, 2008 One Twelfth (1/12th)
December 31, 2008 One Twelfth (1/12th)
March 31, 2009 One Twelfth (1/12th)
June 30, 2009 One Twelfth (1/12th)
September 30, 2009 One Twelfth (1/12th)
December 31, 2009 One Twelfth (1/12th)
March 31, 2010 One Twelfth (1/12th)
June 30, 2010 One Twelfth (1/12th)
September 30, 2010 One Twelfth (1/12th)
December 31, 2010 One Twelfth (1/12th)
SECTION 2.4 EVIDENCE OF DEBT; USE OF PROCEEDS.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing such Lender's portion of the Loans
outstanding from time to time, including, by Tranche, the amounts of principal
and interest payable and paid to such Lender from time to time under this
Agreement.
(b) The Loan Agent shall establish and maintain a Register on
behalf of the Borrowers pursuant to Section 2.4(e), and a subaccount for each
Lender therein, in which shall be recorded (i) the amount of each Loan hereunder
and each Interest Period applicable thereto; (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrowers to each
Lender hereunder; (iii) the date and amount of each payment on the Loans, by
Tranche, made by or on behalf of, or collected from, the Borrowers and (iv) the
amount of each such payment applied in accordance with each clause of Section
2.9(d) and (e) or other applicable terms hereof to scheduled principal of or
interest on the Loans.
(c) The entries made in the accounts maintained pursuant to
clauses (a) and (b) of this Section 2.4 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided, however, that the failure of any Lender
or the Loan Agent to maintain such accounts or any error therein shall not in
any manner affect the obligations of the Borrowers to repay the Loans in
accordance with the terms hereof.
(d) The Borrowers shall execute and deliver to the Loan Agent
on the Closing Date a single promissory note for each Tranche, each
substantially in the forms of Exhibit B, in the principal amount of the
aggregate Commitments for such Tranche dated the Closing Date and otherwise
appropriately completed (each such note, including any replacement note therefor
issued in accordance with the provisions of this Section 2.4(d) but excluding
any note so replaced, a "Note"). Promptly following each Loan on each Funding
Date, each Lender shall update the grid attached to its Note and
deliver a certified copy thereof to the Borrowers. If a Note is mutilated, lost,
stolen or destroyed, the Borrowers shall, at the cost and expense of the Lender,
issue a new Note in the same principal amount and having the same interest rate,
date, maturity and Tranche as the Note so mutilated, lost, stolen or destroyed,
endorsed to indicate all payments thereon, together with an Officer's
Certificate of the Borrowers certifying and warranting as to the due
authorization, execution and delivery of the new Note. In the case of any lost,
stolen or destroyed Note, there shall first be furnished (i) to the Borrowers,
at Borrowers' option, either adequate security to hold Borrowers harmless with
respect to such lost, mutilated, stolen or destroyed Note or an instrument of
indemnity from the relevant Lender and (ii) to the Borrowers and the Loan Agent
evidence of such loss, theft or destruction reasonably satisfactory to each of
them.
(e) The Notes are registered instruments. The original of each
Note shall be evidence of the rights of each Lender under this Agreement and
such Note. Neither this Agreement nor any Note is a bearer instrument. The Loan
Agent will establish and maintain on behalf of the Borrowers a record of
ownership (the "Register") in which the Loan Agent agrees to register by book
entry the Loan Agent's and each Lender's interest in the Loans, the Notes and
this Agreement, and in the right to receive any payments hereunder or thereunder
and any assignment of any such interest or rights. In connection with any
assignment pursuant to Section 9.2, the Loan Agent shall maintain a copy of each
Assignment and Assumption delivered to and accepted by it and shall record the
names and addresses of the Lenders and principal amount of the Loans, by
Tranche, owing to each Lender from time to time. The Borrowers, upon request and
at the expense of the relevant Lender and the return of the Note to be replaced
to the Borrowers marked "cancelled" (or, if the Note to be replaced has been
mutilated, lost, stolen or destroyed, adequate security or an instrument of
indemnity as described in the last sentence of Section 2.4(d)), agree to issue
replacement Notes upon any assignment or participation made pursuant to Section
9.2. The identities of the Note holders entered in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Obligors, the Loan Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of the Obligations as indicated in the
Register for all purposes of this Agreement. The Register shall be available for
inspection by the Borrowers, the Loan Agent, or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(f) Use of Proceeds.
(i) The Borrowers shall use the proceeds of the Loans as
follows:
(1) The proceeds of Tranche A Loans, Tranche D
Loans, and Tranche E Loans shall be used by the Borrowers for working
capital and general corporate purposes of either of them, including,
without limitation, capital expenditures and acquisitions.
(2) The proceeds of Tranche B Loans shall be used
by the Borrowers solely to make debt service payments due through June,
2006 under the A321 Airbus Financings or to reimburse US Airways for any
such payments made on or after the date of the MOU (May 18, 2005) but
prior to the date of such Loan.
(3) The proceeds of Tranche C Loans shall be used
by the Borrowers solely to pay, or to reimburse either of them for the
payment on or after the date of the MOU (May 18, 2005) of, Permitted
Invoices.
(ii) No portion of the proceeds of any Loans shall be
used by the Borrowers or any of their Subsidiaries in any manner that
would cause the borrowing or the application of such proceeds to violate
Regulation U, Regulation T or Regulation X of the Board of Governors of
the Federal Reserve System or any other regulation of such Board of
Governors or to violate Section 7(c) of the Exchange Act, in each case as
in effect on the date or dates of such borrowing and such use of proceeds.
SECTION 2.5 OPTIONAL PREPAYMENTS.
(a) The Borrowers may on any Business Day, upon revocable
notice to the Loan Agent not less than ten (10) Business Days prior thereto,
prepay all or any portion of the outstanding principal amount of such Loans held
directly or indirectly by Airbus or its Affiliates, in whole or in part (but,
with respect to any partial prepayment, not less than a minimum amount of
$1,000,000, plus any whole multiple of $100,000, or such lesser amount as
results in a prepayment of such Loans in full), together with accrued interest
to the date of such prepayment on the principal amount prepaid; provided,
however, that if any prepayment of all or a portion of such Loans is made by the
Borrowers other than on an Interest Payment Date, the Borrowers shall also pay
any amounts owing pursuant to Section 2.10(e). Except for any such amounts owing
pursuant to Section 2.10(e), prepayments pursuant to this Section 2.5(a) shall
be without premium or penalty.
(b) Upon the giving of any notice of prepayment under clause
(a) of this Section 2.5, the principal amount of the Loans specified to be
prepaid together with accrued and unpaid interest thereon and other amounts, if
any, due with respect thereto as provided in Section 2.5(a), shall become due
and payable on the date specified for such prepayment; provided, however, that
any failure to make any such prepayment in full on such date shall be deemed to
be an automatic revocation of the notice of prepayment given under Section
2.5(a) and such failure shall not constitute a Default or an Event of Default
hereunder; provided, further, however, that the Borrowers shall be obligated to
pay on such date any amounts owing under Section 2.10(e) due to such failure to
prepay.
(c) Any partial prepayment of the Loans under Section 2.5(a)
shall be applied pro rata as among the outstanding Tranches of the Loans held
directly or indirectly by Airbus or its Affiliates and pro rata among the Loans
in each such Tranche, and to the then remaining installments of the outstanding
principal amount of the Loans
held, directly or indirectly, by Airbus or its Affiliates on a pro rata basis.
Any such prepayment shall be paid to the Loan Agent for application as provided
in Section 2.9. The Borrowers shall have no right to optionally prepay the
principal amount of the Loans held, directly or indirectly, by Airbus or its
Affiliates other than as provided in this Section 2.5 and Section 2.10, 2.12 or
9.1.
(d) The Borrowers shall have the same prepayment rights with
respect to Loans not held, directly or indirectly, by Airbus or its Affiliates
as set forth above in this Section 2.5; provided, however, that if requested by
the Initial Lender in connection with a transfer or sell down transaction into
the capital markets as envisioned in Section 9.2(e), the Borrowers shall have
such prepayment rights as are determined as provided in Section 9.2(c).
SECTION 2.6 MANDATORY PREPAYMENTS.
(a) Collateral Sales. Upon receipt by any Borrower or any
Subsidiary of Net Cash Proceeds of an Asset Sale of any Collateral (including
without limitation, any Airbus A321 model aircraft then subject to an A321
Airbus Financing). The Borrowers shall prepay the Loans in an aggregate amount
equal to the Net Cash Proceeds of such sale, provided that no such prepayment
shall be required for Asset Sales of Spare Parts until the aggregate amount
thereof (not applied to prior prepayments) exceeds $100,000. In the event that
any such Asset Sale results in a note payable to any Borrower or any Subsidiary,
such note shall be pledged by such Borrower or Subsidiary, as the case may be,
as collateral security for the obligations and the Cross-Default Obligations in
a manner reasonably satisfactory to the Loan Agent. Any partial prepayments of
the Loans made by the Borrowers in accordance with this Section 2.6(a) shall be
applied pro rata as among the outstanding Tranches of the Loans and pro rata
among the Loans in each such Tranche and to the then remaining installments of
the outstanding principal balance of the Loan on a pro rata basis. If any such
prepayment is made by the Borrowers other than on an Interest Payment Date,
subject to clause (c) below, the Borrowers shall also pay any amounts owing
pursuant to Section 2.10(e). Any such prepayment of the Loan shall be paid to
the Loan Agent for application as provided in Section 2.9.
(b) Insurance/Condemnation Proceeds. No later than three
Business Days following the date of receipt by the Borrowers or any of their
Subsidiaries of any Net Insurance Proceeds of any Collateral, except as provided
in Section 3.04(a) of the Engine Mortgage and Security Agreement if an Engine
(as defined therein) is being replaced, and except as provided in Section
6.01(a) of any Aircraft Mortgage, if an Aircraft or Airframe is being replaced,
the Borrower shall prepay the Loans in an amount equal to the amount of such Net
Insurance Proceeds; provided that no such prepayment shall be required until the
aggregate amount thereof (not applied to prior prepayments) exceeds $100,000;
and provided, further that in the case of a prepayment required by Section
3.04(a) of the Engine Mortgage and Security Agreement or Section 6.01(a) of any
Aircraft Mortgage on a date before the date on which Net Insurance Proceeds has
been received upon an Event of Loss, such prepayment of the Loans in the amount
specified therein shall be made in lieu of the prepayment out of the Net
Insurance
Proceeds required by this sentence. Any partial prepayments of the Loans made by
the Borrowers in accordance with this Section 2.6(b) shall be applied pro rata
as among the outstanding Tranches of the Loans and pro rata among the Loans in
each such Tranche and to the then remaining installments of the outstanding
principal balance of the Loan on a pro rata basis. If any such prepayment is
made by the Borrowers other than on an Interest Payment Date, subject to clause
(c) below the Borrowers shall also pay any amounts owing pursuant to Sections
2.5(d) and 2.10(e). Any such prepayment of the Loans shall be paid to the Loan
Agent for application as provided in Section 2.9.
(c) Notwithstanding the foregoing, if no Default or Event of
Default has occurred and is continuing, the Borrower shall be entitled to
postpone the date of prepayment under Section 2.6(a) or (b) as follows. At least
one (1) Business Day prior to the required date of such prepayment, Borrower
shall notify the Loan Agent and each Lender of its election to postpone the date
of such prepayment to the next succeeding Interest Payment Date and on the date
required for such prepayment the Borrower shall pay to the Loan Agent, for
deposit in a collateral account established with the Loan Agent and under its
name and sole dominion and control, as security for the Obligations and the
Cross-Default Obligations, an amount equal to the amounts the Borrower would
have paid under Section 2.6(a) or (b), as the case may be, as a prepayment of
the Loans on such date. The Loan shall remain outstanding and on the next
succeeding Interest Payment Date the Borrower shall pay the installment of
interest and principal and any other amounts then due, plus the amount required
to prepay the Loan in whole or in part on such Interest Payment Date (calculated
as provided in Section 2.6(a) or (b), as the case may be, less the amount
available to the Loan Agent (out of the funds held by it as aforesaid as
collateral security) which shall be applied in reduction of the Borrower's
obligations on such Interest Payment Date. Notwithstanding the foregoing, if an
Event of Default shall occur and be continuing, funds on deposit in the
aforesaid collateral account shall be subject to distribution under Section
2.9(d) and the provisions of Section 6.2 shall not be prejudiced by the
foregoing prepayment arrangement.
SECTION 2.7 INTEREST.
(a) Rate of Interest. Except as otherwise provided in Section
2.7(c) and Section 2.10, each Loan shall bear interest on the unpaid principal
amount thereof for each day such Loan is outstanding during any Interest Period
at the Applicable Interest Rate for such Interest Period. Notwithstanding any
other provision hereof, interest on the Loans shall not exceed the maximum
allowable under applicable law.
(b) Interest Payments. Interest accrued on each Loan and each
Note shall be payable in arrears on the last day of each applicable Interest
Period (an "Interest Payment Date"), upon the payment or prepayment thereof in
whole or in part (solely to the extent of the portion paid or prepaid), and, if
not previously paid in full, at maturity (whether by acceleration or otherwise).
Interest on each Loan shall be calculated on the basis of a year of 360 days and
actual number of days elapsed.
(c) Default Interest. Notwithstanding the rate of interest
specified in Section 2.7(a) or elsewhere herein, if any principal of or interest
on a Loan or any fee or other amount payable by the Borrowers hereunder is not
paid when due, whether at stated maturity, upon acceleration, by mandatory
prepayment or otherwise (but other than any voluntary prepayment), such overdue
amount shall bear interest at a rate which is two percent per annum in excess of
the Applicable Interest Rate as in effect from time to time.
SECTION 2.8 FEES. No up-front, commitment or other fees are payable
on or with respect to the Commitments or the Loans.
SECTION 2.9 PAYMENTS AND COMPUTATIONS.
(a) The Borrowers shall make each payment hereunder (including
fees and expenses) not later than 12 noon (New York City time) on the day when
due, in Dollars, to the Loan Agent in immediately available funds without
set-off, counterclaim, claim of recoupment or other defense (except for any
required withholding taxes not subject to indemnification hereunder) to the
following account (unless otherwise advised):
ACCOUNT OF : AIRBUS FINANCIAL SERVICES
ACCOUNT AT : CALYON, NEW YORK
SWIFT CODE : ▇▇▇▇▇▇▇▇
CHIPS ID : 807
ABA REF : 026 008 073
ACCOUNT NO : 01 22456 0001 00
All payments in respect of any Obligations shall at all times be made to the
Loan Agent. The Loan Agent will promptly cause all such payments received by it
to be distributed to the Person entitled thereto in accordance with the
priorities of payment set forth below in clause (d) or (e) of this Section 2.9
or both, as applicable. Payments received by the Loan Agent after 2:00 p.m. (New
York City time) shall, solely for the calculation and accrual of interest
pursuant to the provisions hereof, be deemed to be received on the next Business
Day.
(b) Each determination by the Loan Agent of an interest rate
hereunder shall be presumed correct, absent manifest error.
(c) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be due on the next
succeeding Business Day, unless the result of such extension would be to extend
such payment date into another calendar month, in which event such payment date
shall end on the immediately preceding Business Day and for the avoidance of
doubt, interest computation shall be adjusted accordingly.
(d) So long as no Event of Default under any of Sections
6.1(a) (including any failure to pay all amounts hereunder upon acceleration as
a result of any other Event of Default), (f) and (g) has occurred and is
continuing or would result
therefrom, the Loan Agent shall promptly apply all payments received by it in
respect of any Obligations in the following order:
(i) first, to pay interest then due and payable in
respect of the Loans to the Lenders, on a pro rata basis;
(ii) second, to pay principal then due and payable on
the Loans to the Lenders, on a pro rata basis;
(iii) third, to pay any other Obligations then due and
payable to the Loan Agent, the Collateral Agent and the Lenders, on a pro
rata basis; and
(iv) fourth, to the Borrowers or their respective
designees.
(e) After the occurrence and during the continuance of an
Event of Default under any of Sections 6.1(a) (including any failure to pay all
amounts hereunder upon acceleration as a result of any other Event of Default),
(f) or (g), the Loan Agent shall promptly apply all payments in respect of any
Obligations or Cross-Default Obligations (including amounts received by the
Collateral Agent upon the exercise of remedies with respect to the Collateral or
the Cross-Collateral) in the following order:
(i) first, to pay Obligations in respect of any
expenses, indemnities or other amounts owing hereunder not referred to in
clauses (ii) through (v) below then due and payable to the Lenders, the
Loan Agent or the Collateral Agent, on a pro rata basis;
(ii) second, to pay interest then due and payable in
respect of the Loans to the Lenders, on a pro rata basis;
(iii) third, to pay or prepay principal payments on the
Loans to the Lenders or other Obligations to the respective parties
entitled thereto, on a pro rata basis, or to be held by, the Loan Agent as
additional collateral for any Obligations which are not at the time due
and payable;
(iv) fourth, to pay any Cross-Default Obligations then
due and payable to the respective parties entitled thereto, on a pro rata
basis, or to be held by the Loan Agent as Collateral for any Cross-Default
Obligations which are not at the time due and payable; and
(v) fifth, after payment in full of the Cross-Default
Obligations, to the Borrowers or their respective designees.
SECTION 2.10 CERTAIN PROVISIONS GOVERNING THE LOANS.
(a) Certain Determinations. LIBOR for each Interest Period for
each Loan shall be determined by the Loan Agent pursuant to the procedures set
forth in the definition of "LIBOR"; the Applicable Margin shall be adjusted as
provided in the definition of "Applicable Margin"; and shall promptly thereafter
be notified to the Borrowers and each Lender together, in the case of a
determination of "LIBOR", with the Applicable Margin and the Applicable Interest
Rate for such Interest Period (in writing or by email or by telephone confirmed
in writing or by email). The Tranche A, Tranche B, Tranche C, Tranche D and
Tranche E Commitment Reduction Amounts for the Lenders (and for each Lender)
shall be determined by the Loan Agent as provided in the respective definitions
of those terms and, together with the amount of the reduced Tranche A, Tranche
B, Tranche C, Tranche D and Tranche E Commitments of the Lenders (and of each
Lender), promptly notified to each Lender, the Borrower, and the Collateral
Agent and the Loan Agent (as defined in the Other Loan Agreement). The aggregate
amount of the Tranche A, Tranche B, Tranche C, Tranche D and Tranche E
Commitment Reduction Amounts for the Lenders shall not exceed $89,000,000. A
certificate of the Loan Agent setting forth the applicable LIBOR, the Applicable
Margin and the adjusted Applicable Interest Rate, or the Tranche A, Tranche B,
Tranche C, Tranche D or Tranche E Commitment Reduction Amounts, shall be
presumed correct absent manifest error. The Loan Agent shall, at the request of
either Borrower, deliver to the Borrowers a statement showing the quotations
used by the Loan Agent to determine LIBOR, the Applicable Margin and the
Applicable Interest Rate, such statement to be in sufficient detail for the
Borrowers to reasonably determine whether any such manifest error has occurred.
(b) Interest Rate Unascertainable. In the event that the Loan
Agent determines that, at the time the Loan Agent is to determine the Applicable
Interest Rate for an Interest Period, by reason of circumstances affecting the
London interbank market for U.S. Dollar deposits, adequate and fair means do not
exist for ascertaining the applicable interest rates by reference to which the
LIBOR then being determined is to be fixed, the Loan Agent shall forthwith so
notify the Borrowers and the Lenders, whereupon during the 30 days following the
date of any such notice given to the Borrowers, the Loan Agent and the Borrowers
shall negotiate in good faith in order to arrive at a mutually acceptable
alternative basis for determining the interest rate from time to time applicable
to the Loans (the "Substitute Basis"). If within the 30 days following the date
of any such notice to the Borrowers, the Loan Agent and the Borrowers shall
agree upon a Substitute Basis, such Substitute Basis shall be retroactive to and
effective from the first day of the then current Interest Period until and
including the last day of such Interest Period. If after 30 days from the date
of such notice, the Loan Agent and the Borrowers shall have failed to agree upon
a Substitute Basis, then the Loan Agent (upon instructions from the Requisite
Lenders) shall certify in writing to the Borrowers the interest rate at which
such Lenders are prepared to maintain their portion of the Loans for such
Interest Period, it being understood that such Lenders' interest rate shall be
not more than a rate per annum equal to a rate which adequately and fairly
reflects the cost to such Lenders of obtaining the funds necessary to maintain
their portion of the Loans for such Interest Period. If no Substitute Basis is
established, upon receipt of notice of the interest rates at which the Requisite
Lenders are prepared to maintain their respective portion of the Loans, and on
the last day of each Interest Period
thereafter, the Borrowers shall have the right exercisable upon ten Business
Days' prior notice to the Loan Agent (i) to continue to borrow the Loans at the
interest rate so advised by the Loan Agent (as such rate may be modified, from
time to time, at the outset of each subsequent Interest Period) or (ii) to
prepay in full the Loans together with accrued but unpaid interest thereon at
the Applicable Interest Rate most recently in effect, whereupon the Loans shall
become due and payable on the date specified by the Borrowers in such notice.
(c) Increased Costs. If at any time (i) the introduction after
the date hereof of or any change after the date hereof in or in the
interpretation of any law, treaty or governmental rule, regulation or order
binding on any Lender or (ii) the compliance by any Lender with any guideline,
request or directive enacted or imposed or made after the date hereof from any
central bank or other Governmental Authority (whether or not having the force of
law) shall (A) impose, modify, or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender, or (ii) impose on any Lender any other
condition, and the result of any of the foregoing shall be to materially
increase the cost to such Lender of agreeing to make or making, funding, or
maintaining any portion of the Loans (except with respect to Excluded Taxes),
then the Borrowers shall from time to time, within ten Business Days of written
demand (which demand shall be accompanied by a certificate setting forth the
basis for such demand and a calculation of the amount thereof in reasonable
detail) by such Lender (with a copy of such demand and certificate to the Loan
Agent), pay to the Loan Agent for the account of such Lender, additional amounts
sufficient to compensate such Lender for such increased cost. Such a certificate
submitted to the Borrowers and the Loan Agent by such Lender shall be
presumptively correct absent manifest error. Notwithstanding the provisions of
this paragraph, (x) the Borrowers shall not be obligated to pay any amounts
pursuant to this paragraph for periods occurring prior to the 60th day before
the giving of such certificate, provided that if the circumstances giving rise
to such claim have a retroactive effect then such 60 day period shall be
extended to then include such period of retroactive effect, and (y) the
Borrowers shall not be required to make any payment otherwise required hereby to
any Lender unless such Lender states in its written demand that such claim is
not being made on a basis that discriminates against the Borrower as compared to
comparable extensions of credit with similarly situated borrowers.
(d) Illegality. Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law, treaty or governmental rule, regulation or order, in each case after
the date of this Agreement, shall make it unlawful for any Lender to continue to
fund or maintain its portion of the Loans as contemplated hereby, then, on
notice thereof by such Lender to the Borrowers through the Loan Agent, the
obligation of such Lender to continue to fund or maintain its portion of the
Loan shall be terminated and the Borrowers shall prepay such affected portion of
the Loan to such Lender together with accrued but unpaid interest thereon and
all other sums payable hereunder with respect thereto on the last day of the
then current Interest Period or earlier if necessary to avoid such illegality.
Any such partial prepayment of the Loan shall be applied ratably to the then
unpaid installments thereof in accordance with the amount of each such unpaid
installment.
(e) Breakage Costs. In addition to all amounts required to be
paid by the Borrowers pursuant to Section 2.7, the Borrowers shall compensate
each Lender, at the time specified herein, or if no such time is specified,
within ten Business Days of written demand (with a copy of such demand to the
Loan Agent), for all net losses, expenses and liabilities (including any loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender or the termination of any other financial
arrangement it may have entered into to fund or maintain or support such
Lender's portion of the Loan, including any net loss of interest but excluding
any other lost profit or any Taxes based on the overall net income of such
Lender) which such Lender actually sustains as a consequence of (i) any proposed
Borrowing not occurring on a date specified therefor in any Notice of Borrowing
given by any Borrower, (ii) any portion of the Loans being prepaid (including,
subject to Section 2.6(c), mandatorily pursuant to Section 2.6 or this Section
2.10) on a date which is not the last day of the applicable Interest Period, or
(iii) any failure by any Borrower to repay any portion of the Loans when
required by the terms hereof (after giving effect to any grace periods). Any
written demand by a Lender under this Section 2.10(e) shall be accompanied by a
certificate setting forth the basis for such demand and a calculation of the
amount thereof in reasonable detail by such Lender. Such a certificate submitted
to the Borrowers and the Loan Agent by a Lender shall be presumptively correct
absent manifest error. Amounts paid under this Section 2.10(e) shall be paid to
the Loan Agent for the account of the applicable Lender. Notwithstanding the
provisions of this paragraph, the Borrowers shall not be obligated to pay any
amounts pursuant to this paragraph for periods occurring prior to the 60th day
before the giving of such certificate, provided that if the circumstances giving
rise to such claim have a retroactive effect then such 60 day period shall be
extended to then include such period of retroactive effect.
SECTION 2.11 CAPITAL ADEQUACY. If at any time (a) the adoption of or
any change in or in the interpretation of any law, treaty or governmental rule,
regulation or order after the date of this Agreement regarding capital adequacy,
(b) compliance with any such law, treaty, rule, regulation, or order, or (c)
compliance with any guideline or request or directive made after the date hereof
from any central bank or other Governmental Authority (whether or not having the
force of law) shall have the effect of reducing the rate of return on such
Lender's (or any corporation controlling such Lender's) capital as a consequence
of its obligations hereunder (other than for changes in the rate of tax on the
overall net income of such Lender) to a level below that which such Lender or
such corporation could have achieved but for such adoption, change, compliance
or interpretation by an amount deemed by such Lender to be material, then,
within ten Business Days following written demand from time to time by such
Lender (with a copy of such demand to the Loan Agent), the Borrowers shall pay
to the Loan Agent for the account of such Lender from time to time as specified
by such Lender additional amounts sufficient to compensate such Lender for such
reduction. Any written demand by a Lender under this Section 2.11 shall be
accompanied by a certificate setting forth the basis for such demand and a
calculation of the amount thereof in reasonable detail by such Lender. Such a
certificate submitted to the Borrowers and the Loan Agent by a Lender shall be
presumptively correct absent manifest error. Notwithstanding the provisions of
this paragraph, (x) the Borrowers shall not be obligated to pay any amounts
pursuant to this paragraph for periods occurring prior to the 60th day before
the giving of
such certificate, provided that if the circumstances giving rise to such claim
have a retroactive effect then such 60 day period shall be extended to then
include such period of retroactive effect, and (y) the Borrowers shall not be
required to make any payment otherwise required hereby to any Lender unless such
Lender is generally demanding payment under comparable provisions of its
agreements with similarly situated borrowers.
SECTION 2.12 SUBSTITUTION OF LENDERS.
(a) In the event that no Event of Default has occurred and is
continuing and (i) any Lender makes a claim under Section 2.10(c) or (e) or
Section 2.11, (ii) it becomes unlawful for any Lender to continue to fund or
maintain its portion of the Loans as contemplated hereby and such Lender
notifies the Borrowers pursuant to Section 2.10(d), (iii) any Obligor is
required to make any payment pursuant to Section 2.13 that is attributable to a
particular Lender, (iv) any Lender fails to fund any Loans as required hereby or
(v) there shall exist a Non-Consenting Lender in respect of a Proposed Change to
which the Loan Agent consents (any such Lender, an "Affected Lender"), the
Borrowers may substitute any other Lender or any other financial institution
which will eliminate the continued need to make such payments and which is
reasonably acceptable to the Loan Agent (a "Substitute Institution") for such
Affected Lender hereunder, after delivery of a written notice (a "Substitution
Notice") by the Borrowers to the Loan Agent and the Affected Lender following
the occurrence of any of the events described in clauses (i) through (v) above
that the Borrowers intend to make such substitution.
(b) If the Substitution Notice was properly issued under this
Section 2.12, the Affected Lender shall sell, and the Substitute Institution
shall purchase, in accordance with Section 9.2, all rights and obligations
(except with respect to prior periods) of such Affected Lender under the Loan
Documents. Such purchase and sale (and the corresponding assignment of all
rights and obligations (except with respect to prior periods) hereunder) shall
be effective on the later of (i) the receipt by the Affected Lender of an amount
equal to the unpaid principal amount, accrued interest on, and other amounts due
in respect of, its outstanding Loans, together with any other Obligations owing
to it, (ii) the receipt by the Loan Agent of an Assignment and Assumption
whereby the Substitute Institution shall agree to be bound by the terms hereof
and (iii) without duplication, the payment in full to the Affected Lender in
cash of all unreimbursed costs and expenses and indemnities accrued and unpaid
through such effective date.
(c) If any Lender requests compensation under Section 2.10(c)
or (e), 2.11 or 2.13, or if any Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.13, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or Affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.10(c) or (e), 2.11 or 2.13, as the case may be, in the future and (ii) would
not subject such Lender to any material unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender.
SECTION 2.13 TAXES.
(a) Except as otherwise provided in Section 9.2 or as required
by applicable law, any and all payments by the Borrowers under each Loan
Document shall be made free and clear of and without deduction for any and all
Taxes, excluding (i) in the case of each Lender, each Participant and the Loan
Agent taxes measured by its net income, and franchise taxes (imposed in lieu of
net income taxes) imposed on it, by the jurisdiction under the laws of which
such Lender, such Participant or the Loan Agent (as the case may be) is
organized or is otherwise treated as doing business (other than a jurisdiction
in which such Person is treated as doing business as a result of its execution
and delivery of any Loan Document or its exercise of its rights or performance
of its obligations or the receipt of income thereunder), (ii) in the case of
each Lender and each Participant, taxes measured by its net income, and
franchise taxes (imposed in lieu of net income taxes) imposed on it, by the
jurisdiction in which such Lender's Lending Office is located or in which such
Participant booked its participation for tax accounting purposes, (iii) in the
case of each Lender, each Participant, and the Loan Agent, Taxes imposed as a
result of such Person or the Loan Agent failing to comply with its obligations
under Section 2.13(g), (iv) in the case of each Lender, each Participant, and
the Loan Agent, as the case may be, United States federal withholding taxes
except to the extent imposed as a result of a change in applicable law,
including income tax conventions, after the Closing Date or, with respect to an
assignment, acquisition, participation, designation of a different office or
jurisdiction for purposes of receiving or paying amounts hereunder, or the
appointment of a Loan Agent, the effective date thereof, except (x) to the
extent that such Person's predecessor was entitled to such amounts (or in the
case of a designation of a new jurisdiction, to the extent such Person was
entitled to such amounts with respect to its prior jurisdiction) or (y) in the
case of an assignment or change of lending office pursuant to Section 2.13(g),
and (v) Taxes to the extent imposed as a result of the gross negligence or
willful misconduct of the Loan Agent, such Lender or any of their Affiliates
(all such non-excluded Taxes being referred to as "Indemnified Taxes" and all
Taxes listed in clauses (i) through (v) of this clause (a) being referred to as
"Excluded Taxes"). If any Indemnified Taxes shall be required by law to be
deducted from or in respect of any sum payable under any Loan Document to any
Lender or the Loan Agent (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.13) such Lender, or
the Loan Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrowers shall make
such deductions, and (iii) the Borrowers shall pay the full amount deducted to
the relevant taxing authority or other authority in accordance with applicable
law.
(b) In addition, the Borrowers agree to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies of the United States or any political subdivision thereof or
any applicable foreign jurisdiction, and all liabilities with respect thereto,
which arise from any payment made under any Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, any Loan Document
excluding, in each case, such amounts that result from an assignment, grant of a
participation, transfer or designation of a new
Lending Office or other office for receiving payments under any Loan Document
unless (x) the same takes place in connection with an Event of Default (so long
as such Event of Default is continuing) or at Borrower's written request
(collectively, "Other Taxes") to the Loan Agent for the account of the affected
party or (y) in the case of an assignment or change of lending office pursuant
to Section 2.13(g).
(c) The Borrowers will indemnify each Lender and the Loan
Agent for the full amount of Indemnified Taxes or Other Taxes, without
duplication, (including any Taxes imposed by any jurisdiction on amounts payable
under this Section 2.13) paid by such Lender or the Loan Agent (as the case may
be) and any liability (including for penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made to the
Loan Agent for account of the relevant Lender or the Loan Agent, as the case may
be, within 30 days from the date such Lender or the Loan Agent (as the case may
be) makes written demand therefor (with a copy to the Loan Agent if made by a
Lender, and accompanied by a statement setting forth the basis for such taxation
and the calculation of the amount thereof in reasonable detail).
(d) Within 30 days after the date of any payment of
Indemnified Taxes or Other Taxes, the Borrowers will furnish to the Loan Agent
the original or a certified copy of a receipt evidencing payment thereof or
other documentation reasonably satisfactory to the Loan Agent.
(e) Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the parties
contained in this Section 2.13 shall survive the payment in full of the
Obligations.
(f) Each Lender, each Participant and the Loan Agent shall, on
or prior to the Closing Date or on or prior to the date of the Assignment and
Assumption pursuant to which it becomes a Lender or on or prior to the date such
Person becomes a Participant or the Loan Agent, as applicable, and from time to
time thereafter if reasonably requested by the Loan Agent or the Borrowers,
provide the Loan Agent and the Borrowers, with two completed copies of IRS Form
W-8BEN, W-8ECI, W-8IMY, W-9 and/or other applicable forms, certificates and
documents prescribed by the IRS with respect to United States withholding and/or
backup withholding tax with respect to all payments to be made to such Person
under the Loan Documents. In addition, each Lender, each Participant and the
Loan Agent, as the case may be, shall deliver to the Borrowers and the Loan
Agent, notice of any event (other than a change in applicable law, including
income tax conventions) requiring a change in the most recent form certificates
and/or documents previously delivered by such Person to the Borrowers and the
Loan Agent and any additional, updated or changed forms, certificates or
documents. Unless the Loan Agent and the Borrowers have received forms,
certificates, and/or other documents reasonably satisfactory to them indicating
that payments under the Loan Documents to or for a Non-U.S. Person are not
subject to United States withholding tax or are subject to such tax at a rate
reduced by an applicable tax treaty, the Loan Agent or the Borrowers shall,
notwithstanding the provisions of Section 2.13(a), (b) and (d) and without
impairing any obligation of the Borrowers under this Section 2.13 with respect
to
such tax, withhold such United States withholding taxes from such payments at
the appropriate rate.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.13 shall use its reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if the making of such a change would avoid
the need for, or reduce the amount of, any such additional amounts which would
be payable or may thereafter accrue and would not, in the sole determination of
such Lender, be otherwise disadvantageous to such Lender.
(h) If the Borrower or Guarantor pays any amount under this
Section 2.13 to a Lender, Participant or the Loan Agent (each, a "Tax
Indemnitee") and such Tax Indemnitee determines in its sole discretion that it
has actually realized in connection therewith a net cash benefit (including a
net cash benefit which the relevant taxing authority applies to satisfy any
liability of such Tax Indemnitee for Taxes) due to any refund or any reduction
of, or credit against, its liabilities for Taxes in any taxable year, provided
that no Event of Default shall have occurred and be continuing, such Tax
Indemnitee shall, to the extent it can do so without prejudice to the retention
of such benefit, pay to the Borrower or Guarantor (as the case may be) an amount
that the Tax Indemnitee shall, in its sole discretion, determine (subject to
confirmation as provided below) is equal to such net cash benefit which was
obtained by Tax Indemnitee in such year as a consequence of such refund,
reduction or credit realized in connection with the payment of such amount. A
Tax Indemnitee shall, upon written request from the Borrower, provide to the
Borrower a letter from independent accountants selected by the Tax Indemnitee
and reasonably acceptable to the Borrower confirming the accuracy of the
Lender's calculations of the amount of any net benefit determined by the Tax
Indemnitee pursuant to the preceding sentence, provided that the interpretation
of this Agreement or any other Loan Document shall not be within the scope of
the accountants' confirmation. Nothing contained in this Section 2.13(h) shall
be construed as requiring any Tax Indemnitee to conduct its business or arrange
or alter in any respect its Tax or financial affairs so that it is entitled to
receive a refund, reduction or credit or shall require any Tax Indemnitee to
provide to the Borrower or its agents copies of any Tax returns or other
information with respect to the income, assets or operations attesting to such
Tax Indemnitee's determination. The Borrower shall reimburse such Tax Indemnitee
for all costs and expenses incurred by such Tax Indemnitee in obtaining such
accountants' letter, provided that the accountants' letter confirms, in all
material respects, such Tax Indemnitee's determination.
(i) Borrower shall have no obligation to pay, or indemnify any
Tax Indemnitee for, any amount under this Section 2.13 or for any United States
federal income tax or withholding tax which was required by law to be deducted
or withheld by the Borrower or the Loan Agent from any payment to or for the
benefit of such Tax Indemnitee but which was not deducted or withheld due to the
Borrower's or the Loan Agent's reasonable reliance the withholding forms,
certificates and/or documents theretofore delivered by such Tax Indemnitee or
the Loan Agent pursuant to Section 2.13(f) if such form, certificate and/or
document was inaccurate in any material respect
when delivered by such Tax Indemnitee and/or the Loan Agent and such Tax
Indemnitee or the Loan Agent had Actual Knowledge of such inaccuracy at the time
such Tax Indemnitee or the Loan Agent delivered such form.
(j) If a Tax Indemnitee receives a written claim from any
taxing authority for any Tax for which the Borrower is liable pursuant to
Section 2.13 (a "Tax Claim"), such Tax Indemnitee shall promptly notify the
Borrower in writing. If requested by the Borrower in writing within 30 days
after receipt of such Tax Indemnitee's written notice (provided that if a
response to such Tax Claim is due less than 40 days after the Borrower's receipt
of such Tax Indemnitee's notice, the Borrower's request must be made within 15
days or, if longer, the period ending not later than the 10th day before the day
on which the response to such Tax Claim is due), such Tax Indemnitee shall in
good faith contest or, at such Tax Indemnitee's election, permit the Borrower to
contest (unless such contest involves Taxes not indemnified or paid by the
Borrower or Guarantor or, in such Tax Indemnitee's reasonable, good faith
judgment, permitting the Borrower to contest may have a material adverse effect
on such Tax Indemnitee), in each case in accordance with and to the extent
permitted by applicable law and at the Borrower's expense, such Tax Claim,
provided that no Tax Indemnitee shall have any obligation to commence or
continue the contest of any such Tax Claim unless the following conditions are
satisfied at the time the contest is to be commenced and at all times during the
contest:
(i) no Event of Default shall have occurred and be
continuing,
(ii) contesting such Tax Claim would not result in (A)
any risk of sale, forfeiture, confiscation, seizure or loss of, or the
imposition of a Lien (other than a Lien for the Tax that is the subject of
such contest provided that enforcement of such Lien is stayed until the
final determination of such contest and the Borrower maintains adequate
reserves with respect to such Lien) or (B) any risk of imposition of
criminal liability,
(iii) the aggregate amount of the Taxes that are to be
contested exceeds Twenty-Five Thousand Dollars ($25,000),
(iv) such Tax Indemnitee shall have received a written
confirmation of the Borrower that the Taxes that are the subject of such
Tax Claim are Tax for which the Borrower is liable pursuant to Section
2.13, provided that the Borrower shall not be bound by such confirmation
to the extent that the final determination of the contest articulates
conclusions of law and fact that clearly demonstrate that the Taxes that
are the subject of such Tax Claim are not Taxes for which the Borrower is
liable pursuant to Section 2.13,
(v) the Borrower, upon the written request of such Tax
Indemnitee, shall have provided such Tax Indemnitee, at the
expense of the Borrower, with an opinion of counsel selected by such Tax
Indemnitee and reasonably acceptable to the Borrower to the effect that
there is a substantial basis in law and fact to contest such Tax Claim and
a realistic expectation that a contest of such Tax Claim would be
successful,
(vi) if such Tax Indemnitee decides to contest such Tax
Claim by paying the Taxes that are the subject of such Tax Claim and
taking action to obtain a refund thereof, the Borrower shall have made an
interest-free advance to such Tax Indemnitee in an amount equal to the
amount of those Taxes and shall have delivered to such Tax Indemnitee a
written undertaking to indemnify such Tax Indemnitee and its Affiliates on
an after-tax basis for any adverse Tax consequences (taking into account
all relevant Tax benefits and Tax detriments) to such Tax Indemnitee or
any of its Affiliates resulting from such interest-free advance, and
(vii) the Borrower shall be paying, on demand and on an
after-tax basis, all reasonable costs and expenses incurred by such Tax
Indemnitee or the Loan Agent with the conduct of such contest (including,
without limitation, reasonable attorneys' and accountants' fees and
disbursements).
(k) Subject to Section 9.2(c)(2), a Participant will be
entitled to the benefits and subject to the requirements of this Section 2.13 to
the same extent as if such Person were a Lender.
SECTION 2.14 PRO RATA TREATMENT AND PAYMENTS. Each Borrowing by
either Borrower from the Lenders hereunder, and each payment by either Borrower
on account of any reduction of the Commitments of the Lenders shall be made pro
rata according to the respective Commitments of the relevant Lenders. Each
payment (including each prepayment) by either Borrower on account of principal
of and interest on or other amounts in respect of the Loans shall be made pro
rata according to the respective outstanding principal amounts of the Loans then
held by the Lenders (except as otherwise provided in Section 2.10, 2.11, 2.13 or
9.4).
ARTICLE III
CONDITIONS TO CLOSING AND FUTURE FUNDINGS
SECTION 3.1 CONDITIONS PRECEDENT. The effectiveness of this
Agreement and the several obligations of the Lenders to make the Loans requested
to be made on each Funding Date are subject to the satisfaction or waiver of all
of the following conditions precedent on or before such Funding Date:
(a) Certain Documents. On or before the first Funding Date,
the Loan Agent and the Initial Lender shall have received each of the following,
each dated appropriately:
(i) this Agreement, duly executed and delivered by the
parties hereto;
(ii) the Notes duly executed by the Borrowers and
conforming to the requirements set forth in Section 2.4(d) hereof;
(iii) the documents described in clauses (i), (ii), and
(iii) of the definition of "Collateral Documents", duly executed and
delivered by the parties thereto;
(iv) the favorable opinions of (A) Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to America West, (B) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel
to US Airways and the Guarantor, (C) General Counsel of America West in
form and substance satisfactory to the Loan Agent and each Lender and (D)
General Counsel of US Airways and the Guarantor;
(v) a copy of the articles or certificate of
incorporation of each of the Borrowers and the Guarantor, certified as of
a recent date by the Secretary of State of the state of organization of
such Person, together with a "long-form" certificate of such official
attesting to the good standing of such Person;
(vi) a certificate of each of the Borrowers and the
Guarantor signed on behalf of such Person by its Secretary or an Assistant
Secretary certifying (A) the names and true signatures of each officer of
such Person who has been authorized to execute and deliver each Loan
Document required to be executed and delivered by or on behalf of such
Person hereunder or thereunder, (B) the by-laws of such Person as in
effect on the date of such certification, (C) the resolutions of such
Person's board of directors approving and authorizing the execution,
delivery and performance of each Loan Document to which it is a party and
(D) that there have been no changes in the certificate of incorporation of
such Person from the certificate of incorporation delivered pursuant to
the immediately preceding clause;
(vii) a certificate of each of the Borrowers and the
Guarantor, signed by its duly authorized officer, certifying (i) that all
representations and warranties of such Person contained in Article IV
hereof are true and correct in all material respects on and as of the
Closing Date, before and after giving effect to any Borrowing to be made
on such date and to the application of the proceeds therefrom, and (ii)
that no Default or Event of Default has occurred and is continuing, or
would result from any Borrowing to be made on such date and the
application of the proceeds therefrom; and
(viii) a copy of the ATSB Loan Agreements and of each
counter-guarantee or guarantee delivered thereunder, all in form and
substance satisfactory to the Loan Agent and each Lender.
(b) No Material Adverse Change. On each Funding Date, since
the Effective Date, there shall have been no Material Adverse Change.
(c) Amendments; New Aircraft Transaction. Before the first
Funding Date:
(i) the relevant security agreements for the
Cross-Default Obligations shall have been amended in a manner reasonably
satisfactory to the Loan Agent to provide for cross-collateralization to
the Obligations;
(ii) the America West ATSB loan documents shall have
been amended in a manner reasonably satisfactory to the Loan Agent to
provide for the release of any prepayment obligation thereunder to the
extent conflicting with any mandatory prepayment obligation of the
Borrowers under Section 2.6;
(iii) an intercreditor agreement (and any necessary
amendments to the GECC loan and security agreements) consistent with the
MOU and otherwise reasonably satisfactory to the Loan Agent shall have
been entered into with GECC with respect to spare parts and any other
Collateral held in common with GECC (and any necessary amendments to the
GECC loan and security agreements);
(iv) each of the A319/A320/A321 Purchase Agreement and
the A330/A340 Purchase Agreement shall have been amended as contemplated
in the MOU and the other transactions provided for therein shall have been
consummated as set forth therein and Guarantor shall have obtained
Bankruptcy Court approval to assume by Final Order, and shall have
assumed, the A319/A330/A321 Purchase Agreement and the A330/A340 Purchase
Agreement, each as so amended; all of the foregoing to the reasonable
satisfaction of the Loan Agent;
(v) definitive documentation with respect to the new
aircraft transaction for twenty (20) A350 aircraft shall have been entered
into by all relevant parties, as contemplated in paragraph 4 of the MOU;
(vi) with respect to the Pass-Through Trust
Certificates, Series 2001-1 transactions, all aircraft leases and other
assumable agreements included therein or comprising such transactions
shall have been assumed following Bankruptcy Court approval by Final
Order, all to the satisfaction of the Loan Agent;
(vii) the Co-Branded Card and Merchant Services
Agreement, dated May 20, 2003, as amended, between US Airways and Bank of
America, shall have been assumed following Bankruptcy Court approval by
Final Order;
(viii) all other assumable contracts of US Airways or
its Affiliates which are Debtors with Airbus or its Affiliates shall have
been assumed with Bankruptcy Court Approval by Final Order; and
(ix) the Loan Agent and the Initial Lender shall have
received a certificate of each Borrower and the Guarantor signed by its
duly authorized officer as to the assumptions of contracts referred to in
the preceding clauses (iv), (vi), (vii) and (viii).
(d) Expenses Paid. On each Funding Date, the Obligors shall
have paid all legal fees and expenses of the Loan Agent, the Initial Lender and
the Collateral Agent due and payable on or before such Funding Date if the
Borrowers are responsible therefor under Section 9.3 and have received
reasonably detailed invoices therefor promptly following the relevant Notice of
Borrowing.
(e) Consents, Etc. On each Funding Date, the Borrowers and the
Guarantor shall have received all consents and authorizations required to be
received by them to be able to execute, deliver and perform, in all material
respects, their obligations under the Loan Documents to which any of them is, or
shall be, a party.
(f) No Illegality. On each Funding Date, no law or regulation
shall be applicable that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(g) Representations and Warranties of Obligors. On each
Funding Date, all representations and warranties of each Borrower and of the
Guarantor set forth in Article IV hereof shall be true and correct in all
material respects on and as of such Funding Date, both before and after giving
effect to any Borrowing to be made on such date and to the application of the
proceeds therefrom as though made on and as of such date (except to the extent
such representations and warranties by their terms expressly relate to an
earlier date, in which case such representations and warranties shall have been
true and correct in all material respects on and as of such earlier date).
(h) No Event of Default. On each Funding Date, no Event of
Default or Default shall have occurred and be continuing, or would result from
the Borrowing to be made on such date and the application of the proceeds
therefrom.
(i) Corporate and Other Proceedings. On the first Funding
Date, all corporate and other proceedings, and all documents, instruments and
other legal matters in connection with the transactions contemplated hereby
shall be satisfactory in form and substance to the Loan Agent.
(j) Chief Executive Officer. On the first Funding Date, W.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be the Chief Executive Officer of the Guarantor.
(k) Additional Investments. On the first Funding Date,
Guarantor shall have received one or more unrestricted equity investments in an
aggregate amount equal to not less than $375 million and a cash payment of not
less than $125 million from one or more sources in addition to the liquidity
amounts described in the Business Plan.
(l) Effective Date. On or before the first Funding Date, the
Effective Date shall have occurred.
(m) Pro Forma Balance Sheet; Financial Statements. On the
first Funding Date, the Lenders shall have received (i) the Pro Forma Balance
Sheet and (ii) the financial statements referred to in Section 4.3(b).
(n) Lien Searches. On each Funding Date, the Loan Agent shall
have received, if it desires, the results of a recent UCC lien search in each
appropriate jurisdiction and FAA liens search, and in each case, such search
shall reveal no Liens on any material portion of the Collateral except in
respect of Liens listed on Schedule 5.13 or otherwise permitted by Section 5.13.
(o) Filings, Registrations and Recordings. On each Funding
Date, each document (including any Uniform Commercial Code financing statement)
required by the Collateral Documents or under law or reasonably requested by the
Loan Agent to be filed, registered or recorded in order to create in favor of
the Loan Agent, for the benefit of the Lenders, a perfected Lien on the
Collateral described therein, prior and superior in right to any other Person
(other than with respect to Liens expressly permitted by Section 5.13), shall
have been delivered to the Loan Agent in proper form for filing, registration or
recordation.
(p) Plan of Reorganization; Confirmation Order; Effective Date
of Merger. On the first Funding Date, the Confirmation Order confirming the Plan
of Reorganization (i) shall have been provided to the Loan Agent and (ii) shall
be in full force and effect and shall not have been reversed or modified and
shall not be stayed or subject to a motion to stay, and the Confirmation Order
shall have become a Final Order. The Plan Effective Date and the Effective Time
(as defined in the Merger Agreement) shall have occurred. On the First Funding
Date, the Loan Agent and the Initial Lender shall have received a certificate of
each of the Borrowers and the Guarantor, signed by its duly authorized officer,
certifying to the effect of the preceding sentence and clause (ii) of the second
preceding sentence. All claims arising under or with respect to the A321 Airbus
Financings and all claims arising under or with respect to the Pass-Through
Trust Certificates, Series 2001-1 transactions shall have been allowed under the
Plan and shall be unimpaired and reinstated thereunder, in form and substance
reasonably acceptable to the Loan Agent.
(q) Concerning the Collateral.
(i) On each Funding Date, Collateral Agent shall have
received (or shall hold from prior closings) a broker's report and current
insurance certificate confirming the insurance coverages on the Collateral
which are required by the terms of the Collateral Documents.
(ii) On the first Funding Date, Borrower shall have
obtained from each Person with any interest in the real property and/or
the improvements thereon at each Designated Location (whether as fee
owner, landlord, tenant, ground lessor, mortgagee, leasehold mortgagee,
beneficiary of deed of trust, beneficiary of leasehold deed of trust or
otherwise), a waiver of any and all right or interest that such Person may
otherwise have in the Pledged Spare Parts and such Person's consent, if
applicable, to access by the Collateral Agent, and/or any Lender or any
representative of any of them to the premises in connection with the
exercise of any rights or remedies under or pursuant to the Spare Parts
Mortgage and Security Agreement (in each case, in form and substance
satisfactory to the Collateral Agent).
(r) Concerning the ATSB Loan Agreements. On or before the
First Funding Date, the warrant for the purchase of 386,925 shares of common
stock of the Guarantor shall have been delivered to AFS Cayman Limited.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Loan Agent and the Lenders to enter into this
Agreement, each of the Obligors jointly and severally represents and warrants to
the Loan Agent and the Lenders, on and as of the Closing Date and on and as of
each date as required by Section 3.1, as provided below in Sections 4.1 through
4.13, that:
SECTION 4.1 ORGANIZATION, POWERS, QUALIFICATION; AIR CARRIER
LICENSES, FRANCHISES AND PERMITS.
(a) Each Obligor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. As of the
Closing Date, each Borrower is Wholly-Owned by the Guarantor. Each Obligor has
all requisite corporate power and authority (i) to carry on its business as now
conducted, and (ii) to enter into the Loan Documents to which it is a party and
to carry out the transactions contemplated hereby and thereby.
(b) Each Obligor is qualified to do business and in good
standing in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, except in jurisdictions
where the failure to be so qualified or in good standing could reasonably be
expected to result in a Material Adverse Effect.
(c) Each Borrower is an "air carrier" within the meaning of
Title 49 and holds a certificate under Sections 41102 of Title 49.
(d) Each of the Borrower and any other Obligor engaged in
operations as an "air carrier" is a "citizen of the United States" within the
meaning of Section 40102(a)(15) of Title 49, as interpreted by the United States
Department of Transportation (a "United States Citizen") and holds an air
carrier operating certificate issued pursuant to Chapter 447 of Title 49 for
aircraft capable of carrying 10 or more individuals or 6,000 pounds or more of
cargo. Each Obligor possesses all necessary certificates, franchises, licenses,
permits, rights and concessions and consents which are material to the conduct
of its business and operations as currently conducted (including in the case of
each Obligor engaged in operations as an "air carrier", the operation of the
routes flown by it), a true and complete list of which are set forth on Schedule
4.1(b) to the ATSB Loan Agreements.
(e) The Borrowers possess all necessary franchises, licenses,
and permits necessary to authorize the Borrowers to lawfully engage in air
transportation and to carry on scheduled commercial passenger service as
currently conducted, except where the failure to so hold any such franchise,
license, or permit could not reasonably be expected to have a Material Adverse
Effect.
SECTION 4.2 AUTHORIZATION OF BORROWING, ETC.(a)Each Obligor has duly
authorized by all necessary corporate action the execution, delivery and
performance of the Loan Documents to which it is a party. The execution,
delivery and performance by each Obligor of the Loan Documents to which it is a
party and the consummation of the transactions contemplated by the Loan
Documents to which it is a party do not and will not (i) (A) violate any
provision of any law or any governmental rule or regulation or order applicable
to or binding on such Obligor, (B) violate any provision of the Certificate or
Articles of Incorporation or Bylaws of such Obligor, (C) conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a
default under any Contractual Obligation of such Obligor or any of its
Subsidiaries except to the extent of any such violation, conflict, breach,
default, or imposition of Lien (of which no Obligor has Actual Knowledge) which
could not reasonably be expected to have a Material Adverse Effect, or (D)
result in or require the creation or imposition of any Lien on any of the
Collateral (except as permitted in the applicable Collateral Document) or on any
other property (except as permitted under Section 5.13 hereof), or (ii) require
any approval of stockholders or any approval or consent of any Person under any
Contractual Obligation of such Obligor or any of its Subsidiaries, except for
such approvals or consents which will have been obtained on or before the
Closing Date, except for any such approval or consent under a Contractual
Obligation and the failure to obtain which could not reasonably be expected to
result in a Material Adverse Effect.
(b) The execution, delivery and performance by each Obligor of
the Loan Documents to which it is a party and the consummation of the
transactions contemplated by the Loan Documents to which it is a party and the
use of the proceeds of the Loans do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other Governmental Authority or regulatory body or any other
Person which is required to be obtained or made on or prior to the Closing Date
and which has not previously been obtained or made.
(c) Each Obligor has duly executed and delivered each of the
Loan Documents to which it is party and each such Loan Document is the legally
valid and binding obligation of such Obligor, enforceable against such Obligor
in accordance with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws relating to or affecting the enforcement of creditors' rights generally,
including materiality, reasonableness, good faith and fair dealing, and by
general principles of equity (regardless of whether considered in a proceeding
in equity or at law).
(d) No part of the proceeds of the Loans will be used,
directly or indirectly, for any purpose that entails a violation of Regulations
U or X of the Federal Reserve Board.
SECTION 4.3 FINANCIAL CONDITION. Each Obligor has heretofore
delivered to the Lenders the following financial statements and information:
(a) The unaudited pro forma consolidated balance sheet of the
Guarantor and its consolidated Subsidiaries for the Fiscal Years 2005 through
2008 (including the notes thereto) (the "Pro Forma Balance Sheet"), which has
been prepared giving effect (as if such events had occurred on such date) to (i)
the occurrence of the Effective Time (as defined in the Merger Agreement), (ii)
the Loans to be made on the Closing Date and the use of proceeds thereof and
(iii) the payment of fees and expenses in connection with the foregoing. The Pro
Forma Balance Sheet was prepared in good faith based upon assumptions believed
to be reasonable at the time made, assuming that the events specified in the
preceding sentence had actually occurred at such date.
(b) (i) The audited consolidated balance sheets of US Airways
and Guarantor as at December 31, 2004 and the related consolidated statements of
income, stockholders' equity and cash flows of US Airways and Guarantor for the
Fiscal Year then ended, (ii) the unaudited consolidated balance sheets of US
Airways and Guarantor as at June 30, 2005 and the related unaudited consolidated
statements of income, stockholders' equity and cash flows of US Airways and
Guarantor for the six months then ended, and (iii) audited consolidated balance
sheets of AWA Holdings and America West as at December 31, 2004, and the related
consolidated statements of income, stockholders' equity and cash flows of AWA
Holdings and America West for the Fiscal Year then ended, and (iv) the unaudited
consolidated balance sheets of AWA Holdings and America West as at June 30, 2005
and the related unaudited consolidated statements of income, stockholders'
equity and cash flows of AWA Holdings and America West for the six months then
ended. All such consolidated statements were prepared in conformity with GAAP
and fairly present the consolidated financial position of the applicable Obligor
as at the respective dates thereof and the consolidated results of operations
and cash flows of such Obligor for each of the periods then ended subject, in
the case of the unaudited consolidated statements, to year-end audit and
adjustments. Except as disclosed in writing to the Loan Agent prior to the date
of this Agreement, neither Obligor has any contingent liability or liability for
taxes, long-term lease or unusual forward or long-term commitment (A) that is
not reflected in the foregoing consolidated financial statements (or, in the
case of the Borrowers, in the most recently
delivered consolidated financial statements delivered pursuant to Section 5.1)
or the notes thereto and (B) which in any such case would result in a Material
Adverse Effect.
(c) After giving effect to the Consummation of the Plan, (i)
the Obligors taken as a whole are or were Solvent on the First Funding Date
after giving effect to the Borrowings on such date, and (ii) no Obligor has any
material liability, including reasonably likely contingent liability or
liability for taxes, long-term lease or any unusual forward or long-term
commitment of a type required to be reflected in financial statements prepared
in conformity with GAAP, that is not taken into account in the preparation of
the annual report on Form 10-K for the fiscal year ended December 31, 2004 of
such Reporting Obligor.
SECTION 4.4 NO MATERIAL ADVERSE EFFECT. Since the Effective Date
there has not been a Material Adverse Change.
SECTION 4.5 TITLE TO PROPERTIES; LIENS. Each Obligor and its
Subsidiaries have (i) good, sufficient and legal title to (in the case of fee
interests in real property), (ii) valid leasehold interests in (in the case of
leasehold interests in real or personal property), or (iii) good title to (in
the case of all other personal property), all of the properties and assets
reflected in the financial statements referred to in Section 4.3 or, in the most
recent financial statements delivered pursuant to Section 5.1, in each case
except for assets disposed of since the date of such financial statements in the
ordinary course of business or as otherwise permitted under Section 6.5. Except
as otherwise permitted by this Agreement, all such properties and assets are
free and clear of Liens.
SECTION 4.6 LITIGATION; ADVERSE FACTS. Except as set forth in either
Borrowers' or Guarantors Annual Reports on Form 10-K for 2004, as amended
through the Closing Date, or in any Quarterly Report on Form 10-Q or Current
Report on Form 8-K filed by such Borrower or Guarantor with the SEC subsequent
to such Form 10-K (in each case, as amended through the Closing Date) and except
as disclosed in other publicly available filings of either of the Borrowers or
the Guarantor with the SEC or as disclosed in any publicly available filing with
the Bankruptcy Court in the Cases, there are no actions, suits, proceedings,
arbitrations or governmental investigations (whether or not purportedly on
behalf of any Obligor or any of its Subsidiaries) at law or in equity or before
or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
pending or, to the knowledge of the Obligors, threatened against any Obligor or
any of its Subsidiaries or any property of any Obligor or any of its
Subsidiaries that, if adversely determined, would have a Material Adverse Effect
or seeks to restrain or enjoin any Obligor from entering into or performing
under any Loan Document.
SECTION 4.7 TAX RETURNS. Each Obligor and each of their respective
Subsidiaries have timely filed all Federal income tax returns and all other
material tax returns that are required to be filed by them (or extensions have
been obtained with respect thereto) and have paid all material Taxes shown to be
due pursuant to such returns or pursuant to any assessment received by such
Person, other than (i) any such assessment being contested in good faith through
appropriate proceedings and with
respect to which an adequate reserve has been established by the Obligors or
their Subsidiaries to the extent required by GAAP and (ii) that the Debtors'
obligations to pay taxes that relate to a tax period (or portion thereof) ending
on or before the commencement of the Cases and which first became due and
payable after the time of the commencement of the Cases, have been stayed or
enjoined pursuant to the Plan of Reorganization, the Confirmation Order or the
Bankruptcy Code, it being understood that the exception in clause (ii) above
does not affect the Debtors' representation that they have made adequate
provision for such Taxes.
SECTION 4.8 NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of
Default has occurred and is continuing.
SECTION 4.9 GOVERNMENTAL REGULATION. None of the Obligors is (i) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940, or (ii) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 4.10 EMPLOYEE BENEFIT PLANS. Within the last 6 years, each
Plan maintained, contributed to, or required to be contributed to by the
Borrowers or an ERISA Affiliate is in compliance in all material respects with
all applicable laws. Neither the Borrowers nor any ERISA Affiliate have incurred
any liability under Title IV of ERISA within the last 6 years which remains
unsatisfied nor, to the best of their knowledge, do the Borrowers reasonably
expect to incur any liability which under Title IV of ERISA, in either event,
could reasonably be expected to have a Material Adverse Effect.
SECTION 4.11 COMPLIANCE WITH LAWS. Each Obligor and each of its
Subsidiaries is in compliance with all laws, statutes, rules, regulations and
orders binding on or applicable to such Obligor, its Subsidiaries and all of
their respective properties, except to the extent failure to so comply could not
reasonably be expected to have a Material Adverse Effect.
SECTION 4.12 SECURITY DOCUMENTS. Each of the Borrowers has good
title to the Collateral free and clear of Liens other than Liens permitted by
the applicable Collateral Document. No Person holds any right or interest in any
of the Pledged Spare Parts under the Spare Parts Security Agreement by virtue of
any interest that such person may have in real property or improvements at any
of the Designated Locations (as defined therein). The Collateral Documents are
effective to create in favor of the Collateral Agent, for the benefit of the
Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. When appropriate financing statements,
filings and recordings with the FAA, and other filings and recordings specified
on Schedule 4.11, in appropriate form are filed in the offices specified on
Schedule 4.11, the Collateral Documents shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Borrowers in
such Collateral and the proceeds thereof, as security for the Obligations and
the Cross-Default Obligations, in each case prior and superior in right to any
other Person (except Liens
permitted by the applicable Collateral Document, none of which are of record
except for the Liens of the Senior Mortgages).
SECTION 4.13 CONCERNING THE COLLATERAL.
(a) Section 1110. The Collateral Agent is entitled to the
benefits of Section 1110 of the Bankruptcy Code with respect to the Specified
Engines as provided in the Engine Mortgage and Security Agreement and to not
less than the Minimum 1110 Percentage (determined on the basis of Appraisal
Value as of the Closing Date) of the Rotables included within the Pledged Spare
Parts as provided in the Spare Parts Security Agreement in the event of a case
under Chapter 11 of the Bankruptcy Code in which a Borrower is a debtor. Defined
terms in this paragraph not otherwise defined herein shall have the respective
meanings specified in the Spare Parts Security Agreement.
(b) Condition. All Pledged Spare Parts are in the condition
and state of repair required under the FAA-approved maintenance program of the
applicable Borrower relating to such Pledged Spare Parts, and no appliances,
parts, interests, appurtenances, accessories or other equipment of whatever
nature which are incorporated or installed in or attached to such Pledged Spare
Parts are leased by the Borrower. Each Pledged Engine is in the condition and
state of repair required under the FAA-approved maintenance program of Borrower
relating to such Engine, and no appliances, parts, interests, appurtenances,
accessories or other equipment of whatever nature which are incorporated or
installed in or attached to any Pledged Engine are leased by the Borrower.
(c) Location, Identification and Release of Pledged Spare
Parts. All of the Pledged Spare Parts are or will (upon becoming subject to the
Lien of the Mortgage) be maintained by or on behalf of the Borrower at the
Designated Locations, subject to Section 3.02 of the Spare Parts Mortgage and
Security Agreement.
(d) Software. (i) Each Borrower owns the Software currently
used by such Borrower to track the location, use and maintenance status of its
spare parts, including the source code and user interfaces associated therewith,
free and clear of any Liens other than Liens permitted under the Spare Parts
Security Agreement, (ii) such Borrower pays no license fees in respect of such
Software to any Person, (iii) no approval or consent by any Person is required
in respect of such Borrower's right to use such Software or in order to
recognize or give effect to the rights granted in the Spare Parts Mortgage and
Security Agreement by the Borrower to the Collateral Agent in respect of such
Software in the Spare Parts Mortgage and Security Agreement, and (iv) no Person
has any contractual right, whether contingent or otherwise, to terminate such
Borrower's right to use such Software.
(e) Records. America West shall maintain its records with
respect to Pledged Spare Parts at Sky Harbor Airport in Phoenix, Arizona, or at
an applicable Designated Location.
(f) Spare Parts. It is the intention of the parties to this
Agreement that all Pledged Spare Parts be "spare parts" as defined in Section
40102(a)(38) of Title 49 of the United States Code. Each Borrower represents
that it maintains the Pledged Spare Parts for the purpose of installing the
Spare Parts on aircraft, aircraft engines or appliances as defined in Sections
40102(a)(6), (7) and (11) of the United States Code.
(g) No Event of Loss. To the Borrowers' knowledge, on the
First Funding Date, no Event of Loss has occurred with respect to any Pledged
Engine, or A321 Aircraft subject to an A321 Airbus Financing, and no
circumstance, condition, act or event has then occurred that, with the giving of
notice or lapse of time or both gives rise to or constitutes an Event of Loss
with respect to any Pledged Engine, unless arrangements satisfactory to the Loan
Agent have been made for the Loan Agent to receive, out of Net Insurance
Proceeds or otherwise, the prepayment envisioned under Section 3.04(a) of the
Engine Mortgage and Security Agreement for Pledged Engines which have suffered
an Event of Loss. On each subsequent Funding Date, No Event of Loss has occurred
with respect to any Pledged Engine, or A321 Aircraft subject to an A321 Airbus
Financing, with respect to which any Obligor or any of its Subsidiaries has not
complied in all material respects with its applicable obligations under the
Collateral Documents and the documents related to the A321 Airbus Financings;
and no circumstance, condition, act or event has occurred that, with the giving
of notice or lapse of time or both gives rise to or constitutes an Event of Loss
with respect to any Pledged Engine, of which the Loan Agent has not been
notified by the Borrowers.
SECTION 4.14 REPRESENTATIONS AND WARRANTIES OF THE COLLATERAL AGENT.
The Collateral Agent represents and warrants to the other parties hereto, in its
individual capacity, on and as of the Closing Date and on each date as required
by Section 3.1, that:
(a) Powers and Authorizations. It is a national banking
association duly organized and validly existing in good standing under the laws
of the United States and has full power and authority, in its individual
capacity, to execute and deliver this Agreement and the Collateral Documents to
which it is a party and (assuming the due authorization, execution and delivery
of this Agreement by the other parties hereto) perform its obligations
thereunder. The execution, delivery and performance by the Collateral Agent of
the Loan Documents to which it is or will be a party have been duly authorized
by all necessary action on its part and do not contravene the Charter or By-laws
of the Collateral Agent; and the Loan Documents to which the Collateral Agent is
or will be a party have been duly authorized, executed and delivered by the
Collateral Agent and constitute the legal, valid and binding obligations,
enforceable against it in accordance with its terms. This Agreement and the
other Loan Documents to which the Collateral Agent is or will be a party, upon
the due execution and delivery hereof, will constitute the legal, valid and
binding obligations of the Collateral Agent in its individual capacity, and the
performance by the Collateral Agent (in its individual or trust capacity, as the
case may be) of any of its obligations hereunder and thereunder does not
contravene any federal law or regulation or contractual restriction binding on
or governing the banking or trust powers of the Collateral Agent (in its
individual or trust capacity, as the case may be);
(b) Litigation. There are no pending (or, to the Collateral
Agent's knowledge, threatened) actions, suits, investigations or proceedings
against or affecting it before any court, arbitrator, or administrative or
governmental body which, individually or in the aggregate, if decided adversely
to the interests of the Collateral Agent would materially and adversely affect
the ability of the Collateral Agent, either in its individual capacity or as
Collateral Agent, as the case may be, to perform its obligations under this
Agreement or any other Loan Document or which questions or would affect the
legality or validity of this Agreement or such Loan Document;
(c) No Legal Bar. Neither the execution and delivery by the
Collateral Agent of this Agreement or any other Loan Document nor the
consummation by the Collateral Agent of any of the transactions contemplated
hereby or thereby requires or will require the consent or approval of or the
giving of notice to, the registration with, or the taking of any other action in
respect of, any federal governmental authority or agency governing its banking
or trust powers.
ARTICLE V
COVENANTS
To induce the other parties to enter into this Agreement, each of
the Obligors jointly and severally agrees with the Loan Agent and each Lender
that, as long as any of the Obligations remain outstanding:
SECTION 5.1 FINANCIAL STATEMENTS AND OTHER INFORMATION. The Obligors
will maintain, and cause each of their respective Subsidiaries to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP. The Obligors will deliver to the Loan Agent:
(a) Financial Statements.
(i) Quarterly Financials: within 60 days after the end of
each fiscal quarter of each Fiscal Year (other than the last quarter of
each Fiscal Year), (a) the unaudited consolidated balance sheets of each
of the Obligors as at the end of such fiscal quarter and the related
consolidated statements of income and stockholders' equity of each such
company for such fiscal quarter and consolidated cash flows of each such
company for the period from the beginning of then current Fiscal Year to
the end of such fiscal quarter, all such financial statements to be in the
form prepared for the management of the Borrowers and certified by the
chief financial officer, controller or treasurer of such company being
fairly stated in all material respects (subject to normal year-end audit
adjustments); provided that delivery of such company's Form 10-Q for such
fiscal quarter shall be deemed to satisfy all of the requirements of this
Section 5.1(a)(i) and in lieu of actual delivery of such Form 10-Q, the
Borrowers may notify the Loan Agent that such report has been filed with
the SEC and that such report is publicly available; and
(ii) Year-End Financials: within 105 days after the end of
each Fiscal Year, (a) the consolidated balance sheets of each of the
Obligors at the end of such Fiscal Year and the related consolidated
statements of income, stockholders' equity and cash flows of such company
for such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year, all in reasonable
detail, and (b) an accountant's report thereon of KPMG LLP or other
independent certified public accountants of recognized national standing
selected by such company, which report shall state that such consolidated
financial statements fairly present the consolidated financial position of
such company as at the dates indicated and the results of their operations
and their cash flows for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years and that the examination by
such accountants in connection with such consolidated financial statements
has been made in accordance with generally accepted auditing standards;
provided that delivery of such company's Form 10-K for such Fiscal Year
shall be deemed to satisfy all of the requirements of this Section
5.1(a)(ii) and in lieu of actual delivery of such Form 10-K, the Borrowers
may notify the Loan Agent that such report has been filed with the SEC and
that such report is publicly available.
(b) Officer's Certificate: together with each delivery of
financial statements of the Obligors pursuant to Section 5.1(a) (or SEC reports
in lieu thereof), an Officer's Certificate of each of the Obligors stating
whether the signer has Actual Knowledge of the existence as at the date of such
Officer's Certificate of any Event of Default or Default, and, if so, specifying
the nature and period of existence thereof and what action the Obligors have
taken, are taking and proposes to take with respect thereto; and
(c) Certain Notices. The Obligors will:
(i) promptly notify the Loan Agent, the Collateral Agent
and each Lender, upon a Responsible Officer of any Obligor obtaining
Actual Knowledge of the occurrence of an event of loss or damage to any
equipment owned or operated by either Borrower that is reasonably expected
to result in receipt of insurance proceeds to be received by a Borrower
which are expected to result in a prepayment under Section 2.6;
(ii) prior to either Borrower consummating any Asset Sale
expected to result in a prepayment under Section 2.6; and
(iii) promptly notify the Loan Agent of any proposed
amendment, waiver or consent with respect to an ATSB Loan
Agreement or the GECC spare parts financing facility of either Borrower,
with details of any such amendment, waiver or consent.
(d) Plan Audits and Liabilities: promptly after (A) an Obligor
or any ERISA Affiliate contacts the IRS or the PBGC for the purpose of
participating in a closing agreement or any voluntary resolution program with
respect to a Plan or Multiemployer Plan which could reasonably be expected to
have a Material Adverse Effect, or (B) a Responsible Officer knows or has reason
to know that any event with respect to any Plan or Multiemployer Plan occurred
that could reasonably be expected to have a Material Adverse Effect, notice of
such contact or the occurrence of such event;
(e) Funding Changes and New Plan Benefits: promptly after the
change, a notification of any increases in the benefits, or change in funding
method, with respect to which an Obligor may have any liability, under any Plan
or Multiemployer Plan or the establishment of any material new Plan or
Multiemployer Plan with respect to which an Obligor may have any liability or
the commencement of contributions to any Plan or Multiemployer Plan to which an
Obligor or any ERISA Affiliate was not previously contributing, except to the
extent that such an event could not reasonably be expected to have a Material
Adverse Effect;
(f) Claims and Proceedings: promptly after receipt of written
notice of commencement thereof, notification of all (A) claims made by
participants or beneficiaries with respect to any Plan and (B) actions, suits
and proceedings before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, affecting an Obligor or
any ERISA Affiliate with respect to any Plan, except those which, in the
aggregate, if adversely determined, could not reasonably be expected to have a
Material Adverse Effect;
(g) ERISA Event: promptly after the occurrence of any ERISA
Event (A) that could reasonably be expected to have a Material Adverse Effect or
(B) that relates to the occurrence or existence of an event or condition that
could reasonably be expected to have a Material Adverse Effect, notice of such
ERISA Event; and
(h) Other Information: promptly following request therefor,
such other nonconfidential information regarding the Collateral or the
operations, business affairs, and financial condition of any Obligor, or
compliance with the terms of the Loan Documents, as the Loan Agent or any Lender
shall reasonably request.
SECTION 5.2 CORPORATE EXISTENCE. Except as permitted under Section
5.8, each of the Obligors 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 each Obligor and
the material rights (charter and statutory) and franchises of any of them;
provided, that, subject to Section 5.14, neither the Guarantor nor either
Borrower shall be required to preserve any such corporate, partnership or other
existence of any Subsidiary or any such right or franchise, if the chief
executive officer or the board of directors of the Guarantor 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 Obligors and their respective Subsidiaries
taken as a whole.
SECTION 5.3 PAYMENT OF TAXES. The Guarantor and the Borrowers will,
and will cause its Subsidiaries to, pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, all taxes, assessments and
governmental charges levied or imposed upon the Guarantor, either Borrower or
any Subsidiary or upon the income profits or property of the Guarantor, either
Borrower or any Subsidiary; provided, however, that the Guarantor and each
Borrower shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment or governmental charge 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 Guarantor or the Borrowers to the extent required by GAAP.
SECTION 5.4 MAINTENANCE OF PROPERTIES; INSURANCE. The Guarantor and
the Borrowers will, and will 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 Guarantor and the Borrowers
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 Guarantor, either Borrower or any
Subsidiary from discontinuing the operation and maintenance of any such
properties if such discontinuance is, in the good faith judgment of the
Guarantor, the Borrowers or such Subsidiary, as the case may be, desirable in
the conduct of its respective business and shall not impair the ability of the
Guarantor or either Borrower to perform their payment or other material
obligations under the Loan Documents. The Guarantor and each Borrower will
insure and keep insured, and will cause each of its Subsidiaries 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 (i) 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 and (ii) with respect to
the Collateral or Cross Collateral, required by any of the Collateral Documents
or those relevant to a Cross-Default Obligation, respectively.
SECTION 5.5 INSPECTION. The Guarantor and each Borrower will, and
will cause its Subsidiaries to, permit any authorized representatives designated
by the Loan Agent to discuss its and their affairs, finances and accounts with
its and their officers upon reasonable notice and at such reasonable times
during normal business hours and as often as may be reasonably requested;
provided that such access to officers shall not be disruptive to the Guarantor
or either Borrower's business, as reasonably determined by the Guarantor and the
Borrowers.
SECTION 5.6 COMPLIANCE WITH LAWS, ETC. Each Obligor will, and will
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 by appropriate
proceedings and except for such noncompliance as could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.7 FURTHER ASSURANCES. At any time or from time to time
following the request of the Loan Agent, the Obligors will, at their expense,
promptly execute, acknowledge and deliver such further documents and do such
other acts and things as the Loan Agent may reasonably request in order to
effect fully the purposes of the Loan Documents. From the date on which the Cape
Town Convention becomes effective, each of the Obligors, at no cost to the
Lenders, shall enter into such documentation, as reasonably requested by the
Loan Agent and is necessary (i) to establish "international interest(s)" under
the Cape Town Convention, (ii) to enhance the enforceability of the agreements
of the parties established under the Loan Documents under the Cape Town
Convention and shall take, any and all steps as reasonably requested by the Loan
Agent and necessary to register such interest(s) in the International Registry
relating thereto.
SECTION 5.8 EMPLOYEE BENEFIT PLANS. Each Obligor will ensure that
the Plans and Multiemployer Plans with respect to which the Obligors may have
any liability are operated in compliance with all applicable laws, except to the
extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
SECTION 5.9 FAA MATTERS; CITIZENSHIP. Each Borrower will at all
times hereunder be an "air carrier" within the meaning of Title 49 and hold a
certificate under 49 U.S.C. Section 41102(a)(1) as currently in effect or as
amended or recodified from time to time. Each Borrower will at all times
hereunder hold an air carrier operating certificate issued pursuant to Chapter
447 of Title 49 for aircraft capable of carrying 10 or more individuals or 6,000
pounds or more of cargo.
SECTION 5.10 DELIVERY OF POST-RECORDING FAA OPINION. Promptly upon
the recording of the Spare Parts Mortgage and Security Agreement and the Engine
Security Agreement with the FAA, the Borrowers will cause Daugherty, Fowler,
Peregrin & ▇▇▇▇▇▇, FAA counsel in Oklahoma City, Oklahoma, to deliver to the
Loan Agent and the Borrowers a favorable opinion addressed to each of them as to
such recordation and the lack of filing of any intervening documents creating a
Lien with respect to the Collateral.
SECTION 5.11 SOFTWARE. Each Borrower will maintain a spare parts
inventory tracking system at all times prior to payment in full of the
Obligations.
SECTION 5.12 COMPLIANCE WITH MORTGAGE. The Borrowers will comply
with the terms and provisions of the Collateral Documents.
SECTION 5.13 PROHIBITION ON LIENS. Neither Borrower shall, nor shall
it permit any of its Subsidiaries (other than Airways Assurance Limited LLC or
FTCHP
LLC) to, directly or indirectly create, incur, assume or permit to exist any
Lien on or with respect to any property or asset of any kind (including any
document or instrument in respect of goods or accounts receivable) of any
Borrower or any of its Subsidiaries (other than Airways Assurance Limited LLC or
FTCHP LLC), whether now owned or hereafter acquired, or any income or profits
therefrom, or file or consent to the filing of any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC of any state or under any similar recording or notice
statute, except:
(a) Permitted Encumbrances;
(b) (A) Liens existing on the Closing Date on Aircraft Related
Equipment securing Indebtedness used to acquire such Aircraft Related Equipment,
(B) Liens on Aircraft Related Equipment acquired after the Effective Date
created or incurred in connection with the financing of such Aircraft Related
Equipment, (C) Liens on Aircraft Related Equipment and related property created
or incurred in connection with debt financings of such Aircraft Related
Equipment, as contemplated under the A350/A330 Financing Letter Agreement (or
any financing pursuant thereto), the Senior Mortgages, the GE 2001 Credit
Agreement (as defined in the ATSB Loan Agreements), and the GECC RJ Agreement
(as defined in the ATSB Loan Agreements), (D) leases and/or subleases of
Aircraft Related Equipment to any Obligor or any Subsidiary of an Obligor or any
US Airways Express affiliate that is not an Obligor (or a Subsidiary of an
Obligor) and operates such Aircraft Related Equipment for an Obligor or a
Subsidiary of an Obligor pursuant to a services agreement with such Obligor or
Subsidiary, which lease or sublease is entered into in connection with the debt
financing or leasing of such Aircraft Related Equipment, as applicable, and the
assignment of any such lease or sublease and the proceeds thereof, in the case
of a lease, to any Person owed Indebtedness used to acquire such Aircraft
Related Equipment or, in the case of a sublease, to any Person leasing such
Aircraft Related Equipment to such Obligor or Subsidiary, (E) Liens on Aircraft
Related Equipment securing Permitted Refinancing Indebtedness in respect of
Indebtedness previously secured by such Aircraft Related Equipment in accordance
with subclause (A) or (B) above, including in each case, Liens securing special
facility revenue bonds that finance Aircraft Related Facilities, (F) Liens
incurred or deposits made in the ordinary course of business to secure the
performance of contracts for the purchase of aircraft, (G) Liens in existence on
the Closing Date (1) on aircraft and engines (other than Pledged Engines) and
(2) securing special facility revenue bonds, and (H) Liens on an Obligor's
interest as lessee or sublessor in respect of any Aircraft Related Equipment or
interests related thereto (including without limitation subleases, refunds or
rebates, security deposits, supplemental rent, reserves, or return condition
adjustment payments);
(c) other Liens on assets acquired after the Closing Date
securing or relating to Indebtedness and other liabilities and obligations in
each case not otherwise prohibited under this Agreement in an aggregate amount
not to exceed $5,000,000 at any time outstanding;
(d) Liens described in Schedule 5.13, provided that no such
Liens cover any of the Collateral;
(e) judgment and attachment Liens not giving rise to an Event
of Default;
(f) Liens on the assets of any entity or on any asset existing
at the time such entity or asset is acquired by an Obligor or a Subsidiary of an
Obligor, whether by merger, consolidation, purchase of assets or otherwise;
provided that such Liens (A) are not created, incurred or assumed by such entity
in contemplation of or in connection with the financing of such entity's being
acquired by an Obligor or a Subsidiary of an Obligor, (B) were created to secure
the financing of Aircraft Related Equipment or other specific assets, (C) do not
extend to any other assets of any Obligor or Subsidiary of an Obligor other than
the assets acquired with such financing and (D) the Indebtedness secured by such
Lien is permitted pursuant to this Agreement;
(g) leases or subleases of real or personal property granted
by any Obligor or Subsidiary of an Obligor to other Persons not interfering in
any material respect with the ordinary conduct of the business of the Obligors
or their Subsidiaries, taken as a whole;
(h) Liens on cash and Cash Equivalents securing (A)
reimbursement obligations in respect of letters of credit issued for the account
of any Obligor or Subsidiary of an Obligor in the ordinary course of business
and consistent with past practice, so long as the aggregate amount of such cash
and Cash Equivalents does not exceed 115% of the maximum available amount under
the secured letters of credit, and (B) reimbursement or other margin
requirements in connection with, in the case of Liens contemplated in this
clause (B), (1) transactions designed to hedge against fluctuations in fuel
costs, entered into in the ordinary course of business, consistent with past
business practice or then current industry practice, and not entered into for
speculative purposes, (2) transactions designed to hedge interest rates entered
into with respect to notional amounts not to exceed actual or anticipated
Indebtedness and not entered into for speculative purposes and (3) transactions
designed to hedge against risks associated with fluctuations in currencies
entered into in the ordinary course of business, and (C) prepaid fuel and
healthcare expenses in the ordinary course of business and consistent with past
practice;
(i) Liens securing the obligations of the Obligors with
respect to or relating to the Indebtedness as provided for in the ATSB Loan
Agreements;
(j) Liens on assets pledged in connection with a Replacement
Secured Financing permitted under the ATSB Loan Agreements;
(k) Liens on assets pledged to secure a Permitted Acquisition
Financing; provided that the Liens attach only to assets acquired in connection
with the acquisition financed by such Permitted Acquisition Financing;
(l) any renewal or substitution of any Lien for any of the
preceding clauses (b), (d) or (f); provided that any such Liens are not extended
to additional assets; and
(m) any renewal or substitution of any Lien for any of the
preceding clauses (b), (d), (f), (h), (i), (j) or (k), provided that (i) the
Indebtedness secured is not increased beyond the outstanding amount of such
Indebtedness on the Closing Date, if such Indebtedness was outstanding on the
Closing Date and (ii) any such Lien securing any such Indebtedness outstanding
on the Closing Date are not extended to assets in addition to those subject to
such Lien on the Closing Date, or required under the security agreement for such
Lien to be subject thereto thereafter, to such Lien;
[provided that the Obligors will not create, incur, assume or permit to exist
any Lien permitted under any of clauses (b) through (e) above on any property of
an Obligor already constituting Collateral.][OPEN]
SECTION 5.14 MERGER OR CONSOLIDATION. No Obligor shall consolidate
with or into or merge with or into, or enter into another form of corporate
combination with or into, any Person, or, in one or a series of transactions,
convey, lease or transfer all or substantially all its properties and assets to
any Person, unless: (i) either (A) such Obligor, or, if the transaction involves
more than one Obligor, an Obligor, is the surviving entity, or (B) an Obligor is
not the surviving entity and such surviving entity or the Person that acquires
by conveyance, lease or transfer all or substantially all the properties and
assets of an Obligor, 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 agreement executed and delivered to the Loan
Agent, in form and substance reasonably satisfactory to the Loan Agent, all of
such Obligor's obligations under the Loan Documents; (ii) immediately before and
after giving effect to such transaction, no Event of Default or Default shall
have occurred and be continuing; and (iii) the Obligors have delivered to the
Loan Agent an Officer's Certificate and an opinion of counsel from counsel
satisfactory to the Loan Agent, in form and substance satisfactory to the Loan
Agent, stating that such transaction and such agreement comply with this Section
and that all conditions precedent herein provided for relating to such
transaction have been complied with and addressing such other matters as may be
reasonably requested by the Loan Agent; provided, however, that no such
transaction or merger, consolidation, corporate combination, conveyance, lease
or transfer shall involve a manufacturer of aircraft or airframes, or an
Affiliate thereof, other than Airbus.
SECTION 5.15 CERTAIN APPROVALS UNDER THE ATSB LOAN AGREEMENT.
Neither Borrower will give its approval or consent to a sale of any right,
obligation or interest under an ATSB Loan Agreement, or any note or loan
document referred to therein (i) pursuant to clause (c) of the last sentence of
Section 9.2(a) thereof, or (ii) involving Tranche B-1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1 EVENTS OF DEFAULT. Each of the following events shall be
an Event of Default:
(a) Failure by the Borrowers to pay any installment of
principal of the Loans when due, or in the case of interest, within five
Business Days after the date due, whether at stated maturity, by acceleration,
by mandatory prepayment or otherwise; or (ii) failure by the Borrowers to pay
any other amount due under this Agreement or any other Loan Document within ten
Business Days after the receipt by the Borrowers of written notice from the Loan
Agent that such payment is due or overdue; or
(b) Any representation or warranty by any Obligor in any Loan
Document or in any statement or certificate at any time given by either Obligor
in writing pursuant hereto or thereto or in connection herewith or therewith
shall be false in any material respect on the date as of which made, such false
representation or warranty is material at the time in question, and, if curable,
the same shall remain uncured for a period in excess of 30 days (or in the case
of any representation or warranty as to the existence of a Default, 60 days)
after the date of written notice thereof from the Loan Agent to the Borrowers;
or
(c) Failure by any Obligor to perform or comply in any
material respect with any term or condition contained in Sections 2.4(f), 5.2
and 5.9 of this Agreement; or
(d) Failure by any Obligor to perform or comply in any
material respect with any term contained in this Agreement or any of the other
Loan Documents (other than any such term referred to in any other subsection of
this Section 6.1), such failure to comply is material at the time in question,
and such failure to comply shall not have been remedied or waived within 30 days
after receipt by the Borrowers of notice from the Loan Agent of such failure to
comply; provided that if such failure to comply is capable of being corrected
and the Borrowers are diligently proceeding to correct such failure, then there
shall be no Event of Default under this clause (c) unless such failure to comply
shall not have been remedied or waived within 90 days after receipt by the
Borrowers of such notice; or
(e) (i) With respect to any Cross-Default Obligation
identified in clause (i) of the definition therein, any of the Obligors shall
default (after the expiration of any applicable grace period) under or in the
performance of any material term, provision or condition contained in any
agreement under which any such Cross-Default Obligation was created or is
governed; or (ii) with respect to any Cross-Default Obligation identified in
clause (ii) of the definition thereof, any material "event of default" (however
described) shall occur and be continuing (after the expiration of any applicable
grace period), and shall not thereafter have been waived, remedied or cured,
under any agreement (as amended or modified from time to time) under which any
such
Cross-Default Obligation was created or is governed; provided, however, that
this Section 6.1(e) shall cease to be of any further force and effect if at any
time prior to payment in full of the Obligations, Airbus or its Affiliates cease
to hold at least 51% of the outstanding principal amount of the Loans.
(f) (i) A court shall enter a decree or order for relief in
respect of any Obligor or any of its Subsidiaries in an involuntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect; or any other similar relief shall be
granted under any applicable federal or state law; or (ii) an involuntary case
shall be commenced against any Obligor or any of its Subsidiaries under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect; or a decree or order of a court for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over any Obligor or any of its Subsidiaries, or
over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of any Obligor or any of its Subsidiaries for all or
a substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of any Obligor or any of its Subsidiaries, and any such event described
in clause (i) above or this clause (ii) shall continue for 90 days unless
dismissed, bonded or discharged; or
(g) (i) Any Obligor or any of its Subsidiaries shall have an
order for relief entered with respect to it or commence a voluntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other custodian of
all or a substantial part of its property; or any Obligor or any of its
Subsidiaries shall make any assignment for the benefit of creditors; or (ii) any
Obligor or any of its Subsidiaries shall be unable, or shall fail generally, or
shall admit in writing its inability, to pay its debts as such debts become due;
or the board of directors of any Obligor or any of its Subsidiaries (or any
committee thereof) shall adopt any resolution or otherwise authorize any action
to approve any of the actions referred to in clause (i) above or this clause
(ii); or
(h) Any order, judgment or decree shall be entered against any
Obligor decreeing the dissolution or split up of such Obligor and such order
shall remain undischarged or unstayed for a period in excess of 60 days; or
(i) Any of the Collateral Documents shall cease, for any
reason, other than discharge of the Lien thereof in accordance with its terms,
to be in full force and effect, or any Borrower or any Affiliate of any Borrower
shall so assert, or any Lien created by any of the Collateral Documents shall
cease, for any reason other than discharge of the Lien thereof in accordance
with its terms, to be in full force and effect, to be enforceable and of the
same effect and priority purported to be created thereby; or
(j) Any Borrower shall cease to carry and maintain, or cause
to be carried and maintained, insurance on and in respect of the Collateral in
accordance with the requirements of any applicable Collateral Document.
SECTION 6.2 REMEDIES. During the continuance of any Event of
Default, the Loan Agent shall, solely at the request of the Requisite Lenders,
by notice to the Borrowers declare that the Loans, all interest accrued thereon
and all other amounts and Obligations payable under this Agreement and the Loan
Documents to be immediately due and payable, whereupon the Loans, all such
interest and all such amounts and Obligations shall become and be immediately
due and payable, and/or declare the Commitments to be terminated, whereupon the
Commitment of each Lender shall be terminated, all without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrowers; provided, however, that upon the occurrence of the Event of
Default specified in Section 6.1(f) or 6.1(g), the Loans, all such interest and
all such amounts and Obligations shall automatically become and be immediately
due and payable, and the Commitments shall terminate, all without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Obligors.
ARTICLE VII
THE LOAN AGENT AND THE COLLATERAL AGENT
The parties hereto agree as follows:
SECTION 7.1 AUTHORIZATION AND ACTION. Each Lender hereby appoints
and authorizes each of the Loan Agent and the Collateral Agent to take such
action as administrative agent and collateral agent, respectively, on its behalf
and to exercise such powers under this Agreement and the other Loan Documents as
are delegated by such Lender to it as Loan Agent or Collateral Agent by the
terms hereof and thereof, together with such powers as are reasonably incidental
thereto, and each of the Loan Agent and the Collateral Agent hereby accepts such
authorization and appointment. As to any matters not expressly provided for by
this Agreement and the other Loan Documents or provided for with specific
reference to this Section 7.1 (including, without limitation, enforcement or
collection of any Note), neither the Loan Agent nor the Collateral Agent shall
be required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting or
refraining from action) upon the instructions of the Requisite Lenders and such
instructions shall be binding upon all Lenders; provided, however, that neither
the Loan Agent nor the Collateral Agent shall be required to take any action
which exposes either the Loan Agent or the Collateral Agent to liability or
which is contrary to this Agreement, any other Loan Document or applicable law.
As to any provisions of this Agreement under which action may be taken or
approval given by the Requisite Lenders, the action taken or approval given by
the Requisite Lenders, shall be binding upon all Lenders to the same extent and
with the same effect as if each Lender had joined therein. Each of the Loan
Agent and the Collateral Agent shall be entitled to rely upon any note, notice,
consent, certificate, affidavit, letter, telegram, teletype message, facsimile
transmission, statement, order or
other document believed by it to be genuine and correct and to have been signed
or sent by the proper person or persons and, in respect of legal matters, upon
the opinion of counsel selected by the Loan Agent or the Collateral Agent. Each
of the Loan Agent and the Collateral Agent may deem and treat the payee of the
Notes as the owner thereof for all purposes hereof unless and until a written
notice of the assignment or transfer thereof shall have been filed with the Loan
Agent. Any request, authority or consent of any Person who at the time of making
such request or giving such authority or consent is the holder of any Note shall
be conclusive and binding on any subsequent holder, transferee or assignee of
such Note.
SECTION 7.2 AGENT'S RELIANCE, ETC. Neither the Loan Agent nor the
Collateral Agent nor any of their respective Affiliates, directors, officers,
agents or employees shall be liable to any Lender for any action taken or
omitted to be taken by it or by such directors, officers, agents or employees
under or in connection with this Agreement, the Notes or any other Loan
Document, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each of the Loan Agent
and the Collateral Agent: (i) may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable to any
Lender for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such experts; (ii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether oral or written) made in or
in connection with this Agreement, the Notes or any other Loan Document; (iii)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement, the
Notes or any other Loan Document on the part of Guarantor or the Borrowers or to
inspect the property (including the books and records) of Guarantor, the
Borrowers or any of their respective Subsidiaries; (iv) shall not be responsible
to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, the Notes or any other Loan
Document, or any other instrument or document furnished pursuant thereto; (v)
shall incur no liability under or in respect to this Agreement, the Notes or any
other Loan Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, facsimile transmission, cable
or telex) believed by it to be genuine and signed or sent by the proper party or
parties; and (vi) may deem and treat each Lender which makes a loan hereunder as
the holder of the indebtedness resulting therefrom for all purposes hereof until
the Loan Agent receives and accepts an Assignment and Assumption entered into by
such Lender, as assignor, and an eligible assignee as provided in Section 9.2
hereof.
SECTION 7.3 AGENT AND AFFILIATES. If and so long as the Loan Agent
or the Collateral Agent shall remain a Lender, the Loan Agent or the Collateral
Agent, as applicable, shall have the same rights and powers under this Agreement
as any other Lender and may exercise the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not
the Loan Agent or the Collateral Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include the Loan Agent and the
Collateral Agent, each in its individual capacity. Unrelated to its role as Loan
Agent or Collateral Agent as set forth herein, the Loan Agent and the Collateral
Agent and their respective Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in any
kind of business with, the Borrowers, Guarantor, any of their respective
Subsidiaries and any Person who may do business with or own securities of the
Borrowers, Guarantor, or any of their respective Subsidiaries, all as if it were
not the Loan Agent or the Collateral Agent, as applicable, hereunder and without
any duty to account therefor to the Lenders.
SECTION 7.4 REPRESENTATIONS OF THE LENDERS. Each Lender has actively
engaged in the negotiation of all of the terms of this Agreement. Each of the
Loan Agent and the Collateral Agent has no duty or responsibility, either
initially or on a continuing basis, to provide any Lender with any credit or
other information with respect to the Borrowers whether coming into its
possession as of the date of this Agreement or at any time thereafter, or to
notify any Lender of any Event of Default except as provided in Section 7.5
hereof. This Agreement and all instruments or documents delivered in connection
with this Agreement have been reviewed and approved by each Lender and none of
the Lenders have relied on the Loan Agent or the Collateral Agent as to any
legal or factual matter in connection therewith or in connection with the
transactions contemplated thereunder.
SECTION 7.5 EVENTS OF DEFAULT. In the event of the occurrence of any
Default or Event of Default, any Lender knowing of such event may (but shall
have no duty to) give the Loan Agent and the Collateral Agent written notice
specifying such Event of Default or other event and expressly stating that such
notice is a "notice of default". Neither the Loan Agent nor the Collateral Agent
shall be deemed to have knowledge of such events unless the Loan Agent or the
Collateral Agent, as applicable, has received such notice, or unless the Event
of Default consists of a failure of payment of principal or interest on the
Note. In the event that the Loan Agent or the Collateral Agent receives such a
notice of the occurrence of an Event of Default, the Loan Agent or the
Collateral Agent, as applicable, shall give written notice thereof to the
Lenders. The Loan Agent and the Collateral Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed in
writing by the Requisite Lenders, provided, however, that, unless and until the
Loan Agent or the Collateral Agent shall have received such direction, the Loan
Agent and the Collateral Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Event of
Default as it shall deem advisable and in the best interest of the Lenders.
SECTION 7.6 LOAN AGENT'S AND COLLATERAL AGENT'S RIGHT TO INDEMNITY.
Except for action expressly required of the Loan Agent or the Collateral Agent
hereunder without instructions from any Person, the Loan Agent and the
Collateral Agent shall be fully justified in failing or refusing to take any
action hereunder on behalf of any Lender unless it shall first be indemnified to
its satisfaction by such Lender against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
SECTION 7.7 INDEMNIFICATION OF LOAN AGENT AND COLLATERAL AGENT. The
Lenders hereby agree to indemnify the Loan Agent and the Collateral Agent and
all of their respective affiliates, directors, officers, employees, advisors and
representatives thereof (to the extent not reimbursed by the Borrowers), ratably
as most recently in effect
prior to the date indemnification is sought, from and against any and all costs,
losses, liabilities, claims, damages or expenses which may be incurred by or
asserted or awarded against the Loan Agent or the Collateral Agent in any way
relating to or arising out of this Agreement and/or the other Loan Documents or
any action taken or omitted by the Loan Agent or the Collateral Agent under this
Agreement and/or the other Loan Documents; provided, however, that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Loan Agent's or the Collateral Agent's gross negligence or
willful misconduct. Without limiting the foregoing, each Lender agrees to
reimburse the Loan Agent and the Collateral Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees) incurred by
the Loan Agent or the Collateral Agent in connection with the administration, or
enforcement of, or the preservation of any rights under, this Agreement and/or
the other Loan Documents, to the extent that the Loan Agent or the Collateral
Agent is not reimbursed for such expenses by the Borrowers.
SECTION 7.8 SUCCESSOR LOAN AGENT AND COLLATERAL AGENT. Each of the
Loan Agent and the Collateral Agent may with the consent (not to be unreasonably
withheld) of the Lenders and, if no Event of Default has occurred and is
continuing, the Borrowers (or, if an Event of Default has occurred and is
continuing and if legally permissible, upon notice to the Borrowers), resign at
any time by giving written notice thereof to the Lenders and may, at any time,
with or without cause, be removed by the Requisite Lenders acting through the
Loan Agent with, if no Event of Default has occurred and is continuing and if
the Collateral Agent is not in default of any Obligation under the Loan
Documents and if no representation or warranty of the Collateral Agent under the
Loan Documents has proven to be incorrect in any material respect, the consent
(not to be unreasonably withheld) of the Borrowers (or, if an Event of Default
has occurred and is continuing, upon notice to the Borrowers). Upon any such
resignation or removal, the Borrowers shall have the right to appoint a
successor agent, subject to consent of the Lenders. If no successor agent shall
have accepted such appointment within 30 days after (i) the retiring Loan
Agent's or Collateral Agent's, as applicable, giving of notice of resignation or
(ii) the Loan Agent giving notice, if legally permissible, of such removal, the
Loan Agent or the Collateral Agent, as applicable, may, with the consent (not to
be unreasonably withheld) of the Requisite Lenders and, if no Event of Default
has occurred and is continuing, the Borrowers, appoint a successor Loan Agent or
Collateral Agent, as applicable, who shall be willing to accept such
appointment. Upon the acceptance of any appointment as Loan Agent or Collateral
Agent hereunder by a successor Loan Agent or Collateral Agent, such successor
Loan Agent or Collateral Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring or removed Loan
Agent or Collateral Agent, and the retiring or removed Loan Agent or Collateral
Agent shall be discharged from its duties and obligations as agent under this
Agreement. After any Loan Agent's or Collateral Agent's resignation or removal
hereunder as Loan Agent or Collateral Agent, as applicable, the provisions of
this Article 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Loan Agent or Collateral Agent under this Agreement.
SECTION 7.9 COLLATERAL AND GUARANTEE MATTERS. The Lenders irrevocably
authorize and direct the Collateral Agent to release any Lien on the Collateral
as provided for in the Collateral Documents.
ARTICLE VIII
GUARANTEE
SECTION 8.1 GUARANTEE.
(a) The Guarantor hereby unconditionally and irrevocably guarantees
to the Loan Agent, for the ratable benefit of the Lenders and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment
and performance by the Borrowers when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of the Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by the Guarantor under applicable federal and state laws relating to the
insolvency of debtors.
(c) The Guarantor agrees that the Obligations may at any time and
from time to time exceed the amount of the liability of the Guarantor hereunder
without impairing the guarantee contained in this Article VIII or affecting the
rights and remedies of the Loan Agent or any Lender hereunder.
(d) The guarantee contained in this Article VIII shall remain in
full force and effect until all the Obligations (including contingent
Obligations contained in any Loan Document that survive the termination thereof)
shall have been satisfied by payment in full and the Commitments shall be
terminated.
(e) No payment made by either Borrower or the Guarantor, any other
guarantor or any other Person or received or collected by the Loan Agent or any
Lender from either Borrower, the Guarantor, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of the Guarantor hereunder which shall, notwithstanding any such
payment (other than any payment made by the Guarantor in respect of the
Obligations or any payment received or collected from such Guarantor in respect
of the Obligations), remain liable for the Obligations up to the maximum
liability of the Guarantor hereunder until the Obligations are paid in full and
the Commitments are terminated.
SECTION 8.2 NO SUBROGATION. Notwithstanding any payment made by the
Guarantor hereunder or any set-off or application of funds of the Guarantor by
the Loan Agent or any Lender, the Guarantor shall not be entitled to be
subrogated to any of the rights of the Loan Agent or any Lender against either
Borrower or any other
guarantor or any collateral security or guarantee or right of offset held by the
Loan Agent, the Collateral Agent or any Lender for the payment of the
Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from either Borrower or any other guarantor in
respect of payments made by such guarantor hereunder, until all amounts owing to
the Loan Agent and the Lenders by the Borrower on account of the Obligations
(other than contingent obligations contained in any Loan Document that survive
the termination thereof) are paid in full and the Commitments are terminated. If
any amount shall be paid to the Guarantor on account of such subrogation rights
at any time when all of the Obligations (other than contingent obligations
contained in any Loan Document that survive the termination thereof) shall not
have been paid in full, such amount shall be held by the Guarantor in trust for
the Loan Agent and the Lenders, segregated from other funds of the Guarantor,
and shall, forthwith upon receipt by the Guarantor, be turned over to the Loan
Agent in the exact form received by the Guarantor (duly indorsed by the
Guarantor to the Loan Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as the Loan Agent may
determine.
SECTION 8.3 AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS. The
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantor and without notice to or further
assent by the Guarantor, any demand for payment of any of the Obligations made
by the Loan Agent or any Lender may be rescinded by the Loan Agent or such
Lender and any of the Obligations continued, and the Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Loan Agent or
any Lender, and the Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Loan Agent (or the Requisite Lenders or
all Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the Loan
Agent or any Lender for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Loan Agent nor any Lender shall
have any obligation to protect, secure, perfect or insure any Lien at any time
held by it as security for the Obligations or for the guarantee contained in
this Section 8.3 or any property subject thereto.
SECTION 8.4 GUARANTEE ABSOLUTE AND UNCONDITIONAL. The Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Loan Agent or any Lender
upon the guarantee contained in this Article VIII or acceptance of the guarantee
contained in this Article VIII; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantee contained in this
Article VIII; and all dealings between the Borrower and the Guarantor, on the
one hand, and the Loan Agent, the Collateral Agent and the Lenders, on the other
hand, likewise shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Article VIII. The Guarantor waives
diligence, presentment, protest, demand for payment and notice of
default or nonpayment to or upon the Borrower or the Guarantor with respect to
the Obligations. The Guarantor understands and agrees that the guarantee
contained in this Article VIII shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of any other provisions of this Agreement or any other Loan
Document, any of the Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Loan Agent, the Collateral Agent or any Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower or any other Person against the Loan Agent, the Collateral Agent or any
Lender, or (c) any other circumstance whatsoever (with or without notice to or
knowledge of a Borrower or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Obligations, or of the Guarantor under the guarantee contained in this Article
VIII, in bankruptcy or in any other instance. When making any demand hereunder
or otherwise pursuing its rights and remedies hereunder against the Guarantor,
the Loan Agent, the Collateral Agent or any Lender may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and
remedies as it may have against either Borrower, any other guarantor or any
other Person or against any collateral security or guarantee for the Obligations
or any right of offset with respect thereto, and any failure by the Loan Agent,
the Collateral Agent or any Lender to make any such demand, to pursue such other
rights or remedies or to collect any payments from the Borrower, any other
guarantor or any other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of the
Borrower, any other guarantor or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve the Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the Loan
Agent, the Collateral Agent or any Lender against the Guarantor. For the
purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
SECTION 8.5 REINSTATEMENT. The guarantee contained in this Article VIII
shall continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the Obligations is rescinded or
must otherwise be restored or returned by the Loan Agent, the Collateral Agent
or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of either Borrower or the Guarantor, or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, either Borrower or the Guarantor or any substantial part of
its property, or otherwise, all as though such payments had not been made.
SECTION 8.6 PAYMENTS. The Guarantor hereby guarantees that payments
hereunder will be paid to the Loan Agent without set-off, counterclaim, claim of
recoupment or other defense in Dollars at the office specified in Section
2.9(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 AMENDMENTS, WAIVERS, ETC.
(a) No amendment, modification or waiver of any provision of this
Agreement or any other Loan Document nor consent to any departure by any Obligor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Requisite Lenders, and then any such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no amendment, modification, waiver or
consent shall, unless in writing and signed by each Lender, do any of the
following:
(i) subject the Lenders to any additional obligations;
(ii) change the scheduled final maturity of the Loans, or
change the amount or date for payment of any date fixed for the payment or
reduction of principal;
(iii) change the principal amount of any Loan (other than by
the payment or prepayment thereof);
(iv) change the rate of interest on any Loan or any fee,
indemnity or other amount payable to any Lender;
(v) change any date fixed for payment of such interest,
indemnity or other amount or fees;
(vi) amend the definition of "Requisite Lenders" or this
Section 9.1(a);
(vii) modify the application of payments to the Loan under
Section 2.9; or
(viii) release all or substantially all of the Collateral or
release the Guarantor from the guarantee contained in Article VIII;
and provided, further, that no amendment, modification, waiver or consent shall,
unless in writing and signed by the Loan Agent in addition to the Persons
required above to take such action, affect the rights or duties of the Loan
Agent under this Agreement or the other Loan Documents.
(b) The Loan Agent may, but shall have no obligation to, with the
written concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective only
in the
specific instance and for the specific purpose for which it was given. No notice
to or demand on the Borrowers in any case shall entitle the Borrowers to any
other or further notice or demand in similar or other circumstances.
(c) In connection with any proposed amendment, modification, waiver
or termination (a "Proposed Change") requiring the consent of all affected
Lenders, if the consent of the Loan Agent and of the Requisite Lenders is
obtained, but the consent of other Lenders whose consent is required is not
obtained (any such Lender whose consent is not obtained as described in this
Section 9.1 being referred to as a "Non-Consenting Lender"), then (i) at the
Borrowers' request, the Loan Agent shall have the right in the Loan Agent's sole
discretion (but shall have no obligation) to purchase from such Non-Consenting
Lender, and such Non-Consenting Lender agrees that it shall, upon the Loan
Agent's request, sell and assign to the Lender that is acting as the Loan Agent,
all of the portion of the Loan of such Non-Consenting Lender for an amount equal
to the principal balance of such portion of the Loan held by the Non-Consenting
Lender and all accrued interest and fees with respect thereto through the date
of sale, such purchase and sale to be consummated pursuant to an executed
Assignment and Assumption, and (ii) the Borrowers may effect a substitution of
the Non-Consenting Lender pursuant to Section 2.12.
SECTION 9.2 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that (i) the Borrowers may not assign or otherwise
transfer any of their rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the
Borrowers without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more entities (each, an "Assignee"),
including by means of a capital markets, private placement or securitization
transaction, all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans at the time owing
to it) and subject to the following additional conditions:
(A) such Assignee shall not be an airline, a commercial
aircraft operator, an air freight forwarder, an entity engaged in the
business of parcel transport by air, other similar Person, or a holding
company Affiliate of any of the foregoing; and
(B) prior written notice of any such assignment shall be
provided to the Borrowers unless an Event of Default has occurred and is
continuing;
(C) in the event of an assignment involving a widespread
syndication or offering, if the Guarantor or any Borrower indicates that
the proposed transaction would interfere with its own debt financing
efforts, such Lender agrees to cooperate in good faith with the Guarantor
or such Borrower in order not to hinder the Guarantor's or such Borrower's
attempt to finalize its financing; and
(D) an assignee or participant that acquires its interest in
the Obligations pursuant to or in connection with a capital markets,
private placement, or securitization transaction pursuant to which ten or
more persons acquire interests in the Obligations shall not be entitled to
the benefits of Section 2.13.
(ii) Assignments shall be subject to the additional condition that
the parties to each assignment shall execute and deliver to the Loan Agent an
Assignment and Assumption.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in each
Assignment and Assumption the Assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.10, 2.11, 2.13, 9.3 and 9.4). Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this Section 10.2
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.
(iv) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Assignee, the Loan Agent shall accept
such Assignment and Assumption and record the information contained therein in
the Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(v) The Initial Lender agrees to notify the Borrowers promptly
following the date on which it or its Affiliate has fully or partially assigned
or sold all or a portion of its rights and obligations under this Agreement.
(c) (i) Any Lender may, without the consent of the Borrowers or the
Loan Agent, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations under
this Agreement (including all or a portion of its Commitments and the Loans
owing to it); provided that (A) such Participant shall not be an airline, a
commercial aircraft operator, an air freight forwarder, an entity engaged in the
business of parcel transport by air, other similar Person, or a holding company
Affiliate of any of the foregoing, (B) such Lender's obligations under this
Agreement shall remain unchanged, (C) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (D) the Obligors, the Loan Agent, and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement. Subject to paragraph (c)(ii) of this Section, the
Borrowers agree that, if its interest is entered in the Register, each
Participant shall be entitled to the benefits of Sections 2.10, 2.11, 2.13, 9.3
and 9.4 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 9.5
as though it were a Lender, provided such Participant shall be subject to
Section 9.7 as though it were a Lender.
(ii) Borrowers shall not be required to provide, and a
Participant shall not be entitled to receive any greater payment under
Section 2.10, 2.11 or 2.13 than the Borrowers would have been required to
pay and the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrowers' prior
written consent. Any Participant shall not be entitled to the benefits of
Section 2.13 unless such Participant complies with Section 2.13(f).
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or Assignee for such Lender as a party hereto.
(e) The Obligors agree to cooperate with the efforts of the Initial
Lender to engage in a transfer or sell-down transaction as envisioned in this
Section 9.2, including by means of restructuring the Loan Documents into
tranches (not all of which need to be secured by the Collateral), restructuring
the Loan Documents into a capital markets style indenture, cooperating in
reasonable due diligence meetings and investor phone calls, providing accountant
comfort letters and legal opinion reliance letters, and assisting with the
reasonable requests of rating agencies and investors, all at the cost of the
Initial Lender for the reasonable out-of-pocket expenses of Borrower in
cooperating as provided in this subparagraph. Without limiting the generality of
the
foregoing, as part of the cooperation of the Obligors, if requested by the
Initial Lender in connection with a transfer or sell down transaction as
envisioned in this Section 9.2, the Loan Documents shall be "marked-to-market"
and amended accordingly, solely to reflect any prepayment premiums or make-whole
amounts or other prepayment terms and conditions which are at the time customary
for comparable financings in the relevant markets, as determined in the opinion
of two investment banks, one selected by the Borrowers and the other by the Loan
Agent, and if such banks fail to agree on such prepayment premiums or make-whole
amounts or other prepayment terms and conditions, then a third investment bank
mutually selected by the Borrowers and the Loan Agent shall make such
determination.
SECTION 9.3 COSTS AND EXPENSES. Whether or not the first Funding Date
occurs, the Obligors agree to pay within ten Business Days (or as provided in
Section 3.1(d)) following receipt of a reasonably detailed invoice therefor (i)
all reasonable out-of-pocket costs and expenses (including reasonable legal fees
and expenses of one primary outside counsel and one special FAA counsel)
incurred by the Initial Lender, the Loan Agent and the Collateral Agent in
connection with the negotiation, preparation, execution and delivery of the Loan
Documents, and all documents relating thereto, (ii) all reasonable out-of-pocket
costs and expenses (including reasonable legal fees and expenses of one primary
outside counsel and one special FAA counsel) incurred by the Loan Agent in
connection with any consents, amendments, waivers or other modifications hereto
or thereto, (iii) all reasonable out-of-pocket costs and expenses incurred by
the Loan Agent in connection with the syndication of the Loans (if any), and
(iv) all reasonable out-of-pocket costs and expenses (including reasonable legal
fees and expenses) incurred by the Loan Agent and the Lenders in enforcing any
Obligations of, or in collecting any payments due from, the Borrowers hereunder
or under the other Loan Documents.
SECTION 9.4 INDEMNITIES. Whether or not the transactions contemplated
hereby shall be consummated, the Obligors agree to defend, indemnify, pay and
hold harmless the Loan Agent, the Lenders, and their respective Affiliates,
officers, directors, employees, agents and controlling Persons (collectively
called the "Indemnitees") from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs, expenses
and disbursements of any kind or nature whatsoever (including without limitation
the reasonable fees and disbursements of outside counsel for such Indemnitees,
but excluding Taxes) that may be imposed on, incurred by, or asserted against
any such Indemnitee, in any manner arising out of this Agreement or the other
Loan Documents or the transactions contemplated hereby or thereby (including,
without limitation, the use or intended use of the proceeds of the Loan) or any
breach or default by the Borrowers of any provision of the Loan Documents
(collectively called the "Indemnified Liabilities"); provided that the Obligors
shall not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities (i) arise
from the gross negligence or willful misconduct of an Indemnitee, (ii) are
specifically addressed elsewhere in this Agreement (including, without
limitation, Section 2.10, (iii) arise from breaches by an Indemnitee of any Loan
Document to which it is a party, or (iv) constitute ordinary and usual operating
or overhead expenses of an Indemnitee (excluding, without limitation,
costs and expenses of any outside counsel, consultant or agent). To the extent
that the undertaking to defend, indemnify, pay and hold harmless set forth in
the preceding sentence may be unenforceable because it is violative of any law
or public policy, the Obligors shall contribute the maximum portion that it is
permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any
of them.
SECTION 9.5 RIGHT OF SET-OFF. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence and during the continuance of any Event of Default, to the
fullest extent permitted by law, each Lender is hereby authorized by the
Obligors at any time or from time to time, without notice to the Obligors or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, including,
but not limited to, Indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other Indebtedness at any time held or owing by
that Lender to or for the credit or the account of any Obligor against and on
account of the Obligations then due.
SECTION 9.6 JOINT AND SEVERAL LIABILITY; MAXIMUM LIABILITY; WAIVER OF
SUBROGATION.
(a) Each Borrower shall be liable for all amounts due to the Lenders
under this Agreement, regardless of which Borrowers actually receives the Loans
or other extensions of credit hereunder, or the amount of such Loans received or
the manner in which any Lender accounts for such Loans or other extensions of
credit on its books and records. Each Borrower's liabilities with respect to
Loans and extensions of credit made to it, and each Borrower's liabilities
arising as a result of the joint and several liability of the Borrowers
hereunder and under the other Loan Documents with respect to Loans or other
extensions of credit made to any other Borrowers hereunder, shall be separate
and distinct obligations, but all such liabilities shall be primary obligations
of each Borrower. The joint and several liability of each Borrower shall in all
respects be continuing, absolute, unconditional and irrevocable, in all events
and circumstances, and shall continue in full force and effect until all
Obligations have been paid in full and all Commitments shall have terminated,
and will be paid strictly in accordance with the terms of this Agreement and
each other Loan Document under which they arise, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of Lender or any holder of any Loan or Note with
respect thereto.
(b) Notwithstanding any payment made by either Borrower or the
Guarantor hereunder or any set-off or application of funds of either Borrower or
the Guarantor by the Loan Agent or any Lender, neither Borrower shall be
entitled to be subrogated to any of the rights of the Loan Agent, the Collateral
Agent or any Lender against either Borrower or the Guarantor or any collateral
security or guarantee or right of offset held by the Loan Agent, the Collateral
Agent or any Lender for the payment of the Obligations, nor shall either
Borrower seek or be entitled to seek any contribution or reimbursement from the
other Borrower or the Guarantor in respect of payments made by
the Guarantor hereunder, until all amounts owing to the Loan Agent, the
Collateral Agent and the Lenders by the Borrowers on account of the Obligations
are paid in full and the Commitments are terminated. If any amount shall be paid
to either Borrower on account of such subrogation rights at any time when all of
the Obligations shall not have been paid in full, such amount shall be held by
such Borrower in trust for the Loan Agent, the Collateral Agent and the Lenders,
segregated from other funds of such Borrower, and shall, forthwith upon receipt
by such Borrower, be turned over to the Loan Agent in the exact form received by
such Borrower (duly indorsed by such Borrower to the Loan Agent, if required),
to be applied against the Obligations, whether matured or unmatured, in such
order as the Loan Agent may determine.
(c) Each Borrower shall remain obligated hereunder notwithstanding
that, without any reservation of rights against the other Borrower or the
Guarantor and without notice to or further assent by the other Borrower or the
Guarantor, any demand for payment of any of the Obligations made by the Loan
Agent, the Collateral Agent or any Lender may be rescinded by the Loan Agent,
the Collateral Agent or such Lender and any of the Obligations continued, and
the Obligations, or the liability of any other Person upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Loan Agent, the Collateral Agent or any Lender, and this
Agreement and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Loan Agent (or the Requisite Lenders or
all Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the Loan
Agent, the Collateral Agent or any Lender for the payment of the Obligations may
be sold, exchanged, waived, surrendered or released. Neither the Loan Agent, the
Collateral Agent nor any Lender shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the
Obligations or for the guarantee contained in Article VIII or any property
subject thereto.
(d) Each Borrower waives any and all notice of the creation,
renewal, extension or accrual of any of the Obligations and notice of or proof
of reliance by the Loan Agent, the Collateral Agent or any Lender upon the joint
and several liability of the Borrowers and the guarantee contained in Article
VIII or acceptance thereof; the Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon the joint and several liability of the
Borrowers and the guarantee contained in Article VIII; and all dealings between
the Borrowers and the Guarantor, on the one hand, and the Loan Agent, the
Collateral Agent and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance thereupon.
Each Borrower waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon the other Borrower or the Guarantor
with respect to the Obligations. Each Borrower understands and agrees that its
joint and several liability hereunder for and with respect to the Obligations of
the other Borrower is continuing, absolute and unconditional without regard to
any circumstance whatsoever which
constitutes, or might be construed to constitute, an equitable or legal
discharge of such Borrower for and with respect to the Obligations of the other
Borrower (or of the Guarantor), in bankruptcy or in any other instance. When
making any demand hereunder or otherwise pursuing its rights and remedies
hereunder against either Borrower, the Loan Agent, the Collateral Agent or any
Lender may, but shall be under no obligation to, make a similar demand on or
otherwise pursue such rights and remedies as it may have against the other
Borrower, the Guarantor or any other Person or against any collateral security
or guarantee for the Obligations or any right of offset with respect thereto,
and any failure by the Loan Agent, the Collateral Agent or any Lender to make
any such demand, to pursue such other rights or remedies or to collect any
payments from the other Borrower, the Guarantor or any other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the other Borrower, the Guarantor or any
other Person or any such collateral security, guarantee or right of offset,
shall not relieve a Borrower of any obligation or liability hereunder, and shall
not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Loan Agent, the Collateral Agent or any
Lender against either Borrower. For the purposes hereof "demand" shall include
the commencement and continuance of any legal proceedings.
(e) The joint liability of the Borrowers shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Loan Agent, the Collateral Agent or any Lender upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of a
Borrower or the Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, a
Borrower or the Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
SECTION 9.7 SHARING OF PAYMENTS, ETC. The Lenders hereby agree among
themselves that if any of them shall, whether by voluntary payment, by
realization upon security, through the exercise of any right of set-off or
banker's lien, by counterclaim or cross action or by the enforcement of any
right under the Loan Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code, receive payment or
reduction of a proportion of the aggregate amount of principal, interest, fees
and other amounts then due and owing to that Lender hereunder or under the other
Loan Documents (collectively, except as provided in the immediately following
exception clause, the "Aggregate Amounts Due" to each Lender) which is greater
than the proportion received by any other Lender in respect of the Aggregate
Amounts Due to such other Lender, except by reason of payments that are
individual to a particular Lender under Sections 2.10(c), 2.10(e), 2.11, 2.13,
9.3 and 9.4, then the Lender receiving such proportionately greater payment
shall (i) notify the Loan Agent and each other Lender of the receipt of such
payment and (ii) apply a portion of such payment to purchase participations
(which it shall be deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such payment)
in the Aggregate Amounts Due to the other Lenders so that all such recoveries of
Aggregate Amounts Due shall be shared by all Lenders in proportion to the
Aggregate Amounts Due to them, provided that if all or part
of such proportionately greater payment received by such purchasing Lender is
thereafter recovered from such Lender upon the bankruptcy or reorganization of
the Borrowers or otherwise, those purchases shall be rescinded and the purchase
prices paid for such participations shall be returned to such purchasing Lender
ratably to the extent of such recovery, but without interest. The Obligors
expressly consent to the foregoing arrangement and agrees that any holder of a
participation so purchased may exercise any and all rights of banker's lien,
set-off or counterclaim with respect to any and all monies owing by the Obligors
to that holder with respect thereto as fully as if that holder were owed the
amount of the participation held by that holder.
SECTION 9.8 NOTICES, ETC. Unless otherwise specifically provided herein,
any notice, request or other communication herein required or permitted to be
given shall be in writing and may be personally served or sent by telefacsimile
or United States mail or courier service and shall be deemed to have been given
when delivered in person or by courier service, or upon receipt of
telefacsimile, or five Business Days after depositing it in the United States
mail with postage prepaid and properly addressed; provided that notices shall
not be effective until received. For the purposes hereof, the address of each
party hereto shall be as set forth under such party's name on Annex A, or (i) as
to the Borrowers and the Loan Agent and the Collateral Agent, such other address
as shall be designated by such Person in a written notice delivered to the other
parties hereto and (ii) as to each other party hereto, such other address as
shall be designated by such party in a written notice delivered to the Loan
Agent and the Collateral Agent.
SECTION 9.9 NO WAIVER; REMEDIES. No failure on the part of any Lender or
the Loan Agent or the Collateral Agent to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.10 GOVERNING LAW. This Agreement and the rights and obligations
of the parties hereto shall be governed by, and construed in accordance with,
the law of the State of New York.
SECTION 9.11 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS.
(a) Any legal action or proceeding with respect to this Agreement or
any other Loan Document may be brought in the courts of the State of New York or
of the United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, each of the parties hereto hereby
accept for itself and in respect of its property, generally and unconditionally,
the jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably
waive any objection, including any objection to the laying of venue or based on
the grounds of forum non conveniens, which any of them may now or hereafter have
to the bringing of any such action or proceeding in such respective
jurisdictions.
(b) Each of the parties hereto hereby irrevocably consent to the
service of any and all legal process, summons, notices and documents in any
suit, action or proceeding brought in the United States of America arising out
of or in connection with this Agreement or any of the other Loan Documents by
the mailing (by registered or certified mail, postage prepaid) or delivering of
a copy of such process to such Person in accordance with the provisions of
Section 9.8. Each Obligor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(c) Nothing contained in this Section 9.12 shall affect the right of
any party hereto to serve process in any other manner permitted by law or
commence legal proceedings or otherwise proceed against any other party hereto
in any other jurisdiction.
SECTION 9.12 WAIVER OF JURY TRIAL. Each of the parties hereto irrevocably
waives trial by jury in any action or proceeding with respect to this Agreement
or any other Loan Document.
SECTION 9.13 MARSHALING; PAYMENTS SET ASIDE. Neither the Loan Agent, the
Collateral Agent nor any Lender shall be under any obligation to marshal any
assets in favor of the Obligors or any other party or against or in payment of
any or all of the Obligations. To the extent that an Obligor makes a payment or
payments to the Loan Agent for the account of any Lender (each, a "Payee") or
any Payee receives payment from exercise of their rights of setoff, and such
payment or payments or the proceeds of such setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party, then (i) to
the extent of such recovery, the obligation or part thereof originally intended
to be satisfied, and all rights and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred, and (ii) each Payee shall pay and return
such amount to the Loan Agent as the Loan Agent may be required to disgorge or
otherwise pay to a trustee, receiver or any other party in respect of the
portion of the payment from the Borrowers distributed by the Loan Agent to such
Payee hereunder.
SECTION 9.14 SECTION TITLES. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
SECTION 9.15 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Signature
pages may be detached from multiple separate counterparts and attached to a
single counterpart so that all signature pages are attached to the same
document. Delivery of an executed signature page of this Agreement by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all parties
shall be lodged with the Borrowers, the Loan Agent and the Collateral Agent.
SECTION 9.16 SEVERABILITY. In case any provision in or obligation under
this Agreement or any Note shall be invalid, illegal or unenforceable in any
jurisdiction the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 9.17 CONFIDENTIALITY. Each party hereto shall, and shall procure
that its respective officers, employees and agents shall, keep confidential and
shall not, without the prior written consent of the other parties, disclose to
any third party this Agreement, any other Loan Document or any of the
information, reports or documents supplied by or on behalf of such other party
not otherwise publicly available, except that a party shall be entitled to
disclose this Agreement, any other Loan Document, and any such information,
reports or documents:
(i) in connection with any proceeding arising out of or in
connection with this Agreement or any of the other Loan Documents, to the
extent that such party may reasonable consider necessary to protect its
interest; or
(ii) to any potential assignee or transferee of any party's
rights under this Agreement or any of the Loan Documents (and to rating
agencies, underwriters, investors, lenders, placement agents, and other
parties, and their respective counsel, auditors, agents and advisers)
participating in an assignment or participation transaction under Section
10.2 or any other person proposing to enter into contractual arrangements
with any party in relation to this Agreement, any of the other Loan Documents
subject to the relevant party obtaining, in each case to the extent
reasonable and customary, an undertaking from such potential assignee or
transferee or other person in corresponding terms to this Section 10.18; or
(iii) pursuant to any applicable laws, ordinances, judgments,
decrees, injunctions, writs, rules, regulations, orders, interpretations,
licenses, permits and orders of any competent court, arbitrator or
governmental agency or authority in any relevant jurisdiction; or
(iv) to bank examiners or any other regulatory authority or
rating agencies or similar entities, if requested to do so; or
(v) to its auditors, legal, tax or to other professional
advisers; or
(vi) to its Affiliates and their respective directors,
officers, employees and agents.
SECTION 9.18 APPOINTMENT OF INDENTURE TRUSTEE. The Loan Agent and the
Initial Lender hereby appoint U.S. Bank National Association as Indenture
Trustee
under the Aircraft Mortgages. Such appointment to be effected by delivery of an
authorization and direction to the Indenture Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
AMERICA WEST AIRLINES, INC.
US AIRWAYS, INC
US AIRWAYS GROUP, INC.
By:
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer of
each Person listed above
AIRBUS FINANCIAL SERVICES,
as Initial Lender and Loan Agent
By:
--------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Collateral Agent
By:
--------------------------------
Name:
Title: