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Exhibit 1.1
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ARIZONA
IN RE
AMERICA WEST AIRLINES, INC., )
) CASE NO.
) 91-07505-PHX-RGM
) CHAPTER 11
Debtor.
PLAN OF REORGANIZATION UNDER CHAPTER 11
OF THE UNITED STATES BANKRUPTCY CODE1
AMERICA WEST AIRLINES, INC.
Martin J. Whalen, Esq.
4000 East Sky Harbor Blvd.
Phoenix, Arizona 85034
LEBOEUF, LAMB, GREENE & MACRAE
633 17th Street, Suite 2800
Denver, Colorado
(303) 291-2600
Of Counsel:
Carl A. Eklund
John Edward Maas
GALLAGHER & KENNEDY
2600 North Central Avenue
Phoenix, Arizona 85004
(602) 530-8000
Of Counsel:
Charles R. Sterbach
Co-Counsel to the Debtor and
Debtor In Possession,
Co-Proponent of this
Plan of Reorganization
Dated: Phoenix, Arizona
June 28, 1994
[as modified, August 10, 1994]
ARNOLD & PORTER
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036
(202) 872-6700
Of Counsel:
Richard P. Schifter
Samuel A. Flax
Brian P. Leitch
Counsel to AmWest Partners,
L.P., Co-Proponent of this
Plan of Reorganization
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1As modified and confirmed by the United States Bankruptcy Court for the
District of Arizona on August 10, 1994.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS.............................................................................
ARTICLE 2
TREATMENT OF UNCLASSIFIED CLAIMS........................................................ 9
2.1. Treatment of Post-Petition Agreement Claims................................ 9
2.2. Treatment of Administrative Claims......................................... 9
2.3. Allowed Priority Tax Claims................................................ 10
ARTICLE 3
DESIGNATION OF AND PROVISIONS FOR TREATMENT OF CLASSES
OF CLAIMS AND EQUITY INTERESTS.......................................................... 10
3.1. Class 1 -- Allowed Priority Wage Claims.................................... 10
3.2. Class 2 -- Allowed Priority Benefit Plan Contribution Claims............... 10
3.3. Class 3 -- Allowed Secured Claims.......................................... 10
3.4. Class 4 -- Allowed Convenience Claims...................................... 13
3.5. Class 5 -- Allowed General Unsecured Claims................................ 13
3.6. Class 6 -- Preferred and Common Stock...................................... 14
3.7. Class 7 -- Certain Other Claims and AWA Warrants, Options
and Other Equity Interests................................................. 15
ARTICLE 4
PROVISIONS OF NEWAWA SECURITIES ISSUED PURSUANT TO THE PLAN............................. 15
4.1. NewAWA Class A Common Stock................................................ 15
4.2. NewAWA Class B Common Stock................................................ 16
4.3. NewAWA Warrants............................................................ 16
4.4. NewAWA Senior Unsecured Notes.............................................. 16
ARTICLE 5
EXECUTORY CONTRACTS AND UNEXPIRED LEASES................................................ 17
5.1. Assumption of Certain Executory Contracts and Unexpired Leases............. 17
5.2. Rejection of Certain Executory Contracts and Unexpired Leases.............. 18
5.3. Claims Based on Rejection of Contracts or Unexpired Leases................. 18
ARTICLE 6
IDENTIFICATION OF CLASSES OF CLAIMS NOT IMPAIRED BY THE PLAN AND THE CLASS OF CLAIMS AND
EQUITY INTERESTS DEEMED TO HAVE REJECTED THE PLAN.....................................
18
6.1. Unimpaired Classes......................................................... 18
6.2. Class Deemed to Have Rejected the Plan..................................... 18
6.3. Other Impaired Classes..................................................... 18
ARTICLE 7
ACCEPTANCE OR REJECTION OF THE PLAN; EFFECT OF REJECTION BY
ONE OR MORE CLASSES..................................................................... 18
7.1. Impaired Classes to Vote................................................... 18
7.2. Acceptance by Class of Holders of Claims or Equity Interests............... 19
7.3. Cramdown................................................................... 19
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ARTICLE 8
MEANS FOR IMPLEMENTATION OF THE PLAN.................................................... 19
8.1. Investment Agreement....................................................... 19
8.2. Stockholders' and Registration Rights Agreements........................... 19
8.3. Delivery of Alliance Agreements............................................ 19
8.4. GPA Settlement............................................................. 19
8.5. Corporate Governance....................................................... 19
8.6. Release of Certain Claims and Actions...................................... 19
8.7. Indemnification Obligations................................................ 20
8.8. Exemption from Certain Taxes............................................... 20
8.9. Directors and Officers..................................................... 21
8.10. Revesting of Assets; No Further Supervision................................ 21
8.11. Implementation............................................................. 21
8.12. Cancellation of Securities................................................. 21
ARTICLE 9
CONDITIONS PRECEDENT TO THE EFFECTIVE DATE.............................................. 21
9.1. Effectiveness of the Plan.................................................. 21
ARTICLE 10
PROVISIONS COVERING DISTRIBUTIONS AND PAYMENTS.......................................... 21
10.1. Making of Distributions and Payments....................................... 21
10.2. Distributions by the Distribution Agent.................................... 22
10.3. Service of Indenture Trustee............................................... 24
10.4. Reserves for Distributions for Disputed Claims and Disputed Equity
Interests.................................................................. 25
10.5. Fractional Interests; Odd Lots; De Minimis Distributions................... 26
10.6. Delivery of Distributions; Unclaimed Property.............................. 27
10.7. Method of Payment.......................................................... 27
10.8. Payment Dates.............................................................. 27
10.9. Compliance with Tax Requirements........................................... 27
ARTICLE 11
PROCEDURES FOR RESOLVING DISPUTED CLAIMS OR EQUITY INTERESTS............................ 28
11.1. Filing of Objections to Claims or Equity Interests......................... 28
11.2. Settlement of Objections to Claims or Equity Interests After Effective
Date....................................................................... 28
11.3. Payment or Distribution to Holders of Disputed Claims or Equity
Interests.................................................................. 28
11.4. Reserves for Disputed Claims and Disputed Equity Interests................. 28
ARTICLE 12
MISCELLANEOUS PROVISIONS................................................................ 28
12.1. Modification of Payment Terms.............................................. 28
12.2. Discharge of Debtor........................................................ 28
12.3. Termination of Subordination Rights........................................ 29
12.4. Termination of the Creditors and Equity Committees......................... 29
12.5. Setoffs.................................................................... 30
12.6. Opt-Out.................................................................... 30
12.7. Section Headings........................................................... 30
12.8. Severability............................................................... 30
12.9. Computation of Time........................................................ 30
12.10. Governing Law.............................................................. 30
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ARTICLE 13
PROVISIONS FOR EXECUTION AND SUPERVISION OF THIS PLAN................................... 30
13.1. Retention of Jurisdiction.................................................. 30
13.2. Amendment of Plan.......................................................... 31
13.3. Post-Effective Date Notice................................................. 31
13.4. Revocation of Plan......................................................... 31
LIST OF EXHIBITS
Exhibit A -- Investment Agreement
Exhibit B -- Stockholders' Agreement
Exhibit C -- GPA Term Sheet
LIST OF SCHEDULES
Schedule 1 -- Section 1110 Stipulations
Schedule 2 -- Certain Final Orders Related to Settlements
Schedule 3 -- Certain Assumed Agreements
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PLAN OF REORGANIZATION UNDER CHAPTER 11
OF THE UNITED STATES BANKRUPTCY CODE
AMERICA WEST AIRLINES, INC., the Debtor and Debtor in Possession in the
above-captioned Chapter 11 Case, and AMWEST PARTNERS, L.P., as co-proponents
hereof, hereby jointly propose the following Plan of Reorganization pursuant to
Section 1121(a), Title 11, United States Code for the resolution of the Debtor's
outstanding creditor claims and equity interests. Reference is made to the
Debtor's Disclosure Statement, filed contemporaneously with the Plan of
Reorganization, for a discussion of the Debtor's history, business, properties,
results of operations and projections for future operations and for a summary
and analysis of the Plan of Reorganization and certain related matters.
ALL HOLDERS OF CLAIMS AGAINST AND EQUITY INTERESTS IN THE DEBTOR ARE
ENCOURAGED TO READ THE PLAN OF REORGANIZATION AND THE DISCLOSURE STATEMENT IN
THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE PLAN.
ARTICLE 1
DEFINITIONS
As used in the Plan, the following terms shall have the respective meanings
specified below:
1.1. Administrative Claim: A Claim for any cost or expense of
administration of the Chapter 11 Case allowed under Section 503(b), Section
507(b), Section 546(c)(2) or Section 1114(e)(2) of the Bankruptcy Code and
entitled to priority under Section 507(a)(1) of the Bankruptcy Code, including,
without limitation, fees payable pursuant to Section 1930 of Title 28 of the
United States Code, but not including the Post-Petition Agreement Claims. To the
extent that a Claim is allowed as an administrative claim pursuant to Section
365(d)(3) of the Bankruptcy Code, such Claim shall also be deemed an
Administrative Claim under this Section.
1.2. Allowed Claim and Allowed . . . Claim: Any Claim against the Debtor
(i) proof of which, request for payment of which or application for allowance of
which was filed or deemed to be filed on or before the Bar Date for filing
proofs of claim or requests for payment for Claims of such type against the
Debtor, (ii) if no proof of claim is filed, which has been or hereafter is
listed by the Debtor in the Schedules as liquidated in amount and not disputed
or contingent, or (iii) a Claim that is allowed in any contract, instrument,
indenture or other agreement entered into in connection with the Plan and, in
any case, a Claim as to which no objection to the allowance thereof has been
interposed within the applicable period of limitation fixed by the Plan, the
Bankruptcy Code, the Bankruptcy Rules or the Bankruptcy Court. A Disputed Claim
shall be an Allowed Claim if, and only to the extent that, such Disputed Claim
has been Allowed by a Final Order or otherwise pursuant to Section 11.2. The
term "Allowed," when used to modify a reference in the Plan to any Claim or
class of Claims, shall mean a Claim (or any Claim in any such class) that is so
Allowed, e.g., an Allowed Secured Claim is a Claim that has been Allowed to the
extent of the value, as determined by the Bankruptcy Court pursuant to Section
506(a) of the Bankruptcy Code, of any interest in property of the estate of the
Debtor securing such Claim. Unless otherwise specified in the Plan, the
Confirmation Order or in the Final Order of the Bankruptcy Court allowing such
Claim, "Allowed Claim" shall not include interest on the amount of such Claim
from and after the Petition Date.
1.3. AmWest: AmWest Partners, L.P., a Texas limited partnership, and, as
the context requires, parties purchasing NewAWA Securities as a part of the
AmWest investment in NewAWA, even though such parties may or may not actually be
partners or investors in AmWest itself.
1.4. Assumed Agreement: Each executory contract and unexpired lease of the
Debtor which (i) has been assumed during the Chapter 11 Case prior to the
Confirmation Date pursuant to Section 365 of the Bankruptcy Code, (ii) is the
subject of a motion to assume pending on the Confirmation Date, or (iii) is
listed on Schedule 3 hereto in accordance with Section 5.1.1, either without
amendment, or with such amendments thereto as shall be agreed upon between the
Debtor and the other parties thereto.
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1.5. Avoidance Litigation: The Debtor's interest in any and all claims,
rights and causes of action which have been or may be commenced by or on behalf
of the Debtor to avoid and recover any transfers of property determined to be
preferential, fraudulent or otherwise avoidable pursuant to Sections 544, 545,
547, 548, 549, 553(b) or 550 of the Bankruptcy Code.
1.6. AWA: America West Airlines, Inc., a Delaware corporation, as the
Debtor and Debtor in Possession in the Chapter 11 Case, or, as the context may
require, NewAWA.
1.7. AWA Common Stock: The duly authorized and validly issued shares of
common stock of AWA, $.25 par value, which are outstanding immediately prior to
the Effective Date.
1.8. AWA Debenture Claims: All Claims of the holders of AWA Debentures and
the Indenture Trustee as of the Distribution Record Date for (i) payment,
pursuant to the Indentures, of principal in the face amount of the AWA
Debentures, plus interest accrued as of the Petition Date or (ii) the fees,
costs and expenses of the Indenture Trustee pursuant to the Indentures, but
excluding any Claims for damages in excess of the face amount of the AWA
Debentures arising from the purchase or sale of such AWA Debentures, and
excluding any Claims for equitable relief.
1.9. AWA Debentures: Collectively, the AWA 11 1/2% Convertible Subordinated
Debentures, the AWA 7 3/4% Convertible Subordinated Debentures, and the AWA
7 1/2% Convertible Subordinated Debentures.
1.10. AWA 11 1/2% Convertible Subordinated Debentures: The 11 1/2%
Convertible Subordinated Debentures due 2009, issued by AWA pursuant to the AWA
11 1/2% Subordinated Indenture and outstanding immediately prior to the
Effective Date.
1.11. AWA 11 1/2% Subordinated Indenture: The Indenture of Trust dated
December 15, 1986 between AWA and First Interstate Bank of Arizona, N.A.
1.12. AWA Preferred Stock: The duly authorized and validly issued shares of
Series C 9 3/4% Convertible Preferred Stock of AWA, $.25 par value, outstanding
immediately prior to the Effective Date.
1.13. AWA 7 1/2% Convertible Subordinated Debentures: The 7 1/2%
Convertible Subordinated Debentures due 2011, issued by AWA pursuant to the AWA
7 1/2% Subordinated Indenture and outstanding immediately prior to the Effective
Date.
1.14. AWA 7 1/2% Subordinated Indenture: The Indenture of Trust dated March
15, 1986 between AWA and First Interstate Bank of Arizona, N.A.
1.15. AWA 7 3/4% Convertible Subordinated Debentures: The 7 3/4%
Convertible Subordinated Debentures due 2010, issued by AWA pursuant to the AWA
7 3/4% Subordinated Indenture and outstanding immediately prior to the Effective
Date.
1.16. AWA 7 3/4% Subordinated Indenture: The Indenture of Trust dated
August 1, 1985 between AWA and First Interstate Bank of Arizona, N.A.
1.17. AWA Warrants, Options and Other Equity Interests: All Equity
Interests in AWA outstanding immediately prior to the Effective Date, except for
the AWA Common Stock and the AWA Preferred Stock, but including without
limitation all rights, options or warrants, authorized, adopted or distributed
to holders of Equity Interests or officers, directors or employees of AWA,
whether under one or more contracts or plans, to sell, purchase, grant or
otherwise transfer any issued and outstanding or authorized but unissued Equity
Interests of AWA under any and all applicable terms and conditions.
1.18. Ballot: The form for (i) acceptance or rejection of the Plan
distributed to those holders of Claims or Equity Interests entitled to vote on
the Plan and (ii) the election of (a) the option to purchase Equity Subscription
Stock and Over-Subscription Stock and (b) the option to become an Electing
Unsecured Creditor, as such form may be approved by the Bankruptcy Court and
which shall otherwise comply with the requirements of Bankruptcy Rule 3018(c).
1.19. Bankruptcy Code: The Bankruptcy Reform Act of 1978, Title 11, United
States Code, as applicable to the Chapter 11 Case, as now in effect or hereafter
amended.
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1.20. Bankruptcy Court: The unit of the United States District Court for
the District of Arizona having jurisdiction over the Chapter 11 Case.
1.21. Bankruptcy Rules: Collectively, the Federal Rules of Bankruptcy
Procedure and the local rules of the Bankruptcy Court, as applicable to the
Chapter 11 Case, as now in effect or hereinafter amended.
1.22. Bar Date: In the case of Claims other than Administrative Claims,
February 28, 1992, and in the case of Administrative Claims (other than
Preserved Ordinary Course Administrative Claims and Professional Fees), July 1,
1994.
1.23. Business Day: Any day other than a Saturday, Sunday or other day on
which commercial banks in New York or Arizona are authorized or required by law
to close.
1.24. Cash: Currency, checks and wire transfers of immediately available
funds.
1.25. Chapter 11 Case: The case under Chapter 11 of the Bankruptcy Code in
which AWA is the Debtor pending in the Bankruptcy Court with Case No.
91-07505-PHX-RGM, including all adversary proceedings pending in connection
therewith.
1.26. Claim: Any right to payment from the Debtor, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured
arising at any time before the Effective Date or relating to any event that
occurred before the Effective Date; or any right to an equitable remedy for
breach of performance if such breach gives rise to a right of payment from the
Debtor, whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured, unmatured, disputed, undisputed, secured or
unsecured. Any alleged right to payment which is listed by the Debtor on the
Schedules as disputed, unliquidated or contingent will not be a Claim hereunder
if the holder thereof has not filed a timely proof of claim with regard thereto.
1.27. Class: A category of holders of Claims or Equity Interests as
classified in the Plan.
1.28. Confirmation: The entry by the Bankruptcy Court of the Confirmation
Order.
1.29. Confirmation Date: The date upon which the Bankruptcy Court enters
the Confirmation Order.
1.30. Confirmation Hearing: The duly noticed hearing held by the Bankruptcy
Court on Confirmation of the Plan pursuant to Section 1128 of the Bankruptcy
Code. The Confirmation Hearing may be adjourned by the Bankruptcy Court from
time to time without further notice other than the announcement of the adjourned
date at the Confirmation Hearing.
1.31. Confirmation Order: An order of the Bankruptcy Court, in form and
substance satisfactory to the Debtor and AmWest, confirming the Plan.
1.32. Contingent Claim: A Claim which is either contingent or unliquidated
on or immediately before the Confirmation Date.
1.33. Convenience Claims: All Allowed General Unsecured Claims which are in
an amount of five hundred dollars ($500) or less.
1.34. Creditors' Committee: The Official Committee of Unsecured Creditors
appointed by the United States Trustee in the Chapter 11 Case pursuant to
Section 1102(a)(1) of the Bankruptcy Code.
1.35. Debt Instrument: A debenture, promissory note or other transferable
instrument evidencing a payment obligation.
1.36. Debtor and Debtor in Possession: AWA, as a debtor in possession in
the Chapter 11 Case pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
1.37. DIP Credit Agreement: The Third Amended and Restated Credit Agreement
dated as of September 30, 1993, between AWA and the DIP Lenders, as approved by
Final Order of the Bankruptcy Court dated September 29, 1993, together with all
integrally related documents, schedules and exhibits, as
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such agreement and such integrally related documents, schedules and exhibits may
be amended or amended and restated from time to time.
1.38. DIP Lenders: BT Commercial Corp., as Administrative Agent, GPA
Leasing USA I, Inc., GPA Leasing USA Sub I, Inc., Kawasaki Leasing
International, Inc., B&B Holdings, Inc. d/b/a Phoenix Cardinals, Bank of America
Arizona, Bank One Arizona, N.A., Commerce and Economic Development Division, The
Dial Corp., DMB Holding Limited Partnership, El Dorado Investment Company, First
Interstate Bank of Arizona, N.A., Phelps Dodge Corporation, Phoenix Newspapers,
Inc., and Phoenix Suns, Ltd. Partnership and each substitute or additional
lender under any permitted assignment, amendment or amendment and restatement of
the DIP Credit Agreement.
1.39. DIP Loan Claims: Any and all Claims, whether a Secured Claim or an
Unsecured Claim, of the DIP Lenders, arising under the DIP Credit Agreement.
1.40. Disclosure Statement: The Disclosure Statement dated as of June 28,
1994, including exhibits and any supplements, amendments or modifications
thereto, prepared pursuant to Sections 1125(a) and 1126(b) of the Bankruptcy
Code, and Bankruptcy Rule 3018(b), as approved by the Bankruptcy Court.
1.40A. Disclosure Statement Order Date: June 28, 1994.
1.41. Disputed Claim and Disputed . . . Claim: A Claim which is (i) the
subject of a timely objection interposed by the Debtor, NewAWA or any party in
interest (including the Creditors' Committee and the Equity Committee) in the
Chapter 11 Case, if at such time such objection remains unresolved, (ii) a Claim
that is listed by the Debtor as disputed, unliquidated or contingent in the
Schedules or (iii) if no objection has been timely filed, a Claim which has been
asserted in a timely filed proof of claim in an amount greater than or in a
class different than that listed by the Debtor in the Schedules as liquidated in
amount and not disputed or contingent; provided, however, that the Bankruptcy
Court may estimate a Disputed Claim for purposes of allowance pursuant to
Section 502(c) of the Bankruptcy Code. The term "Disputed," when used to modify
a reference in the Plan to any Claim or class of Claims, shall mean a Claim (or
any Claim in such class) that is a Disputed Claim as defined herein. In the
event there is a dispute as to classification or priority of a Claim, it shall
be considered a Disputed Claim in its entirety. Until such time as a Contingent
Claim becomes fixed and absolute, such Claim shall be treated as a Disputed
Claim and not an Allowed Claim for purposes related to allocations and
distributions under the Plan.
1.42. Disputed Equity Interest: An Equity Interest which is the subject of
a timely objection interposed by the Debtor, NewAWA or any party in interest
(including the Equity Committee) in the Chapter 11 Case, if at such time such
objection remains unresolved.
1.43. Distribution Agent: NewAWA or such disbursing agent(s) as NewAWA
shall from time to time employ at its expense for the purpose of making
distributions under the Plan.
1.44. Distribution Agent Charges: Any Taxes imposed upon or with respect to
(i) the Distribution Agent in its capacity as such, or (ii) the assets held by
the Distribution Agent in its capacity as such or any income realized thereon.
1.45. Distribution Date: With respect to any Allowed Claim or Equity
Interest, each date on which a payment is made with respect to such Allowed
Claim or Equity Interest.
1.46. Distribution Record Date: For the purposes under Bankruptcy Rules
3001 and 3021 for any distribution under the Plan to the holders of Claims or
Equity Interests and for the determination of which Claims or Equity Interests
may be disallowed, the Effective Date.
1.47. Effective Date: The last to occur of (i) the first Business Day that
is at least eleven (11) days after the Confirmation Date and on which no stay of
the Confirmation Order is in effect, and (ii) the Business Day on which all of
the conditions set forth in Section 9.1 shall have been satisfied.
1.48. Electing Creditor Cash: The Cash to be received by Electing Unsecured
Creditors in accordance with Section 3.5.
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1.49. Electing Creditor Stock: The NewAWA Class B Common Stock to be
distributed under certain circumstances to Electing Unsecured Creditors pursuant
to Section 3.5.
1.50. Electing Unsecured Creditors: Holders of General Unsecured Claims who
elect to receive Electing Creditor Cash instead of NewAWA Class B Common Stock
in accordance with Section 3.5.
1.51. Employee Stock Purchase Notes: Any and all Debt Instruments executed
and delivered by any current or former director, officer or employee of AWA
under the Employee Stock Purchase Plan.
1.52. Employee Stock Purchase Plan: Any and all of the Debtor's stock
purchase plan(s) whereby directors, officers or employees of AWA were authorized
(whether on a mandatory or optional basis) to acquire or finance the purchase of
AWA Common Stock on certain terms and conditions and subject to certain
repayment obligations.
1.53. Equity Committee: The Official Committee of Equity Security Holders
of AWA appointed in the Chapter 11 Case pursuant to Section 1102(a)(2) of the
Bankruptcy Code.
1.54. Equity Interest: Any interest in the Debtor represented by any class
or series of common or preferred stock issued by the Debtor and any warrants,
options or rights to purchase any such common or preferred stock. Equity
Interests include, without limitation, all AWA Common Stock, AWA Preferred Stock
and AWA Warrants, Options and Other Equity Interests.
1.55. Equity Interests Stock: The 2,250,000 shares of NewAWA Class B Common
Stock to be issued to holders of AWA Common Stock as provided in Section 3.6.2.
1.56. Equity Interests Warrants: The NewAWA Warrants to purchase 6,230,769
shares of NewAWA Class B Common Stock to be issued to holders of AWA Common
Stock as provided in Section 3.6.2.
1.57. Equity Subscription Stock: The up to 1,615,179 shares of NewAWA Class
B Common Stock of which each holder of AWA Common Stock is entitled to purchase
up to its Pro Rata Share as provided in Section 3.6.2.
1.58. ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
1.59. Escrow Agent: The bank, trust company or other organization
independent of NewAWA, selected by AWA or NewAWA and retained pursuant to an
agreement approved by order of the Bankruptcy Court, designated to act as escrow
agent with respect to the Reserves as provided in Section 10.4, which entity may
be the Distribution Agent, if the Distribution Agent is not affiliated with
NewAWA.
1.60. Fidelity: Fidelity Management Trust Company, its affiliates and funds
and accounts managed by it and its affiliates.
1.61. Final Distribution Date: The Distribution Date for a Class after
which the Reserve Amount for such Class will be zero.
1.62. Final Order: An order or judgment which has not been reversed,
stayed, modified or amended and is no longer subject to appeal, certiorari
proceeding or other proceeding for review or rehearing, and as to which no
appeal, certiorari proceeding, or other proceeding for review or rehearing shall
then be pending.
1.63. General Unsecured Claim: Any Unsecured Claim other than a
Post-Petition Agreement Claim, an Administrative Claim, a Priority Wage Claim, a
Priority Benefit Plan Contribution Claim, a Priority Tax Claim, a Convenience
Claim or a Claim treated in accordance with Section 3.7 of the Plan.
1.64. GPA: GPA Group plc and affiliates thereof.
1.65. Indenture Trustee: Texas Commerce Bank, National Association (f/k/a
Ameritrust Company of New York), as Successor Trustee to First Interstate Bank
of Arizona, N.A., or any successor under the Indentures.
1.66. Indentures: Collectively, the AWA 11 1/2% Subordinated Indenture, the
AWA 7 1/2% Subordinated Indenture and the AWA 7 3/4% Subordinated Indenture.
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1.67. Interim Procedures Agreement. The Third Revised Interim Procedures
Agreement dated April 21, 1994 between AWA and AmWest, as amended from time to
time.
1.68. Investment Agreement: The Third Revised Investment Agreement, dated
April 21, 1994, as amended from time to time, between AWA and AmWest, in the
form of Exhibit A hereto, which is incorporated herein by reference.
1.69. IRS: The Internal Revenue Service.
1.70. Lehman: Lehman Brothers, Inc.
1.71. Net Proceeds: The gross proceeds received from the sale, lease,
disposition, liquidation and collection of assets, less amounts actually
incurred for (i) necessary and reasonable costs and expenses in connection with
such sale, lease, disposition, liquidation or collection, including, but not
limited to, attorneys' fees related thereto, and (ii) all liabilities, charges,
Taxes, offsets and encumbrances required to be discharged with respect to such
assets and in connection with the sale, lease, disposition, liquidation and
collection thereof.
1.72. NewAWA: AWA on and after the Effective Date.
1.73. NewAWA By-laws: The Restated By-laws of NewAWA.
1.74. NewAWA Charter: The Restated Certificate of Incorporation of NewAWA.
1.75. NewAWA Class A Common Stock: The Class A Common Stock, par value $.01
per share, of NewAWA which NewAWA shall be authorized to issue on and after the
Effective Date.
1.76. NewAWA Class B Common Stock: The Class B Common Stock, par value $.01
per share, of NewAWA which NewAWA shall be authorized to issue on and after the
Effective Date.
1.77. NewAWA Common Stock: Collectively, the NewAWA Class A Common Stock
and the NewAWA Class B Common Stock.
1.78. NewAWA Securities: Collectively, the NewAWA Common Stock, NewAWA
Warrants and NewAWA Senior Unsecured Notes.
1.79. NewAWA Senior Unsecured Notes: The Senior Unsecured Notes which
NewAWA shall be authorized to issue on or after the Effective Date.
1.80. NewAWA Warrants: The warrants to purchase shares of NewAWA Class B
Common Stock which NewAWA shall be authorized to issue on or after the Effective
Date.
1.81. Non-Electing Creditor Stock: The NewAWA Class B Common Stock to be
distributed to Non-Electing Unsecured Creditors in accordance with Section
3.5.2.
1.82. Non-Electing Unsecured Creditors: Holders of General Unsecured Claims
that do not elect to be Electing Unsecured Creditors in accordance with Section
3.5.
1.83. Notice and a Hearing: This phrase shall have the same meaning as
provided for in Section 102(1) of the Bankruptcy Code.
1.84. Official Service List: The then-current Official Service List in the
Chapter 11 Case, as required by the Bankruptcy Court's "Order Establishing
Notice Requirements With Respect to All Matters Herein" entered on June 28,
1991, and "Order Modifying Noticing Procedures and Requirements" entered on
October 21, 1991.
1.85. Over-Subscription Stock: The shares of NewAWA Class B Common Stock
which were available for purchase as Equity Subscription Stock and which were
not so purchased. Over-Subscription Stock shall be available for sale to holders
of AWA Preferred Stock in accordance with Section 3.6.1 and, if there are more
than 250,000 such shares or if holders of AWA Preferred Stock subscribe for
fewer shares than they are entitled to subscribe for, to Purchasing Stockholders
in accordance with Section 3.6.2.
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1.86. Person: An individual, a corporation, a limited liability company, a
partnership, an association, a joint stock company, a joint venture, an estate,
a trust, an unincorporated organization or a government, governmental unit or
any subdivision thereof or any other entity.
1.87. Petition Date: June 27, 1991, the date on which the Debtor filed a
voluntary petition commencing the Chapter 11 Case.
1.88. Plan: This Plan of Reorganization, either in its present form or as
it may be amended, supplemented or modified from time to time, including all
exhibits and schedules annexed hereto or referenced.
1.89. Plan Discount Rate: The rate of interest equal to eight percent (8%)
per annum.
1.90. Post-Petition Agreement Claim: Any Claim against the Debtor of the
type listed in Section 2.1 but not including an Administrative Claim arising as
a result of the assumption of an executory contract or lease listed on Schedule
3 hereto.
1.91. Present Value: As the context requires, the present value as of the
Effective Date of a stream of Cash payments computed using the Plan Discount
Rate.
1.92. Preserved Ordinary Course Administrative Claim: Administrative Claims
that are based on liabilities incurred in (a) AWA's purchase, lease or use of
goods and services in the ordinary course of its business or (b) AWA's sale or
provision of air transportation services (including the sale of tickets to
passengers) in the ordinary course of its business, including Administrative
Claims due on account of services provided to AWA after the Petition Date by its
employees.
1.93. Prime Rate: The rate of interest which under current practice is
listed as such under the heading "Money Rates" in the Eastern Edition of The
Wall Street Journal and if a range of rates is listed, the lowest such rate. In
the event that such a listing is not available, the Prime Rate shall be such
other measure of the prime rate generally in effect as is reasonably selected by
NewAWA. For purposes of the Plan and any notes or other instruments delivered
pursuant hereto, the Prime Rate shall be deemed to adjust on and only on the
last Business Day of each December, March, June and September to the Prime Rate
then in effect.
1.94. Priority Benefit Plan Contribution Claim: Any Claim entitled to
priority in payment under Section 507(a)(4) of the Bankruptcy Code.
1.95. Priority Tax Claim: Any Claim entitled to priority in payment under
Section 507(a)(7) of the Bankruptcy Code.
1.96. Priority Wage Claim: Any Claim entitled to priority in payment under
Section 507(a)(3) of the Bankruptcy Code.
1.97. Professional Fees: The Administrative Claims for compensation and
reimbursement submitted pursuant to Section 330, Section 331 or Section 503(b)
of the Bankruptcy Code by Persons (i) employed pursuant to an order of the
Bankruptcy Court under Section 327 or Section 1103 of the Bankruptcy Code or
(ii) for whom compensation and reimbursement has been allowed by the Bankruptcy
Court pursuant to Section 503(b) of the Bankruptcy Code.
1.98. Pro Rata Share: The ratio of an Allowed Claim or Equity Interest in a
particular Class to the aggregate amount of all Allowed Claims or Equity
Interests in that Class.
1.99. Purchasing Stockholder: A holder of AWA Common Stock who elects to
purchase Equity Subscription Stock or Over-Subscription Stock as provided in
Section 3.6.2.
1.100. Registration Rights Agreement: The Registration Rights Agreement to
be entered into by and among NewAWA, AmWest and certain other parties pertaining
to certain NewAWA Securities to be purchased or otherwise issued pursuant to the
Investment Agreement or the Plan.
1.101. Rejected Agreement: Each executory contract or unexpired lease of
Debtor that is rejected pursuant to Section 5.2.
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1.102. Reserve: As to any Class, the amount held at any particular time by
the Escrow Agent, as provided in Section 10.4, including the Reserve Amounts at
such time, and any interest, dividends or other income earned upon investment of
the Reserve Amount.
1.103. Reserve Amount: The NewAWA Securities and/or Cash reserved as of a
particular date for the Disputed Claims or Disputed Equity Interests of a
particular Class pursuant to Section 10.4.
1.104. Reserve Order: Any Final Order of the Bankruptcy Court establishing
the Reserve Amount for any Reserve, as established in Section 10.4.
1.105. Schedules: The schedules of assets and liabilities and any
amendments thereto filed by the Debtor with the Bankruptcy Court in accordance
with Section 521(1) of the Bankruptcy Code.
1.106. Secured Claim: A Claim to the extent of the value of any interest in
property of the Debtor's estate securing such Claim or to the extent of the
amount of such Claim subject to setoff in accordance with Section 553 of the
Bankruptcy Code, in either case as determined pursuant to Section 506(a) of the
Bankruptcy Code. To the extent that the value of such interest or setoff is less
than the amount of the Claim which has the benefit of such security or is
subject to such setoff, such Claim is an Unsecured Deficiency Claim unless, in
the case of a Claim secured by a lien on property of the Debtor's estate, the
Class of which such Claim is a part makes a valid election under Section 1111(b)
of the Bankruptcy Code no later than the Voting Deadline to have such Claim
treated as a Secured Claim to the extent allowed.
1.107. Securities Action: The presently uncertified class action lawsuit
pending in the Superior Court of the State of Arizona for the County of Maricopa
styled Clark v. Beauvais, Case No. CV 92-07197.
1.108. Stock Rescission or Damage Claim: Any Claim pursuant to Section
510(b) of the Bankruptcy Code (i) for rescission of the purchase or sale of AWA
Common Stock, (ii) for damages arising from the purchase or sale of AWA Common
Stock, or (iii) for reimbursement, contribution or indemnification on account of
such rescission or damage claim.
1.109. Stock Payment Escrow Account: The escrow account to be established
in accordance with Section 10.2.2 to receive payment for Equity Subscription
Stock and Over-Subscription Stock.
1.110. Stockholders' Agreement: The Stockholders' Agreement for America
West Airlines, Inc., to be dated as of the Effective Date, substantially in the
form of Exhibit B hereto, which is incorporated herein by reference.
1.111. Subordinated Claim: Any Claim or Equity Interest subordinated, for
purposes of distribution, pursuant to Section 510(c) of the Bankruptcy Code.
1.112. Taxes: All income, franchise, excise, sales, use, employment,
withholding, property, payroll or other taxes, assessments, or governmental
charges, together with any interest, penalties, additions to tax, fines, and
similar amounts relating thereto, imposed or collected by any federal, state,
local or foreign governmental authority.
1.113. Unsecured Claim: A Claim not secured by a charge against or interest
in property in which the Debtor's estate has an interest, including any
Unsecured Deficiency Claim.
1.114. Unsecured Deficiency Claim: A Claim by a holder of a Secured Claim
arising out of the same transaction as a Secured Claim to the extent that the
value of such holder's interest in property of the Debtor's estate securing such
Claim or subject to setoff is less than the amount of the Claim which has the
benefit of such security or setoff, as provided by Section 506(a) of the
Bankruptcy Code.
1.115. Voting Deadline: The deadline for filing Ballots, as fixed by the
Bankruptcy Court in the order approving the Disclosure Statement or otherwise.
1.116. Voting Record Date: June 8, 1994.
1.117. Other Definitions: Unless the context otherwise requires, any
capitalized term used and not defined herein or elsewhere in the Plan but that
is defined in the Bankruptcy Code or Bankruptcy Rules shall have the meaning set
forth therein. Wherever from the context it appears appropriate, each term
stated in either of the singular or the plural shall include the singular and
the plural, and pronouns stated in the masculine, feminine or neuter gender
shall include the masculine, the feminine and the neuter. The words
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"herein," "hereof," "hereto," "hereunder," and others of similar inference refer
to the Plan as a whole and not to any particular Article, Section, subsection,
or clause contained in the Plan.
ARTICLE 2
TREATMENT OF UNCLASSIFIED CLAIMS
The Claims against the Debtor covered in this Article 2 are not designated
as Classes pursuant to Section 1123(a)(1) of the Bankruptcy Code. The holders of
such Claims are not entitled to vote on the Plan.
2.1. Treatment of Post-Petition Agreement Claims. This Section 2.1 contains
provisions dealing with the Post-Petition Agreement Claims.
2.1.1. DIP Credit Agreement. The DIP Loan Claims will be paid in full,
in Cash, by AWA on the Effective Date or such later date as may be agreed by AWA
and the DIP Lenders, or shall be paid in such other manner as may be agreed to
by AWA and the DIP Lenders.
2.1.2. Kawasaki Priority Facility. Any and all Claims arising from
that certain Loan Restructuring Agreement, dated as of December 1, 1991, between
AWA and Kawasaki Leasing International, Inc., as amended and supplemented from
time to time, and as approved by Final Order of the Bankruptcy Court dated
December 12, 1991, will be treated exclusively in accordance with the terms and
conditions of such agreement or as otherwise agreed by the holder of such Claims
and the Debtor or NewAWA.
2.1.3. Section 1110 Stipulations. Any and all Claims arising from the
stipulations entered into pursuant to Section 1110 of the Bankruptcy Code
between AWA and other parties during the Chapter 11 Case including, without
limitation, the stipulations listed on Schedule 1 hereto, and as approved by
Final Order of the Bankruptcy Court, shall in each case be treated exclusively
in accordance with the terms and conditions of such stipulations and Final
Orders, and such terms and conditions shall be binding upon NewAWA.
2.1.4. Settlement Stipulations and Other Post-Petition Orders. Any and
all Claims arising from obligations of AWA which were or are the subject of
settlement or other agreements entered into between AWA and other parties,
whether prior to or after the Effective Date, which settlement or other
agreements were or are approved by Final Order of the Bankruptcy Court,
including, without limitation, those Final Orders listed on Schedule 2 hereto,
shall be treated exclusively in accordance with the terms and conditions of such
settlement and other agreements and Final Orders.
2.2. Treatment of Administrative Claims.
2.2.1. This Section 2.2 contains provisions dealing with the treatment
of Administrative Claims. Such treatment is consistent with the requirements of
Section 1129(a)(9)(A) of the Bankruptcy Code.
2.2.2. Each Allowed Administrative Claim, other than Preserved
Ordinary Course Administrative Claims, shall be paid in full in Cash (or
otherwise satisfied in accordance with its terms) by NewAWA at such time or
times as provided in Section 10.1 or as otherwise agreed by the holder of such
Allowed Administrative Claim and the Debtor or NewAWA. Each Preserved Ordinary
Course Administrative Claim shall be paid by NewAWA pursuant to the terms and
conditions under which such Claim arose, without further action by the holder of
such Claim.
2.2.3. All requests for payment of Administrative Claims, except for
Professional Fees and Preserved Ordinary Course Administrative Claims, must be
filed by the Bar Date or the holders thereof shall be forever barred from
asserting such Administrative Claims against the Debtor. All final applications
for allowance and disbursement of Professional Fees must be filed not later than
sixty (60) days after the Effective Date. All such applications must be in
compliance with all of the terms and provisions of any applicable order of the
Bankruptcy Court, including the Confirmation Order, and all orders governing
payment of Professional Fees. AWA will request the Bankruptcy Court to set the
hearing on final allowance of Professional Fees in the Confirmation Order. Such
applications may be later amended to include any fees and costs incurred after
the Confirmation Date but prior to the Effective Date, or hearing date, as the
case may be.
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2.3. Allowed Priority Tax Claims. Each Allowed Priority Tax Claim, if any,
will be paid in full in Cash by NewAWA at such time or times as provided in
Section 10.1 hereof; provided, however, that NewAWA may elect to pay such
Claims, in any such case, through deferred Cash payments over a period not
exceeding six (6) years after the date of assessment of such Claim, of a value
as of the Effective Date equal to the Allowed amount of such Claim, in each case
unless otherwise agreed between NewAWA and the holder of such Allowed Priority
Tax Claim. Such payments shall be made in equal annual installments of
principal, plus simple interest accruing from the Effective Date at 6% per annum
on the unpaid portion of Allowed Priority Tax Claim or such other rate as the
Bankruptcy Court may approve. The first such payment shall be payable on the
latest of: (i) the Effective Date; (ii) 60 days after the date on which an order
allowing such Claim becomes a Final Order; and (iii) such other time as is
agreed upon by the holder of such Claim and AWA or NewAWA; provided, however,
that NewAWA shall have the right to prepay any such Allowed Priority Tax Claim,
or any remaining balance of such Claim, in full or in part, at any time on or
after the Effective Date, without premium or penalty. The foregoing treatment of
Allowed Priority Tax Claims is consistent with the requirements of Section
1129(a)(9)(C) of the Bankruptcy Code.
ARTICLE 3
DESIGNATION OF AND PROVISIONS
FOR TREATMENT OF CLASSES OF
CLAIMS AND EQUITY INTERESTS
All Claims and Equity Interests, except Post-Petition Agreement Claims,
Administrative Claims and Priority Tax Claims are placed in the Classes
described below. A Claim or Equity Interest is classified in a particular Class
only to the extent that the Claim or Equity Interest qualifies within the
description of that Class and is classified in other Classes only to the extent
that any remainder of the Claim or Equity Interest qualifies within the
description of such other Classes. A Claim is also classified in a particular
Class only to the extent that such Claim is an Allowed Claim in that Class and
has not been paid, released or otherwise satisfied prior to the Effective Date.
3.1. Class 1 -- Allowed Priority Wage Claims. Each Allowed Priority Wage
Claim shall be paid in full in Cash by NewAWA at such time or times as provided
in Section 10.1 hereof. Class 1 is unimpaired under the Plan.
3.2. Class 2 -- Allowed Priority Benefit Plan Contribution Claims. All
Allowed Priority Benefit Plan Contribution Claims shall be paid in full in Cash
by NewAWA at such time or times as provided in Section 10.1 hereof. Class 2 is
unimpaired under the Plan.
3.3. Class 3 -- Allowed Secured Claims.
3.3.1. Class 3.1 -- U.S. Leasing (Ford) Ramp Equipment Loan. This
Class consists of any Secured Claims arising from that certain Promissory Note
dated December 13, 1988, between AWA and Ford Equipment Leasing Co., as amended
and supplemented from time to time and as in effect as of the Petition Date. The
principal collateral securing this Claim consists of certain group transport
support equipment and jetway equipment. On the Effective Date, the holder of the
Allowed Class 3.1 Claim will receive a promissory note in the amount of
$1,624,584.00 due over four years with equal monthly payments of $41,331.04
commencing September 1, 1994. The holder of such Claim will retain all of the
liens securing such Claim as such liens may exist as of the Effective Date.
Class 3.1 is impaired under the Plan.
3.3.2. Class 3.2 -- Bank of America Revolver. This Class consists of
any Secured Claims arising from that certain Revolving Loan Agreement dated
April 17, 1990, among AWA, Bank of America National Trust & Savings Association,
as Agent and for itself, First Interstate Bank of Arizona, the Industrial Bank
of Japan Limited, Los Angeles Agency, The Valley National Bank of Arizona and
First Hawaiian Bank, as amended and supplemented from time to time and as in
effect as of the Petition Date. The principal collateral securing these claims
consists of Boeing 747 and 757 spare parts, certain expendable aircraft parts,
inventory and six spare Pratt & Whitney Model JT8D-9A engines. On the Effective
Date, the holders of such Claims (i) will receive promissory notes in the
aggregate principal amount of $11,000,000 with principal amortization
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over a four-year term in equal aggregate monthly principal payments of $229,167
each and interest at the Bank of America Reference Rate plus 1% per annum
commencing in September 1994, (ii) will receive a cash payment on the Effective
Date equal to the accrued interest on such loan for the period both prior to and
after the Petition Date, net of proceeds of prior sales of collateral under such
loan since the Petition Date, and (iii) will receive reimbursement of actual
costs and expenses of the holders incurred in connection with the Chapter 11
Case, but in any event not more than $185,000 plus the expenses incurred in
connection with the negotiation and documentation of the terms of this
treatment. The holders of such Claims will retain only those liens which
encumber Boeing 757 spare parts and rotables, provided that the collateral
coverage must be at least 150% of the outstanding loan balance and in the event
that the collateral coverage is, at any time, less than 150% of the outstanding
loan balance, NewAWA will promptly pledge additional collateral or prepay the
loan in an amount equal to the amount necessary to restore the collateral
coverage to not less than 150% of the outstanding loan balance. In the event
that the collateral coverage exceeds 150% of the outstanding loan balance,
NewAWA will have the right to have excess collateral of the holders' choosing be
released from the liens contemplated hereby. Collateral coverage will be
calculated monthly based on the net book value of the assets pledged as
collateral. Subject to the agreement of the parties, covenants in the applicable
loan documents will be modified to include, among other things, reasonable
financial covenants. The holders of such Claims will not assert any right of
subordination of the type contemplated by Section 3.5.3 herein and will dismiss
any claims now pending with regard to any such right. Class 3.2 is impaired
under the Plan.
3.3.3. Class 3.3 -- Bank One of Arizona f/k/a Valley National
Bank -- Spare Parts Loan. This Class consists of any Secured Claims arising from
(a) that certain Master Reimbursement Agreement, dated as of April 15, 1989
between AWA and Valley National Bank of Arizona, a national banking association,
n/k/a Bank One of Arizona, N.A. ("BOAZ"), as amended and supplemented from time
to time and as in effect as of July 25, 1991, and (b) that certain Amended and
Restated Reimbursement Agreement, dated June 29, 1990 among AWA, BOAZ and Bank
of America National Trust and Savings Association, as amended and supplemented
from time to time and as in effect on the Petition Date. The principal
collateral securing these Claims consists of certain spare rotable nonconsumable
parts, accessories, appliances, equipment and other items that are appropriate
for installation or use on, in or with any Boeing model 737 aircraft or any part
thereof. On the Effective Date, the holder of such claim shall receive either
(i) a cash payment in an amount equal to the sum of (A) $21,212,953.98, if the
Effective Date occurs on June 10, 1994, $21,760,297.61, if the Effective Date
occurs on August 1, 1994, $22,099,874.80, if the Effective Date occurs on
September 1, 1994, $22,433,542.61, if the Effective Date occurs on November 1,
1994, provided that such amount shall be appropriately adjusted at an identical
compounded rate if the Effective Date occurs on any other date other than as set
forth above; plus (B) $65,000; plus (C) $1,976,000, if the Effective Date occurs
on June 10, 1994, $2,027,998.16, if the Effective Date occurs on August 1, 1994,
$2,059,645.79, if the Effective Date occurs on September 1, 1994, $2,090,742.69,
if the Effective Date occurs on October 1, 1994, $2,123,369.47, if the Effective
Date occurs on November 1, 1994, provided, that such amount shall be
appropriately adjusted at an identical compounded rate if the Effective Date
occurs on any other date other than as set forth above, and provided, further,
that if an unexpired letter of credit expires at any time prior to the Effective
Date, such amount shall be appropriately adjusted at an identical compounded
rate such that interest shall have ceased to accrue on the principal amount
represented by such expired letter of credit as of the date of such expiration;
minus (D) $1,976,000; plus (E) the principal amount drawn under any unexpired
letters of credit on or after June 10, 1994 and prior to the Effective Date; or
(ii) such other treatment as shall be agreed upon by the Debtor and the holders
of such Claims as is approved by the Bankruptcy Court. Class 3.3 is impaired
under the Plan.
3.3.4. Class 3.4 -- Hangar Facility Bonds. This Class consists of any
Secured Claims arising from that certain Indenture of Trust dated August 1,
1986, between the Industrial Development Authority of the City of Phoenix,
Arizona, and First Interstate Bank of Arizona, N.A., as Indenture Trustee, as
amended and supplemented from time to time and as in effect as of the Petition
Date and pursuant to which the Variable Rate Airport Facility Revenue Bonds
(America West Airlines, Inc. Project) Series 1986 were issued. The principal
collateral securing these claims consists of the AWA maintenance and technical
support facility located at Phoenix Sky Harbor International Airport. On the
Effective Date, the holders of the Allowed Class 3.4 Claims will receive (i)
promissory notes in the aggregate principal amount of $29,500,000 due five
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years after the Effective Date with aggregate principal payments of $204,861 per
month and bearing interest at the Bank of America Reference Rate plus 1% per
annum and commencing in September 1994, (ii) promissory notes in the aggregate
principal amount of $6,500,000 with aggregate principal payments of $270,833 per
month and bearing interest at the Bank of America Reference Rate plus 1% per
annum and commencing in September 1994, (iii) Allowed General Unsecured Claims
in the aggregate amount of $2,000,000 and (iv) reimbursement of actual and
reasonable expenses associated with the negotiating and documenting the
treatment provided hereby. In the event that NewAWA is successful in remarketing
new or substituted tax-exempt bonds for such facility, it will use the proceeds
first to extinguish the indebtedness evidenced by such notes and, if NewAWA does
not remarket such bonds by the date one year after the Effective Date, there
will be an additional principal payment on the aggregate of $29,500,000 in notes
described above in the aggregate amount of $5,000,000 on the first Business Day
of the thirteenth month after the Effective Date. The holders of such Claims
will retain all of the liens securing such Claims to secure the aforementioned
notes as such liens may exist as of the Effective Date. Subject to agreement of
the parties, covenants in the applicable loan documents will be modified to
reflect, among other things, current projections of NewAWA performance. The
holders of such Claims will not assert any right of subordination of the type
contemplated by Section 3.5.3 herein and will dismiss any claims now pending
with regard to any such right. Class 3.4 is impaired under the Plan.
3.3.5. Class 3.5 -- Lockheed Finance No. 2. This Class consists of any
Secured Claims arising from that certain Master Equipment Lease Agreement No.
0134 dated as of November 12, 1987, between AWA and Lockheed Finance
Corporation, as amended and supplemented from time to time and as in effect as
of the Petition Date. The principal collateral securing this Claim consists of
certain ground support equipment. On the Effective Date, the holder of the
Allowed Class 3.5 Claim will receive a promissory note in the amount of $750,000
bearing interest at the 30-day LIBOR rate (as provided for in such Master Lease
Agreement) plus 200 basis points per annum, payable over a term of five years in
level monthly principal installments, plus interest. The holder of such Claim
will have no Unsecured Deficiency Claim and will retain all of the liens
securing such Claim as such liens may exist as of the Effective Date to the
extent of the amount of the Note. Class 3.5 is impaired under the Plan.
3.3.6. Class 3.6 -- Other Secured Claims. This Class consists of
Allowed Secured Claims not specifically provided for above. On the Effective
Date, as to such Allowed Secured Claim, at AWA's option either:
(a) the holder of such Claim shall be treated in accordance with
the terms and conditions of all documents respecting such Claim and the legal,
equitable or contractual rights to which each holder of such Claim is entitled
shall not otherwise be altered;
(b) (i) any default, other than a default of the kind specified
in Section 365(b)(2) of the Bankruptcy Code, shall be cured, provided that any
accrued and unpaid interest, if any, which the Debtor may be obligated to pay
with respect to such default shall be simple interest at the contract rate and
not at any default or penalty rate of interest;
(ii) the maturity of the Claim shall be reinstated as such
maturity existed before any default;
(iii) the holder of the Claim shall be compensated for any
actual damages incurred as a result of any reasonable reliance by the holder on
any contractual provision that entitled the holder to accelerate maturity of the
Claim; and
(iv) the other legal, equitable or contractual rights to
which the holder of the Claim is entitled shall not otherwise be altered;
provided, however, that as to any Allowed Secured Claim which is a nonrecourse
claim and exceeds the value of the collateral securing the Claim, the collateral
may be sold at a sale at which the holder of such Claim has an opportunity to
bid;
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(c) on the Effective Date, or on such other date thereafter as
may be agreed to by the Debtor and the holder of such Claim, the Debtor shall
abandon the collateral securing such Claim to the holder thereof in full
satisfaction and release of such Claim;
(d) on the Effective Date, the holder of such Claim shall
receive, on account of such Claim, Cash equal to its Allowed Secured Claim, or
such lesser amount to which the holder of such Claim shall agree, in full
satisfaction and release of such Claim;
(e) the holder of such Claim shall retain the liens securing such
Claim and shall receive, on account of such Claim, deferred Cash payments,
pursuant to Section 1129(b)(2)(A)(i)(II) of the Bankruptcy Code, totalling at
least the Allowed amount of such Claim, of a Present Value, as of the Effective
Date, of at least the value of such holder's interest in the Debtor's interest
in the property securing such Claim;
(f) on the Effective Date, any property that is subject to the
liens securing such Claim shall be sold, subject to Section 363(k) of the
Bankruptcy Code, free and clear of such liens, with payment of the net proceeds
thereof to the holder of such Claim to the extent of the value of such holder's
respective interest in such property; or
(g) the holder of such Claim shall otherwise realize the
indubitable equivalent of such Claim.
Each holder of an Allowed Claim in Class 3.6 shall be considered to be in its
own separate subclass within Class 3.6, and each such subclass will be deemed to
be a separate Class for purposes of this Plan. In the event that AWA does not
make such designation, the holder of an Allowed Secured Claim shall, at any time
prior to the Effective Date, be entitled to petition the Bankruptcy Court for an
order requiring AWA to make such designation, but shall not be entitled to any
other relief or to exercise any other remedies, except in accordance with such
designation and any applicable Final Order(s) of the Bankruptcy Court.
3.4. Class 4 -- Allowed Convenience Claims. This Class consists of
Convenience Claims. Each Allowed Convenience Claim shall be paid by NewAWA Cash
in the amount of such Allowed Convenience Claim to be distributed as provided in
Section 10.1. Class 4 is not impaired under the Plan.
3.5. Class 5 -- Allowed General Unsecured Claims. This Class consists of
General Unsecured Claims.
3.5.1. Each holder of an Allowed General Unsecured Claim shall receive
its Pro Rata Share of 26,775,000 shares of NewAWA Class B Common Stock;
provided, however, that if the holder is an Electing Unsecured Creditor in
accordance with Section 3.5.2, such holder shall receive Electing Creditor Cash
equal to $8.889 for each share of NewAWA Class B Common Stock otherwise
allocable to it under this sentence.
3.5.2. A holder of an Allowed General Unsecured Claim may become an
Electing Unsecured Creditor only by providing notice of such election on the
Ballot which such holder submits. Any holder of a Disputed General Unsecured
Claim that wishes to become an Electing Unsecured Creditor must provide notice
to the Debtor of the exercise of such right by no later than the Voting
Deadline. Each such election by a holder of a General Unsecured Claim shall be
irrevocable and must pertain to the entire amount of such holder's General
Unsecured Claim. In the event that the aggregate amount of the Electing Creditor
Cash would be in excess of $100,000,000, then each Electing Unsecured Creditor
shall receive only its Pro Rata Share of $100,000,000 in Cash and shall also
receive a number of shares of Electing Creditor Stock equal to the number of
shares of NewAWA Class B Common Stock it would have received if it were a
Non-Electing Unsecured Creditor minus the result of dividing the Electing
Creditor Cash it receives by $8.889. For purposes of allocating Electing
Creditor Cash among Electing Unsecured Creditors, each Disputed General
Unsecured Claim held by an Electing Unsecured Creditor shall initially be valued
at its face amount; provided, however, in the event that the aggregate amount of
Electing Creditor Cash would exceed $100,000,000 and one or more holders of
Disputed General Unsecured Claims have become Electing Unsecured Creditors, then
any party in interest with regard thereto (including, without limitation, the
Creditors' Committee), may seek an order of the Bankruptcy Court estimating the
amount of any and all such Disputed General Unsecured Claims at a lower amount
and, then, regardless of the amount at which such Disputed General Unsecured
Claims are eventually Allowed, the holders thereof will be paid Electing
Creditor Cash in an amount which does not exceed the amount of Electing Creditor
Cash which would be payable for a Claim in the amount of such
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estimate and for any amount of the Disputed Claim which is Allowed in excess of
such estimate, the holder shall receive Electing Creditor Stock in accordance
with Section 10.4. NewAWA Class B Common Stock distributed to Non-Electing
Unsecured Creditors, Electing Creditor Stock and Electing Creditor Cash shall be
distributed in accordance with Section 10.2.
3.5.3. Any holder of an Unsecured Claim asserting that payment to any
other holder of an Unsecured Claim should be subordinated to such first holder
under Section 510(a) of the Bankruptcy Code, may only make such assertion by
filing an adversary proceeding in the Chapter 11 Case on or before the Voting
Deadline, or such other date as may be established by Final Order of the
Bankruptcy Court. Any such subordination of one Unsecured Claim to another
Unsecured Claim shall be made only upon Final Order of the Bankruptcy Court and
no distribution hereby to any holder of an Allowed Claim which is the subject of
such an adversary proceeding shall be delayed or withheld except upon Final
Order of the Bankruptcy Court. Any such adversary proceeding involving holders
of AWA Debenture Claims shall name as defendants the Debtor and on behalf of all
such holders, the Indenture Trustee.
3.5.4. Class 5 is impaired under the Plan.
3.6. Class 6 -- AWA Preferred and Common Stock.
3.6.1. Class 6.1 -- AWA Preferred Stock. This Class consists of AWA
Preferred Stock. Each holder of shares of AWA Preferred Stock shall receive its
Pro Rata Share of $500,000 in Cash plus the right to purchase as of the
Effective Date its Pro Rata Share of the first 250,000 shares of
Over-Subscription Stock at the price of $8.889 per share or such lesser amount
of Over-Subscription Stock as is available after the purchase of Equity
Subscription Stock in accordance with Section 3.6.2. Such Cash shall be
distributed in accordance with Section 10.1. Payment for such Over-Subscription
Stock shall be made no later than the Effective Date. Such Cash and rights shall
be deemed to be in full satisfaction for all Claims and Equity Interests arising
in connection with the AWA Preferred Stock including accrued and unpaid
dividends thereon. Class 6.1 is impaired under the Plan. All shares of AWA
Preferred Stock shall be deemed to be cancelled, annulled and extinguished on
the Effective Date.
3.6.2. Class 6.2 -- AWA Common Stock.
(a) This Class consists of shares of AWA Common Stock other than
shares of AWA Common Stock which are pledged as collateral for Employee Stock
Purchase Notes. Each holder of such AWA Common Stock shall receive its Pro Rata
Share of (i) the Equity Interests Stock and (ii) the Equity Interests Warrants,
to be distributed in accordance with the procedure set forth in Section 10.2.
(b) Additionally, each such holder of AWA Common Stock other than
the holder of a Disputed Equity Interest shall have the right to purchase its
Pro Rata Share of the Equity Subscription Stock at the price of $8.889 per
share; provided, however, that for purposes of determining such Pro Rata Share
(i) there shall be considered to be an aggregate of 22,100,000 shares of AWA
Common Stock and (ii) each such holder shall be considered to own the number of
shares of AWA Common Stock for which it is the beneficial owner on the
Disclosure Statement Order Date. Such right is not transferrable and may only be
exercised by the beneficial holder of such AWA Common Stock as of the Voting
Record Date by the irrevocable indication thereof on the Ballot which such
holder delivers or causes to be delivered, but in the event that Persons not
previously holders of AWA Common Stock purchase AWA Common Stock after the
Voting Record Date and own such AWA Common Stock on the Disclosure Statement
Order Date, each such Person shall be given the opportunity to subscribe for its
Pro Rata Share of Equity Subscription Stock and, if available, for
Over-Subscription Stock. Each holder of AWA Common Stock entitled to a Ballot
may also indicate on the Ballot that it wishes to purchase Over-Subscription
Stock, if available. The Over-Subscription Stock available to Purchasing
Stockholders shall consist of the Equity Subscription Stock not subscribed for
in accordance with the second preceding sentence and less the Over-Subscription
Stock sold to holders of AWA Preferred Stock in accordance with Section 3.6.1.
Each Purchasing Stockholder must irrevocably indicate on the Ballot the maximum
number of shares of Equity Subscription Stock and Over-Subscription Stock which
it desires to purchase. As set forth more fully in Section 10.2, either full
payment or a satisfactory guarantee of
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payment for all Equity Subscription Stock and Over-Subscription Stock must be
delivered by the Voting Deadline. The procedure for allocating Over-Subscription
Stock is set forth in Section 10.2.
(c) Class 6.2 is impaired under the Plan. All shares of AWA
Common Stock will be cancelled, annulled and extinguished on the Effective Date.
3.7. Class 7 -- Certain Other Claims and AWA Warrants, Options and Other
Equity Interests.
3.7.1. Class 7.1 -- Employee Stock Purchase Note Claims and Certain
AWA Common Stock. This Class consists of Stock Rescission or Damage Claims
(including, without limitation, Claims by members of the putative plaintiff
class in the Securities Action) which are held by Persons who are obligated
under one or more Employee Stock Purchase Notes. This Class also includes AWA
Common Stock pledged as collateral for Employee Stock Purchase Notes. Each
holder of an Allowed Claim or Equity Interest in this Class shall receive in
exchange for and in consideration of the dismissal with prejudice and permanent
enjoinment of the Securities Actions, a release of any and all indebtedness
incurred under the Employee Stock Purchase Plan, including the forgiveness,
abandonment and cancellation of any liability under the Employee Stock Purchase
Notes, but shall receive no other distribution under the Plan. In addition, all
liens on AWA Common Stock securing Employee Stock Purchase Notes will be
released and such AWA Common Stock will be returned to AWA and cancelled,
annulled and extinguished as of the Effective Date and will not be entitled to
any distribution under Section 3.6.2. Pursuant to Sections 1123(a)(5)(E), (F)
and 1123(b)(3)(A) of the Bankruptcy Code, the treatment provided Class 7.1
Claims constitutes a compromise and settlement of the Securities Action and any
and all objections to such Claims. The Debtor will either file appropriate
pleadings seeking to effect the treatment provided Class 7.1 Claims in this
Section 3.7.1 as a compromise and settlement prior to the Confirmation Hearing
or request the Bankruptcy Court to approve this compromise and settlement at the
Confirmation Hearing as in the best interests of the Debtor and holders of
Claims and Equity Interests and fair, equitable and reasonable. Class 7.1 is
impaired under the Plan.
3.7.2. Certain AWA Warrants, Options and Other Equity Interests and
Other Claims. This Class consists of the following Claims and Equity Interests
(except to the extent they are included in Class 7.1): (i) AWA Warrants,
Options, and Other Equity Interests, (ii) Stock Rescission or Damage Claims,
(iii) Subordinated Claims and (iv) all Claims, if any, arising from the
cancellation or rejection (to the extent they constitute executory contracts) of
AWA Warrants, Options and Other Equity Interests. Holders of such Claims and
Equity Interests will not be entitled to receive or retain any property under
the Plan on account of such Claims or Equity Interests, and pursuant to Section
1126(g) of the Bankruptcy Code, are deemed not to have accepted the Plan. Class
7.2 is impaired under the Plan. All AWA Warrants, Options and Other Equity
Interests will be cancelled, annulled and extinguished on the Effective Date.
ARTICLE 4
PROVISIONS OF NEWAWA SECURITIES
ISSUED PURSUANT TO THE PLAN
4.1. NewAWA Class A Common Stock. Principal provisions of the NewAWA Class
A Common Stock are summarized as follows:
(a) Authorization. The NewAWA Charter shall authorize the issuance of
1,200,000 shares of NewAWA Class A Common Stock.
(b) Par Value. The NewAWA Class A Common Stock shall have a par value
of $.01 per share.
(c) Rights. The NewAWA Class A Common Stock shall have such rights
with respect to dividends, liquidation, voting and other matters as are set
forth in the NewAWA Charter and as provided under applicable law,
including, without limitation, the right to fifty votes per share which
shall be voted together as a single class with the NewAWA Class B Common
Stock.
(d) Convertibility. Each share of NewAWA Class A Common Stock will be
convertible, at the option of the holder, into one share of NewAWA Class B
Common Stock.
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4.2. NewAWA Class B Common Stock. Principal provisions of the NewAWA Class
B Common Stock are summarized as follows:
(a) Authorization. The NewAWA Charter shall authorize the issuance of
100,000,000 shares of NewAWA Class B Common Stock.
(b) Par Value. The NewAWA Class B Common Stock shall have a par value
of $.01 per share.
(c) Rights. The NewAWA Class B Common Stock shall have such rights
with respect to dividends, liquidation, voting and other matters as are set
forth in the NewAWA Charter and as provided under applicable law,
including, without limitation, the right to one vote per share which shall
be voted together as a single class with the NewAWA Class A Common Stock.
(d) Exchange Listing. NewAWA will seek a listing of the NewAWA Class B
Common Stock on a national securities exchange or automated quotation
system and will use its reasonable efforts to obtain such listing prior to
the distribution to holders of Allowed Claims and Equity Interests of
NewAWA Class B Common Stock.
4.3. NewAWA Warrants. Principal provisions of the NewAWA Warrants are as
follows:
(a) Authorization. The Plan hereby authorizes the issuance of NewAWA
Warrants to purchase 10,384,615 shares of NewAWA Class B Common Stock.
(b) Exercise Price. The proponents of the Plan will seek to have the
exercise price for the NewAWA Warrants determined in the Confirmation Order
or otherwise pursuant to a Final Order of the Bankruptcy Court to be issued
before the Effective Date or as soon thereafter as possible, which exercise
price shall equal the aggregate amount of Allowed General Unsecured Claims
on the date of such order plus the Bankruptcy Court's estimate of the
Disputed General Unsecured Claims which will become Allowed General
Unsecured Claims, which sum shall be multiplied by 1.1 and divided by
26,775,000.
(c) Exercise. The NewAWA Warrants will be exercisable by the holder
thereof at any time on or prior to the fifth anniversary of the Effective
Date.
(d) Rights. The NewAWA Warrants will not be redeemable. The number of
shares of NewAWA Class B Common Stock purchasable upon exercise of each
NewAWA Warrant will be adjusted upon (i) payment of a dividend payable in,
or other distribution of, NewAWA Class B Common Stock to all of the
then-current holders of NewAWA Class B Common Stock, (ii) a combination,
subdivision or a reclassification of NewAWA Class B Common Stock, and (iii)
a rights issuance. The holders of the NewAWA Warrants will not have any
voting rights in respect thereof.
(e) Exchange Listing. NewAWA will seek a listing of the NewAWA
Warrants on the same securities exchange or automated quotation system as
the NewAWA Class B Common Stock is listed.
4.4. NewAWA Senior Unsecured Notes. Principal provisions of the NewAWA
Senior Unsecured Notes are as follows:
(a) Authorization. The Plan hereby authorizes the issuance of the
NewAWA Senior Unsecured Notes in a maximum principal amount of
$100,000,000.
(b) Maturity. The NewAWA Senior Unsecured Notes will mature seven
years from issuance.
(c) Interest Rate. The NewAWA Senior Unsecured Notes will bear
interest, payable semiannually, in arrears at a fixed rate equal to 425
basis points over the yield of seven-year United States Treasury Notes as
of the Effective Date, but not to exceed 11.5% per annum.
(d) Ranking. The NewAWA Senior Unsecured Notes will rank pari passu
with all existing and future senior unsecured indebtedness of NewAWA.
(e) Mandatory Redemption. If within three years after the Effective
Date, NewAWA completes an underwritten public offering of primary equity,
NewAWA shall use 50% of the Net Proceeds thereof to
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redeem up to $20,000,000 in principal amount of the NewAWA Senior Unsecured
Notes at 104% of the principal amount plus accrued interest, provided,
however, that in the event that at the time of such offering the
unrestricted cash balance of NewAWA is less than $100,000,000, then such
redemption will be at the option of NewAWA. Thereafter, the NewAWA Senior
Unsecured Notes will be redeemable at NewAWA's option, in whole or in part.
The redemption price will be equal to the following percentage of the
principal amount redeemed in each of the following years plus accrued
interest:
Year 4:..................................................... 105.0%
Year 5:..................................................... 103.3%
Year 6:..................................................... 101.7%
Year 7 and thereafter:...................................... 100.0%
(f) Special Redemption. During the first three years after the
Effective Date, the New AWA Senior Unsecured Notes will be callable by
NewAWA (i) as a whole, without regard to the source of funding, at 105% of
the principal amount redeemed plus accrued interest or (ii) in part, out of
the proceeds of a primary equity offering at 105% of the principal amount
plus accrued interest, less the $20 million in principal amount redeemed of
NewAWA Senior Unsecured Notes subject to Mandatory Redemption as described
above.
ARTICLE 5
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
5.1. Assumption of Certain Executory Contracts and Unexpired Leases.
5.1.1. Except as otherwise provided in the Plan or in any contract,
instrument, release, indenture or other agreement or document entered into in
connection with the Plan, on the Effective Date, pursuant to Section 365 of the
Bankruptcy Code, AWA shall assume or assume and assign, as indicated, each of
the Assumed Agreements including, without limitation, the executory contracts
and unexpired leases listed on Schedule 3 hereto; provided, however, that AWA or
NewAWA shall have the right, at any time prior to the Effective Date, to amend
Schedule 3: (a) unless indicated otherwise on Schedule 3, to delete any
executory contract or unexpired lease listed therein, thus providing for its
rejection pursuant to Section 5.2; or (b) to add any executory contract or
unexpired lease, thus providing for its assumption or assumption and assignment
pursuant to this Section 5.1.1. The Debtor or NewAWA shall provide notice of any
amendments to Schedule 3 to the parties to the executory contracts or unexpired
leases affected thereby and, if such amendments are made before the Effective
Date, to the parties on the Official Service List. Pursuant to Section
1123(b)(2) of the Bankruptcy Code, the Confirmation Order shall constitute an
order of the Bankruptcy Court approving the assumptions and assignments
described in this Section 5.1.1, pursuant to Section 365 of the Bankruptcy Code,
as of the Effective Date.
5.1.2. Unless otherwise agreed by AWA and the counterparty to any such
Assumed Agreement, (i) all cure payments which may be required by Section
365(b)(1) of the Bankruptcy Code under any Assumed Agreement, if not previously
made, shall be made on the Effective Date or promptly thereafter, and (ii) in
the event of a dispute regarding the amount or timing of any cure payments, the
ability of NewAWA to provide adequate assurance of future performance, or any
other matter pertaining to assumption or assignment, such dispute shall be
resolved by the Bankruptcy Court and NewAWA shall make such cure payments, if
any, or provide such assurance as may be required by the Final Order resolving
such dispute on the terms and conditions of such Final Order.
5.1.3. Except as otherwise provided in the Plan (including any such
provision on Schedule 3) or in any contract, instrument, release or indenture or
other agreement or document entered into in connection with the Plan, each
Assumed Agreement shall, at AWA's option, be assumed only to the extent that any
such contract or lease constitutes an executory contract or unexpired lease.
Listing a contract or lease on Schedule 3 shall not, in and of itself,
constitute an admission by the Debtor or NewAWA that such contract or lease is
an executory contract or unexpired lease or that the Debtor or NewAWA has any
liability thereunder. Contracts and leases which are within the definition of
Assumed Agreements and which are later determined
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to have not been in fact executory contracts or unexpired leases,
shall be treated in accordance with the provisions in the Plan for the treatment
of that type of Claim which properly arises from the true nature of the legal
relationship between the parties as determined by the Bankruptcy Court or by
settlement; provided, however, that either the Debtor or NewAWA may in its sole
discretion amend the Plan to provide for different treatment of any such Claim
after Notice and a Hearing.
5.1.4. Except as otherwise provided in the Plan (including any such
provision on Schedule 3) or in any contract, instrument, release or indenture or
other agreement or document entered into in connection with the Plan, all
assumptions of executory contracts and unexpired leases under the Plan shall be
without prejudice to the rights of the Debtor or NewAWA to assign later such
assumed executory contracts or unexpired leases, notwithstanding any prohibition
to the contrary in any such contract or lease.
5.2. Rejection of Certain Executory Contracts and Unexpired Leases. On the
Effective Date, except for every Assumed Agreement, each executory contract and
unexpired lease entered into by AWA prior to the Petition Date that has not
previously expired or terminated pursuant to its own terms and (to the extent
they are executory contracts) all AWA Warrants, Options and Other Equity
Interests shall be rejected pursuant to Sections 365 and 1123(b)(2) of the
Bankruptcy Code and considered a Rejected Agreement hereunder.
5.3. Claims Based on Rejection of Executory Contracts or Unexpired Leases.
All proofs of claim with respect to Claims arising from the rejection of any
Rejected Agreement shall be filed with the Bankruptcy Court no later than thirty
(30) days after the Effective Date. Any Claims not filed within such time shall
be forever barred from assertion against the Debtor, its estate and property, or
NewAWA.
ARTICLE 6
IDENTIFICATION OF CLASSES OF CLAIMS NOT IMPAIRED
BY THE PLAN AND THE CLASS OF CLAIMS AND EQUITY
INTERESTS DEEMED TO HAVE REJECTED THE PLAN
6.1. Unimpaired Classes. Claims in Classes 1, 2 and 4 are not impaired
under the Plan. Any Class not specifically designated in the Plan as unimpaired
is impaired under the Plan. Claims in unimpaired Classes are not entitled to
vote on the Plan.
6.2. Class Deemed to Have Rejected the Plan. Claims and Equity Interests in
Class 7.2 are not entitled to receive or retain any property under the Plan and
are therefore deemed not to have accepted the Plan, and such Class shall not be
entitled to vote on the Plan.
6.3. Other Impaired Classes. Claims in Classes 3.1, 3.2, 3.3, 3.4, 3.5,
3.6, 5, 6.1, 6.2 and 7.1 are impaired under the Plan and shall be entitled to
vote on the Plan.
ARTICLE 7
ACCEPTANCE OR REJECTION OF THE PLAN;
EFFECT OF REJECTION BY ONE OR MORE CLASSES
7.1. Impaired Classes to Vote. Except as otherwise required by the
Bankruptcy Code or the Bankruptcy Court, each holder of a Claim or Equity
Interest that is impaired under the Plan is entitled to vote to accept or reject
the Plan if, as of the Voting Record Date, (i) its Claim is an Allowed Claim,
(ii) its Claim has been temporarily allowed for voting purposes only by order of
the Bankruptcy Court pursuant to Bankruptcy Rule 3018 (in which case such Claim
may be voted in such temporarily allowed amount), (iii) its Claim has been
scheduled by the Debtor (but only if such Claim is not scheduled as disputed,
contingent or unliquidated) and no objection to such Claim has been filed, (iv)
it has filed a proof of claim on or before the Bar Date (or such later date as
the Bankruptcy Court may have established with respect to any particular Claim,
but not later than the date of the order approving such Disclosure Statement),
and such Claim is not a Disputed Claim, or (v) its Equity Interest is registered
on the stock ledger or equivalent of the Debtor. Notwithstanding the foregoing,
a holder of a Disputed Claim which has not been temporarily allowed as
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provided above may nevertheless vote such Disputed Claim in an amount equal to
the portion, if any, of such Claim which is not disputed and is shown as fixed,
liquidated and undisputed in the Debtor's Schedules or such amount which the
Debtor concedes is Allowed in a filing made by the Debtor in the Bankruptcy
Court. Each holder of an AWA Debenture Claim, and not the Indenture Trustee with
respect to such Claim, shall have the right to vote to accept or reject the
Plan.
7.2. Acceptance by Class of Holders of Claims or Equity Interests. A Class
of holders of Claims shall have accepted the Plan if the Plan is accepted by at
least two-thirds in amount and more than one-half in number of the Allowed
Claims of such Class that have voted to accept or reject the Plan. A Class of
Equity Interests shall have accepted the Plan if acceptance is voted for by the
holders of at least two-thirds in amount of the Equity Interests of such Class
who have voted to accept or reject the Plan.
7.3. Cramdown. Inasmuch as Class 7.2 is deemed not to have accepted the
Plan in accordance with Section 1129(a) of the Bankruptcy Code, and in the event
that one or more other Classes of impaired Claims or Equity Interests does not
accept or is deemed not to have accepted the Plan, the Debtor requests that the
Bankruptcy Court confirm the Plan in accordance with Section 1129(b) of the
Bankruptcy Code. AWA and AmWest reserve the right to modify the Plan to the
extent, if any, that confirmation pursuant to Section 1129(b) of the Bankruptcy
Code requires or permits such modification.
ARTICLE 8
MEANS FOR IMPLEMENTATION OF THE PLAN
8.1. Investment Agreement. On the Effective Date, the investment and sale
of securities contemplated by the Investment Agreement shall be consummated in
accordance with such agreement. In the event of conflict between the terms of
the Plan and of the Investment Agreement, the terms of the Plan shall control.
8.2. Stockholders' and Registration Rights Agreements. On the Effective
Date, the Stockholders' Agreement and Registration Rights Agreement shall become
effective.
8.3. Delivery of Alliance Agreements. On or before the Effective Date, AWA,
Continental Airlines, Inc., and Mesa Airlines, Inc., as applicable, shall enter
into the Alliance Agreements, as such term is defined in the Investment
Agreement.
8.4. GPA Settlement. On the Effective Date, NewAWA and GPA will consummate
the transactions described in the term sheet attached hereto as Exhibit C and
incorporated herein by reference.
8.5. Corporate Governance. On or as of the Effective Date, the NewAWA
Charter shall be filed with the Secretary of State of the State of Delaware and
the NewAWA By-laws shall take effect, each containing such provisions as are
necessary to satisfy the terms of the Plan and Section 1123(a)(6) of the
Bankruptcy Code.
8.6. Release of Certain Claims and Actions.
8.6.1. On the Effective Date, in consideration for services rendered
in the Chapter 11 Case, the Debtor shall be deemed to have finally and
irrevocably waived, released and relinquished any and all claims and causes of
action, if any, that it has or may have against the Creditors' Committee, the
Equity Committee or any member thereof or against their respective professional
advisors arising out of or related to each such Person's actions or omissions to
act in all of such Person's capacities in connection with the Chapter 11 Case,
including the formulation, preparation, dissemination, implementation or
confirmation of the Plan or the Disclosure Statement or any contract,
instrument, release or other agreement or document created or entered into, or
any other act taken or omitted to be taken in connection therewith, and the
Debtor is enjoined from asserting any such claim or cause of action in any court
or forum; provided, however, that this provision shall not operate as a release,
waiver or relinquishment of, or injunction against asserting, any such claims or
causes of action (i) provided in or contemplated by the Plan or (ii) arising
from any actual fraud (but not constructive fraud) or willful misconduct of any
such Person.
8.6.2. On the Effective Date, in consideration for benefits realized
in the Chapter 11 Case, the Debtor shall be deemed to have finally and
irrevocably waived, released and relinquished any and all claims
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and causes of action, if any, that it has or may have against AmWest, any of
AmWest's partners, Fidelity or Lehman or their respective partners, affiliates,
employees or professional advisors arising out of or related to such Person's
actions or omissions to act in connection with the Chapter 11 Case, including
the formulation, preparation, dissemination, implementation or confirmation of
the Plan or the Disclosure Statement or any contract, instrument, release or
other agreement or document created or entered into, or any other act taken or
omitted to be taken in connection therewith, and the Debtor is enjoined from
asserting any such claim or cause of action; provided, however, that this
provision shall not operate as a release, waiver or relinquishment of, or
injunction against asserting, any such claims or causes of action (i) provided
in or contemplated by the Plan, (ii) arising from any actual fraud (but not
constructive fraud) or willful misconduct of any such Person, and (iii) reserved
to the Debtor pursuant to the Investment Agreement or the Interim Procedures
Agreement.
8.6.3. On the Effective Date, the Creditors' Committee and each member
thereof, the Equity Committee and each member thereof, AmWest and each of its
partners, Fidelity and Lehman shall be deemed to have finally and irrevocably
waived, released and relinquished any and all claims and causes of action, if
any, that any of them have or may have against the Debtor or its professional
advisors arising out of or related to such Person's actions or omissions to act
in connection with the Chapter 11 Case, including the formulation, preparation,
dissemination, implementation or confirmation of the Plan or the Disclosure
Statement or any contract, instrument, release or other agreement or document
created or entered into, or any other act taken or omitted to be taken in
connection therewith, and such Persons are enjoined from asserting any such
claims or causes of action; provided, however, that this provision shall not
operate as a release, waiver or relinquishment of, or injunction against
asserting any such claims or causes of action (i) provided in or contemplated by
the Plan, (ii) arising from any actual fraud (but not constructive fraud) or
willful misconduct of the Debtor, and (iii) reserved to AmWest and/or any of its
partners pursuant to the Investment Agreement or the Interim Procedures
Agreement; and, provided, further, this Section 8.6.3 shall not apply to any
claims made against the Debtor arising from third party claims against the
Creditors' Committee or any member thereof or the Equity Committee or any member
thereof. Any Person who as of the Effective Date is or was an officer or
director of AWA, shall be a beneficiary of the releases provided under Section
8.6.3 if such Person, no later than the Effective Date, delivers a release in
substantially the form of Sections 8.6.1 and 8.6.2.
8.7. Indemnification Obligations.
8.7.1. Upon, and at all times after the Effective Date, the NewAWA
Charter shall contain provisions which (i) eliminate the personal liability of
AWA's former, present and future directors for monetary damages resulting from
breaches of their fiduciary duties to the fullest extent permitted by applicable
law and (ii) require NewAWA, subject, to appropriate procedures, to indemnify
AWA's former, present and future directors and executive officers to the fullest
extent permitted by applicable law.
8.7.2. On or as of the Effective Date, NewAWA shall enter into written
agreements with each person who is a director or executive officer of AWA as of
the date of the Investment Agreement providing for similar indemnification of
such person and providing that no recourse or liability whatsoever with respect
to the Investment Agreement, the Plan or the consummation of the transactions
contemplated hereby or thereby shall be had, directly or indirectly, by or in
the right of AWA against such person.
8.7.3. For purposes of the Plan, except as limited hereinafter, any
obligations of the Debtor to indemnify its current and former directors,
officers, employees, and any officer, director or employee serving as a
fiduciary of any employee benefit plan or program of AWA, pursuant to charter,
by-laws, contract or applicable state law shall be deemed to be, and may be
treated as though they are, executory contracts that are Assumed Agreements
under the Plan, and such obligations (subject to any defenses thereto) shall
survive confirmation of the Plan and remain unaffected thereby, irrespective of
whether indemnification is owed in connection with a pre-Petition Date or
post-Petition Date occurrence; provided however, that the foregoing assumption
shall not affect any release of such obligations given to the Debtor before the
Effective Date or to NewAWA on or after the Effective Date.
8.8. Exemption from Certain Taxes. Pursuant to Section 1146(c) of the
Bankruptcy Code, none of the transactions contemplated to take place on the
Effective Date shall subject the Debtor or NewAWA to any state or local sales,
use, transfer, documentary, recording or gains tax.
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8.9. Directors and Officers. A list of the initial post-Effective Date
directors and officers of NewAWA shall be filed by the Debtor with the
Bankruptcy Court prior to the Confirmation Date.
8.10. Revesting of Assets; No Further Supervision. The assets of the Debtor
and all property of the Debtor's estate (including without limitation, all
rights of the Debtor to recover property under Sections 542, 543, 550 and 553 of
the Bankruptcy Code, all Avoidance Litigation and all proceeds thereof) and any
property acquired by AWA or NewAWA under or in connection with the Plan shall
vest or revest in NewAWA, in each case free and clear of all Claims, liens,
charges, encumbrances or Equity Interests, other than as specifically set forth
in the Plan. The Plan does not contain any restrictions or prohibitions on the
conduct of the business of NewAWA and NewAWA shall have all of the powers of a
corporation under the Delaware General Corporation Law, consistent with its
obligations under the Stockholders' Agreement. From and after the Effective
Date, NewAWA may use, operate and deal with its assets, and may conduct and
change its business, without any supervision by the Bankruptcy Court or the
Office of the United States Trustee, and free of any restrictions imposed on the
Debtor by the Bankruptcy Code or by the Bankruptcy Court during the Chapter 11
Case. Nothing contained in this Section shall be construed to prohibit, limit,
restrict or condition the Debtor's authority in any lawful manner to sell or
otherwise dispose of any other assets.
8.11. Implementation. The Debtor and AmWest shall be authorized and are
directed to take all necessary steps, and perform all necessary acts, to
consummate the terms and conditions of the Plan, including, without limitation,
the Investment Agreement.
8.12. Cancellation of Securities. As of the Effective Date, all previously
issued and outstanding securities of the Debtor, including without limitation:
all AWA Common Stock, all AWA Preferred Stock, all AWA Warrants, Options and
Other Equity Interests and all AWA Debentures; any certificate or other
instrument evidencing any such security; except as otherwise specifically
provided in Section 10.3 hereof, any indenture relating to any of the foregoing;
and the Debtor's obligations thereunder shall be deemed void, cancelled, and of
no further force or effect, without any further action on the part of any
Person. Holders of Allowed Claims and Equity Interests represented by such
securities shall have such rights to receive distributions as are set forth in
the Plan.
ARTICLE 9
CONDITIONS PRECEDENT TO THE EFFECTIVE DATE
9.1. Effectiveness of the Plan. The effectiveness of the Plan, and the
occurrence of the Effective Date, shall be subject to the satisfaction of the
following conditions precedent:
(a) The Confirmation Order shall have been entered and no stay of the
Confirmation Order shall be in effect;
(b) Each of the conditions precedent to the obligations of AmWest
under the Investment Agreement shall have been satisfied or waived by
AmWest and the purchase and sale of securities and the other transactions
contemplated by the Investment Agreement shall have been simultaneously
consummated; and
(c) Each of the conditions precedent to the obligations of the Debtor
under the Investment Agreement shall have been satisfied or waived by the
Debtor and the purchase and sale of securities and other transactions
contemplated by the Investment Agreement shall have been simultaneously
consummated.
ARTICLE 10
PROVISIONS COVERING DISTRIBUTIONS AND PAYMENTS
10.1. Making of Distributions and Payments. NewAWA, or a Distribution Agent
on its behalf, shall make the payments and distributions expressly required to
be made by it in respect of the Post-Petition Agreement Claims, Allowed
Administrative Claims (other than Preserved Ordinary Course Administrative
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Claims), Allowed Priority Wage Claims, Allowed Priority Benefit Plan
Contribution Claims, Allowed Priority Tax Claims, Allowed Convenience Claims and
AWA Preferred Stock upon the latest of (i) the Effective Date, or as soon
thereafter as practicable, (ii) such date as may be fixed by the Bankruptcy
Court, or as soon thereafter as practicable, (iii) the fifth Business Day after
such Claim is Allowed, or as soon thereafter as practicable, and (iv) such date
as the holder of such Claim and NewAWA have agreed or shall agree.
10.2. Distributions by the Distribution Agent.
10.2.1. On the Effective Date, NewAWA will issue in the name of the
Distribution Agent, as trustee, the Non-Electing Creditor Stock for distribution
to Non-Electing Unsecured Creditors in accordance with Section 3.5, and the
Electing Creditor Stock for distribution to Electing Unsecured Creditors in
accordance with Section 3.5. Additionally, NewAWA will deliver to the
Distribution Agent the Electing Creditor Cash for distribution to Electing
Unsecured Creditors in accordance with Section 3.5. As promptly as practicable
after the issuance of such NewAWA Securities and delivery of Electing Creditor
Cash to the Distribution Agent, the Distribution Agent will distribute such
securities and Cash to the holders of Allowed Claims entitled thereto in
accordance with Section 3.5, but shall reserve from such distributions the
Reserve Amount as required by Section 10.4.
10.2.2. Not later than thirty (30) days after the Voting Deadline, the
Debtor shall allocate among the Purchasing Stockholders, the Equity Subscription
Stock and the Over-Subscription Stock in accordance with this Section 10.2.2 and
advise the Distribution Agent of such allocation. Each Purchasing Stockholder
shall be allocated initially the lesser of (i) the number of shares for which it
has made a valid purchase election on its Ballot and (ii) its Pro Rata Share of
the Equity Subscription Stock determined as provided in Section 3.6.2(b).
Holders who hold shares of AWA Common Stock for the account of others such as
brokers, trustees or depositories may only exercise the right to purchase Equity
Subscription Stock and Over-Subscription Stock upon receipt of instructions and
appropriate payment or guarantee of payment from the beneficial owners of such
shares as of the Voting Record Date. The shares of Equity Subscription Stock not
allocated as above will be considered Over-Subscription Stock and will be
allocated to other holders of AWA Common Stock who have indicated on the Ballot
that they wish to acquire more than their Pro Rata Share of the Equity
Subscription Stock. If sufficient shares of Over-Subscription Stock are
available, all subscriptions therefor will be honored in full. If sufficient
shares of Over-Subscription Stock are not available to honor all such
subscriptions, the available shares of Over-Subscription Stock will be allocated
among those who subscribed based on their proportional number of shares of AWA
Common Stock, as of the Disclosure Statement Order Date. The allocation process
may involve a series of allocations in order to assure that the total number of
shares of Over-Subscription Stock is distributed on a Pro Rata Share basis. The
right to purchase Equity Subscription Stock and Over-Subscription Stock may be
exercised through a holder's broker, who may charge such holder a servicing fee
in connection with such exercise. No such fees shall be paid by the Debtor or
NewAWA. The Debtor shall establish the Stock Payment Escrow Account for the
purpose of receiving payment for Equity Subscription Stock and Over-Subscription
Stock, which shall be held by the Escrow Agent or another bank, trust company or
other organization independent of AWA and designated by the Debtor and approved
by the Bankruptcy Court. Purchasing Stockholders may choose one of the following
methods of payment:
(a) The Purchasing Stockholder may deliver full payment for the Equity
Subscription Stock and the Over-Subscription Stock, together with its
Ballot, with the check made payable to AWA Subscription Stock Escrow
Account, by no later than the Voting Deadline. The Debtor shall deposit all
such checks in the Stock Payment Escrow Account with any interest thereon
to accrue to the benefit of Debtor or NewAWA pending distribution of the
Equity Subscription Stock and Over-Subscription Stock; or
(b) The Purchasing Stockholder may deliver or cause to be delivered to
the Escrow Agent, by no later than the Voting Deadline, a notice of
guaranteed delivery by telegram or otherwise, from a bank or trust company
or a New York Stock Exchange member firm, guaranteeing delivery of payment
of the full price of the subscribed for Equity Subscription Stock and
Over-Subscription Stock. In such case, full payment for the Equity
Subscription Stock and the Over-Subscription Stock (as such amount may be
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reduced as set forth below) must be received by the Escrow Agent by no
later than 5:00 p.m. on the fifth Business Day after the Confirmation Date.
Promptly after completing the allocation required by the first sentence of this
Section 10.2.2, a confirmation will be sent to each Purchasing Stockholder
showing the number of shares of Equity Subscription Stock and the number of
shares, if any, of Over-Subscription Stock allocated to such holder. In the
event that such number of shares of Over-Subscription Stock is less than the
number of shares of Over-Subscription Stock for which such holder has either
paid for or guaranteed payment for, such notice shall also state such fact and
if full payment shall have already been made for such stock, such notice shall
also include a check representing the excess payment. Whichever of the two above
methods of payment is used, issuance and delivery of the Equity Subscription
Stock, the Over-Subscription Stock and any refunds of payments therefor shall be
subject to collection of checks and actual payment pursuant to any notice of
guaranteed delivery. All offers to purchase Equity Subscription Stock and
Over-Subscription Stock shall be irrevocable. In the event that the Effective
Date has not occurred by the date the Interim Procedures Agreement is
terminated, all amounts in the Stock Payment Escrow Account (other than interest
accrued thereon) shall be returned to the Purchasing Stockholders who have made
payment for the Equity Subscription Stock and/or Over-Subscription Stock.
10.2.3. On the Effective Date, NewAWA will issue in the name of the
Distribution Agent, as trustee, (i) the number of shares of Equity Subscription
Stock and Over-Subscription Stock to be issued to Purchasing Stockholders and
holders of AWA Preferred Stock in accordance with Sections 3.6.1, 3.6.2 and
10.2.2, and (ii) the Equity Interests Stock and the Equity Interests Warrants
for distribution to holders of AWA Common Stock as provided in Section 3.6.2. As
promptly as practicable after the Effective Date, but in any event within
fifteen (15) Business Days, the Distribution Agent will distribute (i) to each
holder of AWA Preferred Stock, the number of shares of Over-Subscription Stock
purchased in accordance with Section 3.6.1, (ii) to each Purchasing Stockholder,
the number of shares of Equity Subscription Stock and Over-Subscription Stock
purchased by such Purchasing Stockholder pursuant to Section 3.6.2 and (iii) to
each holder of AWA Common Stock as of the Distribution Record Date other than
the holder of a Disputed Equity Interest, such holder's Pro Rata Share of the
Equity Interests Stock and of the Equity Interests Warrants, less any Reserve
Amount required pursuant to Section 10.4; provided, however, that holders of AWA
Common Stock whose stock is held of record by Cede or by any other depository or
nominee on their behalf or their broker-dealer's behalf will have their NewAWA
Securities credited to the account of Cede or such other depository or nominee.
10.2.4. The Distribution Agent in its capacity as trustee holding
issued but undistributed NewAWA Securities and Electing Creditor Cash shall (i)
similarly hold in trust for distribution pursuant to this Section 10.2 any
dividend or distribution made thereon, and (ii) whenever any matter (including
election of directors) is presented for a vote by holders of such NewAWA
Securities, vote all of the NewAWA Securities so held by it in trust in the same
manner and proportion as the shares of NewAWA Class B Common Stock are voted.
10.2.5. If, after the Effective Date, NewAWA (i) pays a dividend or
makes a distribution on the outstanding NewAWA Securities held by the
Distribution Agent, (ii) subdivides the outstanding shares of NewAWA Securities
held by the Distribution Agent into a greater number of shares or units, (iii)
combines the outstanding shares or units of NewAWA Securities held by the
Distribution Agent into a smaller number of shares or units, (iv) issues by
reclassification of the outstanding NewAWA Securities held by the Distribution
Agent any shares of its capital stock, or (v) is a party to a consolidation,
merger or transfer of assets providing for any change in or exchange of the
outstanding NewAWA Securities held by the Distribution Agent, then the
Distribution Agent's obligation to distribute NewAWA Securities to any holder of
an Allowed Claim or Equity Interest arising after the record date in the case of
a dividend or distribution and after the Effective Date of any of the other
foregoing transactions shall be adjusted so as to take into account such
dividend, distribution or other event. Any such distribution shall be made net
of any Distribution Agent Charges incurred in connection with such event.
10.2.6. The duties of the Distribution Agent (including its duties as
trustee pursuant to this Section 10.2) are expressly limited to the ministerial
functions set forth in this Article 10. The Distribution
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Agent shall incur no liability for its actions (or failure to act) or conduct as
Distribution Agent, or as trustee holding issued but undistributed NewAWA
Securities or Cash except to the extent attributable to the gross negligence or
willful misconduct of the Distribution Agent. The Distribution Agent shall at
all times maintain a segregated account for any Cash being held in trust, and
shall deposit or invest all such Cash in (a) direct obligations of the United
States of America or obligations for which the full faith and credit of the
United States of America is pledged, (b) certificates of deposit and interest
bearing deposits with banks having a long-term bond rating of AA or better and
capital, surplus and undivided profits of not less than $100,000,000, (c)
commercial paper having one of the two highest ratings by Standard & Poor's,
Inc. or Moody's Investor Services, Inc., except as otherwise authorized by the
Bankruptcy Court, or (d) reasonable shares of money market funds which invest in
short-term United States government obligations; provided, however, that no such
deposit or investment shall have a maturity of more than 90 days. All
Distribution Agent Charges shall be deducted from the applicable NewAWA
Securities or Cash held by the Distribution Agent. All Cash and NewAWA
Securities held by or transferred to the Distribution Agent for distribution to
holders of Allowed Claims or Equity Interests pursuant to the Plan shall be held
by the Distribution Agent (including NewAWA in its capacity as Distribution
Agent) solely as trustee of an express trust and shall not be or constitute
property of the Distribution Agent (including NewAWA as Distribution Agent) for
any purpose whatsoever, and the Distribution Agent shall not have any right or
interest to any such Cash or stock for its own account, except as expressly
provided in the Plan.
10.2.7. AWA shall deliver to the Distribution Agent its stock ledger
for the AWA Common Stock or provide access thereto, which ledger shall reflect
the cancellation of certain AWA Common Stock in accordance with Section 3.7.1.
The Distribution Agent shall cause a register for the transfer of Allowed Claims
(other than Allowed AWA Debenture Claims) and of AWA Common Stock to be
maintained. Transfers after the Distribution Record Date shall be registered
only (i) upon Final Order of the Bankruptcy Court directing such transfer or
(ii) in the event of a transfer by operation of law.
10.3. Service of Indenture Trustee.
10.3.1. Subject to the right of the Indenture Trustee to resign and
terminate an Indenture as set forth in Section 10.3.2, the Indenture Trustee
shall receive and act as disbursing agent for all distributions to each holder
of record of an Allowed AWA Debenture Claim. Unless terminated pursuant to
Section 10.3.2 below, the Indentures shall continue in effect after the
Effective Date for the sole purpose of allowing the Indenture Trustee to make
the distributions to be made on account of such Allowed AWA Debenture Claims
under the Plan and for defending any subordination action brought under Section
3.5. AWA and NewAWA shall be required to reimburse the Indenture Trustee solely
for fees, costs and expenses (including reasonable costs of counsel associated
therewith) in connection with activities required under this Section 10.3.1. Any
fees, costs, or expenses incurred by the Indenture Trustee for any other
activities it may undertake shall be collectible solely from the holders of AWA
Debentures. Notwithstanding anything to the contrary herein, the Indenture
Trustee shall retain any and all charging liens or similar rights provided in
the Indentures for so long as it is Indenture Trustee.
10.3.2. Notwithstanding the foregoing, the Indenture Trustee may at
any time terminate any or all of the AWA Indentures and all of the Indenture
Trustee's duties and obligations and authority to act thereunder, with or
without cause, by giving fifteen (15) days written notice of termination to
NewAWA and the Distribution Agent and by turning over to the Distribution Agent
a list of record holders of Debentures under such Indenture as of the
Distribution Record Date, together with such other information and documents as
may be reasonably necessary in order to permit the Distribution Agent to make
distributions to holders of Allowed AWA Debenture Claims arising out of the AWA
Debentures issued pursuant to such Indenture. If distributions under the Plan
have not been completed at the time of termination of such Indenture, the
Distribution Agent shall thereafter act in place of such Indenture Trustee, and
all references in the Plan to the Indenture Trustee for purposes of making
distributions under the Plan with regard to such Indenture shall be deemed to
apply to such Distribution Agent. Any actions taken by the Indenture Trustee not
for a purpose authorized in the Plan shall be of no force or effect.
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10.3.3. For purposes of any distributions under the Plan to holders of
AWA Debenture Claims, the Indenture Trustee (or if the Indenture Trustee has
resigned in accordance with Section 10.3.2, the Distribution Agent as its
successor) shall be deemed to be the sole holder of all AWA Debenture Claims
evidenced by the AWA Debentures issued under each Indenture. Accordingly, all
distributions provided for in the Plan on account of Allowed AWA Debenture
Claims shall be distributed to the Indenture Trustee as disbursing agent or, if
the Indenture Trustee has resigned pursuant to Section 10.3.2, to the
Distribution Agent as its successor, for further distribution to individual
holders of Allowed AWA Debenture Claims pursuant to the Plan. The transfer books
of the Indenture Trustee for the Debentures shall close as of the Distribution
Record Date and no further transfers shall be recognized.
10.3.4. Any provision of the Plan to the contrary notwithstanding, no
distribution under the Plan shall be required to be made by the Indenture
Trustee or the Distribution Agent to any holder of an AWA Debenture Claim until
such time as the certificate representing the AWA Debenture in respect of which
such AWA Debenture Claim is made shall have been surrendered in accordance with
Section 10.3.5. Notwithstanding any provision of this Section 10.3.4 to the
contrary, any holder of an AWA Debenture Claim based on a certificate
representing an AWA Debenture that has been lost, stolen, mutilated or destroyed
may, in lieu of surrendering such certificate as provided in this Section 10.3,
deliver to the Indenture Trustee, or if the Indenture Trustee has resigned, to
the Distribution Agent as its successor, (i) evidence satisfactory to the
Indenture Trustee or the Distribution Agent, as the case may be, of the loss,
theft, mutilation or destruction of such certificate and (ii) such security or
indemnity as may reasonably be required by the Indenture Trustee or the
Distribution Agent, as the case may be, to save the Indenture Trustee or the
Distribution Agent, as the case may be, harmless with respect thereto, and upon
providing such evidence and such security or indemnity the holder of such AWA
Debenture Claim shall, for all purposes under the Plan, be deemed to have
surrendered such certificate.
10.3.5. A holder of record on the Distribution Record Date of a
certificate relating to an AWA Debenture Claim shall surrender such holder's
certificate representing such AWA Debenture Claim to the Indenture Trustee, or
if the Indenture Trustee has resigned in accordance with Section 10.3.2, to the
Distribution Agent as its successor, in accordance with written instructions
given not more than thirty (30) days after the Effective Date to such holder by
the Indenture Trustee or the Distribution Agent, as the case may be. Upon
receipt of any certificate relating to such AWA Debenture Claim, the Indenture
Trustee or the Distribution Agent shall cancel such certificate and deliver such
canceled certificate to such Person as the Distribution Agent shall designate.
10.3.6. On the Final Distribution Date, all rights under the Plan of
any holder of an Allowed AWA Debenture Claim which has not surrendered its
certificate representing such AWA Debenture Claim in accordance with this
Section 10.3 shall lapse and be automatically terminated without any further
action and the Indenture Trustee or the Distribution Agent as its successor
shall at such time return to the Distribution Agent any funds or property it
then holds in respect of such unsurrendered certificate to be treated as
unclaimed property pursuant to Section 10.6 and, upon such return, the Indenture
Trustee or the Distribution Agent as its successor shall have no further
obligation in respect of such funds or property.
10.4. Reserves for Distributions for Disputed Claims and Disputed Equity
Interests.
10.4.1. Except as may be otherwise agreed with respect to any Disputed
Claim or Disputed Equity Interest and as approved by the Bankruptcy Court, no
distributions shall be made with respect to all or any portion of a Disputed
Claim or Disputed Equity Interest unless and until such Disputed Claim or
Disputed Equity Interest (or portion thereof) shall have become an Allowed Claim
or Equity Interest and such Allowed Claim or Equity Interest is otherwise
entitled to distributions hereunder.
10.4.2. Prior to making any distribution to holders of Allowed Claims
or Equity Interests in Class 5 or Class 6.2 in accordance with Section 10.2, the
Distribution Agent shall deposit in a Reserve established separately for each
such Class an amount of NewAWA Securities and/or Cash equal to the amount of
such distribution that would have been distributed to holders of Disputed Claims
or Disputed Equity Interests in such Class if such Disputed Claims or Equity
Interests were Allowed Claims or Equity Interests in their full face amount at
the time of the calculation of such distribution. A separate Reserve shall be
established and
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thereafter maintained for each Class as to which any Claims or Equity Interests
remain Disputed as of the Effective Date. The Distribution Agent shall at all
times until any Disputed Claim or Disputed Equity Interest is resolved by Final
Order, retain in the Reserve all amounts that would have been distributed to the
holder of such Disputed Claim or Disputed Equity Interest had such Claim or
Equity Interest been an Allowed Claim or Equity Interest in its full face amount
on the Effective Date. Notwithstanding the foregoing, upon motion by the Debtor
or NewAWA, the Bankruptcy Court may enter a Reserve Order, establishing a
Reserve Amount to be escrowed in the Reserve for any Class which may be less
than the amount otherwise required hereunder, which amount shall reflect the
Bankruptcy Court's estimate of the level of Reserves for a particular Class
reasonably required to protect the legitimate rights and interests of holders of
Disputed Claims or Disputed Equity Interests in such Class. In the event a
Reserve Order is entered, the Distribution Agent shall deposit or retain in the
Reserve with respect to any Class subject to such order only the Reserve Amount
required by such Reserve Order. Any amount not so deposited or retained shall be
distributed to all holders of Allowed Claims or Equity Interests in the Class
for which such Reserve Amount was established as provided for in the Plan. The
date of each such distribution shall be a Distribution Date.
10.4.3. As soon as practicable after a Disputed Claim or Disputed
Equity Interest, or portion thereof, becomes an Allowed Claim or Equity
Interest, the Distribution Agent shall make a distribution to the holder of such
Allowed Claim or Equity Interest from the Reserve in the amount of (i) the
portion of the NewAWA Securities or Cash in the Reserve that should be
distributed pursuant to the terms of the Plan in view of the amount of the
Allowed Claim or Equity Interest; plus (ii) the proportional share of any
interest, earnings or dividends actually earned and received on such Reserve;
less (iii) the proportional share of any Distribution Agent Charges incurred on
account of such escrowed assets. To the extent that sufficient New AWA
Securities or Cash are not available to make the full distribution required by
the preceding sentence, in view of the then-appearing rights of the holders of
other Disputed Claims and Disputed Equity Interests, the Distribution Agent
shall make such lesser distribution as shall then be ordered by the Bankruptcy
Court. No holder of a Disputed Claim or Disputed Equity Interest shall have any
claim against the Reserve for the Class in which such Disputed Claim or Disputed
Equity Interest is included until such Disputed Claim or Disputed Equity
Interest shall become an Allowed Claim or Equity Interest. In no event shall any
holder of any Disputed Claim or Disputed Equity Interest have any recourse
against or be entitled to receive (under the Plan or otherwise) or recover from
the Debtor, NewAWA, the Distribution Agent or any Reserve, any payment (in Cash,
NewAWA Securities or other property) in the event that the Reserve therefor is
insufficient to pay an Allowed Claim or Equity Interest in full. In no event
shall the Distribution Agent, the Debtor or NewAWA have any responsibility or
liability for any loss to or of any Reserve.
10.4.4. The Reserve for a Class shall be terminated when all Disputed
Claims and Disputed Equity Interests are finally resolved in such Class. All
remaining assets, if any, in the Reserve shall be distributed, first, to
holders, if any, who received less than a proportionate distribution pursuant to
order of the Bankruptcy Court under Section 10.4.3 and thereafter to all holders
of Allowed Claims or Equity Interests in the Class for which such Reserve was
established, on a pro rata basis. The date of such distribution shall be the
Final Distribution Date with regard to such Class.
10.5. Fractional Interests; Odd Lots; De Minimis Distributions.
10.5.1. Fractional shares or units of NewAWA Securities shall not be
issued or distributed and no Cash payments shall be made in respect thereof. All
holders of Allowed Claims or Equity Interests in such Class which would
otherwise be entitled to a fractional interest in such NewAWA Security shall be
placed on a list in descending order according to the size of the fractional
interest in the NewAWA Security to be distributed. For purposes of the preceding
sentence, Electing Unsecured Creditors and Non-Electing Unsecured Creditors
shall be placed on separate lists. In the event that two or more holders of
Allowed Claims or Equity Interests are entitled to the same fractional portion
(rounded to six decimal places) in such NewAWA Security, their relative ranking
on any such list shall be determined by lot. The fractional shares or units
which each such holder would have received will be aggregated. Then, one share
or unit, as applicable, will be distributed to each of the holders on such list
in descending order until the total amount of aggregated shares or units is
exhausted.
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10.5.2. In the event that any holder of an Allowed Claim or Equity
Interest would receive fewer than ten (10) shares or units of NewAWA Securities
in a distribution made under this Article 10, the Distribution Agent may instead
sell such NewAWA Securities on behalf of any or all of such holders and they
distribute to each such holder its pro rata share of the Net Proceeds of such
sale. Such sale may be either a private sale or through a securities exchange or
automated quotation system on which such NewAWA Securities are listed and absent
manifest error or intentional wrongdoing on the part of the Distribution Agent
in connection with such sale, the Net Proceeds realized from such sale shall be
conclusively determined to be reasonable. The distribution of a pro rata share
of such Net Proceeds to each such holder shall be deemed to be in full
satisfaction of the payment to be made to such holder of Allowed Claims or
Equity Interests in such distribution. These procedures are intended to result
in the affected holders receiving appropriate distributions while saving
expenses in the administration of the Debtor's estate that would be associated
with maintaining such holders as stockholders of NewAWA.
10.6. Delivery of Distributions; Unclaimed Property. Distributions and
deliveries to holders of (i) Allowed General Unsecured Claims shall be made at
the addresses set forth on the proofs of claim filed by such holders (or at the
last known addresses of such holders if no proof of claim is filed or if NewAWA
has been notified of a change of address), (ii) AWA Debenture Claims shall be
made at the address contained in the records of the Indenture Trustee (or, if
the Indenture Trustee has resigned pursuant to Section 10.3.2 of the Plan, in
such records it has delivered to the Distribution Agent as its successor) and
(iii) Equity Interests shall be made to the address shown on the stock ledger of
AWA. If any holder's distribution is returned as undeliverable, no further
distributions to such holder shall be made unless and until the Distribution
Agent, NewAWA or the Indenture Trustee is notified in writing of such holder's
then-current address, at which time all missed distributions shall be made to
such holder without interest (except to the extent that such missed
distributions have become unclaimed property). Amounts in respect of
undeliverable distributions made through the Distribution Agent or through the
Indenture Trustee, shall be returned to NewAWA until such distributions are
claimed. All claims for undeliverable distributions shall be made on or before
the second (2nd) anniversary of the applicable Distribution Date, and after such
date, such undeliverable distributions shall be unclaimed property. All
unclaimed property attributable to any Claim or Equity Interest shall revert to
the Reserve, if any, then existing with regard to Claims or Equity Interests of
such Class and, if none exists, to NewAWA, and the Claim of any holder with
respect to such property shall be discharged and forever barred and shall no
longer be deemed an Allowed Claim or Equity Interest.
10.7. Method of Payment. Payments of Cash required to be made pursuant to
the Plan shall be made by check drawn on a domestic bank or by wire transfer
from a domestic bank at the election of the Person making such payment.
10.8. Payment Dates. Whenever any payment or distribution to be made under
the Plan shall be due on a day other than a Business Day, such payment or
distribution shall instead be made, without interest, on the immediately
following Business Day.
10.9. Compliance with Tax Requirements. In connection with the Plan, to the
extent applicable, the Distribution Agent and the Indenture Trustee shall comply
with all tax withholding and reporting requirements imposed on it by any
governmental unit, and all distributions pursuant to the Plan shall be subject
to such withholding and reporting requirements. The Distribution Agent and
Indenture Trustee shall be authorized to take any and all actions that may be
necessary or appropriate to comply with such withholding and reporting
requirements. Notwithstanding any other provision of the Plan, (i) each Person
(including holders of Allowed Claims and Equity Interests) receiving a
distribution of Cash or NewAWA Securities pursuant to the Plan shall have sole
and exclusive responsibility for the satisfaction and payment of any tax
obligations imposed by any governmental unit, including income, withholding and
other tax obligations, on account of such distribution and (ii) at the option of
NewAWA, no distribution pursuant to the Plan shall be made to or on behalf of
such entity unless and until such entity has made arrangements satisfactory to
NewAWA for the satisfaction and payment of such tax obligations. At the option
of NewAWA, any Cash or NewAWA Securities to be distributed pursuant to the Plan
shall, pending the implementation of such arrangements, be treated as an
undeliverable distribution pursuant to Section 10.6 above.
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ARTICLE 11
PROCEDURES FOR RESOLVING DISPUTED
CLAIMS OR EQUITY INTERESTS
11.1. Filing of Objections to Claims or Equity Interests. After the
Effective Date, objections to Claims or Equity Interests shall be made and
objections to Claims or Equity Interests made previous thereto shall be pursued
only by NewAWA and, upon leave of the Bankruptcy Court for good cause shown, the
Creditors' Committee (if it is then still in existence). Any objections made by
NewAWA or the Creditors' Committee after the Effective Date shall be served and
filed not later than 180 days after the Effective Date; provided, however, that
such period may be extended by order of the Bankruptcy Court for good cause
shown.
11.2. Settlement of Objections to Claims or Equity Interests After
Effective Date. From and after the Effective Date, NewAWA may litigate to
judgment, propose settlements of, or withdraw objections to, all pending or
filed Disputed Claims or Disputed Equity Interests, and NewAWA may settle or
compromise any Disputed Claim or Disputed Equity Interest, without notice and a
hearing and without approval of the Bankruptcy Court; provided, however, notice
of any settlement or compromise involving the allowance of a General Unsecured
Claim in excess of $100,000 shall be provided to the Indenture Trustee (if the
AWA Indentures have not been previously terminated) and to the Creditors'
Committee (if still then in existence), who shall each have ten (10) days to
object to such settlement or compromise and in such case, such settlement or
compromise must be approved by the Bankruptcy Court.
11.3. Payment or Distribution to Holders of Disputed Claims or Equity
Interests. Except as the Debtor or NewAWA, as applicable, may otherwise agree
with respect to any Disputed Claim or Disputed Equity Interest, no payments or
distributions shall be made with respect to any portion of a Disputed Claim or
Disputed Equity Interest unless and until all objections to such Disputed Claim
or Disputed Equity Interest have been settled or determined by a Final Order of
the Bankruptcy Court. Payments and distributions to each holder of a Disputed
Claim or Disputed Equity Interest to the extent that it ultimately becomes an
Allowed Claim or Equity Interest shall be made in accordance with Section 10.4.
A Disputed Claim or Disputed Equity Interest that is estimated for purposes of
allowance and distribution pursuant to Section 502(c) of the Bankruptcy Code and
which is estimated and Allowed at a fixed amount by Final Order of the
Bankruptcy Court shall thereupon be an Allowed Claim or Equity Interest for all
purposes in the amount so estimated and Allowed.
11.4. Reserves for Disputed Claims and Disputed Equity Interests.
Appropriate Reserves for Disputed Claims and Disputed Equity Interests shall be
established and maintained as provided in Section 10.4.
ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1. Modification of Payment Terms. NewAWA reserves the right to modify
the treatment of any Allowed Claim in any manner adverse only to the holder of
such Claim at any time after the Effective Date upon the consent of the holder
whose Allowed Claim treatment is being adversely affected.
12.2. Discharge of Debtor. The rights afforded and the treatment of Claims
and Equity Interests under the Plan shall be in exchange for and in complete
satisfaction, discharge, release and termination of all Claims of any nature
whatsoever against the Debtor or any of its assets or properties and all Equity
Interests in the Debtor; and upon the Effective Date (i) the Debtor shall be
deemed discharged and released pursuant to Section 1141(d)(1)(A) of the
Bankruptcy Code from any and all Claims, including but not limited to demands
and liabilities that arose before the Effective Date, all debts of the kind
specified in Section 502(g), 502(h) or 502(i) of the Bankruptcy Code, whether or
not (a) a proof of claim based upon such debt is filed or deemed filed under
Section 501 of the Bankruptcy Code, (b) a Claim based upon such debt is allowed
under Section 502 of the Bankruptcy Code or (c) the holder of a Claim based upon
such debt has accepted the Plan; and (ii) all rights and interests of holders of
Equity Interests in the Debtor shall be terminated pursuant to Section
1141(d)(1)(B) of the Bankruptcy Code. The Confirmation Order shall be a judicial
determination of
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discharge and termination of all liabilities of and all Claims against, and all
Equity Interests in, the Debtor, except as otherwise specifically provided in
the Plan. On the Effective Date, as to every discharged debt, Claim and Equity
Interest, the holder of such debt, Claim or Equity Interest shall be permanently
enjoined and precluded from asserting against NewAWA or against its assets or
properties or any transferee thereof, any other or further Claim or Equity
Interest based upon any document, instrument or act, omission, transaction or
other activity of any kind or nature that occurred prior to the Effective Date,
except as expressly set forth in the Plan or the Confirmation Order.
12.3. Termination of Subordination Rights. Except as specifically provided
elsewhere herein, on the Confirmation Date, all contractual, legal or equitable
subordination rights that a holder of a Claim or Equity Interest may have with
respect to any distribution to be made pursuant to the Plan shall be discharged
and terminated, and all actions related to the enforcement of such subordination
rights shall be permanently enjoined. Accordingly, distributions pursuant to the
Plan to holders of Allowed Claims and Equity Interests shall not be subject to
payment to a beneficiary of such terminated subordination rights, or to levy,
garnishment, attachment or other legal process by any beneficiary of such
terminated subordination rights. Pursuant to Bankruptcy Rule 9019 and in
consideration for the distribution and other benefits provided under the Plan,
the provisions of this Section 12.3 shall constitute a good faith compromise and
settlement of all claims or controversies relating to the termination of all
contractual, legal and equitable subordination rights that a holder of a Claim
or Equity Interest may have with respect to any Allowed Claim or Equity
Interest, or any distribution to be made on account of such Allowed Claim or
Allowed Equity Interest.
12.4. Termination of the Creditors' and Equity Committees.
12.4.1. The Creditors' Committee shall, unless theretofore terminated,
terminate on the Effective Date and shall thereafter have no further
responsibilities in respect of the Chapter 11 Case except (i) with respect to
preparation and filing of applications for compensation and reimbursement of
expenses in accordance with Section 2.2.3, (ii) with respect to any contested
matter or adversary proceeding commenced prior to the Effective Date in which
the Creditors' Committee is an indispensable litigant or any appeal of an order
in the Chapter 11 Case in which the Creditors' Committee is an indispensable
litigant and if, in each case, the Creditors' Committee's participation in such
proceeding is consistent with the orders of the Bankruptcy Court establishing
the Creditors' Committee and with Section 1103 of the Bankruptcy Code, and (iii)
with respect to monitoring and participating in matters and proceedings which
could give rise to General Unsecured Claims (including, without limitation,
Avoidance Litigation, rejection of executory contracts and unexpired leases and
resolution of Unsecured Deficiency Claims and Disputed General Unsecured Claims)
for a period of five months after the Effective Date, unless such period is
extended by the Bankruptcy Court for good cause shown. In connection with such
activities, the Creditors' Committee may continue the retention of its counsel,
its local counsel and its accountants and may replace one or more of such
professional advisors, if necessary, but shall not retain additional
professional advisors. NewAWA shall pay the reasonable fees and expenses of the
Creditors' Committee incurred in connection with such activities, provided,
however, that the aggregate fees related to matters and proceedings which could
give rise to General Unsecured Claims shall not exceed an average of $75,000 per
month for the first two months after the Effective Date and an average of
$50,000 per month for any subsequent month. All such fees and expenses shall be
paid only in accordance with the fee and expense guidelines promulgated by the
Debtor in the Bankruptcy Case and shall be paid by NewAWA within thirty (30)
days of receipt of invoice therefor, except in the case of an objection to any
such fees and expenses, which, if not resolved by NewAWA and the Creditors'
Committee, may be noticed by either such entity for a hearing before the
Bankruptcy Court. Notwithstanding anything to the contrary in this Section
12.4.1, all such activities shall cease when the aggregate amount of Disputed
Claims is less than $3,000,000 or one year after the Effective Date, whichever
occurs first, except in a case where the Creditors' Committee is an
indispensable litigant as contemplated by clause (ii) above.
12.4.2. The Equity Committee shall, unless theretofore terminated,
terminate on the Effective Date and shall thereafter have no further
responsibilities in respect of the Chapter 11 Case except (i) with respect to
preparation and filing of a final application for compensation and reimbursement
of expenses in accordance with Section 2.2.3 and (ii) with respect to any
contested matter or adversary proceeding commenced prior to the Effective Date
in which the Equity Committee is an indispensable litigant or any appeal of an
order in the
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Chapter 11 Case in which the Equity Committee is an indispensable litigant and,
in each case, if the Equity Committee's participation in such proceeding is
consistent with the orders of the Bankruptcy Court establishing the Equity
Committee and with Section 1103 of the Bankruptcy Code.
12.5. Setoffs. The Debtor and NewAWA may, but shall not be required to, set
off or recoup against any Claim and the payments or other distributions to be
made pursuant to the Plan in respect of such Claim, claims of any nature
whatsoever which the Debtor or NewAWA may have against the holder of such Claim
to the extent such Claim may be set off or recouped under applicable law, but
neither the failure to do so nor the allowance of any Claim hereunder shall
constitute a waiver or release by the Debtor or NewAWA, of any such claim that
it may have against such holder.
12.6. Opt-Out. Pursuant to Section 203(b)(3) of the Delaware General
Corporation Law, AWA elects, as of the Effective Date, that it will no longer be
governed by the provisions of Section 203 of the Delaware General Corporation
Law.
12.7. Section Headings. The Section headings contained in the Plan are for
reference purposes only and shall not affect in any way the meaning or
interpretation of the Plan.
12.8. Severability. If any provision of the Plan is found by the Bankruptcy
Court to be invalid, illegal or unenforceable, then, at the option of the Debtor
or NewAWA, such provision shall not affect the validity or legality of any other
provisions of the Plan which shall remain effective.
12.9. Computation of Time. In computing any period of time prescribed or
allowed by the Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.
12.10. Governing Law. Except to the extent that the Bankruptcy Code, the
Bankruptcy Rules or any other statutes, rules or regulations of the United
States are applicable, and subject to the provisions of any contract,
instrument, release, indenture or other agreement or document entered into in
connection with the Plan, the rights and obligations arising under the Plan
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Arizona, without giving effect to the principles of conflicts of
law thereof. Notwithstanding anything to the contrary herein, the laws of
escheat and abandoned property of no state shall be applicable to any property
distributed or abandoned hereunder.
ARTICLE 13
PROVISIONS FOR EXECUTION AND
SUPERVISION OF THE PLAN
13.1. Retention of Jurisdiction. Except as otherwise provided herein, from
and after the Effective Date, the Bankruptcy Court shall retain and have
exclusive jurisdiction over the Chapter 11 Case for all legally permissible
purposes, including, without limitation, the following purposes:
(a) to determine any and all objections to the allowance of Claims;
(b) to resolve any and all matters related to the rejection,
assumption, or assumption and assignment, as the case may be, of executory
contracts or unexpired leases to which the Debtor is a party or with
respect to which the Debtor may be liable, and to hear and determine, and
if need be to liquidate, any and all Claims arising therefrom;
(c) to determine any and all applications for the determination of any
priority of any Claim including without limitation Claims arising from any
event that occurred prior to the Petition Date or from the Petition Date
through the Effective Date and for payment of any alleged Administrative
Claim, Priority Tax Claim, Priority Benefit Plan Contribution Claim or
Priority Wage Claim;
(d) to determine any and all applications, motions, adversary
proceedings and contested or litigated matters that may be pending on the
Effective Date;
(e) to determine all controversies, suits and disputes that may arise
in connection with the interpretation, enforcement or consummation of the
Plan or in connection with the obligations of the
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Debtor, NewAWA or AmWest under the Plan, or in connection with the
performance by any Distribution Agent of its duties hereunder, and to enter
such orders as may be necessary or appropriate to implement any
distributions to holders of Allowed General Unsecured Claims;
(f) to consider any modification, remedy any defect or omission, or
reconcile any inconsistency in the Plan or any order of the Bankruptcy
Court, including the Confirmation Order, all to the extent authorized by
the Bankruptcy Code;
(g) to issue such orders in aid of execution of the Plan to the extent
authorized by Section 1142 of the Bankruptcy Code;
(h) to determine such other matters as may be set forth in the
Confirmation Order or as may arise in connection with the Plan or the
Confirmation Order;
(i) to determine any suit or proceeding brought by NewAWA on behalf of
the Debtor's estate to recover property under Section 542, 543 or 553 of
the Bankruptcy Code or any Avoidance Litigation;
(j) to consider and act on the compromise and settlement of any Claim
against or cause of action by or against the Debtor's estate;
(k) to estimate Claims for purposes of allowance pursuant to Section
502(c) of the Bankruptcy Code;
(l) to hear and determine any dispute or controversy relating to any
Allowed Claim or any Claim alleged or asserted by any Person to be an
Allowed Claim;
(m) to determine any and all applications for allowances of
compensation and reimbursement of expenses and any other fees and expenses
authorized to be paid or reimbursed under the Bankruptcy Code or the Plan;
(n) to determine any issues arising in connection with elections made
on a Ballot by a holder of a Claim or Equity Interest;
(o) to determine the appropriate Reserve Amounts;
(p) to determine whether the payment of any Claims hereunder should be
subordinated to the payment of other Claims;
(q) to hear and determine any tax disputes concerning AWA, including
the amount and preservation of AWA's tax attributes, to determine and
declare any tax effects under the Plan, and to determine any Taxes which
the Debtor's bankruptcy estate may incur as a result of the transactions
contemplated herein, pursuant to Sections 346, 505 and 1146 of the
Bankruptcy Code; and
(r) to enter a final decree closing the Chapter 11 Case.
13.2. Amendment of Plan. The Plan may be amended by the Debtor before the
Effective Date and by NewAWA thereafter as provided in Section 1127 of the
Bankruptcy Code.
13.3. Post-Effective Date Notice. From and after the Effective Date, any
notice to be provided under the Plan shall be sufficient if provided to (i) the
Official Service List as contained in the records of the Bankruptcy Court on the
Effective Date; or (ii) all parties whose rights may be affected by the action
which is the subject of the notice; or (iii) in any case, such notice as is
approved as sufficient by order of the Bankruptcy Court.
13.4. Revocation of Plan. Subject to the approval of AmWest as required by
the Investment Agreement, the Debtor reserves the right to revoke and withdraw
the Plan prior to entry of the Confirmation Order. If the Debtor revokes or
withdraws the Plan, then the Plan shall be deemed null and void and nothing
contained herein shall be deemed to constitute a waiver or release of any Claims
by or against the Debtor or any other
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person or to prejudice in any manner the rights of the Debtor or any Person in
any further proceedings involving the Debtor.
Dated: Phoenix, Arizona
June 28, 1994
Respectfully submitted,
AMERICA WEST AIRLINES, INC.
By: /s/ WILLIAM A. FRANKE
_______________________________
William A. Franke
Chairman of the Board and
Chief Executive Officer
AMWEST PARTNERS, L.P.
By: AMWEST GENPAR, INC.,
its general partner
By: /s/ JAMES G. COULTER
____________________________
James G. Coulter
Vice President
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40
PLAN OF REORGANIZATION
EXHIBIT A
INVESTMENT AGREEMENT
[EXHIBITS TO INVESTMENT AGREEMENT OMITTED]
41
[THIS PAGE INTENTIONALLY LEFT BLANK]
42
EXHIBIT A
[Certain terms of the following Investment Agreement have been modified by
the Plan of Reorganization to which this Exhibit A is attached.]
THIRD REVISED INVESTMENT AGREEMENT
April 21, 1994
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Attention: William A. Franke
Chairman of the Board
Gentlemen:
This letter agreement (this "Agreement") sets forth the agreement between
America West Airlines, Inc., a Delaware corporation (including, on or after the
effective date of the Plan, as defined herein, its successors, as reorganized
pursuant to the Bankruptcy Code, as defined herein) (the "Company"), and AmWest
Partners, L.P., a Texas limited partnership ("Investor").
The Company will issue and sell to Investor, and Investor hereby agrees and
commits to purchase from the Company, a package of securities of the Company for
$244,857,000 in cash (subject to adjustment as herein provided), consisting of
(i) shares of Class A Common Stock of the Company ("Class A Common"), (ii)
shares of Class B Common Stock of the Company ("Class B Common" and, together
with the Class A Common, "Common Stock"), (iii) senior unsecured notes of the
Company ("Notes") and (iv) warrants to purchase shares of Class B Common
("Warrants"), all on the terms and subject to the terms and conditions
hereinafter set forth.
Investor's purchase of the securities referred to above (the "Investment")
will be made in connection with and as part of the transactions to be
consummated pursuant to a joint Plan of Reorganization of the Company (the
"Plan") and an order (the "Confirmation Order") confirming the Plan issued by
the Bankruptcy Court, as defined herein. The Plan will contain provisions called
for by, or otherwise consistent with, this Agreement.
In consideration of the agreements of Investor hereunder, and as a
precondition and inducement to the execution of this Agreement by Investor, the
Company has entered into the Third Revised Interim Procedures Agreement with
Investor, dated the date hereof (the "Procedures Agreement").
SECTION 1. Definitions. For purposes of this Agreement, except as
expressly provided herein or unless the context otherwise requires, the
following terms shall have the following respective meanings:
"Affiliate" shall mean (i) when used with reference to any
partnership, any Person that, directly or indirectly, owns or controls 10%
or more of either the capital or profit interests of such partnership or is
a partner of such partnership or is a Person in which such partnership has
a 10% or greater direct or indirect equity interest and (ii) when used with
reference to any corporation, any Person that, directly or indirectly, owns
or controls 10% or more of the outstanding voting securities of such
corporation or is a Person in which such corporation has a 10% or greater
direct or indirect equity interest. In addition, the term "Affiliate," when
used with reference to any Person, shall also mean any other Person that,
directly or indirectly, controls or is controlled by or is under common
control with such Person. As used in the preceding sentence, (A) the term
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the entity
referred to, whether through ownership of voting securities, by contract or
otherwise and (B) the terms "controlling" and "controls" shall have
meanings correlative to the foregoing. Notwithstanding the foregoing, the
Company will be deemed not to be an Affiliate of Investor or any of its
partners or assignees.
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"Alliance Agreements" shall have the meaning specified in Section 5.
"Approvals" shall have the meaning specified in Section 8(b).
"Bankruptcy Code" shall mean Chapter 11 of the United States
Bankruptcy Code.
"Bankruptcy Court" shall mean the United States Bankruptcy Court for
the District of Arizona.
"Business Combination" means:
(i) any merger or consolidation of the Company with or into
Investor or any Affiliate of Investor;
(ii) any sale, lease, exchange, transfer or other disposition of
all or any substantial part of the assets of the Company to Investor
or any Affiliate of Investor;
(iii) any transaction with or involving the Company as a result
of which Investor or any of Investor's Affiliates will, as a result
of issuances of voting securities by the Company (or any other
securities convertible into or exchangeable for such voting
securities) acquire an increased percentage ownership of such voting
securities, except pursuant to a transaction open on a pro rata basis
to all holders of Class B Common; or
(iv) any related series or combination of transactions having or
which will have, directly or indirectly, the same effect as any of
the foregoing.
"Class A Common" shall have the meaning specified in the second
paragraph of this Agreement.
"Class B Common" shall have the meaning specified in the second
paragraph of this Agreement.
"Common Stock" shall have the meaning specified in the second
paragraph of this Agreement.
"Company" shall have the meaning specified in the first paragraph of
this Agreement.
"Confirmation Date" shall mean the date on which the Confirmation
Order is entered by the Bankruptcy Court.
"Confirmation Order" shall have the meaning specified in the third
paragraph of this Agreement.
"Continental" shall mean Continental Airlines, Inc.
"Creditors' Committee" shall mean the Official Committee of the
Unsecured Creditors of America West Airlines, Inc. appointed in the
Company's Chapter 11 case pending in the Bankruptcy Court.
"Disclosure Statement" shall mean a disclosure statement with respect
to the Plan.
"Effective Date" shall mean the effective date of the Plan; provided
that in no event shall the Effective Date be (a) earlier than 11 days after
the Bankruptcy Court approves and enters the Confirmation Order providing
for the confirmation of the Plan or (b) before all material Approvals are
obtained.
"Electing Party" shall have the meaning specified in Section
4(a)(2)(ii).
"Equity Committee" shall mean the Official Committee of Equity Holders
of America West Airlines, Inc. appointed in the Company's Chapter 11 case
pending in the Bankruptcy Court.
"Equity Holders" shall mean the Company's equity security holders
(including holders of common stock and preferred stock) of record as of the
applicable record date fixed by the Bankruptcy Court.
"Governance Agreements" shall have the meaning specified in Section 6.
"GPA" shall mean GPA Group plc or, if applicable, any direct or
indirect subsidiary thereof.
"GPA Put Agreement" shall have the meaning specified in Section 7(j).
"Independent Directors" shall have the meaning specified in Section
6(a).
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"Initial Order" shall have the meaning specified in Section 8(a).
"Investment" shall have the meaning specified in the third paragraph
of this Agreement.
"Investor" shall have the meaning specified in the first paragraph of
this Agreement.
"Mesa" shall mean Mesa Airlines, Inc.
"Monthly Targets" shall mean the amounts specified in the Monthly
Targets Schedule.
"Monthly Targets Schedule" shall mean the letter agreement between the
Company and Investor dated the date hereof.
"Notes" shall have the meaning specified in the second paragraph of
this Agreement. The Notes shall be subject to the terms and conditions set
forth in Exhibit B hereto.
"Outside Date" shall mean August 31, 1994; provided that Investor
shall have the right from time to time to irrevocably extend the Outside
Date to a date not later than November 30, 1994, but only if Investor gives
the Company prior written notice of its election to extend the then current
Outside Date (which notice shall specify the new Outside Date) and then
only if, at the time of the giving of such notice, Investor is not in
breach of any of its representations, warranties, covenants or obligations
under this Agreement, the Procedures Agreement or any Related Agreement
(excluding any breach by Investor which is not willful or intentional and
which is capable of being cured on or before the new Outside Date). Unless
waived by the Company, any notice given pursuant to this definition shall
be delivered to the Company not less than 15 days prior to the then current
Outside Date except that, in the event the Effective Date has not occurred
for any reason arising within such 15-day period not due to a breach by
Investor of any of its representations, warranties, covenants or agreements
hereunder, such notice shall be given as soon as practicable but in no
event later than the then current Outside Date.
"Person" means a natural person, a corporation, a partnership, a
trust, a joint venture, any Regulatory Authority or any other entity or
organization.
"Plan" shall have the meaning specified in the third paragraph of this
Agreement.
"Plan 9" means the Company's Plan Revision No. 9 which consists of the
Summary Pro Forma Financial Statements: June 1993 Through December 1994,
dated July 15, 1993.
"Plan R-2" shall mean the Company's Summary Pro Forma Financial
Statements, 5 Year Plan: 1994 Through 1998, Plan No. R-2, dated January 13,
1994.
"Procedures Agreement" shall have the meaning specified in the fourth
paragraph of this Agreement.
"Projections" shall mean the projections set forth in Plan 9 on pages
15 and 18 of Tab E and pages 7 and 8 of Tab F.
"Purchase Price" shall have the meaning specified in Section 2.
"Regulatory Approvals" shall mean all approvals, permits,
authorizations, consents, licenses, rulings, exemptions and agreements
required to be obtained from, or notices to or registrations or filings
with, any Regulatory Authority (including the expiration of all applicable
waiting periods, if any, under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended) that are necessary or reasonably appropriate to
permit the Investment and the other transactions contemplated hereby and by
the Related Agreements and to permit the Company to carry on its business
after the Investment in a manner consistent in all material respects with
the manner in which it was carried on prior to the Effective Date or
proposed to be carried on by the reorganized Company.
"Regulatory Authority" shall mean any authority, agency, commission,
official or other instrumentality of the United States, any foreign country
or any domestic or foreign state, county, city or other political
subdivision.
"Related Agreements" shall have the meaning specified in Section 3.
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"Securities" shall mean the securities of the Company issued to the
Unsecured Parties, Investor and its assigns and GPA under this Agreement.
The Securities are described in Section 4.
"Unsecured Creditors" shall mean, as of any date, the Persons holding
of record as of such date the allowed or allowable prepetition unsecured
claims without priority of the Company.
"Unsecured Parties" shall mean the Equity Holders and the Unsecured
Creditors.
"Warrants" shall have the meaning specified in the second paragraph of
this Agreement.
SECTION 2. Commitment to Make Investment. Subject to the terms and
conditions of this Agreement and the Procedures Agreement, on the Effective
Date, the Company shall issue and sell and Investor shall purchase Securities in
accordance with this Agreement and the Plan. Such Securities shall be issued,
sold and delivered to Investor, its designees and/or one or more third party
investors, and the $244,857,000 purchase price therefor, as such purchase price
may be adjusted pursuant hereto (the "Purchase Price"), shall be paid by wire
transfer of immediately available funds on the Effective Date.
SECTION 3. Related Agreements. The agreements necessary to effect the
Investment (the "Related Agreements," such term to include the Alliance
Agreements and the Governance Agreements) shall be in form and substance
reasonably satisfactory to Investor and the Company, and shall contain terms and
provisions, including representations, warranties, covenants, warranty
termination periods, materiality exceptions, cure opportunities, conditions
precedent, anti-dilution provisions (as appropriate), and indemnities, as are in
form and substance reasonably satisfactory to such parties; provided, however,
that the Related Agreements shall contain provisions called for by, or otherwise
consistent with, this Agreement.
SECTION 4. Capitalization. (a) Upon consummation of the Plan, the
capitalization of the Company shall be as follows:
(1) Class A Common. There shall be 1,200,000 shares of Class A
Common, all of which shares shall, in accordance with the Plan, be issued
to Investor. Investor shall pay $8,960,400 for the Class A Common. At the
option of the holders thereof, shares of Class A Common shall be
convertible into shares of Class B Common on a share for share basis.
(2) Class B Common. There shall be 43,800,000 shares of Class B
Common, all of which shares shall, in accordance with the Plan, be issued
as follows:
(i) Investor. Investor shall be issued 13,875,000 shares plus the
number of shares (if any) to be acquired by Investor pursuant to clause
(ii) below minus the number of shares, if any, purchased by the Equity
Holders pursuant to the second sentence of clause (iii) below. For each
share of Class B Common issued to it, Investor shall pay $7.467;
provided that (A) for each share acquired by Investor pursuant to clause
(ii) below and (B) for each share not purchased by the Equity Holders
pursuant to clause (iii) below, Investor shall pay $8.889.
(ii) Unsecured Creditors. The Unsecured Creditors (or a trust
created for their benefit) shall be issued 26,775,000 shares.
Notwithstanding the foregoing, each Unsecured Creditor shall have the
right to elect to receive cash equal to $8.889 for each share of Class B
Common otherwise allocable to it under this clause (ii). The election of
each such Person (the "Electing Party") must be made on or before the
date fixed by the Bankruptcy Court for voting with respect to the Plan;
provided, however, that in the event that such elections of all Electing
Parties aggregate to more than $100 million, then (A) the amount of cash
so paid shall be limited to $100 million and (B) the Electing Parties
shall each receive proportionate amounts of cash and Class B Common in
accordance with the Plan. Subject to the foregoing proviso, Investor
shall increase the Investment by the amount necessary to pay all
Electing Parties the cash amounts payable to them under this clause (ii)
in respect of the shares of Class B Common specified in their elections
and, upon payment of such amounts, such shares shall be issued to
Investor without further consideration. Notwithstanding the foregoing,
Investor's acquisition of shares of Class B Common pursuant to this
clause (ii) shall, if permitted by applicable securities and other laws,
be consummated immediately after the issuance of such shares to the
Electing Parties on the Effective Date. If such shares are not so
acquired post-
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consummation of the Plan, all shares of Class B Common acquired by
Investor pursuant to this clause (ii) shall, for all purposes hereof, be
deemed to be part of the Securities acquired by Investor hereunder.
(iii) Equity Holders. The Equity Holders (or a trust created for
their benefit) shall be issued 2,250,000 shares. In addition, the Equity
Holders shall have the right to purchase up to 1,615,179 shares
allocable to Investor pursuant to clause (i) above at $8.889 per share.
Such election must be made by each Equity Holder on or before the date
fixed by the Bankruptcy Court for voting with respect to the Plan. The
Plan shall set forth the terms and conditions on which the foregoing
rights may be exercised.
(iv) GPA. 900,000 shares shall be issued to GPA.
(3) Warrants. There shall be Warrants to purchase 10,384,615 shares
of Class B Common at the exercise price as specified in and subject to the
terms of Exhibit A hereto, and such Warrants shall, in accordance with the
Plan, be issued as follows:
(i) Warrants to purchase up to 2,769,231 shares of Class B Common
shall be issued to Investor; and
(ii) Warrants to purchase up to 6,230,769 shares of Class B Common
shall be issued to the Equity Holders or a trust or trusts created for
their benefit; and
(iii) Warrants to purchase up to 1,384,615 shares of Class B Common
shall be issued to GPA.
(4) Senior Unsecured Notes. Investor shall, in accordance with the
Plan and subject to the terms of Exhibit B hereto, be issued $100 million
principal amount of Notes against payment in cash of not less than 100% of
the principal amount thereof to the Company; provided, however, that the
Company shall have the right, exercised at any time prior to the date fixed
by the Bankruptcy Court for voting with respect to the Plan, to increase
the principal amount of the Notes to be so purchased by Investor to up to
$130 million. GPA shall, in accordance with the Plan, be issued $30,525,000
principal amount of Notes; provided, however, that GPA shall have the right
to elect to receive cash in lieu of all or any portion of the Notes
otherwise issuable to it under this paragraph (4), such election to be made
on or before the date fixed by the Bankruptcy Court for voting with respect
to the Plan.
(b) Holders of the Class A Common shall have fifty votes per share. Holders
of Class B Common shall have one vote per share. Holders of Class A Common and
holders of Class B Common shall vote together as a single class except as
otherwise required by law or the provisions of this Agreement. Investor may
elect, with respect to any shares of Class B Common held by it, to suspend the
voting rights relating to such shares by giving prior written notice to the
Company, which notice shall describe such shares in reasonable detail and state
whether or not the voting suspension is permanent or temporary and, if
temporary, specify the period thereof.
(c) Neither Investor nor any Affiliate of Investor or of any partner of
Investor will transfer or otherwise dispose of any Common Stock (other than to
an Affiliate of the transferor) if, after giving effect thereto and to any
concurrent transaction, the total number of shares of Class B Common
beneficially owned by the transferor is less than 200% of the total number of
shares of Class A Common beneficially owned by the transferor; provided,
however, than nothing in this paragraph (c) shall prohibit any Person from
transferring or otherwise disposing, in a single transaction or a series of
concurrent transactions, of all shares of Common Stock owned by such Person.
SECTION 5. Business Alliance Agreements. Continental and the Company
shall enter into mutually acceptable business alliance agreements on the
Effective Date, which agreements may include, but shall not be limited to,
agreements to share ticket counter space, ground handling agreements, agreements
to link frequent flier programs, and combined purchasing agreements, and
schedule coordination and code sharing agreements. On the Effective Date, Mesa
shall enter into agreements with the Company extending the existing contractual
arrangements between the Company and Mesa for five years from the Effective Date
and
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modifying the termination provisions thereof consistent with such extension.
Such agreements with Continental and Mesa are herein collectively referred to as
the "Alliance Agreements".
SECTION 6. Governance Agreements. On the Effective Date, the Company,
Investor and Investor's partners (other than any such partner holding shares of
Class B Common the voting rights with respect to which have been suspended as
contemplated by Section 4(b)) shall enter into one or more written agreements
(the "Governance Agreements") effectively providing as follows:
(a) At all times during the three-year period commencing on the
Effective Date, the Company's board of directors shall consist of 15
members designated as follows:
(i) nine members (at least 8 of whom are U.S. citizens) shall be
designated by Investor, with certain of the partners of Investor having
the right to designate certain of Investor's designated directors;
(ii) three members (at least two of whom are U.S. citizens) shall
be designated by the Creditors Committee; provided that each such member
shall be reasonably acceptable to Investor at the time of his or her
initial designation;
(iii) one member shall be designated by the Equity Committee;
provided that such member shall be a U.S. citizen reasonably acceptable
to Investor at the time of his or her initial designation;
(iv) one member shall be designated by the Company's board of
directors as constituted on the date preceding the Effective Date;
provided that such member shall be a U.S. citizen reasonably acceptable
to Investor at the time of his or her initial designation; and
(v) one member shall be designated by GPA for so long as GPA shall
own at least 2% of the voting equity securities of the Company; provided
that such member shall be reasonably acceptable to Investor at the time
of his or her initial designation.
The directors (and their successors) referred to in clauses (ii), (iii) and
(iv) above are hereinafter referred to collectively as the "Independent
Directors."
(b) In the case of the death, resignation, removal or disability of an
Independent Director after the Effective Date, his or her successor shall
be designated by the Stockholder Representatives, except that if such
Independent Director was initially designated by the Creditors' Committee
or the Equity Committee and if, at the time of such Independent Director's
death, resignation, removal or disability (as the case may be), the
Creditors' Committee or the Equity Committee (as the case may be) remains
in effect, the successor to such Independent Director shall be designated
by the Creditors' Committee or the Equity Committee (as the case may be).
As used herein, "Stockholder Representatives" shall mean, collectively, (A)
one individual who, on the date hereof, is serving as a director of the
Company, (B) one individual who, on the date hereof, is serving as a member
of the Creditors' Committee and (C) one individual who, on the date hereof,
is serving as a member of the Equity Committee. The initial Stockholder
Representatives shall be selected on or before the Effective Date (x) by
the Company's board of directors in the case of the individual referred to
in clause (A) above, (y) by the Creditors' Committee in the case of the
individual referred to in clause (B) above and (z) by the Equity Committee
in the case of the individual referred to in clause (C) above. In case of
the death, resignation, removal or disability of a Stockholder
Representative after the Effective Date, his or her successor shall be
designated by the remaining Stockholder Representatives.
(c) Until the third anniversary of the Effective Date, Investor will
vote and cause to be voted all shares of Common Stock (other than those the
voting rights of which have been suspended) owned by Investor or any of its
partners or by the assignees or transferees of all or substantially all of
the Common Stock owned by Investor or any of its partners (other than a
Person who acquires such stock pursuant to a tender or exchange offer open
to all stockholders of the Company) in favor of the election as directors
of any and all individuals designated for such election as contemplated by
clauses (ii), (iii), (iv) and (v) of paragraph (a) above.
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(d) No director nominated by Investor shall be an officer or employee
of Continental. All Company directors, if any, who are selected by, or who
are directors of, Continental shall recuse themselves from voting on, or
otherwise receiving any confidential Company information regarding, matters
in connection with negotiations between Continental and the Company
(including, without limitation, those relating to the Alliance Agreements)
and matters in connection with any action involving direct competition
between Continental and the Company. All Company directors, if any, who are
selected by, or who are directors, officers or employees of, Mesa shall
recuse themselves from voting on, or otherwise receiving any confidential
Company information regarding, matters in connection with negotiations
between Mesa and the Company (including, without limitation, those relating
to the Alliance Agreements) and matters in connection with any action
involving direct competition between Mesa and the Company.
(e) During the three-year period commencing on the Effective Date, the
Company will not consummate any Business Combination unless such
transaction shall be approved in advance by at least three Independent
Directors or by a majority of the stock voted at the meeting held to
consider such transaction which is owned by stockholders of the Company
other than Investor or any of its Affiliates; provided, however, that
neither Mesa nor any fund or account managed or advised by Fidelity
Management Trust Company or its Affiliates (or any of their non-Affiliated
transferees) will be deemed an Affiliate of Investor for purposes of voting
on any Business Combination involving Continental.
SECTION 7. Plan of Reorganization. The Plan shall (i) be proposed jointly
by the Company and Investor, (ii) contain terms and conditions reasonably
satisfactory to Investor and the Company, and (iii) include the following
provisions; provided that Investor and the Company may, by mutual agreement,
modify the Plan or otherwise restructure the Investment in a manner consistent
with the contemplated economic consequences to the Company, Investor, the
Unsecured Parties and GPA in order to enable the Company, as reorganized, to
more fully utilize its existing tax attributes:
(a) Debtor-in-Possession Financing. The Company's
debtor-in-possession financing shall be repaid in full in cash on the
Effective Date.
(b) Administrative Claims. All allowed administrative claims shall be
paid as required pursuant to Section 1129(a) of the Bankruptcy Code,
provided that such claims do not exceed the amount set forth in Plan R-2
plus $15 million, and provided further that payment of such claims in
excess of those set forth in Plan R-2 would not, if payment was to be made
in the month immediately preceding the Effective Date, cause the Company to
fail to meet any of the Monthly Targets for such month.
(c) Tax Claims. All priority tax claims shall be paid over the
maximum term permitted by the Bankruptcy Code, as determined by the
Bankruptcy Court, with interest accruing at a rate determined by the
Bankruptcy Court, provided that such claims do not exceed the amounts set
forth in Plan R-2 plus $8.5 million, and provided further that payment of
such claims in excess of those set forth in Plan R-2 would not, if payment
was to be made in the month immediately preceding the Effective Date, cause
the Company to fail to meet any of the Monthly Targets for such month.
(d) Nontax Priority Claims. All nontax priority claims shall be paid
as required pursuant to Section 507 of the Bankruptcy Code, provided that
such claims do not exceed the amounts set forth in Plan R-2.
(e) Secured Claims. Secured debt claims shall be treated as provided
in Plan R-2 subject to (i) modification based on updated appraisals of
collateral values to be conducted by the Company and consistent with the
applicable provisions of the Bankruptcy Code, or (ii) such other terms as
shall be reasonably satisfactory to the Company and Investor.
(f) Unsecured Creditors. In consideration for the shares and cash
issued or paid, as the case may be, to the Unsecured Creditors pursuant to
Section 4(a)(2)(ii), the unsecured claims of the Unsecured Creditors shall
be cancelled as specified in the Plan.
(g) Equity Holders. In consideration for (A) the right to purchase
shares pursuant to Section 4(a)(2)(iii), (B) the shares issued to the
Equity Holders pursuant to Section 4(a)(2)(iii), and (C) the
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Warrants issued to the Equity Holders pursuant to Section 4(a)(3)(ii), the
equity interests of the Equity Holders shall be cancelled as specified in
the Plan.
(h) Leases. All aircraft leases which have been assumed prior to the
date hereof will be honored by the Company in accordance with their terms
and without reduction of rentals thereunder, provided that with the consent
of the Company, Investor and any applicable lessor, any such lease may be
amended to reduce the rentals payable thereunder, it being understood that,
in consideration of any such amendment and with the consent of the
Creditors' Committee, securities of the Company may be issued to such
lessors from securities otherwise allocable to the Unsecured Parties to the
extent consistent with any agreement in writing entered into by Investor
and the Equity Committee on or before the date hereof.
(i) Kawasaki. The contractual right of Kawasaki Leasing International
Inc. ("Kawasaki") to require the Company to lease certain aircraft and
aircraft engines shall be modified on terms satisfactory to the Company,
Investor and Kawasaki or, in the absence of such modification, honored.
(j) GPA. In consideration for (A) the shares issued to GPA pursuant
to Section 4(a)(2)(iv), (B) the Warrants issued to GPA pursuant to Section
4(a)(3)(iii), (C) the Notes and cash issued or paid, as the case may be, to
GPA pursuant to Section 4(a)(4) and (D) the granting to GPA on the
Effective Date of the right (the "New GPA Put") to require the Company to
lease from GPA on or prior to June 30, 1999, up to eight aircraft of types
consistent with the fleet currently operated by the Company, GPA shall, as
specified in the Plan, cancel and waive all rights to put any aircraft to
the Company which it may have pursuant to the Put Agreement between GPA and
the Company, dated as of June 25, 1991 (the "GPA Put Agreement") and/or the
related Agreement Regarding Rights of First Refusal for A320 Aircraft,
dated as of September 1, 1992 (the "First Refusal Agreement") and all other
claims of any kind or nature arising out of or in connection with the GPA
Put Agreement and/or the First Refusal Agreement (other than claims for
reimbursement of expenses incurred by GPA in connection therewith). Each
such lease shall provide for the payment by the Company of a fair market
rental (determined at or about the time of delivery of the related aircraft
to the Company on the basis of rentals then prevailing in the marketplace
for comparable leases of comparable aircraft to lessees of comparable
creditworthiness); and each such lease shall have such other terms and
provisions and be in such form as is agreed upon by the Company and GPA
with the approval of Investor (which approval shall not be unreasonably
withheld or delayed) and attached to the agreement pursuant to which GPA is
granted the New GPA Put.
(k) Prepetition Aircraft Purchase Contracts. The prepetition contract
for the purchase of aircraft between the Company and The Boeing Company
shall either be modified on terms satisfactory to Investor, the Company and
The Boeing Company or, in the absence of such agreement, rejected. The
Company's aircraft purchase contract with AVSA, S.A.R.L. ("Airbus") shall
be amended on terms consistent with the provisions of the AmWest-A320 Term
Sheet, dated as of February 23, 1994 by and between Investor and Airbus.
(l) Employees. The Company shall have the right to release employees
from all currently existing obligations to the Company in respect of shares
of Company stock purchased by such employees pursuant to the Company's
stock purchase plan, such release to be in consideration for the
cancellation of such shares.
(m) Exculpation. The Plan will contain customary exculpation
provisions for the benefit of the Creditors' Committee and the Equity
Committee and their respective professionals.
SECTION 8. Conditions to Investor's Obligations Relating to the
Investment. The obligations of Investor to consummate the Investment and the
other transactions contemplated herein shall be subject to the satisfaction, or
the written waiver by Investor, of the following conditions:
(a) an initial order approving the Procedures Agreement, which order
shall be in form and substance reasonably satisfactory to Investor (the
"Initial Order"), shall have been entered by the Bankruptcy Court on or
prior to May 6, 1994 and, once entered, shall be in effect and shall not be
modified in any material respect or stayed;
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(b) subject to Section 10(b), the Company and Investor, as applicable,
shall have received all Regulatory Approvals, which shall have become final
and nonappealable or any period of objection by Regulatory Authorities
shall have expired, as applicable, and all other material approvals,
permits, authorizations, consents, licenses and agreements from other third
parties that are necessary or appropriate to permit the Investment and the
other transactions contemplated hereby and by the Related Agreements and to
permit the Company to carry on its business after the Effective Date in a
manner consistent in all material respects with the manner in which it was
carried on prior to the Effective Date (collectively with Regulatory
Approvals, the "Approvals"), which Approvals shall not contain any
condition or restriction that, in Investor's reasonable judgment,
materially impairs the Company's ability to carry on its business in a
manner consistent in all material respects with prior practice or as
proposed to be carried on by the reorganized Company;
(c) the certificate of incorporation and bylaws of the Company shall
contain the terms contemplated by this Agreement and shall otherwise be
reasonably satisfactory to Investor;
(d) there shall be in effect no injunction, stay, restraining order or
decree issued by any court of competent jurisdiction, whether foreign or
domestic, staying the effectiveness of any of the Approvals, the Initial
Order or the Confirmation Order, and there shall not be pending any request
or motion for any such injunction, stay, restraining order or decree;
provided, however, that the foregoing condition shall not apply to any such
injunction, stay, order or decree requested, initiated or supported by
Investor or any of its partners or other Affiliates or to any such request
or motion made, initiated or supported by Investor or any its partners or
other Affiliates;
(e) there shall not be threatened or pending any suit, action,
investigation, inquiry or other proceeding (collectively, "Proceedings") by
or before any court of competent jurisdiction or Regulatory Authority
(excluding the Company's bankruptcy case, but including adversary
proceedings and contested matters in such bankruptcy case, and excluding
any such Proceedings fully and accurately disclosed by the Company in
Schedule I hereto), or any adverse development occurring since December 31,
1993 in any such Proceedings, which Proceedings or development, singly or
in the aggregate, in the good faith judgment of Investor, are reasonably
likely to have a material adverse effect on the Company's ability to carry
on its business in a manner consistent in all material respects with prior
practices or are reasonably likely to impair in any material respect
Investor's ability to realize the intended benefits and value of this
Agreement, the Procedures Agreement or any Related Agreement; provided,
however, that the foregoing condition shall not apply to any such
Proceeding or development requested, initiated or supported by Investor or
any of its partners or other Affiliates;
(f) the Company shall have delivered to Investor appropriate closing
documents, including the instruments evidencing the Securities being issued
to Investor, certifications of the Company officers (including, but not
limited to, incumbency certificates, and certificates as to the truth and
correctness of statements made in the Disclosure Statement or any other
offering document distributed in connection with any securities issued in
respect of this Agreement or the Related Agreements) and opinions of legal
counsel, all of which shall be reasonably satisfactory to Investor;
(g) by no later than March 31, 1994, the Company shall have delivered
to Investor audited financial statements as of December 31, 1993, and for
the year then ended, which statements shall reflect a financial performance
and a financial position of the Company consistent in all material respects
with the unaudited results previously announced by the Company for such
year, and, if requested by Investor, the Company shall have discussed such
financial statements with Investor and provided an opportunity for Investor
to discuss such financial statements with the Company's auditors;
(h) since December 31, 1993, except for the matters disclosed in
Schedule I hereto, no material adverse change in the Company's condition
(financial or otherwise), business, assets, properties, operations or
relations with employees or labor unions shall have occurred and no matter
(except for the matters disclosed in Schedule I hereto) shall have occurred
or come to the attention of Investor that, in the reasonable judgment of
Investor, is likely to have any such material adverse effect;
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(i) the following shall be true in all material respects (in each case
based on the Company's actual monthly or daily financial statements, which
shall be prepared by the Company in a manner consistent in all material
respects with its historical monthly and daily financial statements
previously furnished to Investor): (A) the Company's actual monthly
Operating Cash Flow (as defined on the Monthly Targets Schedule) shall not,
in any month, be less than the minimum amount therefor established as part
of the Monthly Targets, (B) the Company's actual 4 month Rolling Cash Flow
(as defined on the Monthly Targets Schedule) shall not be less, as of the
end of any four calendar month period, than the minimum amount therefor
established as part of the Monthly Targets, (C) the Company's actual end of
month Reported Cash Balance (as defined in the Monthly Targets Schedule)
shall not, as of the end of any calendar month, be less than the minimum
amount therefor established as part of the Monthly Targets, (D) the
Company's actual five-day average Minimum Cash Balance (as defined in the
Monthly Targets Schedule) shall not be, as of the end of any five day
period, less than the minimum amount therefor established as part of the
Monthly Targets; (E) the Company shall not have taken any actions which the
Company knew or reasonably should have known would likely impair or hinder
in any material respect the Company's ability to achieve the Projections;
(F) the amount and nature of the obligations and liabilities (including,
without limitation, tax liabilities and administrative expense claims)
required to be paid by the Company on the Effective Date or to be paid by
the Company following the Effective Date pursuant to obligations assumed by
the Company during the course of its bankruptcy proceedings shall not be in
excess of the amounts reflected in Plan R-2 plus any additional allowances
provided in Section 7 (as reduced by any repayments of the existing
debtor-in-possession loan made on or prior to the Effective Date) and shall
not be materially different in nature than those specified in Plan R-2
(except with respect to administrative claims not known to the Company when
Plan R-2 was developed); and (G) the Company shall have paid all fees and
expenses due Investor under the Procedures Agreement;
(j) since the date hereof, there shall have occurred no outbreak or
escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions or other
adverse change in the financial markets that impairs (or could reasonably
be expected to impair) in any material respect the Company's ability to
carry on its business in a manner consistent in all material respects with
prior practice or impairs (or could reasonably be expected to impair) in
any material respect Investor's ability to realize the intended benefits
and value of this Agreement or any Related Agreement;
(k) the Related Agreements, including all Alliance Agreements, to be
executed by the Company shall have been executed by the Company on or
before the Effective Date and, once executed, shall not have been modified
without the consent of Investor, shall be in effect and shall not have been
stayed;
(l) the Company shall have performed in all material respects all
obligations on its part required to be performed on or before the Effective
Date under this Agreement, the Procedures Agreement and the Related
Agreements and all orders of the Bankruptcy Court in respect thereof that
are consistent with the provisions of such instruments;
(m) all representations and warranties of the Company under this
Agreement, the Procedures Agreement and the Related Agreements shall be
true in all material respects as of the Effective Date;
(n) the Plan and Disclosure Statement each shall have been filed by
the Company on or prior to May 15, 1994, and, once filed, shall have been
served by the Company on all appropriate parties and, once served, shall
not have been modified in any material respect without the prior consent of
Investor (which consent shall not be unreasonably withheld), withdrawn by
the Company or dismissed;
(o) the Disclosure Statement (in the form approved by the Bankruptcy
Court and as amended or supplemented, if applicable) shall have been true
and correct in all material respects as of the date first mailed to
Unsecured Parties and as of the date fixed by the Bankruptcy Court for
voting on the Plan and such Disclosure Statement shall not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein (taken as a whole),
in light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing
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condition shall not apply to statements or other information furnished or
provided by Investor or any of its Affiliates for use in the Disclosure
Statement;
(p) the order approving the Disclosure Statement shall have been
entered by the Bankruptcy Court on or prior to June 30, 1994, and, once
entered, shall not have been modified in any material respect, shall be in
effect and shall not have been stayed;
(q) the Plan (including all securities of the Company to be issued
pursuant thereto and all contracts, instruments, agreements and other
documents to be entered into in connection therewith), the Disclosure
Statement and the Confirmation Order shall be consistent with the terms of
this Agreement and otherwise reasonably satisfactory in form and substance
to Investor;
(r) the Confirmation Order shall have been entered by the Bankruptcy
Court in form reasonably satisfactory to Investor on or before August 15,
1994, and, once entered, shall not have been modified in any material
respect, shall be in effect and shall not have been stayed and shall not be
subject to any appeal;
(s) the Effective Date shall have occurred on or prior to the Outside
Date unless the reason therefor shall be attributable to the breach by
Investor or its Affiliates of any of their respective representations,
warranties, covenants or obligations contained herein or in the Procedures
Agreement or any Related Agreement;.
(t) either pursuant to the Confirmation Order or otherwise, the
Bankruptcy Court shall have established one or more bar dates for
administrative expense claims pursuant to an order reasonably acceptable to
Investor, which bar date or dates shall occur on or before dates reasonably
acceptable to Investor; and
(u) the Securities and Exchange Commission shall have declared
effective a shelf registration statement with respect to the Securities
issuable to Investor.
In the event any of the conditions set forth in clause (a)-(n), (p) or (r) is
not satisfied by the date specified in such clause (the "Deadline"), then, on
the 15th day following the then current Deadline, the Deadline shall be
automatically extended on a day-to-day basis unless the Company and Investor
otherwise agree in writing or unless Investor gives a notice of termination to
the Company pursuant to Section 20(b) of the Procedures Agreement within such
15-day period. If any Deadline is automatically extended as aforesaid, Investor
may thereafter establish a new Deadline by giving notice to the Company
specifying the new Deadline, provided that the new Deadline may not be sooner
than 30 days after the date of such notice.
SECTION 9. Conditions to Company's Obligations Relating to
Investment. The Company's obligations to consummate or to cause the
consummation of the issuance and sale of the Securities and the other
transactions contemplated by this Agreement shall be subject to the
satisfaction, or to the effective written waiver by the Company, of the
condition described in Section 8(b) and the following additional conditions:
(a) payment of the Purchase Price;
(b) Investor shall have delivered to the Company appropriate closing
documents, including, but not limited to, executed counterparts of the
Related Agreements and certifications of officers, and opinions of legal
counsel, all of which shall be reasonably satisfactory to the Company;
(c) there shall be in effect no injunction, stay, restraining order or
decree issued by any court of competent jurisdiction, whether foreign or
domestic, staying the effectiveness of any of the Approvals, the Initial
Order or the Confirmation Order, and there shall not be pending any request
or motion for any such injunction, stay, restraining order or decree;
provided, however, that the foregoing condition shall not apply to any such
injunction, stay, order or decree requested, initiated or supported by the
Company or to any such request or motion made, initiated or supported by
the Company;
(d) the Related Agreements to be executed by Investor or any of its
partners shall have been executed by such parties on or before the
Effective Date and, once executed, shall not have been modified without the
consent of the Company, shall be in effect and shall not have been stayed;
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(e) Investor, Continental and Mesa shall have performed in all
material respects all obligations on their part required to be performed on
or before the Effective Date under this Agreement, the Procedures Agreement
and the Related Agreements and all orders of the Bankruptcy Court in
respect thereof that are consistent with the provisions of such
instruments;
(f) all representations and warranties of Investor, Continental and
Mesa under this Agreement, the Procedures Agreement and the Related
Agreements shall be true and correct in all material respects as of the
Effective Date;
(g) the Company shall be reasonably satisfied that the Alliance
Agreements, when fully implemented, shall result in an increase to the
Company's pretax income of not less than $40 million per year; provided,
however, that Investor shall have no liability for any failure of the
Company to achieve any such increase in net income except to the extent
such failure results from a default by Investor or its partners pursuant to
the terms of such Alliance Agreements;
(h) since the date hereof, there shall have occurred (A) no outbreak
or escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions or other
adverse change in the financial markets or (B) any adverse change in the
condition (financial or otherwise), business, assets, properties or
prospects of Continental or Mesa, in each case that materially impairs the
ability of either Continental or Mesa to perform its obligations under the
Alliance Agreements or the Company's ability to realize the intended
benefits and value of this Agreement, the Alliance Agreements (as
contemplated by clause (g) above) or the other Related Agreements;
(i) since the time of their initial filing by the Company, neither the
Plan nor the Disclosure Statement shall have been modified in any material
respect without the prior consent of the Company (which consent shall not
be unreasonably withheld or delayed), withdrawn by Investor or dismissed;
(j) the certificate of incorporation and bylaws of the Company shall
contain the terms contemplated by this Agreement and shall otherwise be
reasonably satisfactory to the Company;
(k) the Plan (including all Securities to be issued pursuant thereto
and all contracts, instruments, agreements and other documents to be
entered into in connection therewith), the Disclosure Statement and the
Confirmation Order shall be consistent with the terms of this Agreement and
otherwise reasonably satisfactory in form and substance to the Company;
(l) the Confirmation Order shall have been entered by the Bankruptcy
Court in form reasonably acceptable to the Company and, once entered, shall
not have been modified in any material respect, shall be in effect and
shall not have been stayed and shall not be subject to any appeal; and
(m) the Effective Date shall have occurred on or prior to the Outside
Date unless the reason therefor shall be attributable to the breach by the
Company of any of its representations, warranties, covenants or obligations
contained herein or in the Procedures Agreement or any Related Agreement.
SECTION 10. Cooperation. (a) The Company and Investor will cooperate in a
commercially reasonable manner, and will use their respective commercially
reasonable efforts, to consummate the transactions contemplated hereby,
including all commercially reasonable efforts to satisfy the conditions
specified in this Agreement. The Company will use commercially reasonable
efforts, and Investor will cooperate in a commercially reasonable manner in
seeking, to obtain all Approvals.
(b) Notwithstanding anything in Section 8 or 9 to the contrary, if prior to
the Outside Date, the Department of Justice or any other Regulatory Authority
raises any antitrust objection to the consummation of the Investment or the
implementation of any Alliance Agreement, which objection has not been resolved
on or before the Outside Date, Investor nevertheless shall be required to
consummate the Investment and, to that end, agrees to timely make such
adjustment to the composition of its partnership and to the Alliance Agreements
as required to resolve such antitrust objection; provided, however, that nothing
in this paragraph (b) shall affect the rights of the Company under Section 9(g)
or obligate the Company to enter into or approve any adjustment or modification
of the Alliance Agreements which, in the Company's reasonable judgment, is
prejudicial to the Company or the Unsecured Parties in any material respect and
which, if
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entered into or approved, would materially impair the Company's ability to
realize the reasonably anticipated benefits of such Alliance Agreements.
SECTION 11. Registration Rights Agreement. Investor and the Company will
enter into a registration rights agreement on terms acceptable to Investor and
the Company. The registration rights agreement will reflect the understanding of
the parties with respect to their registration rights and obligations and will
provide that Investor, its partners and any assignees and transferees, shall
have the right to cause the Company to (i) include the Securities issuable to
Investor pursuant to the Plan (including any such Securities issued or issuable
in respect of the Warrants or by way of any stock dividend or stock split or in
connection with any combination of shares, merger, consolidation or similar
transaction), on customary terms, in "piggyback" underwritings and registrations
and (ii) to effect, on customary terms, one demand registration under the
Securities Act for the public offering and sale of the Securities issued to
Investor under the Plan at any time after the third anniversary of the Effective
Date.
SECTION 12. Applicable Provisions of Law and Regulations. It is
understood and agreed that this Agreement shall not create any obligation of, or
restriction upon, the Company or Investor or the partners of Investor that would
violate applicable provisions of law or regulation relating to ownership or
control of a U.S. air carrier. At all times after the Effective Date, the
certificate of incorporation of the Company shall provide that, in the event
persons who are not U.S. citizens shall own (beneficially or of record) or have
voting control over shares of Common Stock, the voting rights of such persons
shall be subject to automatic suspension as required to ensure that the Company
is in compliance with applicable provisions of law or regulation relating to
ownership or control of a U.S. air carrier.
SECTION 13. Representations and Warranties of the Company. The Company
represents and warrants to Investor as follows:
(a) The Company has complied in all material respects with the terms
of all orders of the Bankruptcy Court in respect of the Investment, this
Agreement and the Procedures Agreement.
(b) The Company has delivered to Investor copies of the audited
balance sheets of the Company as of December 31, 1992 and the statements of
income, stockholders equity and cash flows for the years then ended,
together with the notes thereto. Such financial statements, and when
delivered to Investor the financial statements of the Company referred to
in Section 8(g) will, present fairly, in accordance with generally accepted
accounting principles (applied on a consistent basis except as disclosed in
the footnotes thereto), the financial position and results of operations of
the Company as of the dates and for the periods therein set forth.
(c) When delivered to Investor, the unaudited financial statements of
the Company referred to in Section 15(b)(ii) will (i) present fairly, in
accordance with generally accepted accounting principles (applied on a
consistent basis except as disclosed therein and subject to normal year-end
audit adjustments), the financial position and results of operations of the
Company as of the date and for the period therein set forth, it being
understood and agreed, however, that the foregoing representation relating
to conformity with generally accepted accounting principles is being made
only to the extent such principles are applicable to interim unaudited
reports and (ii) reflect a financial position and results of operations not
materially worse than those set forth in the pro forma financial statements
contained in Plan 9.
(d) The Projections and the Monthly Targets were prepared in good
faith on a reasonable basis, and when prepared represented the Company's
best judgment as to the matters set forth therein, taking into account all
relevant facts and circumstances known to the Company. Nothing has come to
the Company's attention since the dates on which the Projections and the
Monthly Targets, respectively, were prepared which causes the Company to
believe that any of the projections and other information contained therein
were misleading or inaccurate in any material respect as of such dates. It
is specifically understood and agreed that the delivery of the Projections
and the Monthly Targets shall not be regarded as a representation, warranty
or guarantee that the particular results reflected therein will in fact be
achieved or are likely to be achieved.
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(e) No written statement, memorandum, certificate, schedule or other
written information provided (or to be provided) to Investor or any of its
representatives by or on behalf of the Company in connection with the
transactions contemplated hereby, when viewed together with all other
written statements and information provided to Investor and its
representatives by or on behalf of the Company, in light of the
circumstances under which they were made, (i) contains or will contain any
materially misleading statement or (ii) omits or will omit to state any
material fact necessary to make the statements therein not misleading.
(f) The board of directors of the Company has approved the Investment
and Investor's acquisition of Securities hereunder for purposes of, and in
accordance with the provisions and requirements of, Section 203(a)(1) of
the General Corporation Law of the State of Delaware and, as a consequence,
Investor will not be subject to the provisions of such Section with respect
to any "business combination" between Investor and the Company (as such
term is defined in said Section 203).
SECTION 14. Representations and Warranties of Investor. Investor
represents and warrants to the Company as follows:
(a) The general and limited partners of Investor (other than one such
partner which will elect to suspend the voting rights of its Securities as
contemplated by Section 4(b)) are U.S. citizens within the meaning of
Section 101(16) of the Federal Aviation Act of 1958, as amended.
(b) Investor has, or has commitments for, sufficient funds to pay the
Purchase Price and otherwise perform its obligations under this Agreement.
(c) No written statement, memorandum, certificate, schedule or other
written information provided (or to be provided) to the Company or any of
its representatives by or on behalf of Investor in connection with the
transactions contemplated by the Alliance Agreements, when viewed together
with all other written statements and information provided to the Company
and its representatives by or on behalf of Investor, in light of the
circumstances under which they were made, (i) contains or will contain any
materially misleading statement or (ii) omits or will omit to state any
material fact necessary to make the statements therein not misleading.
SECTION 15. Covenants. (a) Investor covenants (i) to support, subject to
management's recommendation, increases in employee compensation through 1995 at
least equal to those set forth in Plan R-2 and (ii) after the Effective Date, to
cause the board of directors of the Company to consider implementation of a
broad based employee incentive compensation plan and a management stock
incentive plan.
(b) The Company covenants (i) to use commercially reasonable efforts to
cause the shelf registration statement referred to in Section 8(u) to remain
effective for three years following its effective date and (ii) as soon as
available, to deliver to Investor a copy of the unaudited balance sheet of the
Company as of the end of each fiscal quarter of the Company prior to the
Effective Date and the unaudited statements of income and cash flows for the
periods then ended.
SECTION 16. Certain Taxes. The Company shall bear and pay all transfer,
stamp or other similar taxes (if any are not exempted under Section 1146 of the
Bankruptcy Code) imposed in connection with the issuance and sale of the
Securities.
SECTION 17. Administrative Expense. All amounts owed to Investor or its
assignees by the Company under this Agreement, the Related Agreements, the
Procedures Agreement and all orders of the Bankruptcy Court in respect thereof
shall be treated as an allowed administrative expense priority claim under
Section 507(a)(1) of the Bankruptcy Code.
SECTION 18. Incorporation by Reference. The provisions set forth in the
Procedures Agreement, including, but not limited to, the provisions regarding
confidentiality, liability indemnity and termination, are hereby incorporated by
reference and such provisions shall have the same force and effect herein as if
they were expressly set forth herein in full.
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SECTION 19. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) or by prepaid express courier to the parties at the following addresses
or facsimile numbers:
If to the Company: America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William 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: Murphy, Weir & Butler
101 California Street, 39th Floor
San Francisco, California 94111
Attention: Patrick A. Murphy
Fax Number: (415) 421-7879
and a copy to: Lord, Bissell and Brook
115 South LaSalle Street
Chicago, IL 60603
Attention: Benjamin Waisbren
Fax Number: (312) 443-0336
If to Investor: AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax Number: (817) 871-4010
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
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and a copy to: Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
Attention: Laura Hodges Taylor, P.C.
Fax Number: (617) 523-1231
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
and a copy to: Lord, Bissell and Brook
115 South LaSalle Street
Chicago, IL 60603
Attention: Benjamin Waisbren
Fax Number: (312) 443-0336
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail or by express courier in the manner described above to the address as
provided in this Section, be deemed given upon receipt (in each case regardless
of whether such notice is received by any other person to whom a copy of such
notice, request or other communication is to be delivered pursuant to this
Section). Either party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other party hereto.
SECTION 20. Governing Law. Except to the extent inconsistent with the
Bankruptcy Code, this Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of Arizona, without reference
to principles of conflicts or choice of law under which the law of any other
jurisdiction would apply.
SECTION 21. Amendment. This Agreement may only be amended, waived,
supplemented or modified by a written instrument signed by authorized
representatives of Investor and the Company. Investor may extend the time for
satisfaction of the conditions set forth in Section 8 (prior to or after the
relevant date) by notifying the Company in writing. The Company may extend the
time for satisfaction of the conditions set forth in Section 9 (prior to or
after the relevant date) by notifying Investor in writing.
SECTION 22. No Third Party Beneficiary. This Agreement and the Procedures
Agreement are made solely for the benefit of the Company and Investor and their
respective permitted assigns, and no other Person (including, without
limitation, employees, stockholders and creditors of the Company) shall have any
right, claim or cause of action under or by virtue of this Agreement or the
Procedures Agreement, except to the extent such Person is entitled to protection
as contemplated by Section 28(b) or to expense reimbursement pursuant to the
Procedures Agreement or may assert a claim for indemnity pursuant to the
Procedures Agreement.
SECTION 23. Assignment. Except as otherwise provided herein, Investor may
assign all or part of its rights under this Agreement to any of its partners
(each of whom may assign all or part to its Affiliates) or to any fund or
account managed or advised by Fidelity Management Trust Company or any of its
Affiliates and may assign any Securities (or the right to purchase any
Securities) to any lawfully qualified Person or Persons, and the Company may
assign this Agreement to any Person with which it may be merged or consolidated
or to whom substantially all of its assets may be transferred in facilitation of
the consummation of the Plan and the effectuation of the issuance and sale of
the Securities as contemplated hereby or by the Related Agreements. None of such
assignments shall relieve the Company or Investor of any obligations hereunder,
under the Procedures Agreement or under the Related Agreements.
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SECTION 24. Counterparts. This Agreement may be executed by the parties
hereto in counterparts and by telecopy, each of which shall be deemed to
constitute an original and all of which together shall constitute 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 25. 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 to 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 26. Tagalong Rights. On the Effective Date, Investor shall enter
into a written agreement for the benefit of all holders of Class B Common (other
than Investor and its Affiliates) whereby Investor shall agree, for a period of
three years after the Effective Date, not to sell, in a single transaction or
related series of transactions, shares of Common Stock representing 51% or more
of the combined voting power of all shares of Common Stock then outstanding
unless such holders shall have been given a reasonable opportunity to
participate therein on a pro rata basis and at the same price per share and on
the same economic terms and conditions applicable to Investor; provided,
however, that such obligation of Investor shall not apply to any sale of shares
of Common Stock made by Investor (i) to any Affiliate of Investor, (ii) to any
Affiliate of Investor's partners, (iii) pursuant to a bankruptcy or insolvency
proceeding, (iv) pursuant to judicial order, legal process, execution or
attachment, (v) in a widespread distribution registered under the Securities Act
of 1933, as amended ("Securities Act") or (vi) in compliance with the volume
limitations of Rule 144 (or any successor to such Rule) under the Securities
Act.
SECTION 27. Stock Legend. All securities issued to Investor pursuant to
the Plan shall be conspicuously endorsed with an appropriate legend to the
effect that such securities may not be sold, transferred or otherwise disposed
of except in compliance with (i) Section 26 and (ii) applicable securities laws.
SECTION 28. Directors' Liability and Indemnification. (a) Upon, and at
all times after, consummation of the Plan, the certificate of incorporation of
the Company shall contain provisions which (i) eliminate the personal liability
of the Company's former, present and future directors for monetary damages
resulting from breaches of their fiduciary duties to the fullest extent
permitted by applicable law and (ii) require the Company, subject to appropriate
procedures, to indemnify the Company's former, present and future directors and
executive officers to the fullest extent permitted by applicable law. In
addition, upon consummation of the Plan, the Company shall enter into written
agreements with each person who is a director or executive officer of the
Company on the date hereof providing for similar indemnification of such person
and providing that no recourse or liability whatsoever with respect to this
Agreement, the Procedures Agreement, the Related Agreements, the Plan or the
consummation of the transactions contemplated hereby or thereby shall be had,
directly or indirectly, by or in the right of the Company against such person.
Notwithstanding anything contained herein to the contrary, the provisions of
this Section 28(a) shall not be applicable to any person who ceased being a
director of the Company at any time prior to March 1, 1994.
(b) Investor agrees, on behalf of itself and its partners, that no recourse
or liability whatsoever (except as provided by applicable law for intentional
fraud, bad faith or willful misconduct) shall be had, directly or indirectly,
against any person who is a director or executive officer of the Company on the
date hereof with respect to this Agreement, the Procedures Agreement, the
Related Agreements, the Plan or the consumma-
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tion of the transactions contemplated hereby or thereby, such recourse and
liability, if any, being expressly waived and released by Investor and its
partners as a condition of, and in consideration for, the execution and delivery
of this Agreement.
SECTION 29. Jurisdiction of Bankruptcy Court. The parties agree that the
Bankruptcy Court shall have and retain exclusive jurisdiction to enforce and
construe the provisions of this Agreement.
SECTION 30. 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 31. Termination. This Agreement shall terminate concurrently with
the termination of the Procedures Agreement.
SECTION 32. Entire Agreement. The Agreement supersedes any and all other
agreements (oral or written) between the parties in respect to the subject
matter hereof other than the Procedures Agreement.
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.,
its General Partner
By:
--------------------------------------
Title:
--------------------------------------
Accepted and Agreed to
this 21st day of April, 1994.
AMERICA WEST AIRLINES, INC.
as Debtor and Debtor-in-Possession
By:
- - --------------------------------------
Title:
- - --------------------------------------
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PLAN OF REORGANIZATION
EXHIBIT B
STOCKHOLDERS' AGREEMENT
61
[THIS PAGE INTENTIONALLY LEFT BLANK]
62
STOCKHOLDERS' AGREEMENT FOR
AMERICA WEST AIRLINES, INC.
THIS STOCKHOLDERS' AGREEMENT FOR AMERICA WEST AIRLINES, INC. (this
"Agreement") is entered into as of this day of , 1994 by and
among AmWest Partners, L.P., a Texas limited partnership ("AmWest"), GPA Group
plc, a corporation organized under the laws of Ireland ("GPA"),
, and (collectively,
the "Stockholder Representatives"), and America West Airlines, Inc., a Delaware
corporation (the "Company").
RECITALS:
WHEREAS, on June 27, 1991, the Company 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 Court"); and
WHEREAS, on December 8, 1993, the Bankruptcy Court entered an Order on
Motion to Establish Procedures for Submission of Investment Proposals (the
"Procedures Order"); and
WHEREAS, pursuant to the Procedures Order, AmWest and the Company have
entered into that certain Third Revised Investment Agreement dated April 21,
1994 (the "Investment Agreement"), contemplating an investment by AmWest in the
Company (the "Investment") and providing for the consummation of the Company's
Plan of Reorganization (the "Plan"); and
WHEREAS, on , 1994, the Bankruptcy Court entered an order
confirming the Plan; and
WHEREAS, in consideration of the Investment, the Company has issued common
stock of the Company ("Common Stock") consisting of Class A Common Stock ("Class
A Common") and Class B Common Stock ("Class B Common") and warrants to purchase
Class B Common to AmWest; and
WHEREAS, in exchange for the release and modification of certain agreements
and claims, the Company has issued shares of Class B Common and warrants to
purchase Class B Common to GPA; and
WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the Official
Committee of Equity Holders of America West Airlines, Inc., appointed in the
Company's Chapter 11 case (the "Equity Committee") has appointed
as a Stockholder Representative; and
WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the Official
Committee of Unsecured Creditors of America West Airlines, Inc., appointed in
the Company's Chapter 11 case (the "Creditors' Committee") has appointed
as a Stockholder Representative; and
WHEREAS, pursuant to Section 6(b) of the Investment Agreement, the Board of
Directors of the Company, as constituted prior to consummation of the Plan, has
appointed as a Stockholder Representative; and
WHEREAS, the parties hereto have agreed to enter into this Agreement
pursuant to Section 218(c) of Title 8 of the Delaware Code (the "General
Corporation Law").
NOW, THEREFORE, in consideration of the premises herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
"Affiliate" shall mean (i) when used with reference to any partnership, any
person or entity that, directly or indirectly, owns or controls ten percent
(10%) or more of either the capital or profit interests of such partnership or
is a partner of such partnership or is a person or entity in which such
partnership has a ten percent (10%) or greater direct or indirect equity
interest and (ii) when used with reference to any corporation, any person or
entity that, directly or indirectly, owns or controls ten percent (10%) or more
of the outstanding voting securities of such corporation or is a person or
entity in which such corporation has a ten percent (10%) or greater direct or
indirect equity interest. In addition, the term "Affiliate," when used with
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63
reference to any person or entity, shall also mean any other person or entity
that, directly or indirectly, controls or is controlled by or is under common
control with such person or entity. As used in the preceding sentence, (A) the
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the entity
referred to, whether through ownership of voting securities, by contract or
otherwise and (B) the terms "controlling" and "controls" shall have meanings
correlative to the foregoing. Notwithstanding the foregoing, neither the Company
nor any Fidelity Fund will be deemed to be an Affiliate of AmWest or any of its
partners.
"Alliance Agreements" shall have the meaning set forth in the Investment
Agreement.
"AmWest Director" shall mean a director of the Company designated by AmWest
pursuant to Section 2.1(a).
"Annual Meeting" shall mean an annual meeting of the shareholders of the
Company.
"Board" shall mean the Company's Board of Directors.
"Bylaws" shall mean the Restated Bylaws adopted by the Company in
accordance with Section 303 of the General Corporation Law pursuant to the Plan.
"Citizens of the United States" shall have the meaning set forth in Section
1301, Title 49, United States Code, as now in effect or as it may hereafter from
time to time be amended.
"Continental" shall mean Continental Airlines, Inc. or any successor.
"Creditors' Committee Director" shall mean a director of the Company
designated by the Creditors' Committee or otherwise pursuant to Section 2.1(b).
"Effective Date" shall mean the date upon which the Restated Certificate of
Incorporation becomes effective in accordance with the Plan and the General
Corporation Law.
"Equity Committee Director" shall mean a director of the Company designated
by the Equity Committee or otherwise pursuant to Section 2.1(b).
"Fidelity Fund" shall mean a fund or account managed or advised by Fidelity
Management Trust Company or any of its Affiliates or successor(s).
"GPA Director" shall mean a director of the Company designated by GPA
pursuant to Section 2.1(c).
"Independent Company Director" shall mean a director of the Company
designated pursuant to Section 2.1(b).
"Independent Directors" shall mean, collectively, the Creditors' Committee
Directors, the Equity Committee Director, and the Independent Company Director.
"Mesa" shall mean Mesa Airlines, Inc. or any successor.
"Public Offering" shall have the meaning set forth in Section 4.2.
"Restated Certificate of Incorporation" shall mean the Restated Certificate
of Incorporation adopted by the Company in accordance with Section 303 of the
General Corporation Law pursuant to the Plan.
"Stockholder Representatives" shall mean the persons identified as such in
the recitals set forth above; provided that in the case of the death,
resignation, removal or disability of a Stockholder Representative, his or her
successor shall be designated by the remaining Stockholder Representatives, and
upon providing a written acknowledgment to such effect to all other parties
hereto and agreeing to be bound and subject to the terms hereof, shall become a
Stockholder Representative.
"Third Annual Meeting" shall mean the first Annual Meeting after the third
anniversary of the Effective Date.
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2. DESIGNATION AND VOTING FOR COMPANY DIRECTORS.
2.1 Until the Third Annual Meeting, subject to the exception set forth in
Section 4.7(a), the Board shall consist of up to fifteen (15) persons, of whom
nine (9) persons shall be AmWest Directors, five (5) persons shall be
Independent Directors and up to one (1) person shall be a GPA Director, all
designated in accordance with the following procedure:
(a) The AmWest Directors designated on Exhibit A hereto shall serve
until the first Annual Meeting following the Effective Date and until the
successor to each such director shall be duly elected and qualified, or
until their death, disability, removal or resignation. No less than thirty
(30) days in advance of each Annual Meeting prior to (but not including)
the Third Annual Meeting, and no less than five (5) days in advance of any
other meeting of the Board at which a director will be elected to sit on
the Board in a seat vacated by an AmWest Director because of death,
disability, removal, resignation, or otherwise, AmWest shall give written
notice to the other parties hereto designating the individual or
individuals to serve as AmWest Directors. For so long as AmWest and/or its
Affiliates holds at least five percent (5%) of the voting equity securities
of the Company, GPA agrees to vote the Common Stock held and controlled by
it and to cause the GPA Director to vote or provide written consents in
favor of such designees and to take any other action necessary to elect
such designees. The Stockholder Representatives agree to recommend to the
Independent Directors to vote or provide written consents in favor of such
designees and to take any other action necessary to elect such designees.
(b) Three (3) Creditors' Committee Directors, one (1) Equity Committee
Director, and one (1) Independent Company Director, each as designated on
Exhibit A hereto, shall serve until the first Annual Meeting following the
Effective Date and until the successor to each such director shall be duly
elected and qualified, or until their death, disability, removal or
resignation. Until the Third Annual Meeting, the Company shall nominate for
reelection, and AmWest and GPA shall vote the Common Stock held and
controlled by them in favor of, each Independent Director designated on
Exhibit A for so long as he or she continues to serve on the Board. No less
than five (5) days in advance of any meeting of the Board at which a
director will be elected to sit on the Board in a seat vacated by an
Independent Director because of death, disability, removal, resignation or
otherwise (a "Successor Independent Director"), and no less than thirty
(30) days in advance of an Annual Meeting prior to (but not including) the
Third Annual Meeting at which the term of any Successor Independent
Director will expire, the Stockholder Representatives shall give written
notice to the other parties hereto designating the individuals to serve as
Independent Directors; except that if the Creditors' Committee or the
Equity Committee remain in effect, they shall have the right to designate
the Creditors' Committee Directors and the Equity Committee Director,
respectively, or the individuals to fill vacancies thereof, by giving
written notice to the other parties hereto in accordance with the terms set
forth above and provided that the Stockholder Representatives shall select
any Successor Independent Director to replace the Independent Company
Director from among the executive officers of the Company. Each of AmWest
and GPA agrees to vote the Common Stock held and controlled by them and to
cause the AmWest Directors and the GPA Director, respectively, to vote or
provide written consents in favor of such designees and to take any other
action necessary to elect such designees; provided that each Independent
Director shall be reasonably acceptable to AmWest at the time of his or her
initial designation.
(c) The GPA Director designated on Exhibit A hereto shall serve until
the first Annual Meeting following the Effective Date and until the
successor to such director shall be duly elected and qualified or until his
or her death, disability, removal, or resignation. No less than thirty (30)
days in advance of each Annual Meeting prior to (but not including) the
Third Annual Meeting, and no less than five (5) days in advance of any
other meeting of the Board at which a director will be elected to sit on
the Board in a seat vacated by the GPA Director because of death,
disability, removal, resignation or otherwise, GPA shall give written
notice to the other parties hereto designating the individual to serve as
GPA Director. Unless the rights of GPA hereunder have been terminated
pursuant to Section 6.2, AmWest agrees to vote the Common Stock held and
controlled by it, and to cause the AmWest Directors, and the Stockholder
Representatives agree to recommend to the Independent Directors, to vote or
provide written consents in
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favor of such designee and to take any other action necessary to elect such
designee; provided that the GPA Director shall be reasonably acceptable to
AmWest at the time of his or her initial designation.
(d) Except as otherwise provided herein, each of AmWest, the
Stockholder Representatives, and GPA agrees to nominate or cause the
nomination of the AmWest Directors, the Independent Directors, and the GPA
Director, respectively, in accordance with the Bylaws.
(e) Notwithstanding the foregoing, no party hereto shall be obligated
to vote any shares for which the voting rights have been suspended, whether
voluntarily or involuntarily.
(f) In the event that AmWest, the Creditors' Committee or Equity
Committee (for so long as each is in existence and has the ability to
designate a director as herein provided), the Stockholder Representatives,
or GPA shall fail or refuse to designate a nominee to the Board for a
position allocated to and to be filled by such group or entity as herein
provided, such position shall not be filled and shall remain vacant unless
and until such designation shall be made as herein provided.
(g) In the event that the rights and obligations of GPA with respect
to this Agreement are terminated in accordance with Section 6.2, GPA agrees
to cause the resignation of, or provide notice to the other parties hereto
as provided in subsection (h)(i) below requesting removal of the GPA
Director, at which time the Board shall be reduced to fourteen (14)
persons.
(h) The parties hereto agree to (i) vote the Common Stock held and
controlled by them in favor of the removal from the Board, upon notice by
the group or entity having the right to designate such director under this
Section 2.1 and requesting such removal, of any person or persons
designated to the Board by such group or entity, and (ii) to vote the
Common Stock held and controlled by them (other than stock held
individually by any Stockholder Representative) and to cause (or in the
case of the Stockholder Representatives, recommend to) the directors
designated by them to vote or take such action as may be required under the
General Corporation Law or otherwise to implement the provisions of this
Agreement. The group or entity who has nominated any director in accordance
with this Agreement shall have the exclusive right to remove or replace
such director by written notice as herein provided; except that nothing in
this agreement shall be construed to limit or prohibit the removal of any
director for cause.
2.2 Until the Third Annual Meeting, at least eight of the AmWest Directors,
at least two of the Creditors' Committee Directors, the Equity Committee
Director, and the Independent Company Director shall each be Citizens of the
United States.
2.3 AmWest agrees that no AmWest Director shall be an officer or employee
of Continental.
3. VOTING ON CERTAIN MATTERS.
3.1 Any Director who is selected by, or who is a director of, Continental
shall recuse himself or herself from voting on, or otherwise receiving any
confidential information regarding, matters in connection with negotiations
between Continental and the Company (including, without limitation, negotiation
between Continental and the Company of the Alliance Agreements) and matters in
connection with any action involving direct competition between Continental and
the Company. Any Director who is selected by, or who is a director, officer or
employee of, Mesa shall recuse himself or herself from voting on, or otherwise
receiving any confidential information regarding, matters in connection with
negotiations between Mesa and the Company (including, without limitation,
negotiation between Mesa and the Company of the Alliance Agreements) and matters
in connection with any action involving direct competition between Mesa and the
Company.
3.2 Until the Third Annual Meeting, the affirmative vote of the holders of
a majority of the voting power of the outstanding shares of each class of common
stock of the Company entitled to vote (excluding any shares owned by AmWest or
any of its Affiliates, but not, however, excluding shares owned, controlled or
voted by Mesa or any of its transferees that are not otherwise Affiliates of
AmWest), voting as a single class, shall be required to approve, adopt or
authorize:
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(a) Any merger or consolidation of the Company with or into AmWest or
any Affiliate of AmWest;
(b) Any sale, lease, exchange, transfer, or other disposition by the
Company of all or any substantial part of the assets of the Company to
AmWest or any Affiliate of AmWest;
(c) Any transaction with or involving the Company as a result of which
AmWest or any of AmWest's Affiliates will, as a result of issuances of
voting securities by the Company (or any other securities convertible into
or exchangeable for such voting securities), acquire an increased
percentage ownership of such voting securities, except for (i) the exercise
of Warrants issued under the Plan, (ii) the conversion of Class A Common
held by it to Class B Common, or (iii) otherwise pursuant to a transaction
in which all holders of Class B Common may participate on a pro rata basis
at the same price per share and on the same economic terms, including,
without limitation, (A) a tender or exchange offer for all shares of the
Common Stock and (B) a Public Offering; or
(d) Any related series or combination of transactions having or which
will have, directly or indirectly, the same effect as any of the foregoing.
At the request of any party proposing such a transaction and subject to
approval by the Board, the Company agrees to put to a vote of the shareholders
the approval of any transaction referred to in subparagraphs (a) through (d)
above (excluding the excepted transactions referred to in clauses (i), (ii), and
(iii) of subparagraph (c)) at the next regular or any duly convened special
meeting of the shareholders of the Company. The voting requirements specified
above shall not be applicable to a proposed action which has been approved or
recommended by at least three Independent Directors.
4. FURTHER COVENANTS.
4.1 Neither AmWest nor any partner or Affiliate of AmWest or of any partner
of AmWest shall sell or otherwise transfer any Common Stock (other than to an
Affiliate of the transferor) if, after giving effect thereto and to any related
transaction, the total number of shares of Class B Common beneficially owned by
the transferor is less than twice the total number of shares of Class A Common
beneficially owned by the transferor; provided, however, that nothing contained
in this Section 4.1 shall prohibit any owner of Common Stock from selling or
otherwise transferring, in a single transaction or related series of
transactions, all shares of Common Stock owned by it, subject to the remaining
provisions of this Agreement.
4.2 AmWest agrees that its constituent documents shall at all times require
that this Agreement be binding upon all general and limited partners of AmWest
and any Affiliate of AmWest or such partners who hold or receive shares of the
Company for their own account or direct the voting of any shares held by AmWest
and upon any assignees or transferees in a single transaction or a related
series of transactions of all or substantially all of the Common Stock owned by
AmWest or any of its partners or Affiliates of AmWest or any of their partners;
except any assignment or transfer made contemporaneous with the consummation of
the Plan to any Fidelity Fund or Funds; and except any assignee or transferee
who acquires such Common Stock pursuant to (i) a tender or exchange offer open
to all shareholders of the Company on a pro rata basis at the same price per
share and on the same economic terms, (ii) a distribution registered under the
Securities Act of 1933 (as amended, the "Securities Act") (a "Public Offering"),
or (iii) a transfer made pursuant to Rule 144 (as amended, "Rule 144") under the
Securities Act. AmWest shall not sell or transfer (including upon dissolution of
AmWest) any Common Stock held by it to any of its general or limited partners,
to any Fidelity Fund, or to any Affiliate of AmWest or such partners and AmWest
shall not sell or transfer all or substantially all of the Common Stock held by
it in a single transaction or a related series of transactions, except in
accordance with clauses (i), (ii) or (iii), above, unless and until it causes
any assignee or transferee to provide a written acknowledgment to the other
parties hereto that it accepts and is bound and subject to the terms of this
Agreement.
4.3 AmWest covenants and agrees that it shall not sell, in a single
transaction or a related series of transactions, shares of Common Stock
representing fifty one percent (51%) or more of the combined voting power of all
shares of Common Stock then outstanding, other than (i) pursuant to or in
connection with a tender or exchange offer for all shares of Common Stock and
for the benefit of all holders of Class B Common
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on a pro rata basis at the same price per share and on the same economic terms,
(ii) to any Affiliate of AmWest, (iii) to any Affiliate of AmWest's partners,
(iv) pursuant to a bankruptcy or insolvency proceeding, (v) pursuant to a
judicial order, legal process, execution or attachment, or (vi) in a Public
Offering.
4.4 Within ten (10) days of the Effective Date, AmWest shall file with the
Securities and Exchange Commission, a Schedule 13D pursuant to Regulation 13D-G
("Regulation 13D-G") under the Securities Exchange Act of 1934 (as amended, the
"Exchange Act"), and shall amend such filing as required by Regulation 13D-G.
Each other party hereto covered by such filing covenants and agrees to promptly
provide to AmWest all information pertaining to such party and necessary to make
such amendments and to notify AmWest of any changes in facts or circumstances
pertaining to such party that would require any amendments under Regulation
13D-G.
4.5 AmWest agrees that it shall not cause any amendment to the provisions
of the Restated Certificate of Incorporation or the Bylaws or otherwise take any
action that supersedes or materially adversely affects or impairs the rights and
obligations of the parties under this Agreement or is contrary to the provisions
of this Agreement.
4.6 (a) Each certificate evidencing shares of Common Stock issued to AmWest
or any of its partners, GPA and any of their respective Affiliates, and any
assignee or transferee bound by the terms hereof, including shares of Common
Stock issued in connection with the exercise of any warrant, so long as such
Common Stock is held by them and prior to the termination or expiration of this
Agreement, shall be conspicuously stamped or marked with a legend including
substantially as follows:
THE RIGHTS AND OBLIGATIONS OF THE HOLDER OF THIS CERTIFICATE SHALL BE
SUBJECT TO THE TERMS AND PROVISIONS OF THAT CERTAIN STOCKHOLDERS' AGREEMENT
DATED , 1994, COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL
OFFICE OF AMERICA WEST AIRLINES, INC.
and each such certificate, for so long as such certificate is held by AmWest or
any of its partners and any of their respective Affiliates and any assignee or
transferee bound by the terms hereof and prior to the termination or expiration
of this Agreement, shall include in such legend the following:
THIS CERTIFICATE AND ANY INTEREST HEREIN MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE AFORESAID STOCKHOLDERS'
AGREEMENT.
(b) All certificates evidencing shares of Common Stock and warrants of the
Company that have not been registered pursuant to the Securities Act of 1933, as
amended, and that are not exempt from registration under Section 1145 of the
Bankruptcy Code, shall at all times be conspicuously stamped or marked with a
legend including substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS
THEREUNDER (THE "SECURITIES ACT") OR UNDER THE SECURITIES LAWS OF ANY
STATE; AND SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED OTHER THAN IN
ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR AN
EXEMPTION THEREFROM AND FROM ANY APPLICABLE STATE SECURITIES LAWS.
(c) Upon the termination of this Agreement, the Company shall, without
charge and upon surrender of certificates by the holders thereof and written
request cancel all certificates evidencing shares of Common Stock bearing the
legend described in subparagraph (a) above and issue to the holders thereof
replacement certificates that do not bear such a legend for an equal number of
shares held by such holders. Upon the transfer of any Common Stock bearing the
legend described in subparagraph (a) above to a party not bound and subject to
by this Agreement, the Company shall, without charge and upon the surrender of
certificates by
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the holders thereof and written request cancel all certificates evidencing such
shares of Common Stock and issue to the transferee thereof replacement
certificates that do not bear such a legend.
4.7 During the term of this Agreement, AmWest shall not cause the issuance
of any preferred stock that would (a) increase the number of directors in excess
of the number provided in Section 2.1 (except for increases caused by a
provision allowing holders of preferred stock to elect additional directors in
the event of nonpayment of dividends) or (b) eliminate or reduce the number of
Creditors' Committee Directors, Equity Committee Director, Independent Company
Director, or GPA Director.
5. RIGHTS UPON BREACH.
5.1 Each party hereto recognizes and agrees that a violation of any term,
provision, or condition of this Agreement may cause irreparable damage to the
other parties which is difficult or impossible to quantify or ascertain and that
the award of any sum of damages may not be adequate relief to such other
parties. Each party hereto therefore agrees that in the event of any breach of
this Agreement, the other party or parties shall, in addition to any remedies at
law which may be available, have the right to obtain appropriate equitable
(including, but not limited to, injunctive) relief. All remedies hereunder shall
be cumulative and not exclusive.
5.2 In addition to any other remedies available at law or in equity, each
party hereto agrees that the Company shall have the right (a) to withhold
transfer, and to instruct any transfer agent for securities of the Company to
withhold transfer, of any certificates evidencing shares of Common Stock held by
AmWest or any partner or Affiliate of AmWest or transferee if the Company
reasonably believes that such transfer would not be in material compliance with
the terms and provisions of this Agreement, unless the transferee provides to
the Company an opinion of legal counsel reasonably acceptable to the Company
that such transfer will be in material compliance with the terms and provisions
hereof, and (b) to require any person requesting such transfer to provide such
information as may reasonably be requested by the Company regarding ownership of
securities, affiliations, if any, between AmWest and the transferee and such
other matters pertaining to the transfer as may be appropriate to enable the
Company to determine the compliance of the proposed transfer of securities with
the terms and provisions of this Agreement.
6. TERMINATION.
6.1 This Agreement shall automatically terminate without any action by any
party on the day immediately preceding the Third Annual Meeting and shall not be
extended except in accordance with Section 7.3. Upon such termination, the
rights and obligations of each party hereunder shall terminate and the
provisions of this Agreement shall be of no force and effect; provided that no
such termination shall relieve any person or entity from liability for breach or
default of this Agreement prior to such termination.
6.2 GPA's rights and obligations under this Agreement (other than its
obligations under Section 2.1(g)) shall terminate immediately and without notice
upon the earlier of (a) termination of this Agreement under Section 6.1, (b) the
sale or transfer by GPA of equity securities of the Company resulting in the
holding by GPA of less than two percent (2%) of the voting equity securities of
the Company (on a fully diluted basis), or (c) any occurrence, other than as
described in clause (b) above, resulting in the holding by GPA of less than two
percent (2%) of the voting equity securities of the Company (on a fully diluted
basis) if (i) the Company files a Form 10-Q under the Exchange Act, or other
written report or statement, that is delivered to GPA and a copy to the party
designated in Section 7.1, reflecting information as to the Company's total
issued and capital stock from which GPA can determine whether it holds less than
two percent (2%) of the voting equity securities of the Company (on a fully
diluted basis) and (ii) GPA continues to hold less than two percent (2%) of the
voting equity securities (on a fully diluted basis) for greater than thirty-five
(35) days after delivery of such Form 10-Q, or provision of such report or
statement to GPA. GPA acknowledges that the Company's continuing with its
existing procedures for the distribution of Form-10-Qs constitutes delivery to
GPA within the meaning of this Section 6.2.
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7. MISCELLANEOUS.
7.1 All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or mailed (first class postage prepaid) or by
prepaid express courier at the following addresses or facsimile numbers:
If to AmWest: AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax Number: (817) 871-4010
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
If to GPA: GPA Group plc
GPA House
Shannon, Ireland
Attention: Patrick H. Blaney
Fax Number: 353 61 360220
with a copy to: Paul, Hastings, Janofsky & Walker
399 Park Avenue, 31st Floor
New York, New York 10022
Attention: Marguerite R. Kahn
Fax Number: (212) 319-4090
If to
:
If to
:
If to
:
If to the Company: America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: General Counsel
Fax Number: (602) 693-5904
with a copy to: Andrews & Kurth, L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: David G. Elkins
Fax Number: (713) 220-4285
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 7.1, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 7.1, be deemed given upon receipt, and (iii) if
delivered by mail or by express courier in the manner described above to the
address as provided in this Section 7.1, be deemed given upon receipt (in each
case regardless of whether such notice is received by any other person to whom a
copy of
B-8
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such notice, request or other communication is to be delivered pursuant to this
Section 7.1). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice as provided in this Section 7.1 specifying such change to the other
parties hereto. Nothing in this Section 7.1 shall be deemed or construed to
alter the notice provisions contained in the Bylaws.
7.2 This Agreement shall in all respects be governed by and construed in
accordance with the laws of the State of Delaware without reference to
principles of conflicts or choice of law under which the law of any other
jurisdiction would apply.
7.3 This Agreement may only be amended, waived, supplemented, modified or
extended by a written instrument signed by authorized representatives of each
party hereto.
7.4 This Agreement shall inure to the benefit of and be binding upon each
of the parties hereto and their respective successors and permitted assigns.
7.5 This Agreement may be executed by the parties hereto in counterparts
and by telecopy, each of which shall be deemed to constitute an original and all
of which together shall constitute one and the same instrument.
7.6 If any term or provision of this Agreement shall be found by a court
of competent jurisdiction to be illegal, invalid or unenforceable to any extent,
the remainder of this Agreement shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
7.7 The parties hereto intend that in the case of any conflict or
inconsistency between this Agreement and the Restated Certificate of
Incorporation or the Bylaws, that this Agreement shall control, and therefore in
the event that any term or provision of this Agreement is rendered invalid,
illegal or unenforceable by the Restated Certificate of Incorporation or the
Bylaws, the parties agree to amend the Restated Certificate of Incorporation or
the Bylaws (as the case may be) so as to render such term or provision valid,
legal and enforceable, if and to the extent possible.
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IN WITNESS WHEREOF, the parties hereto, by their respective officers
thereunto duly authorized, have executed this Agreement as of the date first
written above.
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.,
its General Partner
By: ____________________
Name:___________________
Title:__________________
GPA GROUP PLC
By: ______________________
Name:_____________________
Title:______________________
[Stockholder Representative]
[Stockholder Representative]
[Stockholder Representative]
AMERICA WEST AIRLINES, INC.
By:_________________________
Name:_______________________
Title:______________________
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72
PLAN OF REORGANIZATION
EXHIBIT C
GPA TERM SHEET
73
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74
GPA TERM SHEET
This Term Sheet, dated as of June 13, 1994, sets forth the principal terms
and conditions (the "Terms and Conditions") of the treatment to be afforded to
the claims and interests of GPA Group plc and its affiliates (individually and
collectively, "GPA") pursuant to a joint plan of reorganization (the "Plan") of
America West Airlines, Inc. (the "Company") to be proposed and sponsored by the
Company in conjunction with AmWest Partners, L.P. ("AmWest") under and in
accordance with the Third Revised Investment Agreement, dated as of April 21,
1994, between the Company and AmWest (the "Investment Agreement") and the Third
Revised Interim Procedures Agreement, dated as of April 21, 1994, between the
Company and AmWest (the "Interim Procedures Agreement"). Except as otherwise
defined herein, capitalized terms used herein have the meanings stated in the
Investment Agreement.
Termination of
Put Agreement............ On the Effective Date, GPA shall (i) cancel all
rights of GPA to put any aircraft to the Company
pursuant to the A320 Put Agreement, dated as of
June 25, 1991, between the Company and GPA, as
amended by the First Amendment thereto, dated as of
September 1, 1992 (as so amended, the "Put
Agreement") and the related Agreement Regarding
Rights of First Refusal for A320 Aircraft, dated as
of September 1, 1992 (the "First Refusal
Agreement"), among the Company, GPA and Kawasaki
Leasing International Inc., and (ii) waive, and
covenant not to seek or assert, any and all claims
of any kind or nature arising out of or in
connection with the Put Agreement and/or the First
Refusal Agreement, other than claims for
reimbursement of expenses incurred by GPA in
connection therewith. As of the date of this Term
Sheet, GPA has been fully reimbursed by the Company
for all expenses incurred by GPA in connection with
the Put Agreement and the First Refusal Agreement.
Aircraft and Engine
Subleases.................. On the Effective Date, the Company shall ratify
(without modification or amendment) all of its
obligations (including, without limitation, rental
obligations) under and in connection with (i) the
sixteen separate Aircraft Sublease Agreements
between the Company and GPA, and (ii) the three
separate Engine Sublease Agreements between the
Company and GPA (in each case, as such Sublease
Agreement is more fully described on Schedule I to
the Put Agreement and, in each case, as such
Sublease Agreement was assumed by the Company
pursuant to Section 365 of the Bankruptcy Code).
DIP Financing.............. On the Effective Date, all amounts due and owing by
the Company under the debtor-in-possession
financing provided to the Company by GPA and other
debtor-in-possession lenders shall be paid in full
(it being understood that, upon receipt of such
amounts, GPA shall take all such actions as are
required to be taken by GPA pursuant to the
documents relating to such financing to cause and
evidence the release of all liens securing such
financing and the termination of the transactions
relating to such financing).
Common Stock............... On the Effective Date, GPA shall receive 900,000
shares of the Class B Common Stock of the Company
(the "Class B Common Stock"), which shares shall
represent two percent of the total amount of the
Common Stock of the Company (without giving effect
to exercise of the warrants described below and in
the Investment Agreement) and which Class B Common
Stock shall have the terms and provisions
contemplated in the Investment Agreement.
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Warrants................... On the Effective Date, GPA shall receive warrants
to purchase up to 1,384,615 shares of Class B
Common Stock, which shares shall represent 2.5% of
the Common Stock of the Company on a fully diluted
basis and which warrants shall be exercisable at a
price determined in accordance with, and have such
other terms and provisions as are described in, the
Plan.
Cash....................... On the Effective Date, GPA shall receive
$30,525,000 in cash.
Board Seat................. Pursuant to and in accordance with the terms,
provisions and conditions to be contained in a
Stockholders' Agreement to be entered into among
the reorganized Company, AmWest, GPA and certain
other parties, and for so long as GPA owns at least
two percent of the voting equity securities of the
Company (on a fully diluted basis), GPA shall be
allocated one seat, out of a total of fifteen
seats, on the Board of Directors of the reorganized
Company. The member of the Board of Directors of
the reorganized Company designated by GPA shall be
reasonably acceptable to AmWest at the time of his
or her initial designation (it being understood
that each of the persons currently serving as
"independent directors" of AWA, Patrick Blaney,
John Tierney and Declan Traecy shall be acceptable
to AmWest for such purposes). AmWest and GPA will
execute a voting agreement or similar arrangement
pursuant to which (i) AmWest will agree to vote in
favor of GPA's nominee to the Board of Directors of
the reorganized Company, and (ii) GPA will agree to
vote in favor of AmWest's nine nominees to the
Board of Directors of the reorganized Company, in
each case, for so long as (a) AmWest owns at least
five percent of the voting equity securities of the
Company (on a fully diluted basis), and (b) GPA
owns at least two percent of the voting equity
securities of the Company (on a fully diluted
basis).
New Puts................... GPA will be granted the right to deliver or put to
the Company, and the Company will be obligated to
lease from GPA, during the period beginning not
later than June 30, 1995 and ending on June 30,
1999 (the "New Put Period"), up to eight new or
used aircraft of types consistent with the
Company's fleet plan and requirements (such right
being referred to herein as the "New Put Right").
Each lease entered into by the Company in
connection with the exercise by GPA of the New Put
Right shall provide for the payment by the Company
of a fair market rental for the related aircraft,
taking into consideration whether the related
aircraft is new or used, the specifications and
condition of the related aircraft and all
provisions of such lease that are relevant to the
overall cost to the Company of the related
aircraft, and determined at or about the time of
delivery of such aircraft to the Company on the
basis of operating lease rentals then prevailing in
the marketplace for comparable operating leases of
comparable aircraft to airlines of comparable
creditworthiness to the Company (at or about the
time of delivery of such aircraft to the Company
and without regard to the prior pendency of the
Case); each such lease will be for a lease term
determined as hereinafter described; and each such
lease shall have such other terms and provisions
and be in such form as is agreed upon by the
Company and GPA and attached to the agreement
between the Company and GPA pursuant to which GPA
is granted the New Put
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Right (such agreement being referred to herein as
the "New Put Agreement").
The specific number, types and delivery dates for
the aircraft which GPA will be entitled to deliver
to the Company (and which the Company will be
obligated to lease from GPA) in a particular year
during the New Put Period (as well as whether such
aircraft will be new or used aircraft) will be
determined on the basis of mutual agreement by the
Company and GPA, taking into account the Company's
fleet requirements for such year, the availability
to GPA for purposes of the New Put Agreement (in
light of applicable commercial constraints) of
aircraft during such year and the number of
aircraft theretofore delivered and thereafter
remaining to be delivered by GPA to the Company
under the New Put Agreement; provided, however,
that if, on or prior to the Mutual Agreement
Deadline (as such term is hereinafter defined) for
a particular year, the Company and GPA shall not
have mutually agreed upon the specific number,
types and delivery dates for the aircraft which GPA
will be entitled to deliver to the Company (and
which the Company will be obligated to lease from
GPA) during such year (as well as whether such
aircraft will be new or used aircraft), GPA will
have the right to put to the Company (and the
Company will be obligated to lease from GPA without
any necessity for further agreement of the Company)
up to the Maximum Number (as such term is
hereinafter defined) of aircraft for such year,
with (i) the specific types of such aircraft being
selected by GPA from among the Eligible Types (as
such term is hereinafter defined), (ii) such
aircraft being new or used aircraft as selected by
GPA, and (iii) the specific delivery dates for such
aircraft being selected by GPA, in each case, upon
at least 150 days' prior written notice by GPA to
the Company; and provided further, however, that,
unless GPA and the Company shall otherwise agree in
writing (whether by reason of mutual agreement
relevant to a particular year or otherwise), GPA
will not have the right to put to the Company more
than five used aircraft during the New Put Period.
As used herein, the term "Mutual Agreement
Deadline" means (i) with respect to each of 1995
and 1996, January 31, 1995, and (ii) with respect
to each ensuing year during the New Put Period,
January 1st of the preceding year. As used herein,
the term "Maximum Number" means (i) with respect to
1995, two, and (ii) with respect to each ensuing
year during the New Put Period, three. As used
herein, and unless GPA and the Company shall
otherwise agree in writing, the term "Eligible
Types" means, with respect to the types of aircraft
which GPA will be entitled to put to the Company
without the necessity for further agreement of the
Company, Boeing 737-300 aircraft, Boeing 757
aircraft and Airbus A320 aircraft.
The aircraft which GPA will be entitled to deliver
or put to the Company (and which the Company will
be obligated to lease from GPA) may be new or used
aircraft; provided, however, that unless GPA and
the Company shall otherwise agree in writing, GPA
will not have the right to deliver or put to the
Company more than five used aircraft during the New
Put Period; and provided further, however, that any
such aircraft which is an Airbus A320 aircraft will
(i) be new ex factory or like-new having no greater
than 100 flight hours of commercial service, (ii)
have IAE V2500A-5 engines if (a) the Company has or
is scheduled to have IAE V2500A-5 engines in its
fleet on the delivery date for such aircraft,
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(b) the Company is scheduled to have IAE V2500A-5
engines in its fleet within 24 months of the
delivery date for such aircraft, or (c) if new A320
aircraft powered with IAE V2500A-1 engines are not
or are not scheduled to be generally available from
the airframe and engine manufacturers on the
delivery date for such aircraft, or have IAE
V2500A-1 Engines (upgraded to maximum performance)
if any of the conditions described in the preceding
clauses (a), (b) and (c) is not fulfilled, and
(iii) have such other specifications (including
configuration) as are substantially the same as
those of other A320 aircraft in the Company's fleet
or as are otherwise mutually agreed upon by GPA and
the Company and, in either case, incorporated in
the New Put Agreement; and provided further,
however, that any such aircraft which is not an
A320 aircraft will have such specifications
(including configuration and engines) as are
substantially the same as those of other aircraft
of the same type in the Company's fleet or as are
otherwise mutually agreed upon by GPA and the
Company and, in either case, incorporated in the
New Put Agreement; and provided further, however,
that any such aircraft which is a used aircraft
will (i) be fresh from (or have no more than 150
flight hours beyond) "C" or annual check, (ii) if
maintained under a program involving block "D"
check, be in at least half-time condition or if
maintained under a program involving segmentation
of "D" check, be no more than 12 months from next
scheduled major check on airframe and engines, and
(iii) be in such other condition (consistent with
operating lease return conditions currently
prevailing in the operating lease marketplace) as
is mutually agreed upon by GPA and the Company and
incorporated in the New Put Agreement.
The lease term shall be (i) not more than eighteen
years and not less than (a) ten years for any new
A320 aircraft, or (b) seven years for any other new
aircraft, and (ii) not more than seven years and
not less than three years for any used aircraft.
Unless otherwise mutually agreed in writing by the
Company and GPA, (i) the lease term for a new
aircraft shall be the minimum term applicable to
such aircraft, and (ii) the lease term for a used
aircraft shall be five years.
Conditions................. The obligation of GPA to consummate the
transactions contemplated by this Term Sheet
(including, without limitation, the cancellation of
GPA's rights and claims under and in respect of the
Put Agreement and the First Refusal Agreement)
shall be subject to the satisfaction of the
following conditions: (i) the Plan shall provide
for, and be consummated in accordance with, all of
the Terms and Conditions (it being understood that
all of the Terms and Conditions are integral to the
treatment of GPA's claims and interests and that no
one Term or Condition is of greater significance
than any other Term or Condition); (ii) the Plan
shall provide for, and be consummated with, the
capital structure of the reorganized Company being
as described in the Investment Agreement, the
consideration distributed pursuant to the Plan
being as described in the Investment Agreement
(except for changes approved in writing by GPA and
Permitted Reallocations (as such term is
hereinafter defined), and the economic interests of
GPA not being diluted from those contained in the
Investment Agreement and this Term Sheet; (iii) the
Company shall have paid or reimbursed GPA for all
expenses reasonably incurred by GPA in connection
with the transactions contemplated by this Term
Sheet, including, without limitation, the
reasonable fees and
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78
expenses of GPA's counsel and financial advisor
(other than the fees of such financial advisor that
are in the nature of "success fees"); (iv) there
shall have been executed and delivered, in form and
substance reasonably satisfactory to GPA, all such
definitive documentation as is necessary or
reasonably advisable to implement the transactions
contemplated by this Term Sheet (including, without
limitation, documentation providing to GPA such
registration rights as are reasonably acceptable to
GPA with respect to the securities of the
reorganized Company that are acquired by GPA in the
transactions contemplated by this Term Sheet); and
(v) the Board of Directors of GPA (or an
appropriate committee thereof) shall have approved
the execution and delivery by GPA of the aforesaid
definitive documentation (it being understood that,
within ten business days following the date of this
Term Sheet, GPA shall deliver to AmWest and the
Company a certified copy of a resolution evidencing
the approval by the Board of Directors of GPA (or
an appropriate committee thereof) of this Term
Sheet and the transactions contemplated hereby). As
used herein, the term "Permitted Reallocation"
shall mean changes in the allocation among the
Unsecured Creditors, AmWest (and its Affiliates)
and the Equity Holders of the aggregate
consideration payable to such persons and entities
as set forth in the Investment Agreement, without
(i) increase or decrease in the aggregate amount
thereof, or (ii) change in the terms and conditions
of such consideration from those set forth in the
Investment Agreement unless, in any such case,
AmWest shall have obtained the prior written
consent of GPA.
The obligations of the Company and AmWest to
consummate the transactions contemplated by this
Term Sheet shall be subject to the satisfaction of
the following conditions: (i) the transactions
contemplated by the Investment Agreement (other
than those contemplated by this Term Sheet) shall
have been consummated; (ii) there shall have been
executed and delivered, in form and substance
reasonably satisfactory to the Company and AmWest,
all such definitive documentation as is necessary
or reasonably advisable to implement the
transactions contemplated by this Term Sheet; and
(iii) there shall have been delivered to the
Company and AmWest a certified copy of a resolution
evidencing the approval by the Board of Directors
of GPA (or an appropriate committee thereof) of
this Term Sheet and the transactions contemplated
hereby.
Other...................... Nothing contained in this Term Sheet shall limit,
restrict or impair in any manner or to any extent
the treatment afforded by the Plan to any allowed
administrative claim of GPA arising from the
fulfillment by GPA of its deficiency guarantee
obligations to General Electric Capital Corporation
with respect to aircraft formerly leased by the
Company from General Electric Capital Corporation
(it being acknowledged that such treatment shall be
in accordance with Section 1129(a)(9)(A) of the
Bankruptcy Code).
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80
PLAN OF REORGANIZATION
SCHEDULE 1
SECTION 1110 STIPULATIONS
81
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82
SECTION 1110 STIPULATIONS
I. Leased Aircraft And Engines. The leases of the following aircraft and
engines have been assumed as modified pursuant to the stipulations set
forth opposite the aircraft or engine:
1. N137AW Stipulation Regarding Aircraft Lease With Bay Air Lease
II approved September 6, 1991, as modified by
Supplemental Stipulation approved September 11, 1992, and
as further modified by Order dated June 3, 1993.
2. N138AW Joint Stipulation With Respect to Bankruptcy Code
N141AW Section 1110 and Related Matters Between America West
N189AW Airlines, Inc., CIT and Certain Other Parties With
Respect to Certain Aircraft, Engines and Equipment, Also
Concerning Related Lease Modifications and Lease
Assumption approved September 10, 1991 [Stipulation also
covers N144AW and N304AW], as modified by Supplemental
Stipulation (N138AW, N141AW, N189AW, N144AW) approved
September 11, 1992 [Also covers N144AW].
3. N147AW Letter Agreement approved October 9, 1991, as modified by
a Stipulation approved September 11, 1992.
4. N150AW Stipulation and Order Regarding Aircraft Lease With
Respect to One Boeing 737-300, FAA Reg. No. N150AW,
Assuming Lease and Providing For Adequate Protection and
Section 1110 Compliance approved September 12, 1991, as
modified by Supplemental Stipulation (N150AW) approved
September 11, 1992.
5. N151AW Stipulation and Order Regarding Aircraft Lease With
Respect to One Boeing 737-300, FAA Reg. No. N151AW,
Assuming Lease and Providing For Adequate Protection and
Section 1110 Compliance approved September 12, 1991, as
modified by Supplemental Stipulation (N151AW) approved
September 11, 1992.
6. N164AW Stipulation Regarding Aircraft Leases with Ansett
N165AW Worldwide Aviation (USA) approved September 6, 1991, as
N166AW modified by Supplemental Stipulation approved September
N167AW 11, 1992 [Supplemental Stipulation also covers 509DC].
N168AW
N169AW
N172AW
N173AW
N174AW
N175AW
7. 509DC Stipulation Regarding Aircraft Lease With Ansett
Worldwide Aviation (USA) approved September 6, 1991 as
modified by Supplemental Stipulation approved September
11, 1992 [Supplemental Stipulation also covers other
aircraft].
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8. N178AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreement Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc. and
Certain Other Parties With Respect to One Boeing 737-277,
FAA Reg. No. N178AW and Related Engines and Equipment,
Also Concerning Related Lease Modification approved
September 6, 1991, as modified by Joint Supplemental
Stipulation With Respect to Modification of Previously
Authorized Stipulation Under Bankruptcy Code Section 1110
and Related Matters, Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N178AW and Related Engines and Equipment, Also Concerning
Related Lease Modifications.
9. N188AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreement Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc. and
Certain Other Parties With Respect to One Boeing 737-277,
FAA Reg. No. N188AW and Related Engines and Equipment,
Also Concerning Related Lease Modification approved
September 6, 1991, as modified by Joint Supplemental
Stipulation With Respect to Modification of Previously
Authorized Stipulation Under Bankruptcy Code Section 1110
and Related Matters, Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N188AW and Related Engines and Equipment, Also Concerning
Related Lease Modifications.
10. N180AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreement Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc. and
Certain Other Parties With Respect to One Boeing 737-277,
FAA Reg. No. N180AW and Related Engines and Equipment,
Also Concerning Related Lease Modification approved
September 6, 1991, as modified by Joint Supplemental
Stipulation With Respect to Modification of Previously
Authorized Stipulation Under Bankruptcy Code Section 1110
and Related Matters, Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N180AW and Related Engines and Equipment, Also Concerning
Related Lease Modifications.
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11. N182AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreement Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc. and
Certain Other Parties With Respect to One Boeing 737-277,
FAA Reg. No. N182AW and Related Engines and Equipment,
Also Concerning Related Lease Modification approved
September 6, 1991, as modified by Joint Supplemental
Stipulation With Respect to Modification of Previously
Authorized Stipulation Under Bankruptcy Code Section 1110
and Related Matters, Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N182AW and Related Engines and Equipment, Also Concerning
Related Lease Modifications.
12. N186AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreement Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc. and
Certain Other Parties With Respect to One Boeing 737-277,
FAA Reg. No. N186AW and Related Engines and Equipment,
Also Concerning Related Lease Modification approved
September 6, 1991, as modified by Joint Supplemental
Stipulation With Respect to Modification of Previously
Authorized Stipulation Under Bankruptcy Code Section 1110
and Related Matters, Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N186AW and Related Engines and Equipment, Also Concerning
Related Lease Modifications.
13. N187AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreement Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc. and
Certain Other Parties With Respect to One Boeing 737-277,
FAA Reg. No. N187AW and Related Engines and Equipment,
Also Concerning Related Lease Modification approved
September 6, 1991, as modified by Joint Supplemental
Stipulation With Respect to Modification of Previously
Authorized Stipulation Under Bankruptcy Code Section 1110
and Related Matters, Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N187AW and Related Engines and Equipment, Also Concerning
Related Lease Modifications.
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14. N181AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreements Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc.,
and Certain Other Parties With Respect to One Boeing
737-277, FAA Reg. No. N181AW and Related Engines and
Equipment, Also Concerning Related Lease Modification
approved September 6, 1991, as modified by Supplemental
Stipulation (N181AW) approved September 11, 1992.
15. N185AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters, Including Assumption of
Agreements Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc.,
and Certain Other Parties With Respect to One Boeing
737-277, FAA Reg. No. N185AW and Related Engines and
Equipment, Also Concerning Related Lease Modification
approved September 6, 1991, as modified by Supplemental
Stipulation (N185AW) approved September 11, 1992.
16. N302AW Stipulation Regarding Aircraft Lease With Meridian Trust
Company, as Owner Trustee, Providing for Section 1110
Compliance and Assumption of Lease (N302AW) approved
September 6, 1991, as modified by Supplemental
Stipulation (N302AW) approved September 11, 1992.
17. N303AW Stipulation Regarding Aircraft Lease With Meridian Trust
Company, as Owner Trustee, Providing for Section 1110
Compliance and Assumption of Lease (N303AW) approved
September 10, 1991, as modified by Supplemental
Stipulation (N303AW) approved September 11, 1992.
18. N304AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Between America West Airlines,
Inc., CIT and Certain Other Parties With Respect to
Certain Aircraft, and Related Engines and Equipment, Also
Concerning Related Lease Modification and Lease
Assumption approved September 11, 1991 [also covered
certain other aircraft], as modified by Supplemental
Stipulation (N304AW) approved September 11, 1992.
19. N305AW Joint Stipulation and Related Matters, With Respect to
Bankruptcy Code Section 1110 Including Assumption of
Agreements Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc.,
and Certain Other Parties With Respect to One Boeing
737-3G7, FAA Reg. No. N305AW and Related Engines and
Equipment, Also Concerning Related Lease Modifications
approved September 6, 1991, as modified by Supplemental
Stipulation (N305AW) approved September 11, 1992.
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20. N313AW Joint Stipulation With Respect to Bankruptcy Code Section
N314AW 1110 And Related Matters, Including Assumption of
N315AW Agreement Pursuant to Bankruptcy Code Section 365 and
N316AW Modification of Automatic Stay Pursuant to Bankruptcy
and spare Code Section 362, Between America West Airlines, Inc.,
engines And Certain Other Parties With Respect to Four Boeing
737-3s3 Aircraft, FAA Reg. Nos. N313AW, N314AW, N315AW,
and N316AW and Related Engines and Equipment, And Also
Concerning Related Lease Modification approved September
6, 1991, as modified by Supplemental Stipulation approved
September 11, 1992.
21. N620AW Stipulation Regarding Aircraft Leases and/or Agreements
N621AW with GPA Group plc, GPA Leasing USA I, Inc., GPA Leasing
N622AW USA SUB I, Inc. and Industrial Bank of Japan and Order
N624AW approved September 5, 1991.
N625AW
N626AW
N627AW
N628AW
N629AW
N631AW
N632AW
N633AW
N634AW
N635AW
N636AW
N637AW
IAE Engine MSN V0025
IAE Engine MSN V0049
IAE Engine MSN V0019
22. N901AW Stipulation of America West and The Boeing Company as to
N902AW the Assumption of Six (6) Boeing Aircraft Subleases
N903AW approved September 12, 1991, as modified by a
N904AW Supplemental Stipulation Relating to Six (6) Boeing
N905AW Aircraft Subleases approved September 11, 1992.
N906AW
23. N910AW Joint Stipulation With Respect to Bankruptcy Code
Section 1110 and Related Matters, Including Assumption of
Agreements Pursuant to Bankruptcy Code Section 365 and
Modification of the Automatic Stay Pursuant to Bankruptcy
Code Section 362, Between America West Airlines, Inc.,
and Certain Other Parties With Respect to One Boeing
757-2G7, FAA Reg. No. N910AW and Related Engines and
Equipment, Also Concerning Related Lease Modification
approved September 6, 1991, as modified by Supplemental
Stipulation (N910AW) approved March 17, 1993.
24. Rolls Royce Stipulation with PLM Equipment Growth Fund V and First
RB211-535 Security Bank of Utah, N.A. approved January 22, 1992.
EX Engine
Serial No.
30668
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25. One CFM56 Stipulation Regarding Aircraft and Engine Leases with
-3-B1 Progress Potomac Capital Ventures approved January 29,
One CFM56 1992.
-3-B2 Engine
(serial nos.
720-955 and
722-127)
26. Rolls Royce Joint Stipulation and Order with Respect to Assumption of
RB211-535E Engine Lease and Compliance with Bankruptcy Code Section
Engine 1110 and Engine, Related Matters Between America West
Serial No. Airlines, Inc., and Certain Other Parties with Respect to
30764 One Rolls-Royce RB211-535E4 Gas Turbine Engine, Serial
No. 30764 approved September 25, 1991.
27. One CFM Stipulation Authorizing Assumption of Unexpired Equipment
56-331 Leases and the Debtor to Enter Into Transactions Other
Engine Than In the Ordinary Course of Business approved
(Serial No. September 26, 1991.
724-700),
Three JT8D-
15A Engines
(Serial Nos.
655150, 687314
and 708313),
and Three
JT8D-9A Engines
(Serial Nos.
674267, 674452
and 674623)
28. N126AW(C-GCPW) Aircraft sublease agreements between America West
N127AW(C-GAPW) Airlines, Inc. and Canadian Airlines International Ltd.
N128AW(C-GBPW) dated May 1, 1989, as assumed and modified by Stipulation
Regarding Aircraft Subleases with Canadian Airlines
International Ltd. approved September 6, 1991, and by
Supplemental Stipulation approved September 11, 1992.
Such subleases were extended, as modified, by Extension
Agreement dated April 1, 1994, and approved May 5, 1994.
II. Financed Aircraft And Spare Parts. The financings of the following aircraft
and spare parts have been assumed as modified pursuant to the listed
stipulations:
1. N149AW Stipulation approved September 6, 1991 as modified by
Supplemental Stipulation approved September 11, 1992.
2. N160AW Joint Stipulation With Respect to Bankruptcy Code
Section 1110 and Related Matters Including Modification
of the Automatic Stay Pursuant to Bankruptcy Code
Section 362, Between America West Airlines, Inc., and
Certain Other Parties With Respect to One Boeing 737-3G7,
FAA Reg. No. N160AW, and Related Engines and Equipment,
and Modification of Related Agreements approved September
6, 1991, as modified by Supplemental Stipulation (N160AW)
approved September 11, 1992.
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3. N154AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N154AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N154AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
4. N155AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N155AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N155AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
5. N156AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N156AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N156AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
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6. N157AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N157AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N157AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
7. N158AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N158AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N158AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
8. N306AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N306AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N306AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
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9. N307AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N307AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N307AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
10. N308AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N308AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N308AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
11. N309AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N309AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N309AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
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12. N311AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-3G7 FAA Reg. No.
N311AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation with
Respect to Modification of Previously Authorized
Stipulation Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to One Boeing 737-3G7, FAA Reg. No. N311AW,
and Related Engines and Equipment, and Modification of
Related Agreements.
13. N179AW Joint Stipulation With Respect to Bankruptcy Code Section
N184AW 1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to Two Boeing 737-277's, FAA Reg.
Nos. N179AW and N184AW, and Related Engines and
Equipment, and Modification of Related Agreements
approved September 6, 1991, as modified by Joint
Supplemental Stipulation With Respect to Modification of
Previously Authorized Stipulations Under Bankruptcy Code
Section 1110 and Related Matters Including Modification
of the Automatic Stay Pursuant to Bankruptcy Code Section
362, Between America West Airlines, Inc., and Certain
Other Parties With Respect to Three Boeing 737-277's, FAA
Reg. Nos. N179AW, N183AW and N184AW, and Related Engines
and Equipment approved September 11, 1992. [Supplemental
Stipulation also covers other aircraft.]
14. N183AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Including Modification of the
Automatic Stay Pursuant to Bankruptcy Code Section 362,
Between America West Airlines, Inc., and Certain Other
Parties With Respect to One Boeing 737-277, FAA Reg. No.
N183AW, and Related Engines and Equipment, and
Modification of Related Agreements approved September 6,
1991, as modified by Joint Supplemental Stipulation With
Respect to Modification of Previously Authorized
Stipulations Under Bankruptcy Code Section 1110 and
Related Matters Including Modification of the Automatic
Stay Pursuant to Bankruptcy Code Section 362, Between
America West Airlines, Inc., and Certain Other Parties
With Respect to Three Boeing 737-277's, FAA Reg. Nos.
N179AW, N183AW and N184AW, and Related Engines and
Equipment approved September 11, 1992. [Supplemental
Stipulation also covers other aircraft.]
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PG
15. N908AW Joint Stipulation With Respect to Bankruptcy Code Section
1110 and Related Matters Between America West Airlines,
Inc., and Certain Other Parties With Respect to One
Boeing 757-2G7 Aircraft, FAA Reg. No. N908AW and Related
Engine and Equipment, and Modification of Related
Agreements approved September 6, 1991, as modified by
Supplemental Stipulation approved September 11, 1992.
16. N909AW Stipulation Regarding Leases, Aircraft Mortgages and/or
Security Agreements With The Industrial Bank of Japan,
Limited, Los Angeles Agency, II Wing Leasing
International Co., Ltd., JJ Wing Leasing International
Co., Ltd., KK Wing Leasing International Co., Ltd., LL
Wing Leasing International Co., Ltd., MM Wing Leasing
International Co., Ltd. and NN Wing Leasing International
Co., Ltd. approved September 6, 1991, as modified by
Supplemental Stipulation approved September 11, 1992.
III. Financed Spare Parts. The financings of the following spare parts shall be
performed in accordance with the following stipulations:
1. AIFS/ASCO Stipulation and Order Regarding Rights Under Section 1110
of the Bankruptcy Code of Airbus Industry Financial
Services ("AIFS") and Airbus Service Company, Inc.
("ASCO") dated August 30, 1992, regarding that certain
Amended and Restated Loan Agreement and that certain
Security Agreement, both dated as of November 27, 1990
and between AIFS and America West Airlines, Inc. ("AWA")
and Letter Agreement No. 1, dated as of September 28,
1990, between AWA and AVSA, S.A.R.L. ("AVSA") as assigned
and assumed by ASCO pursuant to that certain Assignment
and Assumption Agreement, dated as of December 3, 1990,
between AVSA and ASCO.
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94
PLAN OF REORGANIZATION
SCHEDULE 2
CERTAIN FINAL ORDERS ON
SETTLEMENT AGREEMENTS
95
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96
CERTAIN FINAL ORDERS ON
SETTLEMENT AGREEMENTS
1. Motion for Authority to Compromise controversies with GE Entities filed
September 13, 1993 and Order granting same filed October 8, 1993.
2. Motion for Authorization to Compromise Controversy with McDonnell
Douglas Finance Corporation filed March 11, 1993 and order granting same filed
March 31, 1993.
3. Motion for Authorization to Compromise controversies with Household
Commercial of California and Seventh HFC Leasing filed July 6, 1993 and order
granting same filed August 25, 1993.
4. Motion for Authority to Compromise Controversies with Citicorp North
America, Inc. filed December 23, 1993 and order granting same filed January 19,
1994; Motion for Authority to Amend Settlement Agreement between America West
and Citicorp filed March 18, 1994 and order granting same filed on March 30,
1994.
5. Motion for Authority to Compromise Controversies with Export Development
Corporation and Gilman Montrose Timber and Leasing Company filed December 22,
1993 and order granting same filed January 19, 1994.
6. Motion for Authorization to Compromise Controversy with the Internal
Revenue Service filed February 14, 1994 and order granting same filed March 16,
1994.
7. Motion for Authorization to Enter into Credit Card Processing Agreement
and Granting Security Interests and Modifying Agreements with First Interstate
Bank of Arizona, N.A. and Order granting same filed March 31, 1993.
8. Order Authorizing Debtor to Assume Caterair Agreement and Addendum filed
September 19, 1991.
2-1
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98
PLAN OF REORGANIZATION
SCHEDULE 3
CERTAIN ASSUMED AGREEMENTS
99
[THIS PAGE INTENTIONALLY LEFT BLANK]
100
CERTAIN ASSUMED AGREEMENTS
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
DELTA AIRLINES, INC. ................... Datas II Participating Carrier Agreement between
Delta Airlines, Inc. and AWA, Inc.
NORSTAN FINANCIAL SERVICES.............. Equipment Lease No. 1027-001 and 1027-002 dated
10/1/90 and 4/1/91 between Norstan Financial
Services Inc. and AWA, Inc.
AVSA S.A.R.L............................ Airbus A320 Purchase Agreement dated as of 9/28/90
between AVSA S.A.R.L. and AWA, Inc., as previously
amended and as modified pursuant to the terms
agreed to in the Term Sheet executed 2/24/94; such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan
AIR FRANCE.............................. Passenger Interline Agreement
BELL ATLANTIC SYSTEMS
LEASING............................... Communication Controllers Lease Agreement dated
2/1/91 between Pacific Atlantic Leasing (formerly
Bell Atlantic) and AWA, Inc.
BELL ATLANTIC SYSTEMS
LEASING............................... Communications Equipment Lease Agreement dated
6/1/91 between Pacific Atlantic Leasing (formerly
Bell Atlantic) and America West Airlines, Inc.
BELL ATLANTIC SYSTEMS
LEASING............................... B757-200 Flight Simulator Lease Agreement, dated
7/1/90 between Bell Atlantic Systems Leasing and
AWA, Inc.
COMPUTER SYSTEMS OF
AMERICA INC. ......................... IBM PS-2 Lan System Lease Agreement dated 12/1/90
between Computer Systems of America and AWA, Inc.
COMPUTER SYSTEMS OF
AMERICA INC. ......................... Equipment Lease No. AZ 129-6447 dated 12/15/89 be-
tween Computer Systems of America, Inc. and AWA,
Inc.
FORSYTHE MCARTHUR
ASSOC INC. ........................... Equipment Lease No. F 15358 dated 11/14/90 between
Forsythe McArthur and AWA, Inc.
HONEYWELL INC. ......................... Madison I & II Security Equipment Lease dated
8/21/90 between Honeywell Protection Service and
AWA, Inc.
AIR BC.................................. Passenger Interline Agreement
AER LINGUS.............................. Employee Interline Agreement
AER LINGUS.............................. Cargo Interline Agreement
AER LINGUS.............................. Passenger Interline Agreement
AERO CALIFORNIA......................... Passenger Interline Agreement
AERO MEXICO............................. Passenger Interline Agreement
AERO MEXICO............................. Cargo Interline Agreement
AERO MEXICO............................. Employee Travel Agreement
AERO PERU - EMPRESSA DE................. Passenger Interline Agreement
AEROLINEAS ARGENTINAS................... Cargo Interline Agreement
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VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
AIR BC.................................. Employee Travel Agreement
AIR CANADA.............................. Employee Travel Agreement
AIR CANADA.............................. Passenger Interline Agreement
AIR CHINA............................... Cargo Interline Agreement
AIR FRANCE.............................. Employee Travel Agreement
AIR INDIA............................... Employee Travel Agreement
AIR INDIA............................... Passenger Interline Agreement
AIR INTER............................... Passenger Interline Agreement
AIR JAMAICA............................. Employee Travel Agreement
AIR LANKA............................... Passenger Interline Agreement
AIR MIDWEST............................. Employee Travel Agreement
AIR MIDWEST............................. Passenger Interline Agreement
AIR NEVADA.............................. Employee Travel Agreement
AIR NEVADA.............................. Passenger Interline Agreement
AIR NEW ZEALAND......................... Employee Travel Agreement
AIR NEW ZEALAND......................... Cargo Interline Agreement
AIR NEW ZEALAND......................... Passenger Interline Agreement
AIR TAHITI.............................. Employee Travel Agreement
AIR TAHITI.............................. Passenger Interline Agreement
AIR WISCONSIN, INC. .................... Employee Travel Agreement
AIR WISCONSIN, INC. .................... Passenger Interline Agreement
ALASKA AIRLINES......................... Employee Travel Agreement
ALASKA AIRLINES......................... Cargo Interline Agreement
ALASKA AIRLINES......................... Passenger Interline Agreement
ALITALIA................................ Employee Travel Agreement
ALITALIA................................ Passenger Interline Agreement
ALL NIPPON AIRWAYS - ANA ............... Passenger Interline Agreement
ALM ANTILLEAN AIRLINES.................. Passenger Interline Agreement
ALOHA AIRLINES, INC. ................... Passenger Interline Agreement
ALOHA AIRLINES, INC. ................... Employee Travel Agreement
ALOHA ISLAND AIR........................ Employee Travel Agreement
ALOHA ISLAND AIR........................ Passenger Interline Agreement
ALPHA AIR............................... Employee Travel Agreement
ALPHA AIR............................... Passenger Interline Agreement
AMERICAN AIRLINES, INC. ................ Employee Travel Agreement
AMERICAN AIRLINES, INC. ................ Passenger Interline Agreement
AMTRAK.................................. Passenger Interline Agreement
ANSETT OF AUSTRALIA..................... Employee Travel Agreement
ANSETT OF AUSTRALIA..................... Cargo Interline Agreement
ANSETT OF AUSTRALIA..................... Passenger Interline Agreement
ANSETT OF NEW ZEALAND................... Employee Travel Agreements
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VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
ANSETT OF NEW ZEALAND................... Passenger Interline Agreement
ARKIA (ARKIA-ISREALI
AIRLINES)............................. Passenger Interline Agreement
ASIANA AIRLINES......................... Cargo Interline Agreement
ASIANA AIRLINES......................... Passenger Interline Agreement
AUSTRALIAN AIRLINES..................... Passenger Interline Agreement
AUSTRIAN AIRLINES....................... Employee Travel Agreement
AUSTRIAN AIRLINES....................... Cargo Interline Agreement
AUSTRIAN AIRLINES....................... Passenger Interline Agreement
AVENSA.................................. Passenger Interline Agreement
AVIANCA................................. Passenger Interline Agreement
BAHAMASAIR.............................. Employee Travel Agreement
BAR HARBOR AIRLINES D/B/A/.............. Employee Travel Agreement
BIG SKY AIRLINES........................ Employee Travel Agreement
BIG SKY AIRLINES........................ Passenger Interline Agreement
BRITISH AIRWAYS, INC. .................. Employee Travel Agreement
BRITISH AIRWAYS, INC. .................. Cargo Interline Agreement
BRITISH AIRWAYS, INC. .................. Passenger Interline Agreement
BUSINESS EXPRESS........................ Passenger Interline Agreement
BUSINESS EXPRESS........................ Employee Travel Agreement
BWIA INTERNATIONAL
A (TRINIDAD).......................... Employee Travel Agreement
BWIA INTERNATIONAL
A (TRINIDAD).......................... Passenger Interline Agreement
CANADIAN AIRLINES....................... Passenger Interline Agreement
CANADIAN AIRLINES....................... Employee Travel Agreement
CANADIAN AIRLINES....................... Cargo Interline Agreement
CATHAY PACIFIC.......................... Cargo Interline Agreement
CATHAY PACIFIC.......................... Passenger Interline Agreement
CAYMAN AIRWAYS LTD. .................... Employee Travel Agreement
CAYMAN AIRWAYS LTD. .................... Passenger Interline Agreement
CHALK'S INTERNATIONAL
AIRLINES.............................. Employee Travel Agreement
CHINA AIRLINES.......................... Cargo Interline Agreement
CHINA AIRLINES.......................... Passenger Interline Agreement
COMAIR, INC............................. Employee Travel Agreement
CONQUEST AIRLINES....................... Passenger Interline Agreement
CONTINENTAL AIRLINES, INC. ............. Cargo Interline Agreement
CONTINENTAL AIRLINES, INC. ............. Employee Travel Agreement
CONTINENTAL AIRLINES, INC. ............. Passenger Interline Agreement
CROSSAIR (CROSSAIR A.G.)................ Passenger Interline Agreement
DELTA AIRLINES, INC. ................... Employee Travel Agreement
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VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
DELTA AIRLINES, INC. ................... Passenger Interline Agreement
DRAGONAIR, 12/F, TOWER 6................ Passenger Interline Agreement
EAST WEST AIRLINES, LTD................. Employee Travel Agreement
EAST WEST AIRLINES, LTD. ............... Passenger Interline Agreement
EGYPTAIR................................ Employee Travel Agreement
EGYPTAIR................................ Passenger Interline Agreement
EL AL ISRAEL AIRLINES LTD. ............. Employee Travel Agreement
EL AL ISRAEL AIRLINES LTD. ............. Passenger Interline Agreement
EMPIRE AIRWAYS.......................... Passenger Interline Agreement
EQUITORIANA............................. Passenger Interline Agreement
ERA AVIATION............................ Employee Travel Agreement
ERA AVIATION............................ Passenger Interline Agreement
EXEC EXPRESS II, INC. .................. Passenger Interline Agreement
FINNAIR................................. Passenger Interline Agreement
FIRST AIR............................... Passenger Interline Agreement
FRONTIER FLYING SERVICE................. Employee Travel Agreement
GARUDA INDONESIA........................ Cargo Interline Agreement
GARUDA INDONESIA........................ Passenger Interline Agreement
GP EXPRESS.............................. Employee Travel Agreement
GP EXPRESS.............................. Passenger Interline Agreement
GRAND AIRWAYS........................... Passenger Interline Agreement
GREAT LAKES AVIATION LTD. .............. Employee Travel Agreement
GREAT LAKES AVIATION LTD. .............. Passenger Interline Agreement
HARBOR AIRLINES......................... Employee Travel Agreement
HARBOR AIRLINES......................... Passenger Interline Agreement
HAWAIIAN AIRLINES, INC. ................ Employee Travel Agreement
HAWAIIAN AIRLINES, INC. ................ Passenger Interline Agreement
HENSON AVIATION, INC. .................. Employee Travel Agreement
HORIZON AIRLINES ....................... Employee Travel Agreement
HORIZON AIRLINES ....................... Passenger Interline Agreement
HUB EXPRESS............................. Passenger Interline Agreement
IBERIA.................................. Passenger Interline Agreement
ICELANDER............................... Employee Travel Agreement
ICELANDER (ICELANAIR)................... Passenger Interline Agreement
JAPAN AIR SYSTEM/DOMESTIC
TOA................................... Employee Travel Agreement
JAPAN AIR SYSTEM/DOMESTIC
TOA................................... Passenger Interline Agreement
JAPAN AIRLINES.......................... Cargo Interline Agreement
JAPAN AIRLINES.......................... Passenger Interline Agreement
JAPAN AIRLINES.......................... Employee Travel Agreement
JAPAN ASIA AIRWAYS...................... Employee Travel Agreement
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VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
JAPAN ASIA AIRWAYS...................... Passenger Interline Agreement
KLM ROYAL DUTCH AIRLINES................ Passenger Interline Agreement
KLM ROYAL DUTCH AIRLINES................ Employee Travel Agreement
KOREAN AIRLINES......................... Passenger Interline Agreement
KOREAN AIRLINES......................... Employee Travel Agreement
KUWAIT AIRWAYS.......................... Cargo Interline Agreement
LANCHILE................................ Passenger Interline Agreement
LAS VEGAS AIRLINES...................... Passenger Interline Agreement
LAUDA AIR LUFTFAHRT..................... Passenger Interline Agreement
LOT-POLISH AIRWAYS...................... Employee Travel Agreement
LOT-POLISH AIRWAYS...................... Passenger Interline Agreement
LTU..................................... Passenger Interline Agreement
LTU..................................... Employee Travel Agreement
LUFTHANSA............................... Passenger Interline Agreement
LUFTHANSA............................... Employee Travel Agreement
MALAYSIA AIRLINES....................... Passenger Interline Agreement
MALEV HUNGARIAN AIRLINES................ Passenger Interline Agreement
MALEV HUNGARIAN AIRLINES................ Employee Travel Agreement
MARKAIR, INC. .......................... Employee Travel Agreement
MARKAIR, INC. .......................... Passenger Interline Agreement
MARTINAIR HOLLAND....................... Passenger Interline Agreement
MESA AIRLINES SHUTTLE................... Employee Travel Agreement
MESA AIRLINES SHUTTLE................... Passenger Interline Agreement
MESABA AVIATION......................... Employee Travel Agreement
MESABA AVIATION......................... Passenger Interline Agreement
METRO AIRLINES.......................... Employee Travel Agreement
METRO AIRLINES.......................... Passenger Interline Agreement
MEXICANA AIRLINES....................... Passenger Interline Agreement
MEXICANA AIRLINES....................... Employee Travel Agreement
MEXICANA AIRLINES....................... Cargo Interline Agreement
MIDDLE EAST AIRLINES.................... Passenger Interline Agreement
MIDWEST EXPRESS AIRLINES,
INC. ................................. Employee Travel Agreement
MILITARY AIRLIFT COMMAND................ Passenger Interline Agreement
N.P.A., INC. DBA UNITED EXPRESS......... Employee Travel Agreement
N.P.A., INC. DBA UNITED EXPRESS......... Passenger Interline Agreement
NIPPON CARGO AIRLINES
CO. LTD. ............................. Cargo Interline Agreement
NIPPON CARGO AIRLINES
CO. LTD. ............................. Passenger Interline Agreement
NORTHWEST AIRLINES, INC. ............... Employee Travel Agreement
NORTHWEST AIRLINES, INC. ............... Passenger Interline Agreement
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VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
OLYMPIC AIRWAYS......................... Passenger Interline Agreement
ONTARIO EXPRESS DBA..................... Employee Travel Agreement
PAKISTAN INTERNATIONAL
AIRWAYS............................... Passenger Interline Agreement
PHILIPPINE AIRLINES..................... Employee Travel Agreement
PHILIPPINE AIRLINES..................... Cargo Interline Agreement
PHILIPPINE AIRLINES..................... Passenger Interline Agreement
PLUNA (PRIMERAS LINEAS)................. Passenger Interline Agreement
QANTAS AIRWAYS.......................... Employee Travel Agreement
QANTAS AIRWAYS.......................... Cargo Interline Agreement
QANTAS AIRWAYS.......................... Passenger Interline Agreement
REEVE AIRWAYS........................... Employee Travel Agreement
REEVE AIRWAYS........................... Passenger Interline Agreement
ROCKY MOUNTAIN AIRWAYS.................. Employee Travel Agreement
ROYAL AIR MAROC......................... Passenger Interline Agreement
ROYAL JORDANIAN......................... Cargo Interline Agreement
ROYAL JORDANIAN......................... Passenger Interline Agreement
SABENA.................................. Cargo Interline Agreement
SABENA.................................. Employee Travel Agreement
SABENA.................................. Passenger Interline Agreement
SAUDI ARABIAN AIRLINES.................. Passenger Interline Agreement
SAUDI ARABIAN AIRLINES.................. Employee Travel Agreement
SCANDINAVIAN AIRLINES
SYSTEM................................ Employee Travel Agreement
SCANDINAVIAN AIRLINES
SYSTEM................................ Passenger Interline Agreement
SCENIC AIRLINES, INC. .................. Employee Travel Agreement
SCENIC AIRLINES, INC. .................. Passenger Interline Agreement
SIMMONS AIRLINES, INC. ................. Employee Travel Agreement
SINGAPORE AIRLINES...................... Passenger Interline Agreement
SINGAPORE AIRLINES...................... Employee Travel Agreement
SKYWEST AIRLINES INC. .................. Employee Travel Agreement
SKYWEST AIRLINES INC. .................. Passenger Interline Agreement
SOUTH AFRICAN AIRLINES.................. Passenger Interline Agreement
SOUTHWEST AIRLINES...................... Employee Travel Agreement
SUNAIRE EXPRESS......................... Employee Travel Agreement
SUNAIRE EXPRESS......................... Passenger Interline Agreement
SWISSAIR................................ Employee Travel Agreement
SWISSAIR................................ Cargo Interline Agreement
SWISSAIR................................ Passenger Interline Agreement
TACA INTERNATIONAL...................... Passenger Interline Agreement
TAP AIR PORTUGAL........................ Employee Travel Agreement
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VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
TAP AIR PORTUGAL........................ Cargo Interline Agreement
TAP AIR PORTUGAL........................ Passenger Interline Agreement
THAI AIRWAYS............................ Employee Travel Agreement
THAI AIRWAYS............................ Cargo Interline Agreement
THAI AIRWAYS............................ Passenger Interline Agreement
TIME AIR................................ Passenger Interline Agreement
TIME AIR................................ Employee Travel Agreement
TOWER AIR............................... Passenger Interline Agreement
TOWER AIR............................... Employee Travel Agreement
TRANS WORLD AIRLINES, INC. ............. Cargo Interline Agreement
TRANS WORLD AIRLINES, INC. ............. Passenger Interline Agreement
TRANS WORLD AIRLINES, INC. ............. Employee Travel Agreement
UNITED AIRLINES, INC. .................. Passenger Interline Agreement
UNITED AIRLINES, INC. .................. Employee Interline Agreement
UNITED AIRLINES, INC. .................. Cargo Interline Agreement
US AIR INC. ............................ Employee Travel Agreement
US AIR INC. ............................ Passenger Interline Agreement
UTA FRENCH AIRLINES..................... Passenger Interline Agreement
UTA FRENCH AIRLINES..................... Employee Travel Agreement
VARIG BRAZILIAN AIRLINES................ Passenger Interline Agreement
VENEZOLANA INTL. DE
AVIACIO SC............................ Employee Travel Agreement
VIASA................................... Passenger Interline Agreement
VIRGIN ATLANTIC AIRWAYS................. Passenger Interline Agreement
VIRGIN ATLANTIC AIRWAYS................. Employee Travel Agreement
WESTAIR COMMUTER........................ Employee Travel Agreement
WESTAIR COMMUTER........................ Passenger Interline Agreement
WINGS WEST AIRLINES, INC. .............. Employee Travel Agreement
CARGOLUX AIRLINES INT'L................. Interline Agreement
AIRPORT AUTH. OF WASHOE COUNTY.......... Airline Operat. Agrmnt & Terminal Bldng Lease dated
10/8/81 between Airport Authority of Washoe Cnty &
Frontier Airlines (as predecessor in interest to
AWA, Inc. which assumed the lease after Frontier's
bnkrptcy) as amended on 4/20/89, 6/22/89, &
10/10/91
AIRPORT REVENUE FUND;
STAPLETON INT......................... City and County of Denver Agreement and Lease at
Stapleton International Airport between the City
and County of Denver and AWA, Inc.
ALBUQUERQUE INTERNATIONAL............... Air Freight Facility Lease and Agreement by and
between the City of Albuquerque and AWA, Inc.
ALBUQUERQUE, CITY OF.................... Scheduled Airline Operating & Terminal Building
Lease dated 10/7/87 by and between the City of
Albuquerque and AWA, Inc.
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VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
AUSTIN, CITY OF......................... Austin Airport Use and Lease Agreement as amended
5/1/90 by and between the City of Austin and AWA,
Inc.
AVIATION DEPARTMENT..................... La Guardia Airport Agreements AGA-152, AGA-170,
AGA-187, AGA-217 and AGA-153
BOSTON LOGAN INTL. AIRPORT.............. Airport Lease Agreement between the Massachusetts
Port Authority and AWA, Inc.
BURBANK-GLENDALE-PASADENA............... Airport Use Agreement dated 9/1/84 by and between
Burbank-Glendale-Pasadena Airport Authority and
AWA, Inc.
CITY OF CHICAGO......................... Airport License and Agreement by and between the
City of Chicago and AWA, Inc.
CITY OF HOUSTON......................... Use and Lease Agreement dated 1/1/90 by and between
the City of Houston and AWA, Inc.
CITY OF KANSAS CITY..................... Kansas City International Airport Use and Lease
Agreement, dated 12/9/88 by and between Kansas
City, Missouri and AWA, Inc.
CITY OF LONG BEACH...................... Commercial Use Permit by and between the City of
Long Beach Airport Bureau and AWA, Inc.
CITY OF ST. LOUIS....................... Lambert -- St. Louis International Airport
Preferential Use Gate Space Permit, dated 5/15/91
by and between the City of St. Louis and AWA, Inc.
CLARK COUNTY DEPT OF AVIAT.............. Scheduled Airline Operating Agreement and Terminal
Building Lease dated 9/11/87 between Clark County
and AWA, Inc.
COLORADO SPRINGS AIRPORT................ Lease Agreement dated 6/28/83 between City of
Colorado Springs and AWA, Inc.
COUNTY OF ORANGE........................ Certified Passenger Airline Lease dated 9/4/90 by
and between County of Orange and AWA, Inc. as
amended by First Amendment dated 6/1/91
DALLAS/FT. WORTH AIRPORT................ DFW Airport Board Permit No. 237633 dated 7/15/90
by and between the DFW Int'l Airport Board and AWA,
Inc.
EL PASO INTERNATIONAL
AIRPORT............................... Certified Passenger Airline Lease dated 10/1/89 by
and between the City of El Paso and AWA, Inc.
LOS ANGELES, CITY OF.................... Lease Agreement covering premises in Terminal One,
LAX, by and between the City of Los Angeles and
AWA, Inc.
MARYLAND AVIATION ADMIN................. Lease Agreement dated 8/7/87 between State Aviation
Administration of the Maryland Dept. of
Transportation and AWA, Inc. as amended by
Supplement No. 1, dated 3/24/88
MCKENZIE PROPERTIES..................... Lease Agreement for Reservation Facilities at Reno
dated 6/1/87 between McKenzie Properties and AWA,
Inc.
METROPOLITAN WASHINGTON................. Airport Use Agreement and Premise Lease dated
2/27/90 by and between Metropolitan Washington
Airports Authority and AWA, Inc.
3-8
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VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
MINNEAPOLIS/ST PAUL INTL................ Terminal Building Agreement dated 5/15/88 by and
between Metropolitan Airport Commission and AWA,
Inc. as amended by 1989 Amendment to 1962 Airport
Bldng Lease dated 11/1/90, and amendments 1 through
9
NORTHWEST AIRLINES, INC. ............... Cargo Bldng Sublease dated 11/1/88 by and between
Northwest Airlines and AWA, Inc., for facilities
located at 2121 Air Cargo Road
NORTHWEST AIRLINES, INC. ............... Sublease Agreement for use of certain passenger
handling and aircraft servicing facilities located
at Minneapolis/St. Paul Int'l Airport dated 10/8/89
by and between Northwest Airlines, Inc. and AWA,
Inc.
NORTHWEST AIRLINES, INC. ............... Letter of Agreement for Concourse "E", O'Hare Int'l
Airport between Northwest Airlines, Inc. and AWA,
Inc.
NORTHWEST AIRLINES, INC. ............... O'Hare Int'l Airport Gate Use Agreement dated
4/1/90 by and between Northwest Airlines and AWA,
Inc.
NORTHWEST AIRLINES, INC. ............... Cargo Building Sublease at Salt Lake City dated
1/1/89 by and between Northwest Airlines, Inc. and
AWA, Inc.
OMAHA AIRPORT AUTHORITY................. Omaha Agreement & Lease for Scheduled Airline
Operations by and between Airport Authority of the
City of Omaha and AWA, Inc.
PORT AUTHORITY OF NY & NJ............... Newark Int'l Airport Agreements ANA-516, ANA-524,
ANA-473 and AWA-525
PORT AUTHORITY OF NY & NJ............... John F. Kennedy Int'l Airport Agreements AYC-018
and AYB-881
PORT OF OAKLAND......................... License and Concession Agreement dated 1/1/91 by
and between the Port of Oakland and AWA, Inc.
PORT OF PORTLAND........................ Passenger Airline Operating and Lease Agreement by
and between the Port of Portland and AWA, Inc.
PORT OF SEATTLE......................... Basic Airline Lease and Agreement No. M-06181-0-BAS
by and between the Port of Seattle and AWA, Inc.
SACRAMENTO, COUNTY OF................... Scheduled Airline Operating Agreement and Terminal
Building Lease dated 7/1/90 between the County of
Sacramento and AWA, Inc.
SALT LAKE CITY TREASURER................ Airport Use Agreement dated 2/1/81 as assumed on
11/26/86 from Frontier Airlines by and between Salt
Lake City Corp. and AWA, Inc.
SAN DIEGO UNIFIED PORT DIST............. Rental Agreement and Landing Permit at San Diego
Int'l Airport by and between the San Diego Unified
Port District and AWA, Inc.
SAN FRANCISCO AIRPORT COMM.............. Airline Operating Permit #1874 dated 5/1/90 by and
between the City & County of San Francisco and AWA,
Inc. and Airport Commission City and County of San
Francisco, Space or Use Permit #1876, 1877, 1878,
and 2031, dated 5/1/90
TUCSON AIRPORT AUTHORITY................ Air Cargo Sublease dated 12/1/86 between the Tucson
Airport Authority and AWA, Inc.
3-9
109
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
TUCSON AIRPORT AUTHORITY................ Airport Use Agreement dated 11/1/84 by and between
the Tucson Airport Authority and AWA, Inc.
WICHITA AIRPORT AUTHORITY............... Airline Airport Agreement dated 4/1/85 by and
between the Wichita Airport Authority and AWA, Inc.
AIRCRAFT SERVICES INT'L................. Into-plane Service Agreement dated 10/87 for
Albuquerque, Burbank, Portland, and San Diego
ALLIED AVIATION SERV INTL., dba......... Into-plane Service Agreement for airports located
at Washington D.C., Dallas
OGDEN ALLIED............................ Forth Worth, Newark, Houston, JFK, La Guardia,
Kansas City, & St. Louis
AMOCO OIL CO............................ Fuel Purchase Agreement for airports located at
Columbus and Midway
AMR COMBS............................... Into-plane Service Agreement for Denver
ARCO PRODUCTS........................... Fueling Purchase Agreement dated 7/90 for Burbank,
Los Angeles, Portland, San Diego, Seattle, San
Jose, Orange County, and Tucson
ARIZONA FUELING......................... Cost Sharing Agreement dated 9/29/79 as amended on
9/1/82, 3/4/86 and 12/1/91 by and among Arizona
Fueling Facilities Corporation and America West
Airlines, Inc. and certain other airlines.
Lease Agreement dated 1/17/91 between Arizona
Fueling Facilities Corporation and America West
Airlines, Inc. for lease of a portion of real
property located at the southwest corner of Van
Buren Street and 55th Avenue in Phoenix, Arizona.
ATLANTIC AVIATION....................... Into-plane Service Agreement for San Jose
CALNEV PIPE LINE CO..................... Pipeline Agreement dated 10/84
CHEVRON U.S.A., INC..................... Fuel Purchase Agreement for Long Beach, Orlando,
Oakland, Tampa, Reno, and Las Vegas
CITGO PETROLEUM CORP.................... Fuel Purchase Agreement for Newark and LaGuardia
COLORADO JET CENTER..................... Into-plane Service Agreement for Colorado Springs
CONOCO, INC............................. Fuel Purchase Agreement for Wichita, Kansas City,
Omaha, and Minneapolis
CONTRACTING AIRLINES AT................. Fuel Consortium Agreement for Minneapolis
DIAMOND SHAMROCK REFNG & MKTG........... Fuel Purchase Agreement for Colorado Springs and
Denver
DYNAIR FUELING INC...................... Into-plane Service Agreement for Phoenix, Las
Vegas, Reno and Oakland
EXXON................................... Fuel Purchase Agreement for Atlanta
HUDSON GENERAL.......................... Into-plane Service Agreement for Boston, Los
Angeles, and Salt Lake City
KOCH REFINING........................... Fuel Purchase Agreement for Dallas-Forth Worth
LAGUARDIA FUEL FAC CORP................. La Guardia Airline Fuel Consortium Agreement
LASFUEL CORP............................ Las Vegas Airline Fuel Consortium Agreement
LOCKHEED AIR TERMINAL, INC.............. Into-plane Service Agreement for Ontario
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110
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
MOBIL OIL CORPORATION................... Fuel Purchase Agreement for Boston, Baltimore,
Phoenix, and Atlanta
OAKLAND FUEL FACILITIES................. Oakland Airline Fuel Consortium Agreement
OASIS AVIATION INC...................... Into-plane Service Agreement for El Paso
ONTFUEL CORP............................ Ontario Airline Fuel Consortium Agreement
RENO FUELING FACILITIES
CORP.................................. Reno Airline Fuel Consortium Agreement
SALT LAKE CITY CORPORATION AND.......... Salt Lake City Airline Fuel Consortium Agreement
SHELL OIL COMPANY....................... Fuel Purchase Agreement for Washington DC, El Paso,
Houston, Milwaukee, Ontario, and St. Louis
SKY HARBOR AIR SERVICE.................. Into-plane Service Agreement for Omaha
SNAFUEL INC............................. Orange County Airline Fuel Consortium Agreement
TRANS WORLD AIRLINES, INC............... Into-plane Service Agreement for San Francisco
TUCSON AIRPORT AUTHORITY................ Into-plane Service Agreement for Tucson
VAN DUSEN AIRPORT SERVICES.............. Into-plane Service Agreement for Austin, Baltimore,
Milwaukee, Minneapolis, and Seattle
ABACUS DISTRIBUTION SYSTEMS............. Participating Carrier Agreement dated 1/1/90
between Abacus Distribution System PD LTD and AWA,
Inc.
AMADEUS MARKETING S.A.R.L............... Participating Carrier Agreement by and between
Amadeus Marketing S.A.R.L. and AWA, Inc.
GETS MARKETING CO....................... GETS Participation Agreement dated 9/28/90 between
GETS Marketing Company and America West Airlines,
Inc.
INFINI TRAVEL
INFORMATION INC....................... Infini Participating Carrier Agreement dated
12/1/90 between Infini Travel Information, Inc. and
AWA, Inc.
JAPAN AIRLINES.......................... Participation Agreement dated 12/1/90 between Japan
Airlines Company, Ltd. and AWA, Inc.
SABRE TRAVEL INFO. NETWORK.............. Sabre Participating Carrier Agreement dated 6/15/87
between American Airlines, Inc. and AWA, Inc.
SYSTEM ONE HOLDINGS INC................. System One Participating Airline Agreement dated
11/1/88 by and between System One Direct Access,
Inc. and AWA, Inc.
WORLDSPAN, L.P. ........................ Worldspan Participating Carrier Agreement dated
February 1, 1991 between Worldspan L.P. and AWA,
Inc.
HONEYWELL INC........................... Credit Union Security Equipment Lease dated
11/22/89 between Honeywell Protection Services and
AWA, Inc.
HONEYWELL INC........................... Company Store Security Equipment Lease dated
11/22/89 between Honeywell Protection Services and
AWA, Inc.
PRO SERVE MARKETING, INC. .............. Advertising and Use Agreement dated 2/4/91 between
Pro Serve Marketing, Inc. and AWA, Inc. for scoring
and video system at McKale Center
3-11
111
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
GPA..................................... Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-1 (N620AW)], dated September
28, 1990, between GPA Leasing USA I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-1 (N620AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to Assignment of Sublease
[GPA 1989 BN-1 (N620AW)], dated as of September 21,
1990, between GPA Leasing USA I, Inc. and
Wilmington Trust Company (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-1 (N620AW)], dated as of September 21, 1990,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-2 (N622AW)], dated September
28, 1990, between GPA Leasing USA I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-2 (N622AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-2 (N622AW)], dated as of
September 21, 1990, between GPA Leasing USA I, Inc.
and Wilmington Trust Company (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-2 (N622AW)], dated as of September 21, 1990,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
3-12
112
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-3 (N621AW)], dated September
28, 1990, between GPA Leasing USA I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-3 (N621AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-3 (N621AW)], dated as of
September 21, 1990, between GPA Leasing USA I, Inc.
and Wilmington Trust Company (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-3 (N621AW)], dated as of September 21, 1990,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-4 (N625AW)], dated September
28, 1990, between GPA Leasing USA I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-4 (N625AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-4 (N625AW)], dated as of
September 21, 1990, between GPA Leasing USA I, Inc.
and Wilmington Trust Company (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-4 (N625AW)], dated as of September 21, 1990,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
3-13
113
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-5 (N624AW)], dated September
28, 1990, between GPA Leasing USA I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-5 (N624AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-5 (N624AW)], dated as of
September 21, 1990, between GPA Leasing USA I, Inc.
and Wilmington Trust Company (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublessee Consent and Agreement to Amendment No. 1
to Assignment of Sublease [GPA 1989 BN-5 (N624AW)]
by America West Airlines, Inc. relating to
Amendment No. 1 to Assignment of Sublease [GPA 1989
BN-5], dated as of October 1, 1991, between GPA
Leasing USA I, Inc. and Wilmington Trust Company
(such agreement not to be subject to the provisos
set forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-5 (N624AW)], dated as of September 21, 1990,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-6 (N626AW)], dated September
28, 1990, between GPA Leasing USA Sub I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-6 (N626AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
3-14
114
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-6 (N626AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublessee Consent and Agreement to Amendment No. 1
to Assignment of Sublease [GPA 1989 BN-6 (N626AW)]
by America West Airlines, Inc. relating to
Amendment No. 1 to Assignment of Sublease [GPA 1989
BN-6], dated as of October 1, 1991, between GPA
Leasing USA Sub I, Inc. and Wilmington Trust
Company (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-6 (N626AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-7 (N628AW)], dated September
28, 1990, between GPA Leasing USA Sub I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-7 (N628AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-7 (N628AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-7 (N628AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
3-15
115
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-8 (N627AW)], dated September
28, 1990, between GPA Leasing USA Sub I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-8 (N627AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-8 (N627AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-8 (N627AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-9 (N629AW)], dated September
28, 1990, between GPA Leasing USA Sub I, Inc. and
America West Airlines, Inc. (such agreement not to
be subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-9 (N629AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-9 (N629AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
3-16
116
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
Sublease Tax Indemnification Agreement [GPA 1989
BN-9 (N629AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-10 (N631AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-10 (N631AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-10 (N631AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublessee Consent and Agreement to Amendment No. 1
to Assignment of Sublease [GPA 1989 BN-10 (N631AW)]
by America West Airlines, Inc. relating to
Amendment No. 1 to Assignment of Sublease [GPA 1989
BN-10], dated as of October 1, 1991, between GPA
Leasing USA Sub I, Inc. and Wilmington Trust
Company (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-10 (N631AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-11 (N632AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
3-17
117
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-11 (N632AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-11 (N632AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-11 (N632AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1989 BN-12 (N633AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1989 BN-12 (N633AW)], dated
as of September 21, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
Sub I, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1989 BN-12 (N633AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1989
BN-12 (N633AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
3-18
118
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1990 AWA-13 (N634AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1990 AWA-13 (N634AW)],
dated as of September 21, 1990, by America West
Airlines, Inc. and accepted and agreed to by GPA
Leasing USA Sub I, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1990 AWA-13 (N634AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1990
AWA-13 (N634AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1990 AWA-14 (N635AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1990 AWA-14 (N635AW)],
dated as of September 21, 1990, by America West
Airlines, Inc. and accepted and agreed to by GPA
Leasing USA Sub I, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1990 AWA-14 (N635AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
3-19
119
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
Sublease Tax Indemnification Agreement [GPA 1990
AWA-14 (N635AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1990 AWA-15 (N636AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1990 AWA-15 (N636AW)],
dated as of September 21, 1990, by America West
Airlines, Inc. and accepted and agreed to by GPA
Leasing USA Sub I, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1990 AWA-15 (N636AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1990
AWA-15 (N636AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Aircraft Sublease
Agreement [GPA 1990 AWA-16 (N637AW)], dated
September 28, 1990, between GPA Leasing USA Sub I,
Inc. and America West Airlines, Inc. (such
agreement not to be subject to the provisos set
forth in subsection 5.1.1 or the provisions of
subsections 5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Aircraft
Sublease Agreement [GPA 1990 AWA-16 (N637AW)],
dated as of September 21, 1990, by America West
Airlines, Inc. and accepted and agreed to by GPA
Leasing USA Sub I, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
3-20
120
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1990 AWA-16 (N637AW)], dated as of
September 21, 1990, between GPA Leasing USA Sub I,
Inc. and Wilmington Trust Company (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1990
AWA-16 (N637AW)], dated as of September 21, 1990,
between GPA Leasing USA Sub I, Inc. and America
West Airlines, Inc. (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Supplement No. 1 to Engine Sublease
Agreement [GPA 1990 AWA-E1 (MSN V0025)], dated
February 8, 1991, between GPA Leasing USA I, Inc.
and America West Airlines, Inc. (such agreement not
to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Engine Sublease
Agreement [GPA 1990 AWA-E1 (MSN V0025], dated as of
December 12, 1990, by America West Airlines, Inc.
and accepted and agreed to by GPA Leasing USA I,
Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1991 AWA-E1 (MSN V0025)], dated as of
March 15, 1991, between GPA Leasing USA I, Inc. and
Wilmington Trust Company (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1991
AWA-E1 (MSN V0025)], dated as of March 15, 1991,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Purchase Agreement Warranties Assignment [GPA 1991
AWA-E1 (MSN V0025)], dated March 17, 1991, among
GPA Leasing USA I, Inc., America West Airlines,
Inc. and Wilmington Trust Company and accepted by
IAE International Aero Engines, AG (such agreement
not to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
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121
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
Sublease Supplement No. 1 to Engine Sublease
Agreement [GPA 1990 AWA-E2 (MSN V0049)], dated
February 8, 1991, between GPA Leasing USA I, Inc.
and America West Airlines, Inc. (such agreement not
to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Engine Sublease
Agreement [GPA 1990 AWA-E2 (MSN V0049)], dated as
of December 12, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1991 AWA-E2 (MSN V0049)], dated as of
March 15, 1991, between GPA Leasing USA I, Inc. and
Wilmington Trust Company (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1991
AWA-E2 (MSN V0049)], dated as of March 15, 1991,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Purchase Agreement Warranties Assignment [GPA 1991
AWA-E2 (V0049)], dated March 17, 1991, among GPA
Leasing USA I, Inc., America West Airlines, Inc.
and Wilmington Trust Company and accepted by IAE
International Aero Engines, AG (such agreement not
to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Sublease Supplement No. 1 to Engine Sublease
Agreement [GPA 1990 AWA-E3 (MSN V0019)], dated
February 8, 1991, between GPA Leasing USA I, Inc.
and America West Airlines, Inc. (such agreement not
to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Letter Agreement No. 1 relating to Engine Sublease
Agreement [GPA 1990 AWA-E3 (MSN V0019)], dated as
of December 12, 1990, by America West Airlines,
Inc. and accepted and agreed to by GPA Leasing USA
I, Inc. (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
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122
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
Sublessee Consent and Agreement by America West
Airlines, Inc. relating to the Assignment of
Sublease [GPA 1991 AWA-E3 (MSN V0019)], dated as of
March 15, 1991, between GPA Leasing USA I, Inc. and
Wilmington Trust Company (such agreement not to be
subject to the provisos set forth in subsection
5.1.1 or the provisions of subsections 5.1.3 or
5.1.4 of the Plan).
Sublease Tax Indemnification Agreement [GPA 1991
AWA-E3 (MSN V0019)], dated as of March 15, 1991,
between GPA Leasing USA I, Inc. and America West
Airlines, Inc. (such agreement not to be subject to
the provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
Purchase Agreement Warranties Assignment [GPA 1991
AWA-E3 (MSN V0019)], dated March 17, 1991, among
GPA Leasing USA I, Inc., America West Airlines,Inc.
and Wilmington Trust Company and accepted by IAE
International Aero Engines, AG (such agreement not
to be subject to the provisos set forth in
subsection 5.1.1 or the provisions of subsections
5.1.3 or 5.1.4 of the Plan).
Letter Agreement, dated April 15, 1994, by America
West Airlines, Inc. and acknowledged, agreed and
accepted by GPA Leasing USA I, Inc. and GPA Leasing
USA Sub I, Inc. (such agreement not to be subject
to the provisos set forth in subsection 5.1.1 or
the provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
3-23
123
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
Aircraft Finance Agreement dated as of August 25,
1990 between GPA Group plc and America West
Airlines, Inc., as amended by Amendment No. 1 to
Aircraft Finance Agreement dated as of September
21, 1990 between GPA Group plc and America West
Airlines, Inc., and as supplemented and modified by
Letter Agreement No. 1 dated August 25, 1990 from
GPA Group plc and accepted and acknowledged by
America West Airlines, Inc., Letter Agreement No. 2
dated August 25, 1990 from GPA Group plc and
accepted and acknowledged by America West Airlines,
Inc., Letter Agreement No. 3 dated August 25, 1990
from GPA Group plc and accepted and acknowledged by
America West Airlines, Inc., Letter Agreement No. 4
dated August 25, 1990 from GPA Group plc and
accepted and acknowledged by America West Airlines,
Inc., and Waiver Letter dated February 8, 1991 from
GPA Group plc, GPA Leasing USA I, Inc. and GPA
Leasing USA Sub I, Inc. and accepted and agreed to
by America West Airlines, Inc., to the extent that
such Aircraft Finance Agreement, as so amended,
modified and supplemented, is referenced in any of
the Sublease Agreements assumed by America West
Airlines, Inc. pursuant to that certain Stipulation
Regarding Aircraft Leases and/or Agreements with
GPA Group plc, GPA Leasing USA I, Inc., GPA Leasing
USA Sub I, Inc. and Industrial Bank of Japan and
Order approved September 5, 1991 and any of the
agreements and instruments identified in this
Schedule 3 to which either GPA Leasing USA I, Inc.,
GPA Leasing USA Sub I, Inc. or GPA Group plc is a
party (such agreement not to be subject to the
provisos set forth in subsection 5.1.1 or the
provisions of subsections 5.1.3 or 5.1.4 of the
Plan).
CANADIAN AIRLINES INTERNATIONAL......... Agreement to Utilize Canadian Airlines Information
and Dispatch Computer System dated 1/1/89, as
amended from time to time, between America West
Airlines, Inc. and Canadian Airlines International,
Ltd.
CANADIAN AIRLINES INTERNATIONAL......... Standard Ground Handling Agreement dated 1/1/85, as
amended 3/1/89, between Canadian Airlines
International, Ltd. and America West Airlines, Inc.
AERONAUTICAL RADIO, INC................. Service Agreement dated 6/3/83 between Aeronautical
Radio, Inc. and America West Airlines, Inc.
METROPOLITAN AIRPORT COMM'N............. MSP Lease and Fueling Agreement for Aviation
Fueling Facilities dated 9/21/87 and Amendments 1
through 8 between Metropolitan Airport Commission
and America West Airlines, Inc.
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124
VENDOR NAME TITLE
- - ---------------------------------------- ---------------------------------------------------
OFFICERS AND DIRECTORS.................. Indemnification Agreements with the following past
and present directors or officers of America West
Airlines, Inc. with the indicated dates: Edward R.
Beauvais (7/23/86); Michael J. Conway (7/26/86); O.
Mark De Michele (7/23/86); John D. Driggs
(7/23/86); John E. Gillick, Jr. (10/25/91); Arnold
H. Kroll (7/23/86); Juan O'Callahan (1/28/87); Jock
Patton (1/28/87); Arthur M. Taylor (7/23/86 and
4/25/89); Jerry J. Wisotsky (10/21/91); James C.
Clarke (11/23/93); Craig Coleman (9/17/92); James
M. King (11/23/93); Juan O'Callahan (10/21/91);
Tibor Sallay (9/17/92); Frederick W. Bradley, Jr.
(9/29/92); O. Mark De Michele (9/17/92); Samuel L.
Eichenfeld (9/17/92); William A. Franke (9/17/92);
Richard C. Kraemer (9/17/92); James T. Mcmillan
(12/21/93); A. Maurice Myers (1/1/94); John R.
Norton, III (9/17/92); John F. Tiernay (12/31/93);
Declan Treacy (12/31/93)
CERTIFICATE OF INCORPORATION AND
BY-LAWS............................... Indemnification obligations and limitations on
director liability set forth in the Restated
Certificate of Incorporation of America West
Airlines, Inc. dated 5/19/88 and Restated Bylaws of
America West Airlines, Inc., as amended to date.
LOCKHEED FINANCE CORPORATION............ Lease Agreement dated 5/4/87, as amended, between
America West Airlines, Inc. and Hughes-Avicom
International, payment rights to which have been
assigned to Lockheed Finance Corporation.
3-25