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EXHIBIT 10.49
AMENDMENT NO. 3 TO REVOLVING CREDIT AGREEMENT
This Amendment No. 3 dated July 31, 2001 ("Amendment No. 3") to the
Amended and Restated Revolving Credit Agreement dated as of December 10, 1999
(as amended from time to time, the "Loan Agreement;" capitalized terms used
herein and not otherwise defined herein are used as defined in the Loan
Agreement) among America West Airlines, Inc. (the "Company") the lenders listed
therein (collectively, the "Lenders"), The Industrial Bank of Japan, Limited, as
Arranger, Co-Lead Book Manager, Initial Issuing Bank and as Agent for the
Lenders from time to time party to the Loan Agreement (in such capacity, the
"Agent"), Citicorp USA, Inc., as Arranger and Syndication Agent, Salomon Smith
Barney Inc., as Co-Lead Book Manager and Bankers Trust Company, as Documentation
Agent:
WHEREAS, the Company, the Agent and the institutions from time to time
becoming Lenders thereunder have entered into the Loan Agreement;
WHEREAS, the Company, the Requisite Lenders and the Agent have amended
the Loan Agreement by Amendment No. 1 dated as of April 16, 2001 ("Amendment No.
1") and desire to amend the Loan Agreement hereby and by Amendment No. 2 dated
the date hereof ("Amendment No. 2");
NOW, THEREFORE, the parties hereto agree to amend the Loan Agreement
and to such additional terms as follows:
1. Section 1.1 of the Loan Agreement is amended by inserting the
following defined term in appropriate alphabetical order:
"AMENDMENT NO. 3 EFFECTIVE DATE" means the date the Agent
notifies the Company that all conditions precedent to the effectiveness
of Amendment No. 3 to this Agreement, as set forth in such Amendment
No. 3, have been satisfied.
"FINANCING" means an issuance by the Company of up to
$250,000,000 of senior unsecured notes substantially in the form shown
in the Preliminary Offering Memorandum, of which a draft dated July 19,
2001 was provided to the Agent, or any other financing (or series of
financings) arranged by the Company, in either case on market terms,
which in either case is intended to provide the Company with not less
than $140,000,000 in proceeds to the Company net of customary fees and
other out-of-pocket expenses incurred in connection with such
financing. Such financing or financings may not subordinate or
otherwise adversely affect the rights of the Agent or the Lenders in
the Collateral.
The amendment set forth in this section shall be effective for the
period from and after the date hereof, notwithstanding any other term hereof to
the contrary.
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2. Section 1.1 of the Loan Agreement is further amended by replacing
the table set forth in the definition of the term "APPLICABLE MARGIN" with the
following table:
Revolving Period
Rating LIBOR Margin/Base Rate Margin
------ -----------------------------
Below B2 by Moody's or 4.25% / 3.25%
Below B by S&P
B2 by Moody's or 3.50% / 2.50%
B by S&P
B1 by Moody's or 3.00% / 2.00%
B+ by S&P
Ba3 by Moody's or 2.75% / 1.75%
BB- by S&P
Ba2 by Moody's or 2.50% / 1.50%
BB by S&P
The amendment set forth in this section shall be effective for the
period from and after the date hereof, notwithstanding any other term hereof to
the contrary.
3. Section 1.1 of the Loan Agreement is further amended by replacing the table
set forth in the definition of the term "COMMITMENT FEE RATE" with the following
table:
Rating Rate
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Below B2 by Moody's or 1.125%
Below B by S&P
B2 by Moody's or .875%
B by S&P
B1 by Moody's or .75%
B+ by S&P
Ba3 by Moody's or .70%
BB- by S&P
Ba2 by Moody's or .625%
BB by S&P
The amendment set forth in this section shall be effective for the
period from and after the date hereof, notwithstanding any other term hereof to
the contrary.
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4. Subsection 2.4B(iii) of the Loan Agreement is amended by adding a
new clause (3) at the end thereof as follows:
(3) Prepayments due to a Financing. The Company shall promptly
notify the Agent of each and every proposed financing transaction that
would constitute all or part of the Financing. The Company shall
promptly notify the Agent of the date that the Company expects that the
proceeds of such transactions will have provided the Company with an
aggregate of at least $140,000,000 in proceeds net of customary fees
and other out-of-pocket expenses. Within five Business Days after the
closing of the Financing (or, if the Financing consists of a series of
transactions, the closing of the transaction that results in such
aggregate proceeds being provided to the Company), the Company will
prepay, without premium or penalty (other than pursuant to subsection
2.6D, if applicable), all amounts outstanding under the Commitments by
applying the proceeds of such transactions as provided in Section 5.12.
The amendment set forth in this section shall be effective for the
period from and after the date hereof, notwithstanding any other term hereof to
the contrary.
5. Subsection 2.10C(1) of the Loan Agreement is amended by deleting the
word "and" immediately preceding "(D)" in the first sentence of such subsection
and by adding the following at the end of such sentence before the period: ",
and (E) any appraisal delivered pursuant to the terms of Section 2.10E or of
Amendment No. 2 to this Agreement." The amendment set forth in this section
shall be effective for the period from and after the date hereof,
notwithstanding any other term hereof to the contrary.
6. A new Section 2.10E is added immediately after Section 2.10D of the
Loan Agreement. Section 2.10E shall read as follows:
E. ADDITIONAL APPRAISALS.
Not more often than once in each calendar quarter, upon
request of the Agent, the Company shall provide the Agent a
desk top appraisal of the Rotables and Spare Engines
constituting part of the Borrowing Base Collateral,
satisfactory to the Agent, by an Approved Appraiser selected
by the Agent. Not more often than once in any six-month
period, upon request of the Agent, the Company shall provide
the Agent an appraisal and inspection report covering the
Rotables and Spare Engines constituting part of the Borrowing
Base Collateral by an Approved Appraiser selected by the
Agent. In the case of Rotables only, an inspection of the
Rotables shall mean an inspection of a sample of the Rotables
by the Approved Appraiser for the purpose of determining the
accuracy of the inventory reports maintained by the Company
for
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the Rotables. The Company shall pay all costs of the
appraisals and inspection reports furnished pursuant to the
terms of this Section 2.10E. The terms of this Section 2.10E
shall not limit the rights of the Agent or Lenders under any
other section hereof or of any Security Agreement. Any
appraisal delivered pursuant to the terms of this Section
2.10E shall be considered an Approved Appraisal for all
purposes including without limitation calculating the
Borrowing Base.
The amendment set forth in this section shall be effective for the
period from and after the Amendment No. 3 Effective Date.
7. Subsection 5.1(xvii) of the Loan Agreement is amended by adding the
following at the end of such subsection before the period: "including without
limitation offering memoranda, prospectuses, or other documents and information,
whether publicly available or not, regarding the Financing." The amendment set
forth in this section shall be effective for the period from and after the date
hereof, notwithstanding any other term hereof to the contrary.
8. Section 5 of the Loan Agreement is amended by adding the following
at the end of such section:
5.12 USE OF PROCEEDS OF FINANCING
The Company may apply the proceeds of each financing
transaction that is a Financing or is or could comprise part
of a Financing, net of customary fees and other out-of-pocket
expenses incurred by the Company in connection with such
transaction, only (i) to prepay amounts outstanding under the
Commitments as required by Section 2.4B(iii)(3), (ii) for
working capital and other general corporate purposes, and
(iii) in the case of any proceeds that exceed a net aggregate
(after the payment of such customary fees and other
out-of-pocket expenses) of $140,000,000, for any purpose that
does not otherwise violate any provision of this Agreement.
The amendment set forth in this section shall be effective for the
period from and after the date hereof, notwithstanding any other term hereof to
the contrary.
9. The amendments to the Loan Agreement described in Sections 3, 5, and
7 of Amendment No. 2 are hereby rescinded with effect for the period from and
after the Amendment No. 3 Effective Date. From and after the Amendment No. 3
Effective Date, the phrase "fifty percent (50%)" set forth in Exhibit IX to the
Loan Agreement shall be replaced with "thirty percent (30%)" and "60%" set forth
in Section C of Exhibit IX shall be replaced with "40%." From and after the
Amendment No. 3 Effective Date, the phrase "clauses (i), (vii), (xi), and (xii)
of Section 6.3" set forth in clause (a) of Section 10 of Amendment No. 2 shall
be replaced with "clause (xi) of Section 6.3," but any Investments made on or
after July 31, 2001 but before the Amendment No. 3 Effective Date under clauses
(i), (vii), or (xii) of Section 6.3 of the Loan
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Agreement shall continue to be counted toward the $5,000,000 limit set forth in
such section. From and after the Amendment No. 3 Effective Date, the release
under the terms of Subsection 2.10B(ii)(1) of Borrowing Base Collateral in any
of the categories shown in the table below shall reduce the Borrowing Base as
shown in the table below for the respective category (and the pro forma
Borrowing Base Certificate required to be delivered under the terms of clause
(iv) of such subsection in connection with such release shall reflect such
reduction):
Category Reduction
Cash and Permitted Cash Equivalents 100% of the Dollar amount of the Cash or
Cash Equivalent
Stage III Aircraft (other than 737-200A
Series Aircraft) 92.5% of the Fair Market Value of the Aircraft
as stated in the Approved Appraisal thereof
delivered at the time of removal
737-200A Series Aircraft, Spare Engines or
Simulators 72.5% of the Fair Market Value of the
737-200A Series Aircraft, Spare
Engines or Simulators as stated in the
Approved Appraisal thereof delivered at
the time of removal
For any addition to the Borrowing Base Collateral either following any such
removal from the Borrowing Base Collateral, or contemporaneously with such
removal as contemplated by the terms of the second following sentence, the
percentages set forth for the various categories of Borrowing Base Collateral in
the definition of Borrowing Base in Section 1.1 of the Loan Agreement, as
amended, shall apply to the calculation of Borrowing Base. From and after the
Amendment No. 3 Effective Date, at no time may Borrowing Base Collateral be
added or removed if the effect of such action would be to reduce to less than
50% the proportion of the Borrowing Base attributable to Cash and Permitted Cash
Equivalents, Aircraft, and Spare Engines (after giving effect to the respective
percentages of Fair Market Value applicable to such categories of Borrowing Base
Collateral that are used to calculate Borrowing Base under the definition of
such term). In addition, from and after the Amendment No. 3 Effective Date, any
removal of Borrowing Base Collateral shall, in addition to reducing the
Borrowing Base as provided above, reduce the aggregate of the Lenders'
Commitments by the same Dollar amount (and shall proportionally reduce each
Lender's Commitment), unless at the time of such removal the Company adds
Borrowing Base Collateral in accordance with the terms of Section 2.10B(ii)(2)
of the Loan Agreement that is of the same category (as shown above in this
Section 9) as the removed Borrowing Base Collateral and has an appraised value
(as shown in an Approved Appraisal delivered to the Agent at the time of such
addition) (or Dollar value in the case of Cash or Cash Equivalents) at least
equal to that of the removed Borrowing Base Collateral (as shown in such
Approved Appraisal), and each such reduction in the Lenders' Commitments shall
be evidenced by a certificate executed by the Agent setting forth each Lender's
new Commitment. Any addition to the Borrowing Base Collateral thereafter shall
increase the Borrowing Base if the terms of the Loan Agreement would so provide
but shall not increase the aggregate of the Lenders' Commitments or any Lender's
Commitment. At the Company's expense, the Company shall deliver to the Agent at
the time of any addition or removal, or simultaneous addition and removal, of
Borrowing Base Collateral an Approved
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Appraisal of all added or removed Borrowing Base Collateral (other than Cash or
Cash Equivalents) and a pro forma Borrowing Base Certificate showing the effect
of such addition or removal and certifying that no Borrowing Base Deficiency
will result therefrom. It is acknowledged that the adjustments to the Lenders'
Commitments provided for in this section shall be used for all purposes of the
Loan Agreement including without limitation for the computation of the
commitment fees payable by the Company under the terms of Section 2.3A thereof.
10. The waiver of the terms of Section 6.5D of the Loan Agreement
provided in Section 9 of Amendment No. 2 is terminated with effect for the
period from and after the Amendment No. 3 Effective Date.
11. With effect from and after the Amendment No. 3 Effective Date,
Section 6.5A of the Loan Agreement is amended by deleting such section in its
entirety, and replacing such section with the following:
A. MINIMUM FIXED CHARGE COVERAGE RATIO. The Company shall not
permit the ratio of (i) EBITDA plus Aircraft Rental Expense to
(ii) Interest Expense plus Aircraft Rental Expense for any
four-fiscal quarter period ending as of the last day of any
fiscal quarter of the Company to be less than .70 to 1.00.
12. The Company agrees that the Liens on the Collateral granted
pursuant to the Security Agreements and any other agreements contemplated hereby
or by Amendment No. 2 shall serve as security for the due and punctual payment
of the Obligations as amended hereby and by Amendment No. 1 and Amendment No. 2.
13. The Amendment No. 3 Effective Date (as defined in Section 1) shall
occur on the date, if any, on or before October 31, 2001, when the Agent
determines acting promptly and in good faith that all of the following
conditions precedent have been satisfied:
(i) The Company shall have closed the Financing on or before
October 31, 2001 and shall have received at least $140,000,000 in
proceeds from the Financing net of customary fees and other
out-of-pocket expenses.
(ii) The Agent shall have received an Officer's Certificate of
the Company dated the Amendment No. 3 Effective Date stating that the
condition set forth in Section 13(i) has been satisfied.
(iii) The Company shall have repaid all outstanding principal
and accrued and unpaid interest on the Loan and all other outstanding
Obligations including without limitation all fees and expenses then due
and payable hereunder and under Amendment No. 2, and no Obligations
shall be outstanding on the Amendment No. 3 Effective Date.
(iv) The Agent shall have received a counterpart of this
Amendment No. 3 and of Amendment No. 2 duly executed and delivered by
the Company and the Requisite Lenders.
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(v) The Loan Agreement shall be in full force and effect, and
no Event of Default or Potential Event of Default shall have occurred
and be continuing (after giving effect to Amendment No. 2 and this
Amendment No. 3), and the Agent shall have received an Officer's
Certificate of the Company to such effect.
(vi) Each Lender that has executed and delivered this
Amendment No. 3 shall have received payment from the Company of a fee
in an amount equal to such Lender's Commitment multiplied by .0025.
(vii) The Company shall have paid all reasonable fees and
expenses of counsel to the Agent in connection with the Loan Agreement,
this Amendment No. 3 and the transactions contemplated thereby.
(viii) The Company shall have complied with such other
conditions as the Agent may specify in a closing list to be delivered
to the Company.
Promptly following or concurrently with satisfaction of the conditions
of Section 13(i) above, the Company shall take all actions necessary to cause
the other foregoing conditions to be satisfied and to prepay the Loans
contemplated by the terms of Section 4 hereof. The Company acknowledges that its
failure to take all such other actions may become an Event of Default under
Section 7.5 of the Loan Agreement.
14. If the Amendment No. 3 Effective Date shall not have occurred on or
before October 31, 2001, the provisions set forth herein that recite that they
are effective from and after the Amendment No. 3 Effective Date (which are set
forth in Sections 6, 9, 10, and 11 hereof) shall be null and void, and the terms
of Amendment No. 2 that would have been affected according to the terms of
Sections 9, 10, and 11 hereof shall remain in full force and effect. The terms
of this Amendment No. 3 other than those set forth in Sections 6, 9, 10, and 11
hereof shall be in full force and effect from and after the execution and
delivery hereof whether or not the Amendment No. 3 Effective Date occurs.
15. Each party hereto agrees that, to the maximum extent permitted by
the law of the State of New York, this Amendment No. 3, and the rights and
duties of the parties hereunder, shall be governed by, and construed in
accordance with, the laws of the State of New York (including Section 5-1401 of
the New York General Obligations Law) in all respects, including in respect of
all matters of construction, validity and performance but without giving effect
to any provision thereof that may require application of the laws of another
jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3
to be executed by their representative officers thereunto duly authorized, as of
the date first above written.
COMPANY:
AMERICA WEST AIRLINES, INC.
/s/ Stephen L. Johnson
By: ________________________________
Name: Stephen L. Johnson
Title: Senior Vice President
INITIAL ISSUING BANK, AGENT AND LENDER:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as Initial Issuing Bank, Agent
and Lender
/s/ Kazutoshi Kutrahara
By: ________________________________
Name: Kazutoshi Kutrahara
Title: General Manager
LENDERS:
CITICORP USA, INC.
/s/ George E. Moyer, Jr.
By: ________________________________
Name: George E. Moyer, Jr.
Title: Vice President
THE FUJI BANK, LIMITED
/s/ Steven Brennan
By: ________________________________
Name: Steven Brennan
Title: Senior Vice President
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THE MITSUBISHI TRUST AND BANKING
CORPORATION
/s/ Scott J. Paige
By: ________________________________
Name: Scott J. Paige
Title: Executive Vice President
BANKERS TRUST COMPANY
/s/ Marguerite Sutton
By: ________________________________
Name: Marguerite Sutton
Title: Vice President
BANK ONE, ARIZONA, NA
/s/ Dennis Warren
By: ________________________________
Name: Dennis Warren
Title: First Vice President
BANK OF SCOTLAND
/s/ Joseph Fratus
By: ________________________________
Name: Joseph Fratus
Title: Vice President