Exhibit 10.6
*** CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
Amendment No. 16
TO THE A319/A320/A321 PURCHASE AGREEMENT
dated as of October 31, 1997
between
AVSA, S.A.R.L.,
And
US AIRWAYS GROUP, INC.
This Amendment No. 16 (this "Amendment") entered into as of September 27, 2005,
by and between AVSA, S.A.R.L., a societe a responsabilite limitee organized and
existing under the laws of the Republic of France, having its registered office
located at 2, Rond Point Maurice Bellonte, 31700 Blagnac, France (the "Seller"),
and US Airways Group, Inc., a corporation organized and existing under the laws
of the State of Delaware, United States of America, having its executive offices
located at 2345 Crystal Drive, Arlington, VA 22227, U.S.A. (the "Buyer");
WITNESSETH:
WHEREAS, the Buyer and the Seller entered into an Airbus A319/A320/A321 Purchase
Agreement, dated as of October 31, 1997, relating to the sale by the Seller and
the purchase by the Buyer of certain Airbus A319, A320 and A321 model aircraft
(the "Aircraft"), which, together with all Exhibits, Appendices and Letter
Agreements attached thereto and as amended by Amendment No. 1 dated as of June
10, 1998, Amendment No. 2 dated as of January 19, 1999, Amendment No. 3 dated as
of March 31, 1999, Amendment No. 4 dated as of August 31, 1999, Amendment No. 5
dated as of October 29, 1999, Amendment No. 6 dated as of April 19, 2000,
Amendment No. 7 dated as of June 29, 2000, Amendment No. 8 dated as of November
27, 2000, Amendment No. 9 dated as of December 29, 2000, Amendment No. 10 dated
as of April 9, 2001, Amendment No. 11 dated as of July 17, 2002, Amendment No.
12 dated as of March 29, 2003, Amendment No. 13 dated as of August 30, 2004,
Amendment No. 14 dated as of December 22, 2004, and Amendment No. 15 dated as of
January 17, 2005, thereto is hereinafter called the "Agreement";
US Airways - A319/A320/A321 - AMENDMENT 16
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WHEREAS, the Buyer and the Seller are parties to the Memorandum of Understanding
among the Seller, the Buyer, US Airways, Inc., and America West Airlines, Inc.,
bearing AVSA No. 5343 and signed by all the parties thereto as of May 19, 2005
(the "MOU"); and
WHEREAS, the Buyer has requested, and the Seller has agreed, on the terms and
conditions set forth in this Amendment, to modify certain provisions of the
Agreement as set forth herein;
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
Capitalized terms used herein and not otherwise defined in this Amendment will
have the meanings assigned to them in the Agreement. The terms "herein,"
"hereof," and "hereunder" and words of similar import refer to this Amendment.
1. DEFINITIONS
Clause 1 of the Agreement is hereby amended by the addition of the
following text:
QUOTE
A350 Purchase Agreement - The A350 purchase agreement dated as of even
date herewith among the Seller, the Buyer, US Airways, Inc., and America
West Airlines, Inc. (the "A350 Purchase Agreement").
UNQUOTE
2. ASSUMPTION OF PURCHASE AGREEMENT
The Buyer will assume the Agreement in connection with its emergence from
the bankruptcy proceedings of the Buyer, US Airways, Inc. and certain of
their affiliates commenced on September 12, 2004, in the United States
Bankruptcy Court for the Eastern District of Virginia, Alexandria Division
(the "Chapter 11 Case").
3. CLAUSE 9 AND CLAUSE 3 OF PURCHASE AGREEMENT: DELIVERY AND SPECIFICATION
3.1 The delivery schedule for the Aircraft as set forth in the Agreement is
hereby deleted and replaced with the following:
QUOTE
Aircraft No. Type Scheduled Delivery Month
------------ ---- ------------------------
[...***...]
***CONFIDENTIAL TREATMENT REQUESTED
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UNQUOTE
The Aircraft shown in the table above are hereinafter referred to as the
"Rescheduled Aircraft."
3.2 It is understood that the Buyer may from time to time desire to
[...***...] the delivery of one or more Rescheduled Aircraft. The Seller
agrees to continue to evaluate the availability of [...***...] delivery
positions in light of the Seller's contractual commitments to other
purchasers. For the avoidance of doubt, contractual commitments to other
purchasers include [...***...].
3.3 In respect of the Rescheduled Aircraft, Clause 3.2 of the Agreement will
be replaced with the following quoted text:
QUOTE
The Rescheduled Aircraft (as such term is defined in Amendment No. 16 to
this Agreement) will be delivered based on the latest applicable standard
specification available from the Manufacturer at the time the final
definition of the Rescheduled Aircraft must be concluded, in order to
accommodate timely manufacturing and delivery thereof (the "Latest
Standard Specification"). The parties will execute all Manufacturer
Specification Change Notices needed to amend the Standard Specification to
the Latest Standard Specification (the "Required MSCNs"). Any and all
costs associated with the incorporation of such Required MSCNs will be
borne by the Seller, [...***...].
UNQUOTE
3.4 [...***...]
4. AMENDMENT 12: LETTER AGREEMENT NO. 1
4.1 Paragraph 11.4 of Letter Agreement No. 1 of Amendment No. 12 to the
Agreement is hereby deleted and replaced with the following:
QUOTE
11.4 [...***...]
UNQUOTE
4.2 [...***...]
5. AMENDMENT 12: LETTER AGREEMENT NO. 2
The provisions of Letter Agreement No. 2 of Amendment No. 12 to the
Agreement are hereby deleted in their entirety and of no further effect.
***CONFIDENTIAL TREATMENT REQUESTED
US Airways - A319/A320/A321 - AMENDMENT 16
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6. PRICE REVISION
The Final Contract Price for each Rescheduled Aircraft will be derived as
provided in the Agreement, [...***...].
7. [...***...]
8. MISCELLANEOUS
If the Buyer and/or US Airways, Inc. [...***...] of US Airways, Inc., at
or prior to Bankruptcy Emergence, then, upon the satisfaction of the
conditions set forth in Paragraph 9.1below [...***...].
9. SPARES SUPPORT
Effective on the later of (i) the date on which the Buyer or any of its
Affiliate(s) and America West Airlines, Inc. operate under a common
operating certificate as recognized by the Buyer's aviation authorities
and (ii) December 31, 2007, then Paragraph 5.1 of Letter Agreement No. 1
to the Agreement will be deleted and replaced with the following quoted
text:
QUOTE
5.1 Point of Shipment
[...***...]
UNQUOTE
10. EFFECT OF AMENDMENT
10.1 It will be a condition precedent to the effectiveness of this Amendment
that the conditions precedent to (i) the validity of the A350 Purchase
Agreement dated as of even date herewith have been satisfied, and (ii) the
conditions precedent to the obligations of Airbus Financial Services (the
"Lender") set forth in the $161,000,000 Loan Agreement dated as of
September 27, 2005 among US Airways, Inc., America West Airlines, Inc., US
Airways Group, Inc., the Lender and Wells Fargo Bank Northwest, National
Association, as Collateral Agent, have been either satisfied or been
waived by the Lender.
10.2 Upon effectiveness, the provisions of this Amendment will constitute a
valid amendment to the Agreement and the Agreement will be deemed to be
amended to the extent herein provided. This Amendment supersedes any
previous understandings, commitments, or representations whatsoever,
whether oral or written, related to the subject matter of this Amendment,
including Paragraph 2 of the MOU.
***CONFIDENTIAL TREATMENT REQUESTED
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10.3 Both parties agree that this Amendment will constitute an integral,
nonseverable part of the Agreement, and that this Amendment will be
governed by the provisions of the Agreement, except that if the Agreement
and this Amendment have specific provisions that are inconsistent, the
specific provisions contained in this Amendment will govern.
11. GOVERNING LAW
THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREBY WILL, PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BE GOVERNED BY AND
CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS
CONFLICTS OF LAWS PROVISION THAT WOULD RESULT IN THE APPLICATION OF THE
LAW OF ANY OTHER JURISDICTION. EXCEPT TO THE EXTENT THAT THE BANKRUPTCY
COURT IN THE CHAPTER 11 CASE HAS JURISDICTION THEREOF, ANY DISPUTE ARISING
HEREUNDER WILL BE REFERRED TO THE FEDERAL OR STATE COURTS LOCATED IN NEW
YORK CITY, NEW YORK, AND EACH OF THE PARTIES HERETO IRREVOCABLY SUBMITS TO
AND ACCEPTS SUCH JURISDICTION.
IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT OR TO THE
AGREEMENTS CONTEMPLATED HEREIN.
12. CONFIDENTIALITY
Notwithstanding the Confidentiality provisions of Clause 22.4 of the
Agreement, the Seller and the Buyer (including their employees, agents and
advisors) agree to keep the terms and conditions of this Amendment hereby
strictly confidential, except as required by applicable law or pursuant to
legal process, and except that the Buyer may disclose the terms of this
Amendment to the parties to the ATSB loan agreement dated as of March 31,
2003, as amended, and the committee professionals of the Unsecured
Creditors Committee in the Chapter 11 Case and any proposed equity
investor in the Buyer that is making its investment substantially
contemporaneously as of the date hereof, provided, however, that each such
person agrees to hold the terms and conditions of this Amendment
confidential.
13. COUNTERPARTS
This Amendment may be signed in any number of separate counterparts. Each
counterpart, when signed and delivered (including counterparts delivered
by facsimile transmission), will be an original, and the counterparts will
together constitute one same instrument.
US Airways - A319/A320/A321 - AMENDMENT 16
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IN WITNESS WHEREOF, these presents were entered into as of the day and year
first above written.
US AIRWAYS GROUP, INC. AVSA, S.A.R.L.
By: By:
---------------------------- -----------------------------
Its: Its:
--------------------------- ----------------------------
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