Exhibit 10.1
TPG ADVISORS, INC.
301 Commerce Street, Suite 3300
Fort Worth, Texas 76102
May 19, 2005
America West Holdings Corporation
111 West Rio Salado Parkway
Tempe, Arizona 85281
Attention: W. Douglas Parker
Chairman, President and Chief Executive Officer
Gentlemen,
Pursuant to our recent conversations, we are pleased to confirm the
arrangements under which TPG Advisors, Inc. ("TPG") will continue to provide
certain consulting and advisory services to, and will receive certain
contributions and reimbursements from, America West Holdings Corporation (the
"Company") in connection with the Agreement and Plan of Merger, dated as of
May 19, 2005, among the Company, US Airways Group, Inc., a Delaware corporation,
and a subsidiary to be formed by US Airways Group, Inc., a Delaware corporation
and a wholly owned subsidiary of US Airways Group, Inc. (the "Agreement"}.
1. Scope of Engagement. As your non-exclusive financial consultant and
advisor, TPG will continue to perform such financial consulting and advisory
services for the Company in connection with (i) the transactions contemplated by
the Agreement (the "Transactions") and (ii) certain other matters, as you may
reasonably request, including without limitation assisting the Company in
analyzing, structuring, negotiating and effecting the Transactions on the terms
and conditions of this letter agreement (collectively, the "Services").
2. Payment Amount. The Company agrees to pay to TPG in consideration of
TPG providing the Services, and in contribution for and reimbursement of certain
expenses incurred by TPG in connection with the Transactions and providing the
Services, a contingent payment of $6,400,000 (the "Payment Amount"), payable in
a lump sum at, and subject to the occurrence of, the Effective Time (as such
term is defined in the Agreement). No fee or expense reimbursement payable to
any other person, whether payable by the Company or any other party, in
connection with the subject matter of this engagement shall reduce or otherwise
affect any amount payable hereunder. The Payment Amount shall be the sole and
complete compensation to TPG for its consulting and advisory services rendered
to the Company and all expenses incurred in connection with the Transactions and
providing the Services. In the event that the Effective Time does not occur for
any reason, the Company shall have no further obligations to TPG with respect to
the subject matter of this letter agreement. The Payment Amount payable
hereunder shall be net of all applicable withholding and similar taxes.
3. Disclosure. Any advice, opinion or analysis provided by TPG hereunder
will be solely for the use and benefit of the Board of Directors, any committee
thereof and senior management of the Company, and wilt not be quoted,
reproduced, summarized, or otherwise disclosed without TPG's prior written
consent.
4. Independent Contractor. TPG has been retained to act solely as
financial consultant and advisor to the Company in providing the Services and,
in such capacity, shall act as an independent contractor and in no other
capacity, and any duties of TPG arising out of its engagement pursuant to this
letter agreement shall be owed solely to the Company and to no other party. TPG
shall have no obligation to the Company other than to provide the Services as
described hereunder.
5. Termination. TPG's engagement under this letter agreement will continue
until the earlier of (i) the Effective Time, (ii) termination of the Agreement
for any reason, or (iii) written notice given by either the Company to TPG or
TPG to the Company; provided that the Company's obligations to pay the Payment
Amount provided by Section 2 above shall survive any such termination.
6. Miscellaneous.
(a) TPG in providing the Services is acting solely as a financial
consultant and advisor to the Company and is not an expert on, and
cannot render opinions regarding, legal, accounting, regulatory or tax
matters. You should consult with your other professional advisors
concerning these matters before undertaking the Transactions or other
actions. TPG makes no representations or warranties in respect of the
Services, express or implied, and in no event shall TPG be liable to
the Company or any affiliate for any act, alleged act, omission or
alleged omission in connection with the Services that does not
constitute willful misconduct as determined by a final, non-appealable
determination of a court of competent jurisdiction.
(b) No waiver, amendment or other modification of this letter
agreement shall be effective unless in writing and signed by each party
to be bound thereby. This letter agreement shall inure to the benefit
of and be binding on the Company, TPG and their respective successors.
(c) Nothing in this letter is intended to confer upon any other
person (including the stockholders, employees or creditors of the
Company) any rights or remedies hereunder or by reason hereof.
(d) In case any provision of this letter agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of this letter agreement
shall not in any way be affected or impaired thereby and such provision
shall be construed by limiting it so as to be valid and enforceable to
the maximum extent consistent with and possible under applicable law.
(e) This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and supersedes any
prior communication or agreement with respect thereto.
(f) This letter agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(g) Any action or proceeding against the parties relating in any
way to this letter agreement shall, be brought exclusively in the
United States District Court for the Southern District of New York
sitting in Manhattan or the Supreme Court of the State of New York for
the County of New York (the "Chosen Courts") (to the extent subject
matter jurisdiction exists therefore), and the parties (i) irrevocably
submit to the jurisdiction of the Chosen Courts, (ii) waive any
objection, to the fullest extent permitted by law, to laying venue in
any such action or proceeding in the Chosen Courts, (iii) waive any
objection, to the fullest extent permitted by law, that the Chosen
Courts are an inconvenient forum or do not have jurisdiction over any
party hereto and (iv) agree that any actions or proceedings to enforce
a judgment issued by one of the foregoing courts may be enforced in any
jurisdiction.
(h) To the extent not prohibited by applicable law that cannot be
waived, each party to this letter agreement waives, and covenants that
such party Will not assert (whether as plaintiff, defendant or
otherwise), any right to trial by jury in any forum in respect of any
issue, claim or proceeding arising out of this letter agreement or the
subject matter hereof, in each case whether now existing
or hereafter arising and whether in contract, tort or otherwise. Any
party to this letter agreement may file an original counterpart or a
copy of this provision with any court as written evidence of the
consent of the parties to the waiver of their rights to trial by jury.
(i) This Agreement may be executed in any number of counterparts
and by each of the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of
which together shall constitute one and the same agreement.
Please confirm that the foregoing correctly sets forth our agreement by
signing and returning to TPG the duplicate copy of this letter agreement
enclosed herewith. We are delighted to accept this engagement and look forward
to working with you towards successful consummation of the Transactions.
Very truly yours,
TPG ADVISORS, INC.
By: /s/ Richard Schifter
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Name: Richard Schifter
Title: Vice President
Accepted and Agreed to as of the date first written above:
AMERICA WEST HOLDINGS CORPORATION
By: /s/ W. Douglas Parker
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Name: W. Douglas Parker
Title: Chairman and Chief
Executive Officer Title: