Exhibit 10.7
*** 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. 10
TO THE A330/A340 PURCHASE AGREEMENT
dated as of November 24, 1998
between
AVSA, S.A.R.L.,
and
US AIRWAYS GROUP, INC.
This Amendment No. 10 (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 A330/A340 Purchase
Agreement, dated as of November 24, 1998, relating to the sale by the Seller
and the purchase by the Buyer of certain Airbus A330 and A340 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 March
23, 2000, Amendment No. 2 dated as of June 29, 2000, Amendment No. 3 dated as
of November 27, 2000, Amendment No. 4 dated as of September 20, 2001,
Amendment No. 5 dated as of July 17, 2002, Amendment No. 6 dated as of March
29, 2003, Amendment No. 7 dated as of August 30, 2004, Amendment No. 8 dated
as of December 22, 2004, and Amendment No. 9 dated as of January 17, 2005, is
hereinafter called the "Agreement";
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.
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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 addition of the following
text:
QUOTE
A350 Purchase Agreement - The A350 purchase agreement dated as of
September 27, 2005 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 and 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. PARAGRAPH 9 AND PARAGRAPH 2 OF PURCHASE AGREEMENT: DELIVERY AND
SPECIFICATION
3.1 The delivery schedule for the Aircraft as set forth in Subclause 9.1.1 of
the Agreement is hereby deleted and replaced with the following:
QUOTE
Aircraft No. Type Scheduled Delivery Month
------------ ---- ------------------------
[...***...]
UNQUOTE
The Aircraft shown in the table above are hereinafter referred to as the
"Rescheduled Aircraft."
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3.2 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. 10 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 of manufacturer
initiated changes to the Standard Specification (the "Manufacturer
Specification Change Notices") ("MSCNS")) 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
3.3 [...***...]
4. A330 AIRCRAFT COMMITMENT
The Buyer undertakes not to remove [...***...] Aircraft in service in the
fleet of the Buyer or US Airways, Inc, as of the date hereof prior to the
date (with respect to the removal of any [...***...] such Aircraft) that
is [...***...] prior to the expected delivery date of (i) an A350 Aircraft
under the A350 Purchase Agreement or (ii) a Rescheduled Aircraft purchased
either hereunder or purchased by the Buyer pursuant to its right to
convert an A350 Aircraft to an A330 Aircraft under the A350 Purchase
Agreement (such [...***...] period being hereinafter referred to as the
[...***...]) (the aircraft referred to in (i) and/or (ii) being the
"Replacement Aircraft"). [...***...].
5. LETTER AGREEMENT NO. 2 AND A330-200 FIRM ORDER RESTRUCTURING
5.1 The Buyer will pay the Seller a nonrefundable fee in the amount of
[...***...] (the "Restructuring Fee"), which will be due and owing on the
satisfaction of the conditions precedent set forth below in Paragraph
8.1. In consideration of and immediately on the Buyer's paying the
Restructuring Fee, (i) Letter Agreement No. 2 to Amendment No. 6 to the
Agreement will be canceled, and neither the Buyer nor the Seller will
have any more rights or obligations under such Letter Agreement, and
(ii) [...***...].
5.2 [...***...]
5.3 The Restructuring Fee will be paid [...***...]. After this [...***...],
the Buyer and Seller agree that [...***...] will amount to [...***...],
which the Seller will retain [...***...]:
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(i) the Seller will apply [...***...] an equal amount due the Seller
in "Initial Payments," of which [...***...] is allocated to each
of the twenty (20) A350 Aircraft as due the Seller as of the date
hereof under the A350 Purchase Agreement, and
(ii) the Seller will apply [...***...], to the ten (10) Rescheduled
Aircraft on firm order in this Amendment, of which [...***...] is
allocated to each of the ten (10) Rescheduled Aircraft (the "Initial
A330 Payment(s)"). [...***...].
6. LETTER AGREEMENT NO. 3: ADDITIONAL AIRCRAFT
Letter Agreement No. 3 to the Agreement is hereby canceled, and neither
the Seller nor the Buyer will have any further rights or obligations with
respect to such Letter Agreement or the Additional Aircraft that are the
subject of such Letter Agreement, nor will such cancellation give rise to
any claim against US Airways, Inc., the Buyer or their affiliates or
subsidiaries, either in the Chapter 11 Case or otherwise.
7. 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
8. EFFECT OF AMENDMENT
8.1 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 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.
***CONFIDENTIAL TREATMENT REQUESTED
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8.2 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 3 of the MOU.
8.3 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.
9. 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.
10. 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.
11. 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.
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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:
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Its: Its:
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