REVISED INTERIM PROCEDURES AGREEMENT
THIS REVISED INTERIM PROCEDURES AGREEMENT, entered into
and dated as of March 11, 1994 (this "Agreement"), between
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America West Airlines, Inc., a Delaware corporation (including,
on or after the effective date of the Plan, as hereinafter
defined, its successors, as reorganized pursuant to Chapter 11 of
the Bankruptcy Code, as hereinafter defined) (hereinafter, the
"Company"), operating as debtor-in-possession under Chapter 11 of
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the United States Bankruptcy Code, 11 U.S.C. Sections 101-1330
(the "Bankruptcy Code") and AmWest Partners, L.P., a Texas
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limited partnership (hereinafter the "Investor"). All capitalized
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terms used in this Agreement without definition shall have the
meanings assigned to them in the Investment Agreement between the
Company and Investor dated as of the date hereof (the "Investment
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Agreement").
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W I T N E S S E T H:
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WHEREAS, the Company has filed a case seeking relief
under Chapter 11 of the Bankruptcy Code in the United States
Bankruptcy Court for the District of Arizona (the "Bankruptcy
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Court"), and is operating its business as debtor-in-possession;
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WHEREAS, on December 8, 1993, the Bankruptcy Court
entered an Order on Motion to Establish Procedures for Submission
of Investment Proposals (the "Procedures Order");
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WHEREAS, in accordance with the Procedures Order,
Investor submitted on February 22, 1994 a proposal for making an
investment in the Company (the "Investment") which, subject to
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certain changes requested by the Company and the Equity
Committee, is set forth in the Investment Agreement;
WHEREAS, pursuant to the Procedures Order, the Company
has selected the Investment Agreement as the Lead Plan Proposal
(as defined in the Procedures Order) and has provided appropriate
notification of such selection to all persons entitled to receive
such notification; and
WHEREAS, the Investment Agreement contemplates, among
other things, the consummation of a plan of reorganization (the
"Plan") that would, subject to the terms and conditions set forth
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in the Investment Agreement, provide for (i) a recapitalization
of the Company, (ii) the execution and delivery of the Alliance
Agreements, the intended effect of which would be to improve the
financial performance of the Company and (iii) the execution and
delivery of the Governance Agreements;
NOW, THEREFORE, in consideration of the premises, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company hereby
agrees with Investor as follows:
SECTION 1. No Solicitation, etc. (a) Prior to the
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termination of this Agreement, the Company shall not directly, or
indirectly through any of its officers, directors, employees,
agents or otherwise, initiate or solicit any offer or proposal
providing for or in furtherance of any Prohibited Transaction.
The term "Prohibited Transaction" shall mean (i) any transaction
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or transactions (A) similar to or in substitution for the
Investment contemplated by the Investment Agreement or (B)
similar to or in substitution for the issuance and sale by the
Company of any of the Contemplated Securities (as defined below);
(ii) the designation as a Lead Plan Proposal of any other
proposal made by a party other than Investor; or (iii) the
execution of a contract with another airline or affiliate thereof
which would interfere with full implementation of the Alliance
Agreements, it being understood that normal course of business
arrangements between and among carriers that are either
terminable on not more than 60 days' notice or entered into or
continued with the consent of Investor (which consent shall not
be unreasonably withheld) shall not constitute Prohibited
Transactions. The "Prohibited Transactions," as defined above,
shall also include, without limitation, (1) any merger or
consolidation of the Company, (2) any issuance or sale of equity
or debt securities of the Company, and (3) any sale, encumbrance,
lease or other disposition of material assets of the Company or
interest therein outside the ordinary and normal course of the
Company's business. Notwithstanding the foregoing, Prohibited
Transactions shall not include any Permitted Transaction (as
hereinafter defined).
(b) Nothing in this Agreement shall be construed to
prohibit the Company from soliciting proposals or entering
negotiations for a Prohibited Transaction if, at any time after
the date hereof and prior to the Effective Date, Investor or any
of its partners shall (1) initiate proceedings in bankruptcy or
receivership or, voluntarily or involuntarily, be or become
subject to proceedings for protection from its creditors or (2)
shall suffer an adverse change in its condition (financial or
otherwise), business assets, properties or prospects that, in the
reasonable judgment of the Company's board of directors,
materially impairs (A) the ability of Investor or such partner,
as the case may be, to perform its obligations under this
Agreement, the Investment Agreement or the Related Agreements or
(B) the Company's ability to realize (1) the intended benefits
and value of this Agreement, the Investment Agreement or, the
Related Agreements (other than the Alliance Agreements) and (2)
an increase in the Company's pretax income of not less than $40
million per year from the Alliance Agreements as contemplated by
Section 9(g) of the Investment Agreement; provided, however, that
in no event shall the Company be entitled under this paragraph
(b) to solicit proposals for a Prohibited Transaction until after
the Company shall have given Investor not less than one business
day's advance written notice of the Company's intention to do so.
(c) If both of the following conditions are satisfied:
(i) the Company receives a proposal for a Prohibited
Transaction (the "Alternate Proposal"); and
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(ii) the Company's board of directors (A)
determines in good faith, based on advice from the
Company's independent financial advisor, that the
Alternate Proposal satisfies the criteria for
qualification as an Overbid (as set forth below) and (B)
desires to accept the Alternate Proposal as being in the
best interests of the Company and its constituents,
then the Company shall promptly disclose the Alternate
Proposal to Investor and within two business days submit to
Investor copies of all documents or written information
received by the Company from or on behalf of the party
making such proposal setting forth the terms of such
Alternate Proposal (the "Related Documentation"). In making
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the determination required in clause (ii)(B) above, the
Company's board of directors shall consider all relevant
considerations and factors, including, without limitation,
the form and value of consideration, the extent to which the
economic benefits of the Alternate Proposal, taken as a
whole, differ from the economic benefits to the Company
contemplated to be provided by the Investment Agreement,
taken as a whole, the likelihood that the party making the
Alternate Proposal is able to obtain financing to consummate
the Alternate Proposal, the proposed closing date, the
certainty of consummation, competitive issues and closing
conditions. If within seven business days of receipt by
Investor of all Related Documentation and notice that the
Company deems such seven-day period to have started,
Investor offers amendments to the Investment Agreement
and/or the Alliance Agreements that, taken as a whole,
satisfy the criteria for qualification as an Overbid in
respect of the Alternate Proposal, then Investor's offer
will continue as the Lead Plan Proposal and all the terms of
this Agreement and the Investment Agreement, as so amended,
will continue in full force and effect. If (A) Investor
offers no such amendments within such seven business days or
(B) in the event the Company disagrees with Investor's
characterization of its offer as an Overbid and the
Bankruptcy Court determines, upon petition by the Company,
that Investor's amended offer does not qualify as an Overbid
or (C) in the event Investor disagrees with the Company's
determination referred to in clause (ii) above and the
Bankruptcy Court determines, upon petition by Investor, that
the Alternate Proposal does qualify as an Overbid, then the
Company may terminate this Agreement in accordance with
Section 20(a)(v), provided that the Fee and Expenses have
been paid to Investor as provided in Section 3.
(d) For purposes of paragraph (c) above, the term
"Overbid" shall mean a proposal or offer that is presented to the
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Company entirely in writing from one or more parties reasonably
believed by the Company to be financially capable of performing
in full the provisions of its proposal, which proposal:
(A) must provide overall economic benefits to the
Company and its constituents which (i) in the case of a
proposal or offer made by a third party, are materially
greater, in the Company's reasonable judgment, than the
overall economic benefits to be provided under this
Agreement, the Investment Agreement and the Related
Agreements, taken as a whole, and (ii) in the case of a
proposal or offer made by Investor, are not less, in the
Company's reasonable judgment, than the overall economic
benefits to be provided under the Alternate Proposal;
(B) is otherwise on terms and conditions that, taken as
a whole, are (i) in the case of a proposal or offer made by
a third party, more favorable to the Company than those
contained in this Agreement, the Investment Agreement and
the Related Agreements, taken as a whole, and (ii) in the
case of a proposal or offer made by Investor, are at least
as favorable to the Company as those contained in the
Alternate Proposal; and
(C) is not subject to any due diligence, litigation,
environmental or regulatory approval condition that (i) in
the case of a proposal or offer made by a third party, is
more favorable to the proponent than those contained in this
Agreement, the Investment Agreement and the Related
Agreements, taken as a whole, and (ii) in the case of a
proposal or offer made by Investor, is no more favorable to
Investor than those contained in the Alternate Proposal.
(e) Nothing in this Agreement shall prohibit the Company
from consummating any Permitted Transaction (as defined in
Section 4.2).
SECTION 2. Expenses. Following the entry of the order
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referred to in Section 16, the Company shall, immediately upon
request and upon receipt of an accounting reasonably acceptable
to the Company, reimburse Investor for all reasonable
out-of-pocket or third-party expenses actually paid by Investor
or its partners in connection with efforts to consummate the
Investment, including the negotiation and preparation of
documents necessary or appropriate to consummate the Investment,
and including, without limitation, legal, investment banking,
appraisal, accounting and other similar professional fees
(collectively, the "Expenses"). Notwithstanding the preceding
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sentence, the aggregate of the Expenses reimbursable in full to
Investor and its partners pursuant to this Agreement shall not
exceed (i) $550,000 for the period prior to March 1, 1994, (ii)
$250,000 for any calendar month commencing on or after March 1,
1994; provided, that any unused portion of such $250,000 amount
for any month shall accumulate and be carried forward and be
available in any subsequent month to reimburse any Expenses, and
(iii) $3 million for all periods commencing on or after March 1,
1994.
SECTION 3. Effect of Termination and Consummation.
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(a) Fee and Expenses. (i) In the event this Agreement
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is terminated by the Company pursuant to Section 20(a)(v), the
Company shall pay to Investor, within 15 days of such
termination, a single cash fee (the "Fee") in the amount of (i)
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$4 million if the date on which this Agreement is so terminated
occurs prior to the entry by the Bankruptcy Court of an order
approving a disclosure statement with respect to the Plan (the
"Disclosure Statement Order") or (ii) $8 million if the date on
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which this Agreement is so terminated occurs after the entry of
the Disclosure Statement Order by the Bankruptcy Court.
(ii) In the event this Agreement is terminated by
Investor pursuant to Section 20(a)(iii) on account of the
Company's willful breach, deliberate misconduct or bad faith, the
Company shall, if requested by Investor, pay Investor the Fee
and, upon payment of the Fee and Expenses to Investor, the
Company shall have no further liability to Investor or any other
Person on account of such willful breach, deliberate misconduct
or bad faith. If Investor does not demand payment of the Fee
pursuant to this clause (ii) within seven days after the
termination date, Investor shall retain the right, as Investor's
sole remedy for any such breach, to seek to obtain specific
performance by the Company of its obligations under this
Agreement and the Investment Agreement. If Investor elects to
pursue such a specific performance remedy and it is denied by
unstayed or final order of the Bankruptcy Court, the Company
shall, within 15 days of such denial, pay the Fee to Investor.
(iii) In the event this Agreement terminates pursuant
to Section 20(c), the Company shall pay the Fee to Investor
within 15 days of such termination; provided, however, that, for
purposes of this clause (iii), the Fee shall be $4,000,000 and,
provided further, that in no event shall Investor be entitled to
payment of the Fee under this clause (iii) if, at the time of
confirmation of the plan of reorganization giving rise to such
termination, either (1) Investor (or any of its Affiliates) was
in material breach of any of its representations, warranties,
covenants or obligations under this Agreement, the Investment
Agreement or any Related Agreement, which breach was not earlier
waived in writing by the Company or (2) Investor shall have
previously exercised any termination right granted to it under
Section 20.
(iv) In the event this Agreement is terminated pursuant
to Section 20(a) or (c) for any reason, the Company shall pay to
Investor, within 15 days of such termination, all Expenses not
previously reimbursed under Section 2 subject only to the
limitations set forth in the second sentence of Section 2.
(b) Expenses Paid Upon Consummation. Upon the Effective
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Date, the Company shall pay to Investor all Expenses not
previously reimbursed under Section 2 subject only to the
limitations set forth in clauses (i) and (iii) of the second
sentence of Section 2.
(c) Expenses and Fee Not Subject to Offset. Except to
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the extent otherwise provided herein, the Fee and Expenses
payable under this Agreement by the Company shall not be subject
to any offset, return, recoupment or counterclaim and shall be an
allowed administrative expense under Section 507(a)(1) of the
Bankruptcy Code.
(d) Appropriateness of Payment of Fee and Reimbursement
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of Expenses. The Company and Investor agree that the Fee and
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Expenses payable hereunder are commercially reasonable and
necessary to induce Investor to continue pursuing and to attempt
to consummate the transactions contemplated by the Investment
Agreement.
(e) Rights. The payment of the Fee to Investor as
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required hereunder and the payment to Investor of any Expenses
payable hereunder shall be in full satisfaction of any and all
claims (other than for indemnification under Section 9) that
Investor shall have against the Company. The termination of the
Investment Agreement and this Agreement by the Company pursuant
to Section 20 shall not constitute a breach of such Agreements by
the Company.
SECTION 4. Interim Period. The Company covenants as
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follows with respect to the period prior to the earlier of (a)
the Effective Date and (b) the termination of this Agreement:
4.1. The Company shall use all commercially
reasonable efforts and shall take all actions reasonably
necessary or appropriate to preserve the value of the business,
assets and goodwill of the Company and to operate the business of
the Company in the ordinary and normal course consistent in all
material respects with prior practices.
4.2. Except as expressly permitted hereunder or with
the written consent of Investor (which consent shall not be
unreasonably withheld or delayed), the Company (a) shall not
implement any material changes to the operation of its business
(such as material route deletions, transfers of international
route authorities, material changes in marketing or advertising,
or abandoning material franchises); (b) shall not enter into any
new material contracts (such as labor union contracts and
employment contracts) or amend, modify or terminate any such
contracts, or waive any of its material rights thereunder; and
(c) shall not modify its business plans or budgets in any
material respect; provided, however, that nothing in this
Agreement shall be construed to prohibit the Company from taking
any of the following actions (collectively, the "Permitted
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Transactions"), none of which will be deemed to be a Prohibited
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Transaction:
(i) entering into any material modification of any
existing leases, loan agreements and/or security agreements
provided that the Company will obtain the approval of
Investor (which approval shall not be unreasonably withheld
or delayed) before entering into any such modification;
(ii) renewing or extending existing contracts for
products and services, or entering into replacement
contracts for such products and services, in the ordinary
course of business and upon terms and conditions available
in the market place in arms'-length transactions with
non-affiliates;
(iii) entering into agreements with respect to 11
leased aircraft which provide in August 1994 for reset of
lease rentals (as heretofore stipulated in the Bankruptcy
Court and as described in Plan R-2) to the higher of the
current rate and fair market rental value;
(iv) entering into a 3-year lease agreement, on terms
currently available, for a Boeing 757-200 aircraft in
replacement of an A-320 aircraft to be returned in April
1994;
(v) selling to AVSA, S.A.R.L. or its affiliates surplus
A-320 parts for approximately $1.3 million, with the
proceeds thereof to be applied against amounts due to AVSA,
S.A.R.L. or its affiliates under existing spare parts
agreements with the Company;
(vi) entering into a $12.8 million settlement with
the Internal Revenue Service relating to certain priority
tax claims for pre-petition transportation taxes, with
approximately $1 million of the settlement amount payable
prior to the Effective Date and the balance payable after
the Effective Date in accordance with the provisions of the
Bankruptcy Code;
(vii) entering into one or more settlement agreements
with taxing authorities relating to certain priority tax
claims for prepetition ad valorem taxes as contemplated by
Plan R-2, provided that the Company will not be permitted to
enter into settlement agreements pursuant to this clause
(vii) for more than $11.5 million without the prior consent
of Investor;
(viii) extending the Company's existing approximately
83.6 debtor-in-possession loan ("Present DIP Financing")
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through December 31, 1994, provided that at no time will the
principal amount of the Present DIP Financing, together with
any other loan for similar purposes, including any renewal,
extension, modification or replacement thereof, exceed $83.6
million;
(ix) extending the terms of the existing leases
between the Company and Canadian Airlines covering three
Boeing 737-200 aircraft as contemplated by Plan R-2 but in
no event at rentals greater than as currently provided for
in such leases;
(x) entering into an employment contract with the
individual to be hired by the Company to fill the vacancy
created by the resignation of the Company's Senior Vice
President - Operations;
(xi) entering into a settlement agreement or
stipulation with International Aero Engines relating to the
terms under which the Company will exercise its existing
purchase option for one aircraft engine currently held by
the Company under lease, provided that the Company will
consult with Investor before entering into any such
settlement agreement or stipulation;
(xii) consummating the "Real Property Consolidation
Project" initiated in 1993 with the approval of the
Bankruptcy Court;
(xiii) making the capital expenditures contemplated by
Plan R-2, provided that the Company shall consult with
Investor before making any such capital expenditure in
excess of $250,000;
(xiv) selling or otherwise disposing of surplus assets
within the limits specified in the Present DIP Financing;
(xv) implementing increases in employee compensation
through 1995 as contemplated by Plan R-2, provided that the
Company will consult with Investor before implementing any
such increases;
(xvi) issuing common stock of the Company upon the
exercise of options or conversion rights under securities of
the Company currently outstanding;
(xvii) paying and/or compromising administrative claims
as contemplated by Plan R-2; or
(xviii) negotiating a collective bargaining agreement
with the International Air Line Pilots Association on behalf
of the Company's flight deck crew members prusuant to the
Railway Labor Act, as amended, provided that the terms,
conditions and provisions of such collective bargaining
agreement shall be subject to the approval of Investor
(which approval shall not be unreasonably withheld or
delayed).
4.3. The Company shall provide Investor and its
Representatives (as hereinafter defined) with full access to all
the Company data reasonably requested by them, with reasonable
access to the Company officers and with full opportunity to
complete an investigation of the Company's business and assets
and shall keep Investor fully informed in reasonable detail and
with all reasonable promptness regarding (i) negotiations with
its creditors, employees, labor unions and other interested
parties in the Company's bankruptcy case; (ii) the nature of, and
any material changes to, its condition (financial or other),
business, assets, liabilities (including contingencies),
properties, prospects (including forecasts and projections), net
worth, working capital, results of operations and cash flows; and
(iii) the nature of any material actions to be taken or omitted
by the Company with respect to any environmental claim or
threatened claim, proceedings or notifications and all known
material instances of noncompliance with environmental laws.
4.4. The Company shall provide Investor with reports
that include a comparison of actual operating performance with
the Projections and Monthly Targets, in form and substance
reasonably satisfactory to Investor, on a monthly basis no later
than 30 days after the end of each month or daily basis not less
than the end of the business day following each day, as
appropriate.
4.5. The Company will promptly advise Investor, and
(other than with respect to actions respecting environmental
concerns and actions which are disclosed in Plan R-2) will afford
Investor with reasonable and timely opportunities to consult (as
deemed appropriate by Investor), regarding any material actions
to be taken or omitted by the Company with respect to the
proceedings in the Bankruptcy Court or with respect to any
material changes in its charter or bylaws, material capital
commitments, material capital expenditures, material financing
transactions (including renegotiations or other modifications to
existing material debt, credit or lease liabilities or
arrangements, material purchases or sales of assets, material
contracts or material litigation); provided, however, that,
notwithstanding anything else in this Agreement, ultimate control
of the business of the Company shall remain exclusively with the
Company until the Effective Date.
4.6. As soon as practicable, the Company and Investor
will make, and cooperate in making, all filings, applications,
requests for consents or similar authorizations for Regulatory
Approvals; provided that the Company and Investor each agrees to
make such filings and request any such Regulatory Approvals
required on its part by the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, or from the United States
Department of Transportation no later than April 15, 1994.
SECTION 5. Cooperation. The Company shall use all
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commercially reasonable efforts and endeavor in good faith and
without unreasonable delay (a) to develop with Investor and
jointly file a Plan consistent with the provisions of the
Investment Agreement, (b) to obtain the order described in
Section 16, (c) to obtain the Disclosure Statement Order, (d) to
obtain the Confirmation Order and (e) subject to the entry of the
Confirmation Order, to consummate the transactions contemplated
by the Investment Agreement and the Related Agreements, all
within the respective time periods set forth in the Investment
Agreement. Investor agrees to cooperate in good faith as
reasonably requested by the Company in performing the obligations
in the preceding sentence. The Company shall consult and
coordinate with Investor with respect to all material filings,
hearings and other proceedings in the Bankruptcy Court,
including, without limitation, those that are pertinent (x) to
the Company's performance of its obligations under the Investment
Agreement, this Agreement and the Related Agreements, or to the
satisfaction of the conditions to the consummation of the
transactions contemplated hereby or thereby or (y) to the entry
of the orders described above. Such consultation and
coordination shall include providing Investor with reasonable
opportunity to review and comment on all significant drafts of
the Plan and the disclosure statement accompanying the Plan (the
"Disclosure Statement").
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SECTION 6. Public Announcements. Unless otherwise
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mutually agreed, neither party hereto shall make or authorize any
public release of information regarding the matters contemplated
by this Agreement, the Investment Agreement and any Related
Agreement except (i) that a press release or press releases in
mutually agreed-upon form shall be issued by the parties as
promptly as is practicable following the execution of this
Agreement, (ii) that the parties may communicate with employees,
creditors and other parties in interest in the Company's
bankruptcy case, customers, suppliers, stockholders, bondholders,
lenders, lessors, regulatory authorities, analysts, stock
exchanges and other particular groups including prospective
lenders and investor groups, as may be necessary or appropriate
and not inconsistent with the provisions of Section 1 and the
prompt consummation of the transactions contemplated by this
Agreement, the Investment Agreement and any Related Agreement, it
being understood that each party hereto will keep the other
reasonably informed with respect to such communications which are
material and not confidential and (iii) as either party on advice
of legal counsel shall reasonably deem necessary in complying
with applicable law.
SECTION 7. Confidentiality. (a) Neither party (the
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"Recipient") will in any manner, directly or indirectly, disclose
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in whole or in part, any confidential or proprietary information
(including, without limitation, information concerning the
Alliance Agreements) of the other party (the "Protected Party")
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that comes, or has come, into the possession of the Recipient in
connection with the transactions contemplated hereby (the
"Confidential Information") to any Person or use such
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Confidential Information for commercial gain or competitive
advantages or in any way detrimental to the Protected Party;
provided, however, that Confidential Information may be disclosed
to Representatives (as defined below) of the Recipient, to any
prospective investor in the Contemplated Securities or to any
prospective lender to Investor or the Company who needs to know
the Confidential Information for purposes of participating in or
financing the transactions contemplated hereby, it being
understood that all such Representatives will be advised by the
Recipient of the confidential nature of such Confidential
Information and that, by receiving such Confidential Information,
they are agreeing to be bound by this Section. The Company and
Investor shall use their commercially reasonable efforts to
assure that their respective Representatives adhere to the terms
of this Section.
(b) As used herein with respect to any Person, the term
"Representative" shall include (i) any and all officers,
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directors, employees, affiliates, agents, partners and
representatives of such Person, (ii) all lawyers, financial
advisers, appraisers, accountants, other professionals or
consultants (and their respective officers, directors, employees,
affiliates, agents, partners and representatives) engaged by such
Person and (iii) any prospective purchaser of any Contemplated
Securities and any prospective lender that is considering making
a loan to the Company or Investor to assist in the consummation
of the transactions contemplated hereby, by the Investment
Agreement or by the Related Agreements and their respective
lawyers, financial advisers, appraisers, accountants, other
professionals or consultants (and their respective officers,
directors, employees, affiliates, agents, partners and
representatives) engaged by such prospective purchaser or lender.
(c) The Recipient shall not be obligated to maintain any
Confidential Information in confidence to the extent that (i) the
Confidential Information is or becomes public knowledge other
than through the breach by the Recipient of this Section or any
other similar agreement binding on the Recipient, (ii) the
Confidential Information is or becomes available on an
unrestricted basis to the Recipient from a source other than the
Protected Party (or its Representatives), or (iii) the
Confidential Information is required to be disclosed pursuant to
court order or government action.
(d) Upon termination of this Agreement (i) if requested
by the Company, and if no dispute between Investor and the
Company or any other Person is pending or in the reasonable
judgment of Investor foreseeable, Investor will destroy all
Confidential Information (including any analyses or reports that
incorporate any Confidential Information) in its possession
relating to the Company and shall certify such destruction and
(ii) if requested by Investor, and if no dispute between Investor
or any other Person and the Company is pending or in the
reasonable judgment of the Company foreseeable, the Company will
destroy all Confidential Information (including any analyses or
reports that incorporate any Confidential Information) in its
possession relating to Investor and shall certify such
destruction.
(e) The foregoing provisions of this Section shall not
apply to any partner of Investor if and to the extent such
provisions are inconsistent with any written agreement relating
to the subject matter of this Section between the Company and
such partner.
(f) The Company shall, upon the request of the
Creditors' Committee or Equity Committee, provide such Committee
with copies of the Confidential Information which is provided to
and/or by Investor pursuant to the provisions of this Agreement,
the Investment Agreement and the Related Agreements following
receipt from such Committee and each of its Representatives who
will have access to such Confidential Information of a written
confidentiality agreement which contains provisions which provide
the Company and Investor protection for such Confidential
Information at least equivalent, in all material respects, to
that provided pursuant to this Section 7 and which contains other
terms and conditions which are reasonably required by the Company
and Investor.
(g) This Section shall survive termination of this
Agreement.
SECTION 8. Liability. Notwithstanding any provision
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hereof or in the Investment Agreement (or any implication of such
provision) to the contrary, it is expressly agreed that:
8.1. Investor (including any affiliate, partner,
agent, advisor or Representative thereof) shall not have nor
be under any liability of any nature whatsoever to the
Company, the estate of the Company, any trustee, any
committee of creditors or of equity security holders or any
party in interest in the bankruptcy case concerning the
Company, nor to any other Person whatsoever, arising out of
or in any manner connected with this Agreement, the
Investment Agreement or any Related Agreement, or any
actions, inactions or omissions in any manner relating
hereto or thereto or to any actions or transactions
contemplated hereby or thereby, whether occurring prior to
or after the date hereof, except to the extent that Investor
is liable to the Company for damages which are found in a
final judgment by a court of competent jurisdiction to have
resulted from (i) any material breach by Investor of an
express obligation or undertaking contained in this
Agreement, the Investment Agreement or any Related Agreement
or any material breach (as of the date made) by Investor of
an express representation or warranty contained in this
Agreement, the Investment Agreement or any Related Agreement
or for any act of bad faith or willful or deliberate
wrongdoing by Investor, which bad faith, breach or
wrongdoing is not discontinued or remedied promptly (and in
any event within seven days) after written notice thereof
specifying the same in reasonable detail from the Company or
(ii) any untrue statement or alleged untrue statement of a
material fact contained in the Disclosure Statement or in
any offering document pursuant to which any or all of the
securities of the Company in connection with and as part of
the transactions contemplated by the Agreements (the
"Contemplated Securities") may be placed or offered or the
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omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission
was made in such offering document in reliance upon and in
conformity with written information furnished by Investor
specifically for inclusion therein or (iii) any action or
inaction in respect of which the Company is entitled to
indemnification under Section 9.
8.2. The Company (including any affiliate,
stockholder, director, officer, agent, advisor or
Representative thereof) shall not have nor be under any
liability of any nature whatsoever to Investor or any of its
partners or affiliates, nor to any other Person whatsoever,
arising out of or in any manner connected with this
Agreement, the Investment Agreement or any Related
Agreement, or any actions, inactions or omissions in any
manner relating hereto or thereto or to any actions or
transactions contemplated hereby or thereby, whether
occurring prior to or after the date hereof, except to the
extent that the Company is liable to Investor for damages
which are found in a final judgment by a court of competent
jurisdiction to have resulted from (i) any material breach
by the Company of an express obligation or undertaking
contained in this Agreement, the Investment Agreement or any
Related Agreement or any material breach (as of the date
made) by the Company of an express representation or
warranty contained in this Agreement, the Investment
Agreement or any Related Agreement or for any act of bad
faith or willful or deliberate wrongdoing by the Company,
which bad faith, breach or wrongdoing is not discontinued or
remedied promptly (and in any event within seven days) after
written notice thereof specifying the same in reasonable
detail from Investor or (ii) any untrue statement or alleged
untrue statement of a material fact contained in the
Disclosure Statement or in any offering document pursuant to
which any or all of the Contemplated Securities may be
placed or offered or the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
except to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or
alleged omission was made in such offering document in
reliance upon and in conformity with written information
furnished by Investor or any of its partners specifically
for inclusion therein or (iii) any action or inaction in
respect of which Investor is entitled to indemnification
under Section 9.
8.3. No partner of the Investor shall have or be
under any liability by reason of any negligence or asserted
negligence or any material breach or willful or deliberate
wrongdoing of any other partner of Investor.
8.4. No consequential, exemplary or punitive damages
shall under any circumstances be recoverable against
Investor, the Company or any other Indemnified Party (as
defined in Section 9) in respect of any claim relating to
this Agreement or the Investment Agreement or in connection
with the consummation of or any failure to consummate the
transactions contemplated hereby or thereby.
SECTION 9. Indemnity.
---------
9.1. As used herein:
(a) "Losses" means (i) in the case of any Investor
------
Indemnified Party, any and all losses, claims, damages,
liabilities, fines, fees, penalties, deficiencies and
expenses (including, but not limited to, interest,
court costs, fees and expenses of attorneys,
accountants, and other experts or other expenses of
litigation or other proceedings or of any claim, default
or assessment) incurred by such Investor Indemnified
Party as a result of any third party claim asserted
against such Investor Indemnified Party on account of
any breach of any representation or warranty of the
Company contained in this Agreement, the Investment
Agreement or any Related Agreement, or any breach or
alleged breach of any of the Company's covenants or
obligations contained herein or therein and (ii) in the
case of any Company Indemnified Party, any and all
losses, claims, damages, liabilities, fines, fees,
penalties, deficiencies and expenses (including, but
not limited to, interest, court costs, fees and expenses
of attorneys, accountants, and other experts or other
expenses of litigation or other proceedings or of any
claim, default or assessment) incurred by such Company
Indemnified Party as a result of any third party claim
asserted against such Company Indemnified Party on
account of any any breach or alleged breach of any
representation or warranty of Investor contained in this
Agreement, the Investment Agreement or any Related
Agreement, or any breach or alleged breach of any of
Investor s covenants or obligations contained herein or
therein.
(b) "Investor Indemnified Party" means Investor or
---------------------------
any of its partners, affiliates, controlling persons or
employees.
(c) "Company Indemnified Party" means the Company
--------------------------
or any of its partners, affiliates, controlling persons,
directors or employees.
(d) "Indemnified Party" means a Company Indemnified
-----------------
Party or an Investor Indemnified Party, as the case may
be.
(e) "Indemnifying Party" means the Company or
-------------------
Investor, as the case may be.
9.2. Subject to Section 9.4 and to Section 3(e), the
Company agrees to indemnify each Investor Indemnified Party
from and against any and all Losses incurred by such
Investor Indemnified Party, whether prior to or after the
date hereof.
9.3.Subject to Section 9.5, Investor agrees to indemnify
each Company Indemnified Party from and against any and all
Losses incurred by such Company Indemnified Party, whether
prior to or after the date hereof.
.
9.4. The Company will not be liable under this
Section 9 for Losses which consist of Expenses covered by
Section 2 (which Expenses shall only be payable in the
manner and subject to the limitations set forth in Sections
2 and 3), nor shall the Company be liable to any Investor
Indemnified Party to the extent that any Loss is found in a
final judgment by a court of competent jurisdiction to have
resulted from (i) any breach by such Investor Indemnified
Party of an express obligation or undertaking pursuant to
this Agreement, the Investment Agreement or any of the
Related Agreements or any act of bad faith or willful or
deliberate wrongdoing by such Investor Indemnified Party,
which bad faith, breach or wrongdoing is not discontinued or
remedied promptly (and in any event within seven days) after
written notice thereof specifying the same in reasonable
detail from the Company or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any
offering document pursuant to which any or all of the
Contemplated Securities may be placed or offered or the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading if, and to the extent
that, such untrue statement or alleged untrue statement or
omission or alleged omission was made in such offering
document in reliance upon and in strict conformity with
written information furnished by such Investor Indemnified
Party specifically for inclusion therein, or
(iii) investment losses in respect of the Contemplated
Securities incurred by such Investor Indemnified Party.
9.5. Investor will not be liable under this Section 9
to any Company Indemnified Party to the extent that any Loss
is found in a final judgment by a court of competent
jurisdiction to have resulted from (i) any breach by such
Company Indemnified Party of an express obligation or
undertaking pursuant to this Agreement, the Investment
Agreement or any of the Related Agreements or any act of bad
faith or willful or deliberate wrongdoing by such Company
Indemnified Party, which bad faith, breach or wrongdoing is
not discontinued or remedied promptly (and in any event
within seven days) after written notice thereof specifying
the same in reasonable detail from Investor or (ii) any
untrue statement or alleged untrue statement of a material
fact contained in any offering document pursuant to which
any or all of the Contemplated Securities may be placed or
offered or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading, except to the
extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission
was made in such offering document in reliance upon and in
strict conformity with written information furnished by such
Investor Indemnified Party specifically for inclusion
therein or (iii) investment losses in respect of the
Contemplated Securities incurred by such Company Indemnified
Party.
9.6. If the indemnification of an Indemnified Party
provided for in this Section 9 is for any reason held
unenforceable, the Indemnifying Party agrees to contribute
to the Losses for which such indemnification is held
unenforceable (x) in such proportion as is appropriate to
reflect the relative benefits or proposed benefits to the
Indemnifying Party, on the one hand, and such Indemnified
Party, on the other hand, of the Agreements (whether or not
the Agreements are entered into and whether or not any
transaction or action pursuant thereto is consummated) or
(y) if (but only if) the allocation provided for in clause
(x) is for any reason held unenforceable, in such proportion
as is appropriate to reflect not only the relative benefits
referred to in clause (x) but also the relative fault of the
Indemnifying Party, on the one hand, and such Indemnified
Party, on the other hand, as well as any other relevant
equitable considerations. The Indemnifying Party agrees
that for the purposes of this paragraph, the relative
benefits or proposed benefits to the Indemnifying Party and
such Indemnified Party of the Agreements shall be deemed to
be in the same proportion that the total value paid or
issued to, or to be paid or issued to, the Indemnifying
Party, its creditors or its security holders, as the case
may be, as a result of or in connection with the Agreements
bears to the amount received by such Indemnified Party
pursuant to the Agreements (whether in the form of fees paid
to such Indemnified Party or the reimbursement of expenses
provided by the Indemnified Party to such Party).
9.7. Without the Indemnified Party's prior written
consent (which consent shall not be unreasonably withheld),
no Indemnifying Party will settle, compromise or consent to
the entry of any judgment in any pending or threatened
claim, action or proceeding in respect of which
indemnification could reasonably be expected to be sought
against such Indemnifying Party by such Indemnified Party
under this Section 9 (whether or not such Indemnified Party
is an actual party to such claims, action or proceeding),
unless such settlement, compromise or consent includes an
unconditional release of such Indemnified Party from all
liability arising out of such claim, action or proceeding.
9.8. The provisions herein in respect of any
Indemnified Party shall not be affected, or the obligations
of the Indemnifying Party hereunder as to any Indemnified
Party in any manner reduced or limited, by any action,
inaction, omission, breach or default of any Person (other
than of such Indemnified Party and its officers, directors,
employees, agents, advisors, Representatives and controlling
Persons), but then only to the extent provided hereby.
9.9. Without the prior written consent of the
Indemnifying Party (which consent shall not be unreasonably
withheld), no Indemnified Party shall settle, compromise or
consent to the entry of any judgment in any pending or
threatened claim, action or proceeding in respect of which
indemnification from the Indemnifying Party could reasonably
be expected to be sought by such Indemnified Party under
this Section 9 unless such Indemnified Party unconditionally
releases the Indemnifying Party from any and all
indemnification obligations to it arising out of such claim,
action or proceeding.
9.10. Promptly after any Indemnified Party becomes
aware of the existence of facts or other information which
could reasonably be expected to give rise to a claim by such
Indemnified Party for indemnification under this Section 9,
such Indemnified Party will provide written notice thereof
to the Indemnifying Party describing such facts and other
information in reasonable detail. The failure of an
Indemnified Party to give notice in the manner and at the
time provided herein shall not relieve the Indemnifying
Party of its obligations under this Section 9, except to the
extent that the Indemnifying Party actually is prejudiced in
any material respect by such failure to give notice. Any
notice given the Indemnifying Party pursuant to this Section
9.10 shall contain a statement to the effect that the
Indemnified Party giving such notice is making or may in the
future make a claim pursuant to and a formal demand for
indemnification under this Section 9.
9.11. Upon the commencement of any claim, action or
proceeding in respect of which indemnification could be
sought by an Indemnified Party under this Section 9, the
Indemnifying Party shall have the right, with counsel
selected by it (which counsel shall be reasonably
satisfactory to the Indemnified Party), to assume the
defense of such claim, action or proceeding and the
Indemnified Party shall cooperate with the Indemnifying
Party, at the sole cost and expense of the Indemnifying
Party, in connection with such defense. In the event that
the Indemnifying Party selects counsel to defend any claim,
action or proceeding in respect of which indemnification
could be sought by any Indemnified Party under this Section
9 and such counsel determines (or such Indemnified Party
reasonably determines) that issues exist with respect to
such claim, action or proceeding which give rise to a
conflict between the interests of the Indemnifying Party and
such Indemnified Party, then such Indemnified Party shall be
entitled, at the Company's expense, to retain separate
counsel regarding such issues.
SECTION 10. Assignment of this Agreement. This
------------------------------
Agreement shall be binding upon and shall inure to the benefit of
the parties to this Agreement and their successors and permitted
assigns without limitation. Neither this Agreement nor any of
the rights and obligations of any party to this Agreement may be
assigned without the consent of the other party hereto; provided,
however, that Investor may assign any or all of its rights under
this Agreement to any partner, affiliate, related party, or
representative of Investor or to any fund or account managed or
advised by Fidelity Management Trust Company. No such assignment
shall relieve either party hereto of any obligations hereunder,
under the Investment Agreement or under any Related Agreement.
SECTION 11. Notices. All notices required to be given
-------
under this Agreement shall be in writing (including
telecommunication transmission), shall be effective when received
and shall be addressed as follows:
If to the Company:
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: W. A. Franke and Martin J. Whalen
Fax Number: (602) 693-5904
with a copy to:
LeBoeuf, Lamb, Greene & MacRae
633 17th Street, Suite 2800
Denver, Colorado 80202
Attention: Carl A. Eklund
Fax Number: (303) 297-0422
and a copy to:
Andrews & Kurth, L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: David G. Elkins
Fax Number: (713) 220-4285
and a copy to:
Lord, Bissell and Brook
115 South LaSalle Street
Chicago, Illinois 60603
Attention: Benjamin Waisbren
Fax Number: (312) 443-0336
and a copy to:
Murphy, Weir & Butler
101 California Street, 39th Floor
San Francisco, California 94111
Attention: Patrick A. Murphy
Fax Number: (415) 421-7879
If to Investor:
AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax Number: (817) 338-2064
with a copy to:
Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Attention: Richard P. Schifter
Fax Number: (202) 872-6720
and a copy to:
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Fax Number: (216) 586-7864
and a copy to:
Lord Bissell and Brook
115 South LaSalle Street
Chicago, IL 60603
Attention: Benjamin Waisbren
Fax Number: (312) 443-0336
and a copy to:
Murphy, Weir & Butler
101 California Street, 39th Floor
San Francisco, California 94111
Attention: Patrick A. Murphy
Fax Number: (415) 421-7879
or to such other address as either party hereto may designate to
the other party to this Agreement in accordance with this
Section.
SECTION 12. Counterparts. This Agreement may be
------------
executed in one or more counterparts and by telecopy, each of
which shall be deemed to constitute an original and all of which
shall be considered one and the same instrument. With respect to
signatures transmitted by telecopy, upon request by either party
to the other party, an original signature of such other party
shall promptly be substituted for its facsimile.
SECTION 13. Entire Agreement. This Agreement sets
-----------------
forth the entire agreement and understanding of the parties with
respect to the subject matter of this Agreement and, except as
otherwise set forth herein, supersedes all prior agreements and
understandings with respect to the subject matter thereof
(including, without limitation, the Expense Reimbursement
Agreement previously entered into by the Company and Investor but
excluding any existing confidentiality agreement between the
Company and any Affiliate of Investor). This Agreement may only
be amended, supplemented or modified by a written instrument
signed by authorized representatives of each of the parties
hereto.
SECTION 14. Governing Law, etc. Except to the extent
------------------
inconsistent with the Bankruptcy Code, this Agreement shall be
governed by and construed in accordance with the laws of the
State of Arizona, without reference to principles of choice or
conflicts of laws under which the law of any other jurisdiction
would apply.
SECTION 15. Invalid Provisions. If any provision of
-------------------
this Agreement is held to be illegal, invalid or unenforceable
under any present or future laws, rules or regulations, and if
the rights or obligations of Investor and the Company under this
Agreement will not be materially and adversely affected thereby,
(a) such provision will be fully severable, (b) this Agreement
will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof,
(c) the remaining provisions of this Agreement will remain in
full force and effect and will not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom
and (d) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in
terms of such illegal, invalid or unenforceable provision as may
be possible. If the rights and obligations of Investor or the
Company will be materially and adversely affected by any such
provision held to be illegal, invalid or unenforceable, then
unless such provision is waived in writing by the affected party
in its sole discretion, this Agreement shall be null and void.
SECTION 16. Bankruptcy Court Approval. This Agreement
-------------------------
shall not become effective for any purpose unless and until the
Bankruptcy Court shall have entered an order approving this
Agreement.
SECTION 17. Jurisdiction of Bankruptcy Court. The
-----------------------------------
parties agree that the Bankruptcy Court shall have and retain
jurisdiction to enforce and construe the provisions of this
Agreement.
SECTION 18. No Third Party Beneficiary. This
--------------------------------
Agreement and the Investment Agreement are made solely for the
benefit of the Company and Investor, and no other Person
(including, without limitation, employees, shareholders and
creditors of the Company) shall have any right, claim or cause of
action under or by virtue of this Agreement or the Investment
Agreement, except to the extent such Person is entitled to
expense reimbursement pursuant to this Agreement or may assert a
claim for indemnity pursuant to this Agreement.
SECTION 19. Interpretation. In this Agreement, unless
--------------
a contrary intention appears, (i) the words "herein", "hereof"
and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section or other
subdivision and (ii) reference to any Section means such Section
hereof. The Section headings herein are for convenience only and
shall not affect the construction hereof. No provision of this
Agreement shall be interpreted or construed against either party
solely because such party or its legal representative drafted
such provision.
SECTION 20. Termination. (a) Anything herein or
-----------
elsewhere to the contrary notwithstanding, this Agreement and the
Investment Agreement may be terminated at any time prior to the
Effective Date:
(i) by mutual consent of Investor and the Company;
(ii) by either Investor or the Company if a domestic
court of competent jurisdiction or a domestic Regulatory
Authority of competent jurisdiction shall have issued an
order, decree or ruling or taken any other action, in each
case permanently restraining, enjoining or otherwise
prohibiting the Investment, and such order, decree or ruling
or other action shall have become final and non-appealable;
provided, however, that in no event shall Investor be
entitled to terminate this Agreement or the Investment
Agreement pursuant to this clause (ii) on account of the
issuance of any order, decree or ruling or the taking of any
other action relating to antitrust laws or regulations;
(iii) by Investor if:
(A) any of the conditions specified in Section 8(a),
8(g), 8(n), 8(p), 8(r) or 8(s) of the Investment
Agreement has not been satisfied by the respective
deadlines (as extended from time to time) set forth with
respect thereto in such clauses for any reason other
than (1) a material breach by Investor of any of its
representations, warranties, covenants or obligations
under this Agreement, the Investment Agreement or any
Related Agreement or (2) the issuance of any order,
decree or ruling or the taking of any other action
relating to antitrust laws or regulations;
(B) any of the other conditions precedent set forth
in Section 8 of the Investment Agreement has not been
or, in the reasonable good faith determination of
Investor, will not be able to be satisfied by the
Outside Date for any reason other than (1) a material
breach by Investor of any of its representations,
warranties, covenants or obligations under this
Agreement, the Investment Agreement or any Related
Agreement or (2) the issuance of any order, decree or
ruling or the taking of any other action relating to
antitrust laws or regulations; or
(C) any of the Company's representations or
warranties made herein, in the Investment Agreement or
in any Related Agreement prove to have been inaccurate
in any material respect when made;
provided, however, that Investor shall not be entitled to
terminate this Agreement pursuant to this clause (iii) at a
time when Investor (or its Affiliates) shall be in material
breach of any of its representations, warranties, covenants
or obligations under this Agreement, the Investment
Agreement or any Related Agreement; and, provided further,
however, that upon Investor becoming aware of any breach by
the Company of any of its representations, warranties,
covenants or obligations hereunder or under the Investment
Agreement or any of the Related Agreements, or the
occurrence or nonoccurrence of any other event, in any such
case which would give Investor the ability to terminate this
Agreement pursuant to the provisions of this clause (iii),
Investor promptly shall notify the Company, the Equity
Committee and the Creditors' Committee of the existence of
such breach and provide the Company seven business days to
cure such breach or remedy such occurrence or nonoccurrence
before exercising the termination right granted hereunder;
(iv) by the Company if:
(A) any of the conditions specified in Section 9 of
the Investment Agreement has not been or, in the
reasonable good faith determination of the Company, will
not be able to be satisfied by the Outside Date for any
reason other than a material breach by the Company of
any of its representations, warranties, covenants or
obligations under this Agreement, the Investment
Agreement or any Related Agreement; or
(B) any of the Investor's representations or
warranties made herein, in the Investment Agreement or
in any Related Agreement prove to have been inaccurate
in any material respect when made;
provided, however, that the Company shall not be entitled to
terminate this Agreement pursuant to this clause (iv) at a
time when the Company shall be in material breach of any of
its representations, warranties, covenants or obligations
under this Agreement, the Investment Agreement or any
Related Agreement; and, provided further, however, that upon
the Company becoming aware of any breach by Investor of any
of its representations, warranties, covenants or obligations
hereunder or under the Investment Agreement or any of the
Related Agreements, or the occurrence or nonoccurrence of
any other event, in any such case which would give the
Company the ability to terminate this Agreement pursuant to
the provisions of this clause (iv), the Company promptly
shall notify Investor, the Equity Committee and the
Creditors' Committee of the existence of such breach and
provide Investor seven business days to cure such breach or
remedy such occurrence or nonoccurrence before exercising
the termination right granted hereunder;
(v) by the Company as contemplated by Section 1(c); or
(vi) by either the Company or the Investor if the
Effective Date has not occurred by December 31, 1994.
(b) In the event of the termination of this Agreement by
either party pursuant to paragraph (a) above, written notice
thereof shall be promptly given to the other party and, subject
to paragraph (d) below, this Agreement and the Investment
Agreement shall terminate and the transactions contemplated
hereby and thereby shall be abandoned without further action by
Investor or the Company.
(c) This Agreement shall automatically terminate upon
confirmation of a plan of reorganization (other than the Plan)
prior to the Outside Date (as defined in the Investment
Agreement).
(d) In the event of the termination of this Agreement as
provided in paragraph (a) or (c) above, (i) this Agreement, the
Investment Agreement and the Related Agreements shall forthwith
become null and void, and there shall be no liability on the part
of any Investor or the Company or any of their respective
partners, officers, directors, employees, agents or stockholders,
except for fraud or for willful breach of this Agreement, the
Investment Agreement (but only if the Confirmation Order is
entered) or the Related Agreements and except that the parties
shall continue to be obligated as set forth in Sections 2, 3, 7,
8, 9, 17 and 18 of this Agreement and in Sections 28(b) and 30 of
the Investment Agreement, all of which Sections shall survive the
termination of this Agreement. The termination of this Agreement
and the Investment Agreement pursuant to paragraph (a) above
shall become effective when (y) in the case of a termination
pursuant to clause (i) of paragraph (a) above, the required
consent is executed and (z) in the case of a termination pursuant
to any other clause of paragraph (a) above, the required notice
is given by the terminating party. No termination of this
Agreement pursuant to this Section 20 shall constitute a breach
of this Agreement. The termination of this Agreement and the
Investment Agreement shall not cause or constitute a termination
of any existing confidentiality agreement between the Company and
one or more Affiliates of Investor.
SECTION 21. Privileged Communication. The parties
-------------------------
hereto anticipate that, being similarly situated and having a
common interest in the Company's bankruptcy case with respect to
the Plan, and in anticipation of potential litigation with other
constituents of the Company, they may share certain documents,
information, factual materials, mental impressions, memoranda,
reports, and attorney-client communications that may be
privileged from disclosure to adverse or other parties as a
result of the attorney-client privilege, the attorney work
product privilege, or other applicable privileges. The parties
hereto agree that the sharing of such information or materials
shall not diminish in any way the confidentiality of such
information or materials and shall not constitute a waiver of any
applicable privilege.
IN WITNESS WHEREOF, the Company and Investor, by their
respective officers thereunto duly authorized, have executed this
Agreement as of the date first above written.
AMERICA WEST AIRLINES, INC.
as Debtor and Debtor-in-Possession
By: _______________________________
Title: ____________________________
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.,
its General Partner
By: _______________________________
Title: ____________________________