-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, CPQVfLzeKBnkjvGLRYwW+VIiLaObktaVFTanfgDcamogOEtfVL60eQ5OXAz5NZJ+ t9PMy8Y4VRRWigUZ5Te0tA== 0000950153-94-000134.txt : 19940728 0000950153-94-000134.hdr.sgml : 19940728 ACCESSION NUMBER: 0000950153-94-000134 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19940727 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICA WEST AIRLINES INC CENTRAL INDEX KEY: 0000706270 STANDARD INDUSTRIAL CLASSIFICATION: 4512 IRS NUMBER: 860418245 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-54243 FILM NUMBER: 94540117 BUSINESS ADDRESS: STREET 1: 100 WEST WASHINGTON STREET STREET 2: SUITE 2100 CITY: PHOENIX STATE: AZ ZIP: 85003 BUSINESS PHONE: 6026930800 MAIL ADDRESS: STREET 1: 400 EAST SKY HARBOR BOULEVARD CITY: PHOENIX STATE: AZ ZIP: 85034 S-1/A 1 AMENDMENT NO.1 TO FORM S-1 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 26, 1994 REGISTRATION NO. 33-54243 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ________________________ AMENDMENT NO. 1 TO FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 AMERICA WEST AIRLINES, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 4511 86-0418245 (STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.) MARTIN J. WHALEN SENIOR VICE PRESIDENT AMERICA WEST AIRLINES, INC. 4000 EAST SKY HARBOR BOULEVARD 4000 EAST SKY HARBOR BOULEVARD PHOENIX, ARIZONA 85034 PHOENIX, ARIZONA 85034 (602) 693-0800 (602) 693-0800 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL INCLUDING AREA CODE, OF AGENT FOR SERVICE) EXECUTIVE OFFICES)
_________________________ With Copies to: DAVID J. GRAHAM ANDREWS & KURTH L.L.P. 4200 TEXAS COMMERCE TOWER 600 TRAVIS STREET HOUSTON, TEXAS 77002 (713) 220-4200 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) _________________________ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after this Registration Statement becomes effective, which time is to be determined by the Selling Securityholders. All of the Securities offered hereby are offered for the account of the Selling Securityholders. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. /X/ _________________________ THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. ================================================================================ 2 EXPLANATORY NOTE America West Airlines, Inc. has prepared this Amendment No. 1 for the purpose of filing with the Securities and Exchange Commission certain exhibits to the Registration Statement. Amendment No. 1 does not modify any provision of the Prospectus included in the Registration Statement; accordingly, the related Cross-Reference Sheet and such Prospectus have not been included herein. 3 PART II INFORMATION REQUIRED IN PROSPECTUS ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table sets forth the estimated expenses, other than underwriting discounts and commissions, payable by the Registrant in connection with the issuance and distribution of the securities being registered hereby: Securities and Exchange Commission Filing Fee.............................. $84,286 NYSE Listing Fee........................................................... * Blue Sky Filing Fees and Expenses.......................................... * Printing and Engraving Costs............................................... * Legal Fees and Expenses.................................................... * Accounting Fees and Expenses............................................... * Trustee's Fees and Expenses................................................ * Transfer Agent Fees........................................................ * Miscellaneous.............................................................. * ------- Total............................................................ $ * =======
- --------------- * To be supplied by amendment. ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law ("DGCL") authorizes, inter alia, a corporation generally to indemnify any person ("indemnitee") who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation, in a similar position with another corporation or entity, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. With respect to actions or suits by or in the right of the corporation; however, an indemnitee who acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation is generally limited to attorneys' fees and other expenses, and no indemnification shall be made if such person is adjudged liable to the corporation unless and only to the extent that a court of competent jurisdiction determines that indemnification is appropriate. Section 145 further provides that any indemnification shall be made by the corporation only as authorized in each specific case upon a determination by the (i) stockholders, (ii) board of directors by a majority vote of a quorum of disinterested directors so directs, that indemnification of the indemnitee is proper because he has met the applicable standard of conduct. Section 145 provides that indemnification pursuant to its provisions is not exclusive of other rights of indemnification to which a person may be entitled under any by-law agreement, vote of stockholders or disinterested directors or otherwise. Section 8.02 of the Company's By-laws, a copy of which is filed as Exhibit 3.2 to this Registration Statement provides, in substance, that directors, officers, employees and agents shall be indemnified to the fullest extent permitted by Section 145 of the DGCL. Article 12.0 of the Company's Restated Certificate of Incorporation, a copy of which is filed as Exhibit 3.1 to this Registration Statement, limits the liability of directors of the Company to the Company or its stockholders (in their capacity as directors but not in their capacity as officers) to the fullest extent permitted by the DGCL. Specifically, directors of the Company will not be personally liable for monetary damages for II-1 4 breach of a director's fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchase or redemptions as provided in section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. The Restated Certificate of Incorporation also provides that if the DGCL is amended after the approval of the Restated Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Company will be eliminated or limited to the full extent permitted by the DGCL, as so amended. The form of the Third Revised Investment Agreement filed as Exhibit 10.1 to this Registration Statement contains certain provisions for indemnification of directors and officers of the Company and the Selling Securityholder against civil liabilities under the Securities Act. The Company intends to enter into indemnification agreements with certain of its directors providing for indemnification to the fullest extent permitted by the laws of the State of Delaware. These agreements provide for specific procedures to better assure the directors' rights to indemnification, including procedures for directors to submit claims, for determination of directors entitled to indemnification (including the allocation of the burden of proof and selection of a reviewing party) and for enforcement of directors' indemnification rights. ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES. The following summarizes transactions occurring within the last three years in which the Company has sold securities without registration under the Securities Act. On February 15, 1991, the Company sold 253,422 shares of its common stock to Transpacific Enterprises, Inc. for $1,393,821, or $5.50 per share, in reliance upon the exemption set forth in Section 4(2) of the Securities Act. On the Effective Date, the Company will issue the following securities in connection with its Reorganization: 1. The Company will issue shares of Class B Common Stock to holders of approximately $ million of allowed, general unsecured prepetition claims against the Company in satisfaction of such claims in reliance upon the exemption set forth in Section 1145 of the Bankruptcy Code. 2. The Company will issue shares of Class B Common Stock ( of which shares are to be issued in exchange for cash, aggregating $ , provided by such equity holders upon the exercise of rights to subscribe for such shares at a price of $8.889 per share) and 6,230,769 Warrants to the holders of pre-existing equity interests in the Company in consideration of cancellation of such pre-existing equity interests in reliance upon the exemption set forth in Section 1145 of the Bankruptcy Code. 3. The Company issued 900,000 shares of Class B Common Stock and 1,384,615 Warrants to Guiness Peat Aviation and its affiliates ("GPA") in satisfaction of claims of GPA against the Company in reliance upon the exemption set forth in Section 1145 of the Bankruptcy Code. 4. The Company issued the following securities to AmWest (or to Lehman Brothers Inc. or funds managed or advised by Fidelity Management Trust Company, in each case as assignees of AmWest's rights to acquire such securities) for new consideration paid to the Company in accordance with the Company's Plan: (i) 1,200,000 shares of Class A Common Stock for $7.467 per share; (ii) shares of Class B Common Stock for $7.467 per share and shares of Class B Common Stock for $8.889 per share; (iii) $100 million principal amount of Senior Notes for $100 million in cash; and (iv) 2,769,231 Warrants, separate consideration for which was not specified. The Company relied upon the exemption set forth in Section 4(2) of the Securities Act. II-2 5 ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. (a) The following exhibits are filed as part of this Registration Statement:
EXHIBIT NUMBER TITLE _______ _____ *2.1 -- The Company's Plan of Reorganization under Chapter 11 of the Bankruptcy Code. *3.1 -- Form of Restated Certificate of Incorporation of America West Airlines, Inc. *3.2 -- Form of Restated By-laws of America West Airlines, Inc. *4.1 -- Form of Form of Indenture for $100,000,000 % Senior Notes due 2001 dated 1994, of America West Airlines, Inc. and , as trustee. *4.2 -- Form of Senior Note (included as Exhibit A to Exhibit 4.1 above). *4.3 -- Form of Warrant Agreement dated , 1994 between America West Airlines, Inc. and , as Warrant Agent. *4.4 -- Form of Warrant (included as Exhibit A to Exhibit 4.3 above). *4.5 -- Form of Stockholders' Agreement for America West Airlines, Inc. dated , 1994 among America West Airlines, Inc., AmWest Partners, L.P., GPA Group plc and certain other Stockholder Representatives. *4.6 -- Form of Registration Rights Agreement dated , 1994 among America West Airlines, Inc., AmWest Partners, L.P. and other holders. *4.7 -- Article 4.0 of the Company's Restated Certificate of Incorporation (included in Exhibit 3.1 above). **5.1 -- Opinion of Andrews & Kurth L.L.P. 10.1 -- Third Revised Investment Agreement dated April 21, 1994 between America West Airlines, Inc. and AmWest Partners, L.P. -- Incorporated by reference to Exhibit 10.A to the Company's Quarterly Report on Form 10-Q for the period ended March 31, 1994. 10.11 -- Third Revised Interim Procedures Agreement dated April 21, 1994 between America West Airlines and AmWest Partners, L.P. -- Incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1993. **10.12 -- Alliance Agreement dated , 1994 between America West Airlines, Inc. and Continental Airlines, Inc., including the Bilateral Cargo Prorate Agreement, the Club Usage Agreement, the Code-Sharing Agreement, the Master Technology Cooperation Agreement, the Frequent Flyer Program Exchange and the Ground Handling Agreements. **10.13 -- Alliance Agreement dated , 1994 between America West Airlines, Inc. and Mesa Airlines. **10.14 -- The GPA Settlement Agreement dated , 1994 between America West Airlines, Inc. and GPA Group plc. 10.15 -- Voting Agreement dated , 1994 between AmWest Partners and GPA Group plc. 10.16 -- Airbus A320 Purchase Agreement (including exhibits thereto), dated as of September 28, 1990 between AVSA, S.A.R.L. ("AVSA") and the Company, together with Letter Agreement Nos. 1-10, inclusive -- Incorporated by reference to Exhibit 10-(D)(1) to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1990. 10.17 -- Loan Agreement, dated as of September 28, 1990, among the Company, AVSA and AVSA, as agent -- Incorporated by reference to Exhibit 10-(D)(2) to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1990.
II-3 6
EXHIBIT NUMBER TITLE _______ _____ **10.18 -- AVSA, S.A.R.L. Settlement Agreement dated , 1994 between the Company and Airbus. 10.19 -- V2500 Support Contract Between the Company and IAE International Aero Engines AG ("IAE"), dated September 28, 1990, together with Side Letters Nos. 1-4, inclusive -- Incorporated by reference to Exhibit 10-(D)(3) to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1990. 10.20 -- Cash Management Agreement, dated September 28, 1991, among the Company, BT and First Interstate of Arizona, N.A. -- Incorporated by reference to Exhibit 10-D(21) to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.21 -- First Amendment to Cash Management Agreement, dated December 1, 1991, among the Company, BT and First Interstate of Arizona, N.A. -- Incorporated by reference to Exhibit 10-D(22) to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.22 -- Second Amendment to Cash Management Agreement, dated September 1, 1992, among the Company, BT and First Interstate of Arizona, N.A. -- Incorporated by reference to Exhibit 10-O(3) to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.23 -- Restructuring Agreement, dated December 1, 1991 between the Company and Kawasaki -- Incorporated by reference to Exhibit 10-D(24) to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.24 -- A320 Put Agreement, dated December 1, 1991 between the Company and Kawasaki -- Incorporated by reference to Exhibit 10-D(25) to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.25 -- First Amendment to A320 Put Agreement, dated September 1, 1992 -- Incorporated by reference to Exhibit 10-R(2) to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.26 -- A320 Put Agreement, dated as of June 25, 1991 between the Company and GPA Group plc -- Incorporated by reference to Exhibit 10-D(26) to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.27 -- First Amendment to A320 Put Agreement, dated as of September 1, 1992 -- Incorporated by reference to Exhibit 10-S(2) to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.28 -- Restructuring Agreement, dated as of June 25, 1991 among GPA Group plc, GPA Leasing USA I, Inc. GPA Leasing USA Sub I, and the Company -- Incorporated by reference to Exhibit 10-D(27) to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.29 -- Official Statement dated August 11, 1986 for the $54,000,000 Variable Rate Airport Facility Revenue Bonds -- Incorporated by reference to Exhibit 10.e to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1986. 10.30 -- Airport Use Agreement dated July 1, 1989 (the "Airport Use Agreement") among the City of Phoenix, The Industrial Development Authority of the City of Phoenix, Arizona and the Company -- Incorporated by reference to Exhibit 10-D(9) to the Company's Annual Report on Form 10-K for the year ended December 31, 1989. 10.31 -- First Amendment dated August 1, 1990 to Airport Use Agreement -- Incorporated by reference to Exhibit 10-(D)(9) to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1990.
II-4 7
EXHIBIT NUMBER TITLE _______ _____ 10.32 -- Revolving Loan Agreement dated April 17, 1990, by and among the Company, the Bank signatories thereto, and Bank of America National Trust and Savings Association, as Agent for the Banks (the "Revolving Loan Agreement") -- Incorporated by reference to Exhibit 10-1 to the Company's Quarterly Report on Form 10-Q for the period ended March 31, 1990. 10.33 -- First Amendment dated April 17, 1990 to Revolving Loan Agreement -- Incorporated by reference to Exhibit 10-(D)(10) to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1990. 10.34 -- Second Amendment dated September 28, 1990 to the Revolving Loan Agreement -- Incorporated by reference to Exhibit 10-(D)(11) to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1990. 10.35 -- Third Amendment dated as of January 14, 1991 to the Revolving Loan Agreement -- Incorporated by reference to Exhibit 10-(D)(13) to the Company's Annual Report on Form 10-K for the year ended December 31, 1990. 10.36 -- Spares Credit Agreement, dated as of September 28, 1990, between the Company and IAE -- Incorporated by reference to Exhibit 10-(D)(4) to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1990. 10.37 -- Master Credit Modification Agreement date as of October 1, 1992, among the Company, IAE International Aero Engines AG, Intlaero (Phoenix A320) Inc., Intlaero (Phoenix B737) Inc., CAE Electronics Ltd., and Hughes Rediffusion Simulation Limited -- Incorporated by reference to Exhibit 10-L to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.38 -- Credit Agreement, dated as of September 28, 1990 between the Company and IAE -- Incorporated by reference to Exhibit 10-(D)(5) to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1990. 10.39 -- Amendment No. 1 to the Credit Agreement, dated March 1, 1991 -- Incorporated by reference to Exhibit 10-(M)(2) to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.40 -- Amendment No. 2 to the Credit Agreement, dated May 15, 1991 -- Incorporated by reference to Exhibit 10-(M)(3) to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.41 -- Amendment No. 3 to the Credit Agreement, dated October 1, 1992 -- Incorporated by reference to Exhibit 10-(M)(4) to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.42 -- Form of Third Amended and Restated Credit Agreement dated September 30, 1993, among the Company, various lenders, and BT Commercial Corp. as Administrative Agent (without exhibits) -- Incorporated by reference to Exhibit 10-(N)(1) to the Company's Annual Report on Form 10-K for the year ended December 31, 1993. **10.43 -- Form of Amended and Restated Management Letter Agreement, dated as of September 30, 1993 from the Company to the Lenders. **10.44 -- Form of Amendment to Amended and Restated Management Letter Agreement; Consent to Amendment of By-laws dated February 8, 1994 from the Company to the Lenders. **10.45 -- Subscription Agreement between Amwest Partners, L.P and Lehman Brothers Inc. dated , 1994 ***11.1 -- Statement re: computation of net income (loss) per common share. ***12.1 -- Statement re: computation of ratio of earnings to fixed charges. **23.1 -- Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1 above).
II-5 8
EXHIBIT NUMBER TITLE _______ _____ ***23.2 -- Consent of KPMG Peat Marwick (independent auditors) -- Included at page S-1. *24.1 -- Power of Attorney (included on the signature pages of this Registration Statement.
- --------------- * Filed herewith. ** To be filed by amendment. *** Previously filed. (b) Financial Statement Schedules: The following financial statement schedules are filed as part of this Registration Statement, but not included in the Prospectus.
SCHEDULES PAGE ---------------------------------------------------------------------- ----- Independent Auditors' Report on Schedules and Consent................. S-1 Schedule V -- Property, Plant and Equipment........................... S-2 Schedule VI -- Accumulated Depreciation, Depletion and Amortization of Property, Plant and Equipment.......................... S-3 Schedule VIII -- Valuation and Qualifying Accounts.................... S-4 Schedule X -- Supplementary Income Statement Information.............. S-5
All other schedules for which provision is made in Regulation S-X of the Commission are not required under the related instructions or are inapplicable or the required information is included in the financial statements or notes thereto and, therefore, have been omitted. ITEM 17. UNDERTAKINGS. The undersigned registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-6 9 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Phoenix, State of Arizona on the 26th day of July, 1994. AMERICA WEST AIRLINES, INC. * By:__________________________________ William A. Franke, Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No.1 to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE _________ _____ ____ * Chairman of the Board and Chief July 26, 1994 _______________________________________ Executive Officer (Principal William A. Franke Executive Officer) * President, Chief Operating July 26, 1994 _______________________________________ Officer and Director A. Maurice Myers * Vice President and Controller July 26, 1994 _______________________________________ (Principal Financial and Raymond T. Nakano Accounting Officer) * Director July 26, 1994 _______________________________________ O. Mark DeMichele * Director July 26, 1994 _______________________________________ Frederick W. Bradley Director _______________________________________ Samuel L. Eichenfield * Director July 26, 1994 _______________________________________ Richard C. Kraemer Director _______________________________________ James T. McMillan * Director July 26, 1994 _______________________________________ John R. Norton III [/R]
II-7 10
SIGNATURE TITLE DATE _________ _____ ____ * Director July 26, 1994 _________________________________________ John F. Tierney Director _________________________________________ Declan Treacy * By: /s/ MARTIN J. WHALEN ____________________________________ Martin J. Whalen Attorney-in-Fact
II-8 11 EXHIBIT INDEX
SEQUENTIAL EXHIBIT NUMBERED NUMBER TITLE PAGE _______ _____ __________ *2.1 -- The Company's Plan of Reorganization under Chapter 11 of the Bankruptcy Code. *3.1 -- Form of Restated Certificate of Incorporation of America West Airlines, Inc. *3.2 -- Form of Restated By-laws of America West Airlines, Inc. *4.1 -- Form of Form of Indenture for $100,000,000 % Senior Notes due 2001 dated 1994, between America West Airlines, Inc. and , as trustee. *4.2 -- Form of Form of Senior Note (Included as Exhibit A in Exhibit 4.1 filed herewith). *4.3 -- Form of Warrant Agreement dated , 1994 between America West Airlines, Inc. and , as Warrant Agent. *4.4 -- Form of Form of Warrant (Included as Exhibit A in Exhibit 4.3 filed herewith). *4.5 -- Form of Stockholders' Agreement for America West Airlines, Inc. dated , 1994 among America West Airlines, Inc., AmWest Partners, L.P., GPA Group plc and certain other Stockholder Representatives. *4.6 -- Form of Registration Rights Agreement dated , 1994 among America West Airlines, Inc., AmWest Partners, L.P. and other holders. *4.7 -- Article 4.0 of the Company's Restated Certificate of Incorporation incorporated by reference to Exhibit 3.1 filed herewith. **5.1 -- Opinion of Andrews & Kurth L.L.P. 10.1 -- Third Revised Investment Agreement dated April 21, 1994 between America West Airlines, Inc. and AmWest Partners, L.P. -- Incorporated by reference to Exhibit 10.A to the Company's Quarterly Report on Form 10-Q for the period ended March 31, 1994. 10.11 -- Third Revised Interim Procedures Agreement dated April 21, 1994 between America West Airlines and AmWest Partners, L.P. -- Incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1993. **10.12 -- Alliance Agreement dated , 1994 between America West Airlines, Inc. and Continental Airlines, Inc., including the Bilateral Cargo Prorate Agreement, the Club Usage Agreement, the Code-Sharing Agreement, the Master Technology Cooperation Agreement, the Frequent Flyer Program Exchange and the Ground Handling Agreements. **10.13 -- Alliance Agreement dated , 1994 between America West Airlines, Inc. and Mesa Airlines. **10.14 -- The GPA Settlement Agreement dated , 1994 between America West Airlines, Inc. and GPA Group plc. 10.15 -- Voting Agreement dated , 1994 between AmWest Partners and GPA Group plc.
12
SEQUENTIAL EXHIBIT NUMBERED NUMBER TITLE PAGE _______ _____ ___________ 10.16 -- Airbus A320 Purchase Agreement (including exhibits thereto), dated as of September 28, 1990 between AVSA, S.A.R.L. ("AVSA") and the Company, together with Letter Agreement Nos. 1-10, inclusive -- Incorporated by reference to Exhibit 10-(D)(1) to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1990. 10.17 -- Loan Agreement, dated as of September 28, 1990, among the Company, AVSA and AVSA, as agent -- Incorporated by reference to Exhibit 10-(D)(2) to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1990. **10.18 -- AVSA, S.A.R.L. Settlement Agreement dated , 1994 between the Company and Airbus. 10.19 -- V2500 Support Contract Between the Company and IAE International Aero Engines AG ("IAE"), dated September 28, 1990, together with Side Letters Nos. 1-4, inclusive -- Incorporated by reference to Exhibit 10-(D)(3) to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1990. 10.20 -- Cash Management Agreement, dated September 28, 1991, among the Company, BT and First Interstate of Arizona, N.A. -- Incorporated by reference to Exhibit 10-D(21) to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.21 -- First Amendment to Cash Management Agreement, dated December 1, 1991, among the Company, BT and First Interstate of Arizona, N.A. -- Incorporated by reference to Exhibit 10-D(22) to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.22 -- Second Amendment to Cash Management Agreement, dated September 1, 1992, among the Company, BT and First Interstate of Arizona, N.A. -- Incorporated by reference to Exhibit 10-O(3) to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.23 -- Restructuring Agreement, dated December 1, 1991 between the Company and Kawasaki -- Incorporated by reference to Exhibit 10-D(24) to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.24 -- A320 Put Agreement, dated December 1, 1991 between the Company and Kawasaki -- Incorporated by reference to Exhibit 10-D(25) to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.25 -- First Amendment to A320 Put Agreement, dated September 1, 1992 -- Incorporated by reference to Exhibit 10-R(2) to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.26 -- A320 Put Agreement, dated as of June 25, 1991 between the Company and GPA Group plc -- Incorporated by reference to Exhibit 10-D(26) to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.27 -- First Amendment to A320 Put Agreement, dated as of September 1, 1992 -- Incorporated by reference to Exhibit 10-S(2) to the Company's Annual Report on Form 10-K for the year ended December 31, 1992.
13
SEQUENTIAL EXHIBIT NUMBERED NUMBER TITLE PAGE _______ _____ __________ 10.28 -- Restructuring Agreement, dated as of June 25, 1991 among GPA Group plc, GPA Leasing USA I, Inc. GPA Leasing USA Sub I, and the Company -- Incorporated by reference to Exhibit 10-D(27) to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.29 -- Official Statement dated August 11, 1986 for the $54,000,000 Variable Rate Airport Facility Revenue Bonds -- Incorporated by reference to Exhibit 10.e to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1986. 10.30 -- Airport Use Agreement dated July 1, 1989 (the "Airport Use Agreement") among the City of Phoenix, The Industrial Development Authority of the City of Phoenix, Arizona and the Company -- Incorporated by reference to Exhibit 10-D(9) to the Company's Annual Report on Form 10-K for the year ended December 31, 1989. 10.31 -- First Amendment dated August 1, 1990 to Airport Use Agreement -- Incorporated by reference to Exhibit 10-(D)(9) to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1990. 10.32 -- Revolving Loan Agreement dated April 17, 1990, by and among the Company, the Bank signatories thereto, and Bank of America National Trust and Savings Association, as Agent for the Banks (the "Revolving Loan Agreement") -- Incorporated by reference to Exhibit 10-1 to the Company's Quarterly Report on Form 10-Q for the period ended March 31, 1990. 10.33 -- First Amendment dated April 17, 1990 to Revolving Loan Agreement -- Incorporated by reference to Exhibit 10-(D)(10) to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1990. 10.34 -- Second Amendment dated September 28, 1990 to the Revolving Loan Agreement -- Incorporated by reference to Exhibit 10-(D)(11) to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1990. 10.35 -- Third Amendment dated as of January 14, 1991 to the Revolving Loan Agreement -- Incorporated by reference to Exhibit 10-(D)(13) to the Company's Annual Report on Form 10-K for the year ended December 31, 1990. 10.36 -- Spares Credit Agreement, dated as of September 28, 1990, between the Company and IAE -- Incorporated by reference to Exhibit 10-(D)(4) to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1990. 10.37 -- Master Credit Modification Agreement date as of October 1, 1992, among the Company, IAE International Aero Engines AG, Intlaero (Phoenix A320) Inc., Intlaero (Phoenix B737) Inc., CAE Electronics Ltd., and Hughes Rediffusion Simulation Limited -- Incorporated by reference to Exhibit 10-L to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.38 -- Credit Agreement, dated as of September 28, 1990 between the Company and IAE -- Incorporated by reference to Exhibit 10-(D)(5) to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1990.
14
SEQUENTIAL EXHIBIT NUMBERED NUMBER TITLE PAGE _______ _____ _________ 10.39 -- Amendment No. 1 to the Credit Agreement, dated March 1, 1991 -- Incorporated by reference to Exhibit 10-(M)(2) to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.40 -- Amendment No. 2 to the Credit Agreement, dated May 15, 1991 -- Incorporated by reference to Exhibit 10-(M)(3) to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.41 -- Amendment No. 3 to the Credit Agreement, dated October 1, 1992 -- Incorporated by reference to Exhibit 10-(M)(4) to the Company's Annual Report on Form 10-K for the year ended December 31, 1992. 10.42 -- Form of Third Amended and Restated Credit Agreement dated September 30, 1993, among the Company, various lenders, and BT Commercial Corp. as Administrative Agent (without exhibits) -- Incorporated by reference to Exhibit 10-(N)(1) to the Company's Annual Report on Form 10-K for the year ended December 31, 1993. **10.43 -- Form of Amended and Restated Management Letter Agreement, dated as of September 30, 1993 from the Company to the Lenders. **10.44 -- Form of Amendment to Amended and Restated Management Letter Agreement; Consent to Amendment of By-laws dated February 8, 1994 from the Company to the Lenders. **10.45 -- Subscription Agreement between Amwest Partners, L.P and Lehman Brothers Inc. dated , 1994 ***11.1 -- Statement re: computation of net income (loss) per common share. ***12.1 -- Statement re: computation of ratio of earnings to fixed charges. **23.1 -- Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1 above). ***23.2 -- Consent of KPMG Peat Marwick (independent auditors) -- Included at page S-1. *24.1 -- Power of Attorney (included on the signature pages of this Registration Statement.
- --------------- * Filed herewith. ** To be filed by amendment. *** Previously filed. EX-2.1 2 PLAN OF REORGANIZATION UNDER CHAPTER 11 1 EXHIBIT 2.1 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 CODE AMERICA WEST AIRLINES, INC. ARNOLD & PORTER Martin J. Whalen, Esq. 1200 New Hampshire Avenue, N.W. 4000 East Sky Harbor Blvd. Washington, D.C. 20036 Phoenix, Arizona 85034 (202) 872-6700 LEBOEUF, LAMB, GREENE & MACRAE Of Counsel: 633 17th Street, Suite 2800 Richard P. Schifter Denver, Colorado Samuel A. Flax (303) 291-2600 Brian P. Leitch Of Counsel: Counsel to AmWest Partners, Carl A. Eklund L.P., Co-Proponent of this John Edward Maas Plan of Reorganization 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 2 [THIS PAGE INTENTIONALLY LEFT BLANK] 3 TABLE OF CONTENTS
PAGE ---- 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...................................... 12 3.5. Class 5 -- Allowed General Unsecured Claims................................ 13 3.6. Class 6 -- Preferred and Common Stock...................................... 13 3.7. Class 7 -- Certain Other Claims and AWA Warrants, Options and Other Equity Interests................................................. 14 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................................................ 15 4.3. NewAWA Warrants............................................................ 15 4.4. NewAWA Senior Unsecured Notes.............................................. 16 ARTICLE 5 EXECUTORY CONTRACTS AND UNEXPIRED LEASES................................................ 16 5.1. Assumption of Certain Executory Contracts and Unexpired Leases............. 16 5.2. Rejection of Certain Executory Contracts and Unexpired Leases.............. 17 5.3. Claims Based on Rejection of Contracts or Unexpired Leases................. 17 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..................................... 17 6.1. Unimpaired Classes......................................................... 17 6.2. Class Deemed to Have Rejected the Plan..................................... 17 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............... 18 7.3. Cramdown................................................................... 18
i 4
PAGE ---- ARTICLE 8 MEANS FOR IMPLEMENTATION OF THE PLAN.................................................... 18 8.1. Investment Agreement....................................................... 18 8.2. Stockholders' and Registration Rights Agreements........................... 18 8.3. Delivery of Alliance Agreements............................................ 18 8.4. GPA Settlement............................................................. 18 8.5. Corporate Governance....................................................... 19 8.6. Release of Certain Claims and Actions...................................... 19 8.7. Indemnification Obligations................................................ 19 8.8. Exemption from Certain Taxes............................................... 20 8.9. Directors and Officers..................................................... 20 8.10. Revesting of Assets; No Further Supervision................................ 20 8.11. Implementation............................................................. 20 8.12. Cancellation of Securities................................................. 20 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.................................... 21 10.3. Service of Indenture Trustee............................................... 23 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.............................. 26 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............................ 27 11.1. Filing of Objections to Claims or Equity Interests......................... 27 11.2. Settlement of Objections to Claims or Equity Interests After Effective Date....................................................................... 27 11.3. Payment or Distribution to Holders of Disputed Claims or Equity Interests.................................................................. 27 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........................................ 28 12.4. Termination of the Creditors and Equity Committees......................... 28 12.5. Setoffs.................................................................... 29 12.6. Opt-Out.................................................................... 29 12.7. Section Headings........................................................... 29 12.8. Severability............................................................... 29 12.9. Computation of Time........................................................ 29 12.10. Governing Law.............................................................. 29
ii 5
PAGE ---- 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
iii 6 [THIS PAGE INTENTIONALLY LEFT BLANK] 7 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. 8 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. 2 9 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 3 10 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. 1.41. 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. 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. 4 11 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. 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. 5 12 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. 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. 6 13 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. 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. 7 14 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 8 15 "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. 9 16 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 such Allowed Claim, bearing interest at the Prime Rate plus 100 basis points per annum payable over a term of five years in level monthly principal installments, plus interest. The holder of such Claim 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 3.1 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 this Claim 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 holder of the Allowed 10 17 Class 3.2 Claim will receive a promissory note in the amount of such Allowed Claim, bearing interest at the Prime Rate plus 100 basis points per annum, payable over a term of four years in level quarterly principal installments, plus interest. The holder of such Claim 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 3.2 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 this Claim consists of the AWA maintenance and technical support facility located at Phoenix Sky Harbor International Airport. On the Effective Date, the holder of the Allowed Class 3.4 Claim will receive a promissory note in the amount of such Allowed Claim, bearing interest at the rate of 6% per annum, payable over a term of twelve years in level quarterly principal installments plus interest. The holder of such Claim 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 3.4 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 11 18 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; (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. 12 19 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 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. 13 20 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 there shall be considered to be an aggregate of 22,100,000 shares of AWA Common Stock outstanding. 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. Each such holder 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 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. 14 21 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. 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. 15 22 (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 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 16 23 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 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 within the later to occur of 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. 17 24 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 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. 18 25 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 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 19 26 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. 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. 20 27 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 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. 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 first to holders of AWA Preferred Stock in accordance with Section 3.6.1 and then to 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- 21 28 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. 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 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 22 29 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 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 (i) 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, (ii) 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, or (iii) 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; 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 23 30 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. 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. 24 31 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 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. 25 32 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. 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. 26 33 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. 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 27 34 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 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 28 35 (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 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. 29 36 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 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; 30 37 (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 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 31 38 [THIS PAGE INTENTIONALLY LEFT BLANK] 39 PLAN OF REORGANIZATION EXHIBIT A INVESTMENT AGREEMENT [EXHIBITS TO INVESTMENT AGREEMENT OMITTED] 40 [THIS PAGE INTENTIONALLY LEFT BLANK] 41 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. A-1 42 "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). A-2 43 "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. A-3 44 "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- A-4 45 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 A-5 46 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. A-6 47 (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 A-7 48 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; A-8 49 (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; A-9 50 (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 A-10 51 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; A-11 52 (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 A-12 53 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. A-13 54 (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. A-14 55 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
A-15 56 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. A-16 57 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- A-17 58 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:__________________________________ A-18 59 PLAN OF REORGANIZATION EXHIBIT B STOCKHOLDERS' AGREEMENT 60 [THIS PAGE INTENTIONALLY LEFT BLANK] 61 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 B-1 62 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. B-2 63 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 B-3 64 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: B-4 65 (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 B-5 66 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 B-6 67 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. B-7 68 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 69 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. B-9 70 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: B-10 71 PLAN OF REORGANIZATION EXHIBIT C GPA TERM SHEET 72 [THIS PAGE INTENTIONALLY LEFT BLANK] 73 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. C-1 74 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 C-2 75 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, C-3 76 (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 C-4 77 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). C-5 78 [THIS PAGE INTENTIONALLY LEFT BLANK] 79 PLAN OF REORGANIZATION SCHEDULE 1 SECTION 1110 STIPULATIONS 80 [THIS PAGE INTENTIONALLY LEFT BLANK] 81 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].
1-1 82 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.
1-2 83 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.
1-3 84 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.
1-4 85 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
1-5 86 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.
1-6 87 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.
1-7 88 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.
1-8 89 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.
1-9 90 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.]
1-10 91 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.
1-11 92 [THIS PAGE INTENTIONALLY LEFT BLANK] 93 PLAN OF REORGANIZATION SCHEDULE 2 CERTAIN FINAL ORDERS ON SETTLEMENT AGREEMENTS 94 [THIS PAGE INTENTIONALLY LEFT BLANK] 95 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 96 [THIS PAGE INTENTIONALLY LEFT BLANK] 97 PLAN OF REORGANIZATION SCHEDULE 3 CERTAIN ASSUMED AGREEMENTS 98 [THIS PAGE INTENTIONALLY LEFT BLANK] 99 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. ......................... Equipment Lease No. AZ-048-5093 dated 4/7/88 between Computer Systems of America, Inc. and AWA, Inc. COMPUTER SYSTEMS OF AMERICA INC. ......................... Equipment Lease No. AZ-048-5092 dated 4/7/88 between Computer Systems of America, Inc. 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. NV-048-5090 dated 4/7/88 between Computer Systems of America, Inc. 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
3-1 100
VENDOR NAME TITLE ___________ _____ 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 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
3-2 101
VENDOR NAME TITLE ___________ _____ 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 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
3-3 102
VENDOR NAME TITLE ___________ _____ 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 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
3-4 103
VENDOR NAME TITLE ___________ _____ 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 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
3-5 104
VENDOR NAME TITLE ___________ _____ 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 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
3-6 105
VENDOR NAME TITLE ___________ _____ 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 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
3-7 106
VENDOR NAME TITLE ___________ _____ 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. 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 SAN JOSE........................ Operations Space Lease dated 7/25/88 by and between the City of San Jose 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.
3-8 107
VENDOR NAME TITLE ___________ _____ 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. 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 8 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.
3-9 108
VENDOR NAME TITLE ___________ _____ 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. 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. Option Agreement dated 12/14/90 by and between Arizona Fueling Facilities Corporation and America West Airlines, Inc. 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
3-10 109
VENDOR NAME TITLE ___________ _____ 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 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.
3-11 110
VENDOR NAME TITLE ___________ _____ 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 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).
3-12 111
VENDOR NAME TITLE ___________ _____ 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). 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).
3-13 112
VENDOR NAME TITLE ___________ _____ 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). 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).
3-14 113
VENDOR NAME TITLE ___________ _____ 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). 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).
3-15 114
VENDOR NAME TITLE ___________ _____ 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). 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).
3-16 115
VENDOR NAME TITLE ___________ _____ 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). 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).
3-17 116
VENDOR NAME TITLE ___________ _____ 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). 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).
3-18 117
VENDOR NAME TITLE ___________ _____ 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). 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).
3-19 118
VENDOR NAME TITLE ___________ _____ 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). 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).
3-20 119
VENDOR NAME TITLE ___________ _____ 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). 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).
3-21 120
VENDOR NAME TITLE ___________ _____ 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). 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).
3-22 121
VENDOR NAME TITLE ___________ _____ 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). 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).
3-23 122
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).
3-24 EX-3.1 3 RESTATED CERTIFICATE OF INCORPORATION 1 EXHIBIT 3.1 RESTATED CERTIFICATE OF INCORPORATION OF AMERICA WEST AIRLINES, INC. AMERICA WEST AIRLINES, INC. (the "Corporation"), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "DGCL"), DOES HEREBY CERTIFY: FIRST: That the present name of the Corporation is AMERICA WEST AIRLINES, INC. SECOND: That the Corporation filed its original Certificate of Incorporation with the Secretary of State of Delaware on September 4, 1981. THIRD: That the Corporation filed a Restated Certificate of Incorporation with the Secretary of State of Delaware on June 4, 1984. FOURTH: That the Corporation filed a Restated Certificate of Incorporation with the Secretary of State of Delaware on May 27, 1988. FIFTH: That the Corporation filed an Amendment to its Certificate of Incorporation with the Secretary of State of Delaware on May 25, 1989. SIXTH: That on June 27, 1991, the Corporation filed a petition in United States Bankruptcy Court seeking relief under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. sec.sec. 101-1330 (the "Bankruptcy Code"). SEVENTH: That on , 1994, the United States Bankruptcy Court for the District of Arizona confirmed a plan of reorganization of the Corporation adopting this Restated Certification of Incorporation pursuant to Section 303 of the DGCL. EIGHTH: That the Certificate of Incorporation of the Corporation, as restated hereby and filed in accordance with Sections 103, 303, 242, and 245 of the DGCL, is as follows: 1. NAME. The name of the Corporation is AMERICA WEST AIRLINES, INC. 2. REGISTERED OFFICE AND REGISTERED AGENT. The location of the registered office of the Corporation in the State of Delaware is at 1209 Orange Street, Wilmington, New Castle County, Delaware, and the name of the registered agent is the Corporation Trust Company. 3. PURPOSE. The nature of the business or purposes to be conducted or promoted are to engage in any lawful act or activity for which corporations may be organized under the DGCL. 4. AUTHORIZED CAPITAL. The total number of shares of all classes of stock which this Corporation shall have authority to issue is 150,000,000 shares of which 1,200,000 shares shall be Class A Common Stock ("Class A Common") with the par value of $0.01 per share, 100,000,000 shares shall be Class B Common Stock ("Class B Common") with the par value of $0.01 per share, and 48,800,000 shares shall be Preferred Stock ("Preferred Stock") with a par value of $0.01 per share. 2 4.1 Common Stock. All shares of Class A Common and Class B Common shall be identical and will entitle the holders thereof to the same rights and privileges, except as otherwise provided herein. Preemptive rights as provided for by Section 102(b)(3) of the DGCL shall not be granted and are hereby expressly denied. 4.1.1 Voting Rights. 4.1.1.1 Except as provided in Article 13.0, each registered holder of Class A Common shall be entitled to fifty votes for each share of such stock held by such holder, and each registered holder of Class B Common shall be entitled to one vote for each share of such stock held by such holder. The right to cumulate votes for election of directors as provided in Section 214 of the DGCL shall not be granted and is hereby expressly denied. 4.1.1.2 Except as otherwise provided herein or required by law, Class A Common and Class B Common shall vote together as a single class for the election of directors of the Corporation, as provided for in Article 5.0, and on all other matters submitted to a vote of stockholders of the Corporation. 4.1.1.3 In addition to any other vote required by law, except where prohibited by applicable corporate law, any amendments to the Restated Bylaws of the Corporation (the "Bylaws") shall be made in compliance therewith. 4.1.1.4 In addition to the automatic suspension of voting rights provided under Article 13.0, any holder of Class B Common may suspend the voting rights relating to any shares of Class B Common held by it by providing prior written notice to the Corporation, which notice shall describe such shares in reasonable detail and state whether or not the voting suspension is permanent or temporary and, if temporary, the period thereof. Notwithstanding whether the suspension is permanent or temporary, any stockholder that suspends its voting rights under this Article 4.1.1.4 may rescind such suspension upon written notice to the Corporation; provided that any notice reinstating voting rights under this Article 4.1.1.4 shall not be effective with respect to any matter unless such notice is sent prior to the record date for voting on such matter. The suspension of voting rights hereunder shall not affect any other rights held by the holders of such suspended Class B Common by virtue of their stock ownership. 4.1.2 Dividends. The holders of Class A Common and Class B Common shall be entitled to receive, when and if declared by the Board of Directors, out of the assets of the Corporation which are by law available therefor, dividends payable either in cash, in stock or otherwise. If any dividend or distribution is paid on any class of common stock such dividend or distribution shall be paid on all classes of common stock in the same amount per share and any stock split or recapitalization of any class of common stock shall apply equally to all classes of common stock; provided, however, that in the case of dividends payable in shares of common stock, or options, warrants or rights to acquire shares of common stock or securities convertible into or exchangeable for shares of common stock, the shares, options, warrants, rights or securities so payable shall be payable in shares of, or options, warrants or rights to acquire, or securities convertible into or exchangeable for, Class B Common. 4.1.3 Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and liquidation preferences, if any, of any series of Preferred Stock, the holders of shares of all classes of common stock shall be entitled to share ratably in the remaining net assets of the Corporation. Neither the merger or consolidation of the Corporation, nor the sale, lease or conveyance of all or part of its assets, shall be deemed to be a liquidation, dissolution or winding up of the Corporation, either voluntarily or involuntarily, within the meaning of this Article 4.1.3. 4.1.4 Conversion. 4.1.4.1 Optional Conversion of Class A Common to Class B Common. Holders of Class A Common shall have the right, at their individual options and at any time, to convert any or all shares 2 3 of Class A Common held by them to the same number of shares of Class B Common by delivering to the Corporation a notice of their intent to so convert their shares of Class A Common and surrendering the certificate or certificates representing such shares. The Corporation shall promptly issue and deliver the certificate or certificates evidencing the shares of Class B Common issuable upon conversion in accordance with the holder's instructions. Such conversion, to the extent permitted by law, shall be deemed to occur as of the close of business on the date on which the holder's notice of intent is received and the holder's shares of Class A Common are surrendered. Class B Common issued under this Article 4.1.4.1 shall be deemed duly authorized, validly issued, fully paid, and nonassessable. 4.1.4.2 In the case of any reorganization, reclassification or change of shares of the Class B Common (other than a change in par value or from par to no par value or as a result of a subdivision or combination), or in the case of any consolidation of the Corporation with one or more corporations or a merger of the Corporation with another corporation, or in the case of any sale, lease or other disposition of all or substantially all of the assets of the Corporation, each holder of a share of Class A Common at the time outstanding shall be entitled to convert such share into the kind and amount of shares of stock and other securities and properties (including cash) receivable upon such reorganization, reclassification, change of shares, consolidation, merger, sale, lease or other disposition, by a holder of the number of shares of Class B Common into which such shares of Class A Common might have been converted immediately prior to such reorganization, reclassification, change of shares, consolidation, merger, sale, lease or other disposition. In the event of such a reorganization, reclassification, change of shares, consolidation, merger, sale, lease or other disposition, effective provision shall be made in the charter of the resulting or surviving corporation or otherwise for the protection of the conversion rights of the shares of Class A Common as nearly equivalent as practicable, into any such other shares of stock and other securities and property deliverable upon conversion of shares of Class B Common into which such Class A Common might have been converted immediately prior to such event. 4.1.4.3 The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class B Common, solely for the purpose of issuance upon conversion of outstanding shares of Class A Common, such number of shares of Class B Common as shall from time to time be issuable upon the conversion of all of the outstanding shares of Class A Common. If any shares of Class B Common required to be reserved for purposes of conversion hereunder (i) require registration with or approval of any governmental authority under any federal or state law before such shares of Class B Common may be issued upon conversion or (ii) are listed on any national or regional securities exchange or listing service, the Corporation shall use its commercially reasonable efforts and incur commercially reasonable costs to cause such shares to be duly registered, approved, or listed, as the case may be prior to the effective time of such conversion. 4.1.4.4 The Corporation shall pay all documentary stamp or other transactional taxes attributable to the issuance or delivery of shares of Class B Common upon conversion of any shares of Class A Common; provided, however, that the Corporation shall not be required to pay any taxes which may be payable in respect of any transfer involved in the issuance or delivery of any certificate for shares of Class B Common in a name other than that of the registered holder of shares of Class A Common converted. 4.2 Preferred Stock. Except as otherwise provided in that certain Stockholders' Agreement for America West Airlines, Inc., dated , 1994 for so long as it remains in force and effect (the "Stockholders' Agreement"), the Preferred Stock may be issued as a class, without series, or if so determined from time to time by the Board of Directors, either in whole or in part in one or more series, each series to be expressly designated by distinguishing number, letter or title prior to the issue of any shares thereof. The Preferred Stock, and each series thereof, may have such voting powers, full or limited, including the right to have more or less than one vote per share, or no voting powers, and such designations, preferences, dividend rights and relative, participating, optional or other special rights, qualifications, limitations and restrictions, if any, as shall be stated and expressed in the resolution or 3 4 resolutions of the Board of Directors providing for the issuance of such Preferred Stock (a "Preferred Stock Designation"). The Board of Directors is hereby authorized to (i) fix or alter the dividend rights, dividend rates, dividend preferences and participations, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), the price or other consideration for which shares shall be issued, the redemption price or prices, the liquidation preferences and any and all relative, participating, optional or other special rights, qualifications, limitations on and restrictions of each series of the Preferred Stock and the number of shares constituting any such series and the designation thereof, and (ii) increase or decrease the number of shares of any series subsequent to the issuance of shares of that series to the extent permitted by the DGCL, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series. Notwithstanding anything to the contrary contained in this Restated Certificate of Incorporation or any Preferred Stock Designation, the holders of Preferred Stock shall not be entitled to vote separately as a class with respect to any amendment to this Restated Certificate of Incorporation to increase the number of authorized shares of Preferred Stock. 4.5 Issuance of Nonvoting Stock. The Corporation will not issue nonvoting equity securities to the extent prohibited by Section 1123 of the Bankruptcy Code; provided, however that this Article 4.5 (a) will have no further force or effect beyond that required under Section 1123 of the Bankruptcy Code, (b) will have such force and effect, if any, only for so long as such section is in effect and applicable to the Corporation, and (c) in all events may be amended or eliminated in accordance with applicable law as from time to time in effect. 5. NUMBER AND TERM OF DIRECTORS. The Board of Directors of the Corporation shall consist of up to fifteen (15) members, which number may be increased or decreased from time to time by resolution duly adopted by such Board, provided that at no time shall there be fewer than nine (9) or more than fifteen (15) members. No decrease in the number of Directors shall have the effect of shortening the term of any incumbent Director. Except as otherwise provided in the Stockholders' Agreement, any Director may be removed by the stockholders of the Corporation with or without cause pursuant to the Bylaws and applicable law. Each Director shall be elected (a) in accordance with the Bylaws and shall serve for a term of one year or until the death, resignation or removal of such Director, and until a successor shall have been properly elected and shall qualify, and (b) as provided in the Stockholders' Agreement. Beginning at the annual meeting of the stockholders immediately following the third anniversary of the effective date of this Restated Certificate of Incorporation (the "Third Annual Meeting"), the number of Directors shall be divided into three (3) classes, as nearly equal in number as may be, to serve in the first instance until the first, second and third annual meetings of the stockholders to be held after the Third Annual Meeting, respectively, and until their successors shall have been properly elected and shall qualify; and thereafter for three-year terms. In the case of any increase in the number of Directors of the Corporation, the additional Directors shall be so classified that all classes of Directors shall be increased equally as nearly as may be, and the additional Directors shall be elected as provided herein by the Directors or by the stockholders at an annual meeting. In case of any decrease in the number of Directors of the Corporation, all classes of Directors shall be decreased equally, as nearly as may be. Election of Directors shall be conducted as provided in this Restated Certificate of Incorporation, in the Bylaws, or by applicable law. 6. MANAGEMENT. The Corporation shall be managed by the Board of Directors, which shall exercise all powers conferred under the laws of the State of Delaware. The Bylaws shall be adopted contemporaneous with the adoption of this Restated Certificate of Incorporation pursuant to Section 303 of the DGCL, but, thereafter, the power to make, alter or repeal the Bylaws shall be vested in the Board of Directors, as may be limited by the Bylaws. 4 5 7. COMPROMISE OR ARRANGEMENT WITH CREDITORS. Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware, may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths ( 3/4) in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the Court to which the application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders, of this Corporation, as the case may be and also on this Corporation. 8. VACANCIES ON THE BOARD OF DIRECTORS. Except as otherwise provided in the Stockholders' Agreement, in case any vacancy shall occur on the Board of Directors because of death, resignation, retirement, disqualification, removal, an increase in the authorized number of Directors or any other cause, the Board of Directors shall have the sole and exclusive authority to, in accordance with the Bylaws, elect a Director to fill such vacancy. 9. SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of the stockholders of the Corporation, for any purpose or purposes, unless otherwise prescribed herein or by statute, may be called by the Chairman of the Board and shall be called by the Secretary at the written request, or by resolution adopted by the affirmative vote, of a majority of the Board of Directors. Stockholders of the Corporation shall not be entitled to request a special meeting of the Stockholders. 10. NO STOCKHOLDER ACTION BY WRITTEN CONSENT. All action by holders of the Corporation's outstanding voting securities shall be taken at an annual or special meeting of the stockholders following notice (or by written consent as provided below) as provided by law or in the Bylaws. Stockholders of the Corporation shall have the power to act by means of written consent only in the removal of directors in accordance with the Stockholders' Agreement. 11. NOMINATIONS FOR ELECTION OF DIRECTORS. Except as may be otherwise provided in the Stockholders' Agreement, no person shall be elected to the Board of Directors of this Corporation at an annual meeting of the stockholders, or at a special meeting called for that purpose, unless a written nomination of such person to the Board of Directors (i) by a stockholder of the Corporation shall be received by the Corporation in accordance with the Bylaws or (ii) is made by or at the direction of the Board of Directors. 12. LIMITATION OF DIRECTOR LIABILITY; INDEMNIFICATION OF DIRECTORS AND OFFICERS. 12.1 Limitation of Liability. A person who is or was a Director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the Director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL; or (iv) for any transaction from which the Director derived an improper personal benefit. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the Directors of the Corporation 5 6 shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. The elimination and limitation of liability provided herein shall continue after a Director has ceased to occupy such position as to acts or omissions occurring during such Director's term or terms of office, and no amendment or repeal of this Article 12.1 shall apply to or have any effect on the liability or alleged liability of any Director of the Corporation for or with respect to any acts or omissions of such Director occurring prior to such amendment or repeal. 12.2 Indemnification. The Corporation shall indemnify, to the fullest extent permitted by applicable law and pursuant to the Bylaws, each person who is or was a Director or officer of the Corporation, and may indemnify each employee and agent of the Corporation and all other persons whom the Corporation is authorized to indemnify under the provisions of the DGCL. 13. FOREIGN OWNERSHIP OF VOTING STOCK. At no time shall more than twenty five percent (25%) of the voting interest of the Corporation be owned or controlled by persons who are not "Citizens of the United States" (as such term is defined in Section 101 of the Federal Aviation Act of 1958, as amended, (Title 49, United States Code), or as the same may be from time to time amended) ("Non-Citizens"). In the event that Non-Citizens shall own (beneficially or of record) or have voting control over any shares of common stock of the Corporation, the voting rights of such persons shall be subject to automatic suspension to the extent required to ensure that the Corporation is in compliance with applicable provisions of law and regulations relating to ownership or control of a U.S. carrier. The Bylaws shall contain provisions to implement this Article 13.0, including, without limitation, provisions restricting or prohibiting transfer of shares of voting stock to Non-Citizens and provisions restricting or removing voting rights as to shares of voting stock owned or controlled by Non-Citizens. Any determination as to ownership, control or citizenship made by the Board of Directors shall be conclusive and binding as between the Corporation and any stockholder for purposes of this Article 13.0. 14. BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS. The Corporation elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware, as the same may be amended from time to time. This election shall be effective as of the earliest date permitted by law. 15. ARIZONA CORPORATE TAKEOVERS ACT. The Corporation elects not to be subject to Article 2, Chapter 6, Title 10 of the Arizona Revised Statutes, as the same may be amended from time to time. This election shall be effective as of the earliest date permitted by law. The Corporation elects not to be subject to Article 3, Chapter 6, Title 10 of the Arizona Revised Statutes, as the same shall be amended from time to time. This election shall be effective as of the earliest date permitted by law. 6 7 IN WITNESS WHEREOF, America West Airlines, Inc. has caused this Restated Certificate of Incorporation to be signed by , its President, and attested by , its Secretary, this day of , 1994. AMERICA WEST AIRLINES, INC. By:___________________________________ , President ATTEST: _____________________________________________________ , Secretary 7 EX-3.2 4 RESTATED BYLAWS 1 EXHIBIT 3.2 RESTATED BYLAWS OF AMERICA WEST AIRLINES, INC. 2 TABLE OF CONTENTS
PAGE ---- 1. OFFICES.......................................................................... 1 1.01 Offices..................................................................... 1 2. SEAL............................................................................. 1 2.01 Seal........................................................................ 1 3. MEETINGS OF STOCKHOLDERS......................................................... 1 3.01 Place of Meetings........................................................... 1 3.02 Annual Meetings............................................................. 1 3.03 Special Meetings............................................................ 2 3.04 Action by Consent in Lieu of a Meeting...................................... 2 3.05 Notice of Meetings.......................................................... 2 3.06 Stockholder Notices......................................................... 3 3.07 Adjourned Meetings.......................................................... 3 3.08 Quorum and Adjournment...................................................... 4 3.09 Majority Vote Required...................................................... 4 3.10 Manner of Voting............................................................ 4 3.11 Proxies..................................................................... 4 3.12 Presiding Officer and Secretary............................................. 5 3.13 Disregard of Nomination or Proposal......................................... 5 3.14 Inspections of Elections.................................................... 5 4. DIRECTORS........................................................................ 5 4.01 Powers...................................................................... 5 4.02 Number and Classification................................................... 6 4.03 Nominations................................................................. 6 4.04 Resignations................................................................ 6 4.05 Removal..................................................................... 7 4.06 Vacancies................................................................... 7 4.07 Presiding Officer and Secretary............................................. 7 4.08 Annual Meetings............................................................. 8 4.09 Regular Meetings............................................................ 8 4.10 Special Meetings............................................................ 8 4.11 Quorum and Powers of a Majority............................................. 8 4.12 Waiver of Notice............................................................ 9 4.13 Manner of Acting............................................................ 9 4.14 Compensation................................................................ 9 4.15 Committees.................................................................. 9 4.16 Committee Procedure......................................................... 10 5. OFFICERS......................................................................... 10 5.01 Number...................................................................... 10 5.02 Election of Officer, Qualification and Term................................. 11 5.03 Removal..................................................................... 11 5.04 Resignations................................................................ 11 5.05 Vacancies................................................................... 12 5.06 Salaries.................................................................... 12 5.07 The Chairman of the Board................................................... 12 5.08 The President............................................................... 12 5.09 The Vice Presidents......................................................... 12
i 3
PAGE ---- 5.10 The Secretary and the Assistant Secretary................................... 12 5.11 The Treasurer and the Assistant Treasurer................................... 13 5.12 Treasurer's Bond............................................................ 14 5.13 Chief Executive Officer..................................................... 14 5.14 Chief Operating Officer..................................................... 14 6. STOCK............................................................................ 15 6.01 Certificates................................................................ 15 6.02 Transfers................................................................... 15 6.03 Lost, Stolen or Destroyed Certificates...................................... 15 6.04 Record Date................................................................. 15 6.05 Registered Stockholders..................................................... 16 6.06 Additional Powers of the Board.............................................. 16 7. LIMITATIONS OF OWNERSHIP BY NON-CITIZENS......................................... 17 7.01 Definitions................................................................. 17 7.02 Policy...................................................................... 18 7.03 Foreign Stock Record........................................................ 18 7.04 Suspension of Voting Rights................................................. 18 7.05 Beneficial Ownership Inquiry................................................ 19 8. MISCELLANEOUS.................................................................... 19 8.01 Place and Inspection of Books............................................... 19 8.02 Indemnification of Directors, Officers Employees and Agents................. 20 8.03 Dividends................................................................... 23 8.04 Execution of Deeds, Contracts, and Other Agreements and Instruments......... 24 8.05 Checks...................................................................... 24 8.06 Voting Shares in Other Corporations......................................... 24 8.07 Fiscal Year................................................................. 24 8.08 Gender/Number............................................................... 24 8.09 Paragraph Titles............................................................ 24 8.10 Amendment................................................................... 24 8.11 Restated Certificate of Incorporation....................................... 24
ii 4 RESTATED BYLAWS OF AMERICA WEST AIRLINES, INC. (as amended through, and effective on , 1994) 1. OFFICES. 1.01 Offices. In addition to its registered office in the state of Delaware, the Corporation shall have a general office at Maricopa County, Arizona, and such other offices, either within or without the State of Delaware, at such locations as the Board of Directors may from time to time determine or the business of the Corporation may require. 2. SEAL. 2.01 Seal. (a) The Corporation shall have a seal, which shall have inscribed thereon its name and year of incorporation and the words, "Corporate Seal Delaware." (b) The seal shall be kept in safe custody by the Secretary of the Corporation. It shall be affixed by the Chairman of the Board, the President or any Vice President, the Secretary or any Assistant Secretary, or the Treasurer to any corporate instrument or document requiring it, by practice or by law, and when so affixed, it may be attested by the signature of the officer so affixing it. 3. MEETINGS OF STOCKHOLDERS. 3.01 Place of Meetings. All meetings of stockholders of the Corporation shall be held at the general office of the Corporation in Maricopa County, State of Arizona, unless otherwise specified in the notice calling any such meeting. 3.02 Annual Meetings. (a) The annual meeting of stockholders for 1995 shall be held at the Corporate offices on Tuesday, May 2, 1995, at 10:00 a.m. or at such other time, date and place as shall be determined by the Board of Directors, complying with Section 3.05(b) of these Restated Bylaws of the Corporation. All subsequent annual meetings of stockholders, beginning with the annual meeting to be held in 1996, shall be held on the first Tuesday of May, if not a legal holiday, and if a legal holiday, then on the next business day following, or at such other time, date and place as shall be determined by the Board of Directors from time to time. (b) At each annual meeting the stockholders shall, by plurality of the votes cast, elect Directors and transact such other business as may properly be brought before them. (c) The Board of Directors may, in advance of any annual or special meeting of the stockholders, adopt an agenda for such meeting, adherence to which the Chairman of the Board may enforce. 3.03 Special Meetings. Special meetings of the stockholders of the Corporation, for any purpose or purposes, unless otherwise prescribed herein or by statute, may be called by the Chairman of the Board and shall be called by the Secretary at the written request, or by resolution adopted by the affirmative vote, of a majority of the Board of Directors. Such request shall state the purpose or purposes of the proposed meeting. Stockholders of the Corporation shall not be entitled to request a special meeting of the stockholders. 3.04 Action by Consent in Lieu of a Meeting. Stockholders may act by consent in accordance with Delaware Law in lieu of a meeting only in the removal of directors in accordance with the Stockholders' Agreement (as hereinafter defined). 3.05 Notice of Meetings. (a) Notices of meetings of stockholders shall be in writing and shall state the place (which may be within or without the state of Delaware), date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which a meeting is called. No business other than that specified in the notice thereof shall be transacted at any special meeting. 5 (b) Such notice shall either be delivered personally or mailed, postage prepaid, to each stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. If mailed, the notice shall be directed to the stockholder at his or her address as it appears on the records of the Corporation. Personal delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. (c) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder in writing, whether before or after such meeting is held, or if such stockholder shall sign the minutes or attend the meeting. 3.06 Stockholder Notices. At any meeting of the stockholders, only such business shall be conducted, and only such proposals shall be acted upon as shall have been brought before the meeting (i) by, or at the direction of the Board of Directors or (ii) by any stockholder who complies with the notice procedures set forth in this Section 3.06. (a) For a proposal to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary. To be timely, a stockholder's notice must be delivered to, or mailed and received, at the principal executive offices of the Corporation not less than sixty (60) days nor more than ninety (90) days prior to the scheduled annual meeting, regardless of any postponements, deferrals or adjournments of that meeting to a later date; provided, however, that if less than seventy (70) days notice or prior public disclosure of the date of the scheduled annual meeting is given or made, notice by the stockholder to be timely must be so delivered or received no later than the close of business on the tenth (10th) day following the earlier of the day on which such notice of the date of the scheduled annual meeting was mailed or the day on which such public disclosure was made. (b) A stockholder's notice to the Secretary shall in addition set forth as to each matter the stockholder proposes to bring before the meeting (i) a brief description of the proposal desired to be brought before the meeting and the reasons for conducting such business at the meeting, (ii) the name and address, as they appear on the Corporation's books, of the stockholder proposing such business, (iii) the class and number of shares which are beneficially owned by the stockholder on the date of such stockholder notice and (iv) any material interest of the stockholder in such proposal. 3.07 Adjourned Meetings. When a meeting is adjourned to another time or place, unless otherwise provided by these Restated Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders may transact any business which might have been transacted at the original meeting. If an adjournment is for more than thirty (30) days or if after an adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 3.08 Quorum and Adjournment. Except as otherwise provided by law, by the Restated Certificate of Incorporation of the Corporation or by these Restated Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, and the voting rights of which are not suspended, shall be requisite and shall constitute a quorum for the transaction of business at all meetings of stockholders. If, however, such majority shall not be present or represented at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting. 3.09 Majority Vote Required. When a quorum is present at any meeting of stockholders, the affirmative vote of the majority of the aggregate voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall constitute the act of the stockholders, unless by express provision of law, the Restated Certificate of Incorporation or these Restated Bylaws a different vote is required, in which case such express provision shall govern and control. 2 6 3.10 Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote, and whose voting rights have not been suspended shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his name on the books of the Corporation on the record date fixed, as provided in Section 6.04 of these Restated Bylaws, for the determination of stockholders entitled to vote at such meeting. All elections of directors shall be by written ballot. 3.11 Proxies. (a) At any meeting of stockholders, any stockholder may be represented and vote by proxy or proxies appointed by a written form of proxy. In the event that any form of proxy shall designate two or more persons to act as proxies, a majority of such persons present at the meeting or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by the form of proxy upon all of the persons so designated unless the form of proxy shall otherwise provide. (b) The Board of Directors may, in advance of any annual or special meeting of the stockholders, prescribe additional regulations concerning the manner of execution and filing of proxies and the validation of the same, which are intended to be voted at any such meeting. 3.12 Presiding Officer and Secretary. At each meeting of stockholders, the Chairman of the Board shall preside and the Secretary shall act as Secretary of the meeting. 3.13 Disregard of Nomination or Proposal. Except as otherwise provided by law, the Restated Certificate of Incorporation or these Restated Bylaws, the person presiding over any meeting of the stockholders shall have the power and duty to determine whether a nomination or any other business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Article 3 or Section 4.03 and, if any proposed nomination or business is not in compliance with such provisions, to declare that such defective proposal or nomination shall be disregarded. 3.14 Inspections of Elections. The Board of Directors by resolution shall appoint one or more inspectors of election (which may include individuals who serve the Corporation in other capacities including, without limitation, as officers, employees, agents or representatives of the Corporation) to act at any meeting of the stockholders and make a written report thereof. Such appointments shall be made in accordance with, and each inspector shall have the duties prescribed by, Section 231 of the General Corporation Law of the State of Delaware (the "DCGL"). 4. DIRECTORS. 4.01 Powers. The Board of Directors shall exercise all of the power of the Corporation except such as are by law, or by the Restated Certificate of Incorporation of this Corporation or by these Restated Bylaws conferred upon or reserved to the stockholders of any class or classes. 4.02 Number and Classification. (a) The Board of Directors of the Corporation shall consist of up to fifteen (15) members, which number may be increased or decreased from time to time by resolution duly adopted by such Board, provided that at no time shall there be fewer than nine (9) or more than fifteen (15) members and provided further that, the Stockholders' Agreement dated among the Corporation and others, for so long as it remains in force and effect (as supplemented and amended from time to time, herein "Stockholders' Agreement"), shall prescribe the exact number of directors and their method of election, removal and replacement. No decrease in the number of Directors shall have the effect of shortening the term of any incumbent Director. (b) Subject to and at such time as provided in the Restated Certificate of Incorporation, the number of Directors shall be divided into three (3) classes, as nearly equal in number as may be, to serve staggered three-year terms on the Board of Directors. In the case of any increase in the number of Directors of the Corporation, the additional Directors shall be so classified that all classes of Directors shall be increased equally as nearly as may be, and the additional Directors shall be elected as provided herein by the Directors or by the stockholders at an annual meeting. In case of any decrease in the number of Directors of the Corporation, all classes of Directors shall be decreased equally, as nearly as 3 7 may be. Election of Directors shall be conducted as provided in the Restated Certificate of Incorporation, in these Bylaws, or by applicable law. (c) At all times the composition of the Board of Directors shall comply in all respects with the U.S. citizenship requirements of the Federal Aviation Act of 1958, as amended. 4.03 Nominations. Except as otherwise provided in the Stockholders' Agreement, no person shall be elected to the Board of Directors of this Corporation at an annual meeting of the stockholders, or at a special meeting called for that purpose, unless a written nomination of such person to the Board of Directors (i) by a stockholder of the Corporation who is entitled to vote at such meeting shall be received by the Secretary of the Corporation at least ninety (90) days prior to such meeting or (ii) is made by or at the direction of the Board of Directors. 4.04 Resignations. Any Director may resign at any time by giving written notice to the Board of Directors or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. 4.05 Removal. Except as otherwise provided in the Stockholders' Agreement, at any special meeting of the stockholders duly called as provided herein, any Director may, by a vote of the holders of stock representing a majority of the voting power of all the shares of stock issued and outstanding and entitled to vote thereat, be removed from office with or without cause, and the successor of the Director so removed may be elected at such meeting. Stockholders shall have the right to act by written consent in the removal of directors in accordance with the Stockholders' Agreement. In the absence or such an election, any vacancy may be filled as provided in Section 4.06. 4.06 Vacancies. (a) Except as otherwise provided in the Stockholders' Agreement, in case any vacancy shall occur on the Board of Directors because of death, resignation, retirement, disqualification, removal, an increase in the authorized number of Directors or any other cause, the Board of Directors may, at any meeting, by resolution adopted by the affirmative vote of a majority of the Directors then in office, though less than a quorum, elect a Director to fill such vacancy. (b) If, as a result of a disaster or emergency (as determined in good faith by the then remaining Directors), it becomes impossible to ascertain whether or not vacancies exist on the Board of Directors, and a person is or persons are elected by Directors, who in good faith believe themselves to be a majority of the remaining Directors, to fill a vacancy or vacancies that said remaining Directors in good faith believe exists, then the acts of such person or persons who are so elected as Directors shall be valid and binding upon the corporation and the stockholders, although it may subsequently develop that at the time of the election (i) there was in fact no vacancy or vacancies existing on the Board of Directors, or (ii) the Directors who so elected such person or persons did not in fact constitute a majority of the remaining Directors. 4.07 Presiding Officer and Secretary. At each meeting of the Board of Directors, the Chairman of the Board shall preside, and the Secretary shall act as secretary of the meeting. 4.08 Annual Meetings. The Board of Directors shall meet each year immediately following the annual meeting of stockholders, at the place where such meeting of stockholders has been held, or at such other place as shall be fixed by the person presiding over the meeting of the stockholders at which such Directors are elected, for the purpose of organization, election of officers, and consideration of such other business as the Board considers relevant to the management of the Corporation. 4.09 Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such times and places, within or without the state of Delaware, as shall from time to time be determined by the Board of Directors, provided that the Board of Directors shall hold at least four (4) regular meetings in each year. In the absence of any such determination, such meetings shall be held at such times and places, within or without the State of Delaware, as shall be designated by the Chairman of the Board on not less than three (3) days' notice (specifying the time and place of the meeting and the agenda therefor) to each 4 8 Director, given verbally or in writing either personally, by telephone, by facsimile transmission, by mail, by telegram or by telex. 4.10 Special Meetings. Special meetings of the Board of Directors shall be held at the call of the Chairman of the Board at such times and places, within or without the State of Delaware, as he or she shall designate, on not less than three (3) days' notice (specifying the time and place of the meeting and the agenda therefor) to each Director, given verbally or in writing either personally, by telephone, by facsimile transmission, by mail, by telegram or by telex. Special meetings shall be called by the Secretary on like notice at the written request of a majority of the Directors. 4.11 Quorum and Powers of a Majority. At all meetings of the Board of Directors and of each committee thereof, a majority of the members shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of the Board of Directors or such committee, unless by express provision of law, of the Restated Certificate of Incorporation or these Restated Bylaws, a different vote is required, in which case such express provision shall govern and control. In the absence of a quorum, a majority of the members present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting from time to time until a quorum is present. 4.12 Waiver of Notice. Notice of any meeting of the Board of Directors, or any committee thereof, need not be given to any member if waived by him or her in writing, whether before or after such meeting is held, or if he or she shall sign the minutes or attend the meeting. 4.13 Manner of Acting. (a) Members of the Board of Directors, or any committee thereof, may participate in any meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating therein can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (b) Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or such committee. 4.14 Compensation. (a) The Board of Directors, by a resolution or resolutions may fix, and from time to time change, the compensation of Directors. (b) Each Director shall be entitled to reimbursement from the Corporation for his or her reasonable expenses incurred in attending meetings of the Board of Directors or any committee thereof. (c) Nothing contained in these Restated Bylaws shall be construed to preclude any Director from serving the Corporation in any other capacity and from receiving compensation from the Corporation for service rendered to it in such other capacity. 4.15 Committees. The Board of Directors may, by resolution or resolutions adopted by the affirmative vote of a majority of the Board of Directors, designate one or more committees, each committee to consist of two or more Directors, which to the extent provided in said resolution or resolutions shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation; except that no such committee shall have the power to (i) elect Directors, (ii) alter, amend, or repeal these Bylaws or any resolution of the Board relating to such committee, (iii) appoint any member of such committee, (iv) declare any dividend or make any other distribution to the stockholders of the Corporation or (v) take any other actions which may lawfully be taken only by the full Board of Directors. Such committee or committees shall have such name or names as may be determined from time to time by resolutions adopted by the Board of Directors. 4.16 Committee Procedure. (a) Except as otherwise provided by these Restated Bylaws, each committee shall adopt its own rules governing the time, place and method of holding its meetings and the conduct of its proceedings and shall meet as provided by such rules or by resolution of the Board of Directors. Unless otherwise provided by these Restated Bylaws or any such rules or resolutions, notice of the time and place of 5 9 each meeting of a committee shall be given to each member of such committee as provided in Section 4.10 of these Restated Bylaws with respect to notices of special meetings of the Board of Directors. (b) Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. (c) Any member of any committee, other than a member thereof serving ex-officio, may be removed from such committee either with or without cause, at any time, by resolution adopted by the affirmative vote of a majority of the Board of Directors at any meeting thereof. Any vacancy in any committee shall be filled by the Board of Directors in the manner prescribed by these Restated Bylaws for the original appointment of the members of such committee. 5. OFFICERS. 5.01 Number. (a) The officers of the corporation shall include a Chief Executive Officer, a President, one or more Vice Presidents (including one or more Executive Vice Presidents and one or more Senior Vice Presidents if deemed appropriate by the Board of Directors), a Secretary and a Treasurer. The Board of Directors shall also elect a Chairman of the Board pursuant to Section 5.02. The Board of Directors may also elect such other officers as the Board of Directors may from time to time deem appropriate or necessary. Except for the Chairman of the Board, none of the officers of the Corporation need be a Director of the Corporation. Any two or more offices may be held by the same person, but no officer shall execute, acknowledge, or verify any instrument in more than one capacity. (b) The Chairman of the Board shall be the Chief Executive Officer unless the Board of Directors, by resolution adopted by the affirmative vote of not less than two-thirds ( 2/3) of the Directors then in office, designates the President or some other person as Chief Executive Officer. The President shall be the Chief Operating Officer. If at any time the offices of the Chairman of the Board and Chief Executive Officer shall not be filled, the President shall also be the Chief Executive Officer. (c) The Board of Directors may delegate to the Chief Executive Officer the power to appoint one or more employees of the corporation as divisional or departmental vice presidents and fix the duties of such appointees. However, no such divisional or departmental vice president shall be considered as an officer of the Corporation, the officers of the Corporation being limited to those officers elected by the Board of Directors. 5.02 Election of Officer, Qualification and Term. The officers of the Corporation to be elected by the Board of Directors shall be elected annually at the first meeting of the Board of Directors held after each annual meeting of the stockholders. Each such officer shall hold office for one (1) year and until a successor shall have been duly elected and shall qualify in his or her stead unless the Board of Directors shall have provided by contract or otherwise in any particular case, or until such officer shall have resigned and his or her resignation shall have become effective, or until such officer shall have been removed in the manner hereinafter provided. Notwithstanding anything in this Section 5.02 to the contrary, the Chairman of the Board may be elected only by the vote of two-thirds ( 2/3) of the Directors then in office (who may include the Director who is or is to be the Chairman of the Board). 5.03 Removal. Except as otherwise expressly provided in a contract duly authorized by the Board of Directors, any officer elected by the Board of Directors may be removed, either with or without cause, at any time by resolution adopted by the affirmative vote of a majority of the Board of Directors at any meeting thereof; provided that the Chairman of the Board may be removed by the vote of two-thirds ( 2/3) of the Directors then in office (excluding the Director who is the Chairman of the Board). 5.04 Resignations. Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors or the Chairman of the Board. Such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 6 10 5.05 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause may be filled for the unexpired portion of the term by election by the Board of Directors at any meeting thereof. 5.06 Salaries. The salaries of all officers of the Corporation shall be fixed by the Board of Directors from time to time, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a Director of the Corporation. 5.07 The Chairman of the Board. (a) The Chairman of the Board shall have the powers and duties customarily and usually associated with the office of the Chairman of the Board. The Chairman of the Board shall preside at meetings of the stockholders and of the Board of Directors. In the event of the Chairman of Board's temporary absence or disability and the absence or disability of the President, the Chairman of the Board shall have the power to designate any Director to preside at any or all meetings of the stockholders and of the Board of Directors. (b) If at any time the office of President shall not be filled, or in the event of the disability of the President, the Chairman of the Board (if one shall be elected) shall have the duties and powers of the President. The Chairman of the Board shall have such other powers and perform such greater or lesser duties as may be delegated to him from time to time by the Board of Directors. 5.08 The President. In the event of the disability of the Chairman of the Board, the President shall have the powers and duties of the Chairman of the Board. The President shall have such other powers and perform such other duties as may be delegated to him or her from time to time by the Board of Directors or the Chairman of the Board. 5.09 The Vice Presidents. Each Vice President shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board of Directors, the Chairman of the Board or the President. 5.10 The Secretary and the Assistant Secretary. (a) The Secretary shall attend meetings of the Board of Directors and meetings of the stockholders and record all votes and minutes of all such proceedings in a book kept for such purpose and shall perform like duties for the committees of Directors as provided for in these Restated Bylaws when required. The Secretary shall give, or cause to be given, notice of all meetings of stockholders and of the Board of Directors. He or she shall have charge of the stock ledger (unless responsibility for maintaining the stock ledger is delegated to a transfer agent by the Board of Directors pursuant to Section 6.06) and such other books and papers as the Board of Directors may direct. He or she shall have all such further powers and duties as generally are incident to the position of Secretary or as may from time to time be assigned to him or her by the Board of Directors or the Chairman of the Board. (b) Each Assistant Secretary shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board of Directors, the Chairman of the Board or the Secretary. In case of the absence or disability of the Secretary, the Assistant Secretary designated by the Secretary (or, in the absence of such designation, the senior Assistant Secretary) shall perform the duties and exercise the powers of the Secretary. 5.11 (a) The Treasurer and the Assistant Treasurer. The Treasurer shall have custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. He or she may endorse all commercial documents requiring endorsements for or on behalf of the Corporation and may sign all receipts and vouchers for payments made to the Corporation. (b) The Treasurer shall disburse funds of the Corporation as may from time to time be ordered by the Board of Directors, taking proper vouchers for such disbursements, and render to the Board of Directors, the Chairman of the Board and President, whenever they may require it, an account of all transactions undertaken by him or her as Treasurer and of the financial condition of the Corporation. 7 11 (c) The Treasurer shall also maintain adequate records of all assets, liabilities and transactions of the corporation and shall see that adequate audits thereof are currently and regularly made. The Treasurer shall have such other powers and perform such other duties that generally are incident to the position of Treasurer or as may from time to time be assigned to him or her by the Board of Directors, the Chairman of the Board or the President. (d) Each Assistant Treasurer shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board of Directors, the Chairman of the Board, the President or the Treasurer. In case of the absence or disability of the Treasurer, the Assistant Treasurer designated by the Treasurer (or, in the absence of such designation, the senior Assistant Treasurer) shall perform the duties and exercise the powers of the Treasurer. 5.12 Treasurer's Bond. If required by the Board of Directors, the Treasurer or any Assistant Treasurer shall give the Corporation a bond in such form and with such surety or sureties as are satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. 5.13 Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board of Directors, the general powers and duties of supervision, direction and management of the affairs and business of the Corporation usually vested in the chief executive officer of a Corporation, including, without limitation, all powers necessary to direct and control the organizational and reporting relationships within the Corporation. If at any time the office of Chairman of the Board shall not be filled, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board. 5.14 Chief Operating Officer. The Chief Operating Officer shall, subject to the supervision, direction and control of the Chief Executive Officer and the Board of Directors, manage the day-to-day operations of the Corporation and, in general, shall assist the Chief Executive Officer. 6. STOCK 6.01 Certificates. Certificates or shares of the stock of the Corporation shall be issued under the seal of the Corporation, or facsimile thereof, and shall be numbered and shall be entered in the books of the Corporation as they are issued. Each certificate shall bear a serial number, shall exhibit the holder's name and the number of shares evidenced thereby, and shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the Chief Executive Officer or the President or any Vice President and the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person or entity were such officer, transfer agent or registrar at the date of issue. 6.02 Transfers. Transfers of stock of the Corporation shall be made on the books of the Corporation only upon surrender to the Corporation of a certificate for the shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, provided such succession, assignment, or transfer is not prohibited by the Restated Certificate of Incorporation, the Bylaws, applicable law, or contract. Thereupon, the Corporation shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. 6.03 Lost, Stolen or Destroyed Certificates. Any person claiming a certificate of stock to be lost, stolen or destroyed shall make an affidavit or an affirmation of that fact, and shall give the Corporation a bond of indemnity in satisfactory form and with one or more satisfactory sureties, whereupon a new certificate may be issued of the same tenor and for the same number of shares as the one alleged to be lost or destroyed. 6.04 Record Date. (a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of the stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or 8 12 allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors shall fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. (b) If no record date is fixed by the Board of Directors, (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the date on which notice is given, or, if notice is waived by all stockholders entitled to vote at the meeting, at the close of business on the day next preceding the day on which the meeting was held and (ii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. (c) A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting, provided that the Board of Directors may fix a new record date for the adjourned meeting. 6.05 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares as the person entitled to exercise the rights referred to in Section 6.04 and shall not be bound to recognize any equitable or other claim to or interest in any such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the laws of the State of Delaware. 6.06 Additional Powers of the Board. (a) In addition to those powers set forth in Section 4.01, the Board of Directors shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer and registration of certificates for shares of stock of the Corporation. (b) The Board of Directors may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers. (c) The Board of Directors shall have power and authority to create and issue (whether or not in connection with the issue and sale of any stock or other securities of the Corporation) warrants, rights or options entitling the holders thereof to purchase from the Corporation any shares of any class or classes or any other securities of the Corporation for such consideration and to such persons, firms or corporations as the Board of Directors, in its sole discretion, may determine, setting aside from the authorized but unissued stock of the Corporation the requisite number of shares for issuance upon the exercise of such warrants, rights or options. Such warrants, rights or options shall be evidenced by such instrument or instruments as shall be approved by the Board of Directors. The terms upon which, the time or times (which may be limited or unlimited in duration) at or within which, and the price or prices at which any such shares or other securities may be purchased from the Corporation upon the exercise of any such warrant, right or option shall be such as shall be fixed and stated in a resolution or resolutions of the Board of Directors providing for the creation and issue of such warrants, rights or options. 7. LIMITATIONS OF OWNERSHIP BY NON-CITIZENS. 7.01 Definitions. (a) "Act" shall mean the Federal Aviation Act of 1958, as amended (Title 49 United States Code) or as the same may be from time to time amended. (b) "Beneficial Ownership," "Beneficially Owned" or "Owned Beneficially" refers to beneficial ownership as defined in Rule 13d-3 (without regard to the 60-day provision in paragraph (d)(1)(i) thereof) under the Securities Exchange Act of 1934, as amended. (c) "Foreign Stock Record" shall have the meaning set forth Section 7.03. (d) "Non-Citizen" shall mean any person or entity who is not a "Citizen of the United States" as defined in Section 101 of the Act, including any agent, trustee or representative of a Non-Citizen. 9 13 (e) "Own or Control" or "Owned or Controlled" shall mean (i) ownership of record, (ii) beneficial ownership or (iii) the power to direct, by agreement, agency or in any other manner, the voting of Stock. Any determination by the Board of Directors as to whether Stock is Owned or Controlled by a Non-Citizen shall be final. (f) "Permitted Percentage" shall mean twenty five percent (25%) of the voting power of the Stock. (g) "Stock" shall mean the outstanding capital stock of the corporation entitled to vote; provided, however, that for the purpose of determining the voting power of Stock that shall at any time constitute the Permitted Percentage, the voting power of Stock outstanding shall not be adjusted downward solely because shares of Stock may not be entitled to vote by reason of any provision of this Article 7. 7.02 Policy. It is the policy of the Corporation that, consistent with the requirements of Section 101 of the Act, Non-Citizens shall not Own or Control more than the Permitted Percentage and, if Non-Citizens nonetheless at any time Own or Control more than the Permitted Percentage, the voting rights of the Stock in excess of the Permitted Percentage shall be automatically suspended in accordance with Sections 7.03 and 7.04 below. 7.03 Foreign Stock Record. The Corporation or any transfer agent designated by it shall maintain a separate stock record (the "Foreign Stock Record") in which shall be registered Stock known to the corporation to be Owned or Controlled by Non-Citizens. The Foreign Stock Record shall include (i) the name and nationality of each such Non-Citizen, (ii) the number of shares of Stock Owned or controlled by such Non-Citizen and (iii) the date of registration of such shares in the Foreign Stock Record. In no event shall shares in excess of the Permitted Percentage be entered on the Foreign Stock Record. In the event that the Corporation shall determine that stock registered on the Foreign Stock Record exceeds the Permitted Percentage, sufficient shares shall be removed from the Foreign Stock Record so that the number of shares entered therein does not exceed the Permitted Percentage. Stock shall be removed from the Foreign Stock Record in reverse chronological order based upon the date of registration therein. 7.04 Suspension of Voting Rights. If at any time the number of shares of Stock known to the Corporation to be Owned or Controlled by Non-Citizens exceeds the Permitted Percentage, the voting rights of Stock Owned or Controlled by Non-Citizens and not registered on the Foreign Stock Record at the time of any vote or action of the stockholders of the Corporation shall, without further action by the Corporation, be suspended. Such suspension of voting rights shall automatically terminate upon the earlier of the (i) transfer of such shares to a person or entity who is not a Non-Citizen, or (ii) registration of such shares on the Foreign Stock Record, subject to the final sentence of Section 7.03. 7.05 Beneficial Ownership Inquiry. (a) The Corporation may by notice in writing (which may be included in the form of proxy or ballot distributed to stockholders in connection with the annual meeting or any special meeting of the stockholders of the Corporation, or otherwise) require a person that is a holder of record of Stock or that the Corporation knows to have, or has reasonable cause to believe has, Beneficial Ownership of Stock to certify in such manner as the Corporation shall deem appropriate (including by way of execution of any form of proxy or ballot of such person) that, to the knowledge of such person: (i) all Stock as to which such person has record ownership or Beneficial Ownership is owned and controlled only by Citizens of the United States; or (ii) the number and class or series of Stock owned of record or Beneficially Owned by such person that is owned or controlled by Non-Citizens is as set forth in such certificate. (b) With respect to any Stock identified in response to clause (a)(ii) above, the Corporation may require such person to provide such further information as the Corporation may reasonably require in order to implement the provisions of this Article 7. (c) For purposes of applying the provisions of this Article 7 with respect to any Stock, in the event of the failure of any person to provide the certificate or other information to which the Corporation is entitled pursuant to this Section 7.05, the Corporation shall presume that the Stock in question in owned or controlled by Non-Citizens. 10 14 8. MISCELLANEOUS. 8.01 Place and Inspection of Books. (a) The books of the Corporation other than such books as are required by law to be kept within the State of Delaware shall be kept in the State of Arizona or at such place or places either within or without the State of Delaware as the Board of Directors may from time to time determine. (b) At least ten (10) days before each meeting of stockholders, the officer in charge of the stock ledger of the Corporation shall prepare a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. (c) The Board of Directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the Corporation (except such as may be by law specifically open to inspection or as otherwise provided by these Restated Bylaws) or any of them shall be open to the inspection of the stockholders and the stockholders' rights in respect thereof. 8.02 Indemnification of Directors, Officers, Employees and Agents. (a) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that such person is or was a Director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses, including attorneys' fees, judgments, fines and amounts paid or owed in settlement actually and reasonably paid or incurred by him or her or rendered or levied against him or her in connection with such action, suit or proceeding if he acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation; and with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, in itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. (b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a Director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses, including attorneys' fees, actually and reasonably paid or incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation; provided, however, that no indemnification shall be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. (c) The Corporation shall, at the discretion of the Board of Directors, indemnify all employees and agents of the Corporation (other than Directors and officers) to the extent that Directors and officers shall be indemnified pursuant to subsections (a) and (b). 11 15 (d) To the extent that a person who may be entitled to indemnification by the Corporation under this section is or has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b), or in defense of any claim, issue or matter therein, he shall be indemnified against expenses, including attorney's fees, actually and reasonably paid or incurred by him in connection therewith. (e) Any indemnification under subsections (a), (b), or (c) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Director, officer, employee or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in subsection (a) or (b). Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested Directors so directs, by independent legal counsel in a written opinion, (iii) by the stockholders, or (iv) in any case in which applicable law makes court approval a prerequisite to indemnification, by the court in which such action, suit or proceeding was brought or another court of competent jurisdiction. (f) Expenses, including attorneys' fees, incurred by an officer or Director in defending a civil, criminal, administrative, or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the Director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized in this section. Such expenses, including attorneys' fees, incurred by other employees and agents shall be so paid upon terms and conditions, if any, as the Board of Directors deems appropriate. (g) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of the stockholders or disinterested directors or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office. (h) The provisions of this section shall continue as to a person who has ceased to be a Director, officer, employee or agent and shall inure to the benefit of the estate, executors, administrators, spouse, heirs, legatees or devisees of a person entitled to indemnification hereunder and the term "person," where used in the section shall include the estate, executors, administrators, spouse, heirs, legatees or devisees of such person. (i) For the purposes of this Section 8.02, (i) "employee benefit plan" and "fiduciary" shall be deemed to include, but not be limited to, the meanings set forth, respectively, in Sections 3(3) and 21(A) of the Employee Retirement Income Security Act of 1974, as amended, and references to the judgments, fines and amounts paid or owed in settlement or rendered or levied shall be deemed to encompass and include excise taxes required to be paid pursuant to a applicable law in respect of any transaction involving an employee benefit plan, (ii) references to the Corporation shall be deemed to include any predecessor corporation and any constituent corporation absorbed in a merger, consolidation or other reorganization of or by the Corporation which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents or fiduciaries so that any person who was a director, officer, employee, agent or fiduciary of such predecessor or constituent corporation, or served at the request of such predecessor or constituent corporation as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Section 8.02 with respect to the Corporation as such person would have with respect to such predecessor or constituent corporation if its separate existence had continued, and (iii) all other terms shall be deemed to have the meanings for such terms as set forth in Section 145 of the DGCL. 8.03 Dividends. (a) Dividends may be declared at the discretion of the Board of Directors at any meeting thereof. 12 16 (b) Dividends may be paid to stockholders in cash or, when the Directors shall so determine, in stock. A Director shall be fully protected in relying in good faith upon the books of account of the Corporation or statements prepared by any of its officers as to the value and amount of the assets, liabilities or net profits of the Corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared. (c) Before payment of any dividend or any distribution of profits, there may be set aside out of the said surplus of the Corporation such sum or sums as the Board of Directors from time to time, in its discretion thinks proper as a reserve fund to meet contingencies, or for equalizing dividends, or for such other purpose as the Board of Directors shall think conducive to the interests of the Corporation and the Board of Directors may abolish any such reserve in the manner in which it was created. 8.04 Execution of Deeds, Contracts, and Other Agreements and Instruments. Subject to the specific directions of the Board of Directors, all deeds, mortgages and bonds entered into by the Corporation and all other written contracts and agreements to which the Corporation shall be a party shall be executed in its name by the Chairman of the Board, the President, or a Vice President, or such other person or persons as may be authorized by any such officer. 8.05 Checks. All checks, drafts, acceptances, notes and other orders, demands or instruments in respect to the payment of money may be signed or endorsed on behalf of the Corporation by such officer or officers or by such agent or agents as the Board of Directors may from time to time designate. 8.06 Voting Shares in Other Corporations. The Chairman of the Board of the Corporation (or any other Director designated by a majority of the Board of Directors) may vote any and all shares held by the Corporation in any other corporation. 8.07 Fiscal Year. The fiscal year of the Corporation shall correspond with the calendar year. 8.08 Gender/Number. As used in these Restated Bylaws, the masculine, feminine or neuter gender, and the singular or plural number, shall each include the others whenever the context so indicates. 8.09 Paragraph Titles. The titles of the paragraphs have been inserted as a matter of reference only and shall not control or affect the meaning or construction of any of the terms and provisions hereof. 8.10 Amendment. These Restated Bylaws may be altered, amended or repealed by the affirmative vote of the holders of a majority of the voting power of the stock issued and outstanding and entitled to vote at any meeting of stockholders or by resolution adopted by the affirmative vote of not less than a majority of the Directors in office at any annual or regular meeting of the Board of Directors or at any special meeting of the Board of Directors if notice if the proposed alteration, amendment or repeal be contained in the notice of such special meeting. 8.11 Restated Certificate of Incorporation. Notwithstanding anything to the contrary contained herein, if any provision contained in these Restated Bylaws is inconsistent with or conflicts with a provision of the Restated Certificate of Incorporation, such provision of these Restated Bylaws shall be superseded by the inconsistent provision in the Restated Certificate of Incorporation to the extent necessary to give effect to such provision in the Restated Certificate of Incorporation. 13 EX-4.1 5 FORM OF INDENTURE 1 EXHIBIT 4.1 ================================================================================ AMERICA WEST AIRLINES, INC., AND _______________________________________________________, TRUSTEE INDENTURE DATED AS OF , 1994 ________________________________________ $100,000,000 % SENIOR UNSECURED NOTES DUE 2001 ================================================================================ 2 CROSS REFERENCE SHEET(1) Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of , 1994 among AMERICA WEST AIRLINES, INC. and [ ], Trustee:
SECTION OF THE ACT SECTION OF INDENTURE __________________ ____________________ 310(a)(1) and (2)................................... 6.9 and 6.10(b) 6.8, 6.10(a), (b) and (d), 6.11 and 310(b).............................................. 6.12 311(a).............................................. 6.13 312(a).............................................. 4.1 and 4.2 312(b).............................................. 4.2 312(c).............................................. 4.2 313(a).............................................. 4.4 313(c).............................................. 4.4, 5.11, 6.10, 6.11, 8.2 and 12.2 314(a).............................................. 4.3 314(a)(4)........................................... 3.5 314(c)(1) and (2)................................... 11.5 314(c)(3)........................................... Inapplicable 314(e).............................................. 11.5 315(a), (c) and (d)................................. 6.1 315(b).............................................. 5.11 315(e).............................................. 5.12 and 6.10(b) 316(a)(1)........................................... 5.9 316(a) (last sentence).............................. 7.4 316(b).............................................. 5.7 317(a).............................................. 5.2 317(b).............................................. 3.4(a) and (b) 318(a).............................................. 11.7
- --------------- (1) This Cross Reference Sheet is not part of the Indenture. 3 TABLE OF CONTENTS
PAGE ---- ARTICLE ONE -- DEFINITIONS............................................................ SECTION 1.1 Certain Terms Defined............................................... "Adjusted Consolidated Net Income"............................................... "Affiliates"..................................................................... "Alliance Agreements"............................................................ "Applicable Documents"........................................................... "Asset Sale"..................................................................... "Authenticating Agent"........................................................... "Board of Directors"............................................................. "Board Resolution"............................................................... "Business Day"................................................................... "Capital Stock".................................................................. "Capitalized Lease Obligation"................................................... "Cash Equivalents"............................................................... "Closing Date"................................................................... "Commission"..................................................................... "Commodity Agreement"............................................................ "Common Stock"................................................................... "Company"........................................................................ "Company Order".................................................................. "Consolidated" or "consolidated"................................................. "Consolidated Net Worth"......................................................... "Consolidated Tangible Net Worth"................................................ "Corporate Trust Office"......................................................... "Currency Agreement"............................................................. "Default"........................................................................ "Depository"..................................................................... "Event of Default"............................................................... "Exchange Act"................................................................... "GAAP"........................................................................... "Global Security"................................................................ "Guarantee"...................................................................... "Holder", "Holder of Securities", "Securityholder"............................... "Indebtedness"................................................................... "Indenture"...................................................................... "Independent Financial Advisor".................................................. "Interest Payment Date".......................................................... "Interest Rate Agreement"........................................................ "Investment"..................................................................... "Investment Grade"............................................................... "Lien"........................................................................... "Moody's"........................................................................ "Net Cash Proceeds".............................................................. "Net Offering Proceeds".......................................................... "Net Proceeds Offer"............................................................. "Net Proceeds Purchase Date"..................................................... "Officer"........................................................................ "Officers' Certificate".......................................................... "Opinion of Counsel"............................................................. "Outstanding"....................................................................
i 4
PAGE ---- "Paying Agent"................................................................... "Payment Restriction"............................................................ "Person"......................................................................... "principal"...................................................................... "Public Offering Sale"........................................................... "Purchase Agreement"............................................................. "record date".................................................................... "Redeemable Dividends"........................................................... "Redeemable Stock"............................................................... "Redemption Date"................................................................ "Redemption Price"............................................................... "Refinancing Indebtedness"....................................................... "Registration Rights Agreement".................................................. "Responsible Officer"............................................................ "Restricted Payment"............................................................. "S&P"............................................................................ "Securities Act"................................................................. "Security" or "Securities"....................................................... "Stated Maturity"................................................................ "Subsidiary"..................................................................... "TIA"............................................................................ "Trade Payables"................................................................. "Trustee"........................................................................ "U.S. Government Obligations".................................................... "U.S. Legal Tender".............................................................. "Voting Stock"................................................................... "Wholly Owned"................................................................... ARTICLE TWO SECURITIES............................................................................ SECTION 2.1 Form and Dating..................................................... SECTION 2.2 Execution and Authentication........................................ SECTION 2.3 Certificate of Authentication....................................... SECTION 2.4 Payments of Interest................................................ SECTION 2.5 Registration, Transfer and Exchange................................. SECTION 2.6 Mutilated, Defaced, Destroyed, Lost and Stolen Securities........... SECTION 2.7 Cancellation of Securities; Destruction Thereof..................... SECTION 2.8 Temporary Securities................................................ SECTION 2.9 Currency and Manner of Payments in Respect of Securities............ SECTION 2.10 CUSIP Number......................................................... ARTICLE THREE REDEMPTIONS........................................................................... SECTION 3.1 Notices to Trustee.................................................. SECTION 3.2 Selection of Securities to be Redeemed.............................. SECTION 3.3 Notice of Redemption................................................ SECTION 3.4 Effect of Notice of Redemption...................................... SECTION 3.5 Deposit of Redemption Price......................................... SECTION 3.6 Securities Redeemed in Part......................................... SECTION 3.7 Optional Redemption................................................. ARTICLE FOUR COVENANTS OF THE COMPANY..............................................................
ii 5
PAGE ---- SECTION 4.1 Payment of Principal and Interest................................... SECTION 4.2 Offices for Payments, etc........................................... SECTION 4.3 Appointment to Fill a Vacancy in Office of Trustee.................. SECTION 4.4 Paying Agents....................................................... SECTION 4.5 Reports and Information............................................. SECTION 4.6 Corporate Existence................................................. SECTION 4.7 Payment of Taxes and Other Claims................................... SECTION 4.8 Maintenance of Properties........................................... SECTION 4.9 Maintenance of Insurance............................................ SECTION 4.10 Compliance with Laws................................................. SECTION 4.11 Disposition of Proceeds of Public Offering Sale...................... SECTION 4.12 Limitation on Issuances and Dispositions of Capital Stock of Subsidiaries......................................................... SECTION 4.13 Limitation on Restricted Payments.................................... SECTION 4.14 Limitation on Transactions with Affiliates........................... SECTION 4.15 Limitation on Asset Sales............................................ SECTION 4.16 Limitation on Payment Restrictions Affecting Subsidiaries............ SECTION 4.18 Limitation on Investments............................................ SECTION 4.19 Waiver of Stay, Extension or Usury Laws.............................. ARTICLE FIVE SECURITYHOLDERS LISTS AND REPORTS BY COMPANY AND THE TRUSTEE.......................... SECTION 5.1 The Company to Furnish Trustee Information as to Names and Addresses of Securityholders............................................. SECTION 5.2 Disclosure of Names and Addresses of Securityholders................ SECTION 5.3 Reports by the Trustee.............................................. ARTICLE SIX CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER......................................... SECTION 6.1 Merger or Consolidation............................................. SECTION 6.2 Successor Corporation Substituted................................... ARTICLE SEVEN REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT....................... SECTION 7.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default............................................................. SECTION 7.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt....... SECTION 7.3 Application of Proceeds............................................. SECTION 7.4 Suits for Enforcement............................................... SECTION 7.5 Restoration of Rights on Abandonment of Proceedings................. SECTION 7.6 Limitations on Suits by Securityholders............................. SECTION 7.7 Unconditional Right of Securityholders to Institute Certain Suits... SECTION 7.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default............................................................. SECTION 7.9 Control by Holders of Securities.................................... SECTION 7.10 Waiver of Past Defaults.............................................. SECTION 7.11 Trustees to Give Notice of Default, But May Withhold in Certain Circumstances........................................................ SECTION 7.12 Right of Court to Require Filing of Undertaking to Pay Costs......... ARTICLE EIGHT CONCERNING THE TRUSTEE................................................................ SECTION 8.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default............................................................. SECTION 8.2 Certain Rights of the Trustee....................................... SECTION 8.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof.....................................
iii 6
PAGE ---- SECTION 8.4 Trustee and Agents May Hold Securities; Collections, etc............ SECTION 8.5 Monies Held by Trustee.............................................. SECTION 8.6 Compensation and Indemnification of Trustee and Its Prior Claim..... SECTION 8.7 Right of Trustee to Rely on Officers' Certificate, etc.............. SECTION 8.8 Persons Eligible for Appointment as Trustee......................... SECTION 8.9 Resignation and Removal; Appointment of Successor Trustee........... SECTION 8.10 Acceptance of Appointment by Successor Trustee....................... SECTION 8.11 Merger, Conversion, Consolidation or Succession to Business of Trustee.............................................................. SECTION 8.12 Preferential Collection of Claims Against the Company................ SECTION 8.13 Appointment of Authenticating Agent.................................. ARTICLE NINE CONCERNING THE SECURITYHOLDERS........................................................ SECTION 9.1 Evidence of Action Taken by Securityholders......................... SECTION 9.2 Proof of Execution of Instruments and of Holding of Securities...... SECTION 9.3 Holders to be Treated as Owners..................................... SECTION 9.4 Securities Owned by the Company Deemed Not Outstanding.............. SECTION 9.5 Right of Revocation of Action Taken................................. ARTICLE TEN AMENDMENTS............................................................................ SECTION 10.1 Amendments and Supplements Permitted Without Consent of Holders...... SECTION 10.2 Amendments and Supplements Requiring Consent of Holders.............. SECTION 10.3 Compliance with TIA.................................................. SECTION 10.4 Revocation and Effect of Consents.................................... SECTION 10.5 Notation on or Exchange of Securities................................ SECTION 10.6 Trustee Protected.................................................... ARTICLE ELEVEN SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONIES............................. SECTION 11.1 Satisfaction and Discharge of Indenture.............................. SECTION 11.2 Application by Trustee of Funds Deposited for Payment of Securities; Other Miscellaneous Provisions................................. SECTION 11.3 Repayment of Monies Held by Paying Agent............................. SECTION 11.4 Return of Monies Held by Trustee and Paying Agent Unclaimed for Two Years...................................................... SECTION 11.5 Indemnity for U.S. Government Obligations............................ ARTICLE TWELVE MISCELLANEOUS PROVISIONS.............................................................. SECTION 12.1 Incorporators, Stockholders, Officers and Directors of the Company Exempt from Individual Liability............................... SECTION 12.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities........................................................ SECTION 12.3 Successors and Assigns of the Company Bound by Indenture............. SECTION 12.4 Notices.............................................................. SECTION 12.5 Officers' Certificates and Opinions of Counsel; Statements to be Contained Therein.............................................. SECTION 12.6 Payments Due on Saturdays, Sundays and Holidays...................... SECTION 12.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939................................................................. SECTION 12.8 New York Law to Govern............................................... SECTION 12.9 Counterparts......................................................... SECTION 12.10 Effect of Headings...................................................
iv 7 INDENTURE, dated as of , 1994, between America West Airlines, Inc., a Delaware corporation (the "Company"), having its principal office at 4000 East Sky Harbour Blvd., Phoenix, Arizona 85034, and (the "Trustee"). Each party hereto agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company's % Senior Unsecured Notes due 2001. ARTICLE ONE DEFINITIONS SECTION 1.1 Certain Terms Defined. The following terms (except as otherwise expressly provided or unless the context otherwise clearly requires) for all purposes of this Indenture shall have the respective meanings specified in this Section. All other terms used in this Indenture that are defined in the TIA or the definitions of which in the Securities Act are referred to in the TIA, including terms defined therein by reference to the Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in the TIA and in the Securities Act as in force at the date of this Indenture. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with GAAP. The words "herein " "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular. "Adjusted Consolidated Net Income" means, for any Person for any period, the aggregate net income (or loss) of such Person and its consolidated Subsidiaries for such period determined in accordance with GAAP; provided that the following items shall be excluded in computing Adjusted Consolidated Net Income (without duplication): (i) the net income (or loss) of any Person (other than a Subsidiary of such first Person) in which any other Person (other than such first Person or any of its Subsidiaries) has a joint or shared interest, except to the extent of the amount of cash dividends or other distributions actually paid to, and received by, such first Person or any of its Subsidiaries during such period out of funds legally available therefor, (ii) the net income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of such first Person or any of its Subsidiaries or all or substantially all of the property and assets of such Person are acquired by such first Person or any of its Subsidiaries, (iii) the net income (or loss) of any Subsidiary of such first Person which Subsidiary is subject to a Payment Restriction, except (A) such exclusion shall not apply to the extent of the amount of cash dividends or other distributions actually paid to, and received by, such first Person or any of its Subsidiaries during such period from such Subsidiary in compliance with such Payment Restriction out of funds legally available therefor and (B) such exclusion shall apply only while such Payment Restriction is in effect, and upon the elimination or reduction of such Payment Restriction, the previously excluded net income (or loss) shall be added back retroactively; (iv) any gains or losses (on an after-tax basis) attributable to Asset Sales; and (v) all extraordinary gains and extraordinary losses. "Affiliates" means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlling", "controlled by" and "under common control with"), as applied to any Person, is defined to mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. "Alliance Agreements" [To Come] "Applicable Documents" means collectively, the Purchase Agreement, the Registration Rights Agreement, this Indenture and the Securities. "Asset Sale" means any sale, transfer or other disposition (including by way of merger, consolidation, exchange of assets or sale-leaseback transactions), in one transaction or a series of related transactions, by the Company or any of its Subsidiaries to any Person other than the Company or any of its Subsidiaries of (i) all 8 or any of the Capital Stock of any Subsidiary of the Company, (ii) all or substantially all of the property and assets of an operating unit or business of the Company or any of its Subsidiaries or (iii) any other property and assets of the Company or any of its Subsidiaries outside the ordinary course of business of the Company or such Subsidiary and, in each case, that is not governed by the provisions of Article Six of this Indenture; provided that none of (A) sales or other dispositions of inventory, receivables and other current assets, (B) sale or other dispositions of surplus equipment, spare parts, expendable inventories, furniture or fixtures in an aggregate amount not to exceed $10,000,000 in any fiscal year of the Company, (C) sale leasebacks of aircraft and engines, passenger loading bridges or other flight or ground equipment, flight simulators or the Company's reservation facility located at 222 South Mill Avenue, Tempe, Arizona or (D) $20,000,000 of other sales in any fiscal year of the Company shall be included within the meaning of "Asset Sale". "Authenticating Agent" shall have the meaning set forth in Section 8.13. "Board of Directors" when used with reference to any Person, means the Board of Directors of such Person or any committee of such Board duly authorized, with respect to any particular matter, to exercise the power of the Board of Directors of such Person. "Board Resolution" means, with respect to any Person, a duly adopted resolution of the Board of Directors of such Person, as certified by the Secretary or an Assistant Secretary of such Person. "Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in the City of New York, New York, the City of Phoenix, Arizona or the city of the Corporate Trust Office of the Trustee, are authorized or required by law to close. "Capital Stock" means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of such Person's capital stock, whether now outstanding or issued after the date of this Indenture, including, without limitation, all Common Stock. "Capitalized Lease Obligation" means, as applied to any Person, obligations of such Person under any lease of any property (whether real, personal or mixed) which, in accordance with GAAP, is required to be capitalized on the balance sheet of such Person, and the amount of Indebtedness represented by such obligations shall be the capitalized amount of such obligations determined in accordance with GAAP. "Cash Equivalents" means (i) U.S. Government Obligations, (ii) commercial paper, (iii) time deposits, certificates of deposit and banker's acceptances, (iv) repurchase agreements that are secured by a perfected security interest in U.S. Government Obligations, and (v) money market funds investing solely in one or both of the types of securities described in clauses (i) and (ii) above. "Closing Date" means the date on which the Securities are originally issued under this Indenture. "Commission" means the Securities and Exchange Commission, as from time to time constituted, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the TIA, then the body performing such duties on such date. "Commodity Agreement" means any agreement or arrangement designed to protect the Company or any of its Subsidiaries against fluctuations in the prices of commodities used by the Company or any of its Subsidiaries in the ordinary course of its business. "Common Stock" means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of such Person's common stock, whether now outstanding or issued after the date of this Indenture, including, without limitation, all series and classes of such common stock. "Company" means America West Airlines, Inc., a Delaware corporation and, subject to Article Six hereof, its successors and assigns. "Company Order" means a written statement, request or order of the Company signed in its name by the Chairman, the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Trustee. 2 9 "Consolidated" or "consolidated," when used with reference to any accounting term, means the amount described by such accounting term, determined on a consolidated basis in accordance with GAAP, after elimination of intercompany items. "Consolidated Net Worth" means, with respect to any Person on any date, the consolidated stockholders' equity, less amounts attributable to Redeemable Stock, of such Person and its Subsidiaries on such date as determined on a consolidated basis in accordance with GAAP; provided that, with respect to the Company, adjustments following the Closing Date to the accounting books and records of the Company in accordance with Accounting Principles Board Opinions Nos. 16 and 17 (or successor opinions thereto) shall not be given effect. "Consolidated Tangible Net Worth" means, with respect to any Person on any date, the Consolidated Net Worth of such Person on such date, less the net book value on such date as shown by the accounting books and records of such Person and its Subsidiaries of all of its licenses, patents, patent applications, copyrights, trademarks, trade names, goodwill, non-compete agreements or unamortized debt discount and expense, all as determined on a consolidated basis in accordance with GAAP. "Corporate Trust Office" means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered, which office is, at the date as of which this Indenture is dated, located at . "Currency Agreement" means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Company or any of its Subsidiaries against fluctuations in currency values or under which the Company or any of its Subsidiaries is a party or a beneficiary on the date of the Indenture or becomes a party or a beneficiary thereafter. "Default" means any event that is, or after notice or passage of time or both would be, an Event of Default. "Depository" means, with respect to the Securities issued in the form of one or more Global Securities, each Person designated as Depository by the Company until a successor Depository shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Depository" shall mean or include each Person who is then a Depository hereunder. "Event of Default" means any event or condition specified as such in Section 7.1. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "GAAP" means generally accepted accounting principles in the United States of America as in effect as of the date of this Indenture, including, without limitation, those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board. "Global Security" means a Security evidencing all or a part of the Securities, issued to a Depository or its nominee in accordance with Section 2.2, and bearing the legend prescribed in Section 2.2. "Guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct, or indirect, contingent or otherwise, of such first Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keepwell, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The term "Guarantee" used as a verb has a corresponding meaning. 3 10 "Holder", "Holder of Securities", "Securityholder" or other similar terms means the person in whose name a Security is registered in the security register kept by the Company for that purpose in accordance with the terms hereof. "Indebtedness" means, with respect to any Person at any date of determination (without duplication), (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto), (iv) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services, except Trade Payables, (v) all obligations of such Person as lessee under Capitalized Leases, (vi) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of such Indebtedness shall be the lesser of (A) the fair market value of such asset at such date of determination and (B) the stated principal amount of such Indebtedness, (vii) all Indebtedness of other Persons Guaranteed by such Person to the extent such Indebtedness is Guaranteed by such Person, (viii) to the extent not otherwise included in this definition, obligations under Currency Agreements, Interest Rate Agreements and Commodity Agreements. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and the maximum liability, upon the occurrence of the contingency giving rise to the obligation, of any contingent obligations at such date; provided that the amount outstanding at any time of any Indebtedness issued with original issue discount is the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity with GAAP. "Indenture" means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the form and terms of the Securities as set forth herein. "Independent Financial Advisor" means a reputable accounting, appraisal or a nationally recognized investment banking firm that is, in the reasonable judgment of the Board of Directors of the Company, qualified to perform the task for which such firm has been engaged hereunder and disinterested and independent with respect to the Company and its Affiliates. "Interest Payment Date", means the fifteenth day of each and , commencing 15, 1994. "Interest Rate Agreement" means any interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement designed to protect the Company or any of its Subsidiaries against fluctuations in interest rates or under which the Company or any of its Subsidiaries is a party or a beneficiary on the date of this Indenture or becomes a party or a beneficiary thereafter. "Investment" means, with respect to any Person, any direct or indirect advance, loan (other than advances to customers in the ordinary course of business consistent with past practices that are recorded as accounts receivable on the balance sheet of such Person or its Subsidiaries) or other extension of credit or capital contribution by such Person to any other Person (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others; provided, that any transfer of aircraft to a limited partnership or other entity in connection with the transaction in which the aircraft are leased to the Company shall not be an Investment), or any purchase or acquisition by such person of Capital Stock, bonds, notes, debentures or other similar instruments issued by any other Person. "Investment Grade" means a rating of BBB-or higher by S&P or Baa3 or higher by Moody's or the equivalent of such ratings by S&P or Moody's. In the event that the Company shall select any other rating agency, the equivalent of such ratings by such rating agency shall be used. "Lien" means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including, without limitation, any conditional sale or other title retention agreement or lease in the nature 4 11 thereof, any sale with recourse against the seller or any Affiliate of the seller, or any agreement to give any security interest); provided, that in no event shall a true operating lease be deemed to constitute a Lien hereunder. "Moody's" means Moody's Investors Service, Inc. and its successors. "Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds of such Asset Sale in the form of cash or Cash Equivalents, including payments in respect of deferred payment obligations (to the extent corresponding to the principal, but not interest, component thereof) when received in the form of cash or Cash Equivalents (except to the extent such obligations are financed or sold with recourse to the Company or any Subsidiary of the Company) and proceeds from the conversion of other property received when converted to cash or Cash Equivalents, net of (i) brokerage commissions and other fees and expenses (including fees and expenses of counsel and investment bankers) related to such Asset Sale, (ii) provisions for all taxes payable as a result of such Asset Sale without regard to the consolidated results of operations of the Company and its Subsidiaries, taken as a whole, (iii) payments made to repay Indebtedness or any other obligation outstanding at the time of such Asset Sale that either (A) is secured by a Lien on the property or assets sold or (B) is required by its own terms to be paid as a result of such Asset Sale, and (iv) appropriate amounts to be provided by the Company or any Subsidiary of the Company as a reserve against any liabilities associated with such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, all as determined in conformity with GAAP. "Net Offering Proceeds" means, with respect to any Public Offering Sale, the proceeds of such Public Offering Sale in the form of cash or Cash Equivalents, net of (i) underwriting discounts and commissions and other fees and expenses (including fees and expenses of counsel) incurred in connection with such Public Offering Sale, (ii) provisions for all taxes payable as a result of such Public Offering Sale without regard to the consolidated results of operations of the Company and its Subsidiaries, taken as a whole, and (iii) appropriate amounts to be provided by the Company or any Subsidiary of the Company as a reserve against any liabilities associated with such Public Offering Sale, all as determined in conformity with GAAP. "Net Proceeds Offer" shall have the meaning set forth in Section 4.11(a). "Net Proceeds Purchase Date" shall have the meaning set forth in Section 4.11(b). "Officer" means with respect to any Person, the Chairman, the President, the Secretary, any Assistant Secretary, the Chief Financial Officer, the Controller, the Treasurer, the Assistant Treasurer or any Vice President of such Person. "Officers' Certificate" means a certificate signed by the Chairman, the President or a Vice President of the Company and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company. "Opinion of Counsel" means a written opinion of legal counsel, who may be either internal or outside counsel for the Company. "Outstanding" when used with reference to Securities, subject to the provisions of Section 9.4 means, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except: (a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (b) Securities, or portions thereof, for the payment or redemption of which monies or U.S. Government Obligations (as provided for in Section 11.1) in the necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside, segregated and held in trust by the Company for the Holders of such Securities (if the Company shall act as Paying Agent); provided, however, that, if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and 5 12 (c) Securities that shall have been paid or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.6. "Paying Agent" means any Person (which may include the Company) authorized by the Company to pay the principal of, premium (if any) or interest on the Securities on behalf of the Company. "Payment Restriction" means, with respect to a Subsidiary of any Person, any encumbrance, restriction or limitation, whether by operation of the terms of its charter or by reason of any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation, on the ability of (i) such Subsidiary to (a) pay dividends or make other distributions on its Capital Stock or make payments on any obligation, liability or Indebtedness owed to such Person or any other Subsidiary of such Person, (b) make loans or advances to such Person or any other Subsidiary of such Person, or (c) transfer any of its property or assets to such Person or any other Subsidiary of such Person, or (ii) such Person or any other Subsidiary of such Person to receive or retain any such (a) dividends, distributions or payments, (b) loans or advances, or (c) property or assets. "Person" means an individual, a corporation, a partnership, an association, a business trust, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "principal" of any Indebtedness (including the Securities) means the principal of such Indebtedness plus the premium, if any, on such Indebtedness. "Public Offering Sale" means an underwritten public offering of Capital Stock of the Company pursuant to a registration statement filed pursuant to the Securities Act. "Purchase Agreement" means that certain Note Purchase Agreement dated as of the date of this Indenture pursuant to which the Company agreed to issue and sell and the Purchasers named in such agreement agreed to purchase, an aggregate of $100,000,000 in principal amount of Securities. "record date" shall have the meaning set forth in Section 2.4. "Redeemable Dividends" means, for any dividend payable with regard to Redeemable Stock, the quotient of (i) the aggregate amount of the dividend divided by (ii) the difference between one and the maximum statutory federal and state income tax rate (expressed as a decimal number between one and zero) then applicable to the issuer of such Redeemable Stock. "Redeemable Stock" means any class or series of Capital Stock of any Person that by its terms or otherwise (i) is required to be redeemed prior to the Stated Maturity of the Securities, (ii) may be required to be redeemed at the option of the holder of such class or series of Capital Stock at any time prior to the Stated Maturity of the Securities or (iii) is convertible into or exchangeable for Capital Stock referred to in clause (i) or (ii) above or Indebtedness having a scheduled maturity prior to the Stated Maturity of the Securities; provided that any Capital Stock that would not constitute Redeemable Stock but for provisions thereof offering holders thereof the right to require the Company to repurchase or redeem such Capital Stock upon the occurrence of an "asset sale" occurring prior to the Stated Maturity of the Securities shall not constitute Redeemable Stock if the asset sale provisions contained in such Capital Stock specifically provide that in respect of any particular asset sale proceeds, the Company will not repurchase or redeem any such Capital Stock pursuant to such provisions prior to the Company's repurchase of such Securities as are required to be repurchased from Holders accepting an Excess Proceeds Offer pursuant to the provisions of Section 4.15. "Redemption Date" when used with respect to any Security to be redeemed, means the date fixed for such redemption pursuant to this Indenture and the Securities. "Redemption Price" when used with respect to any Security to be redeemed, means the price fixed for such redemption pursuant to this Indenture and the Securities. "Refinancing Indebtedness" means any Indebtedness of the Company or any Subsidiary issued in exchange for, or the net proceeds of which are applied entirely to substantially concurrently repay, refinance, 6 13 refund or replace, outstanding Indebtedness of the Company or any of its Subsidiaries (the "Refinanced Indebtedness"), to the extent such Indebtedness: (a) is issued in a principal amount (or if such Indebtedness is issued at an original issue discount, is issued at an original issue price) not exceeding the outstanding principal amount (or, if such Refinanced Indebtedness was issued at an original issue discount, not exceeding the outstanding accreted principal amount) of such Refinanced Indebtedness, and (b) if the Refinanced Indebtedness is Indebtedness of the Company and ranks by contract, by its terms or otherwise junior in right of payment to the Securities, (i) does not have a final scheduled maturity and is not subject to any principal payments, including but not limited to payments upon mandatory or optional redemption, prior to the dates of analogous payments under the Refinanced Indebtedness, and (ii) has subordination provisions effective to subordinate such Indebtedness to the Securities at least to the extent that such Refinanced Indebtedness is subordinated to the Securities, or (c) if the Refinanced Indebtedness is Indebtedness of the Company which is pari passu in right of payment with the Securities, (i) is pari passu or subordinated in right of payment to the Securities, (ii) does not have a final scheduled maturity and is not subject to any principal payments, including but not limited to, payments upon mandatory or optional redemption, prior to the final scheduled maturity date of the Refinanced Indebtedness, and (iii) is not secured by any Lien on any property of the Company or any Subsidiary in addition to Liens securing the Refinanced Indebtedness. "Registration Rights Agreement" means that certain Registration Rights Agreement dated as of the date of this Indenture among the Company and the parties named as signatories thereto, pursuant to which the Company is obligated to register the Securities and certain other securities of the Company. "Responsible Officer" when used with respect to the Trustee means the chairman of the board of directors, any vice chairman of the board of directors, the chairman of the trust committee, the chairman of the executive committee, any vice chairman of the executive committee, the president, any vice president (whether or not designated by numbers or words added before or after the title "vice president"), the secretary, the treasurer, any trust officer, any assistant trust officer, any assistant secretary, any assistant treasurer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject. "Restricted Payment" shall have the meaning set forth in Section 4.13. "S&P" means Standard & Poor's Corporation and its successors. "Securities Act" means the Securities Act of 1933, as amended. "Security" or "Securities" means the Company's % Senior Unsecured Notes due 2001 issued under this Indenture. "Stated Maturity" means, (i) with respect to the principal of the Securities, 2001 and (ii) with respect to any scheduled installment of interest on any Security, the date specified in such Security as the fixed date on which such installment is due and payable. "Subsidiary" means any corporation more than 50% of the outstanding shares of Voting Stock of which at the time of determination are owned by the Company directly or indirectly through one or more Subsidiaries, or both. "TIA" means the Trust Indenture Act of 1939, as amended. "Trade Payables" means, with respect to any Person, any accounts payable or any other indebtedness or monetary obligation to trade creditors created, assumed or Guaranteed by such Person or any of its Subsidiaries and arising in the ordinary course of business in connection with the acquisition of goods or services. 7 14 "Trustee" means the Person identified as the "Trustee" in the first paragraph hereof and, subject to the provisions of Article Eight, shall also include any successor trustee. "Trustee" shall also mean or include each Person who is then a trustee hereunder. "U.S. Government Obligations" means securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the Stated Maturity of the Securities, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt. "U.S. Legal Tender" means such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. "Voting Stock" means any class or classes of Capital Stock pursuant to which the holders thereof have the general voting power under ordinary circumstances to vote for the election of directors, managers or trustees of any Person (irrespective of whether or not at the time stock of any class or classes will have or might have, voting power by the reason of the happening of any contingency). "Wholly Owned" means, with respect to any Person, any Subsidiary of such Person all of the Capital Stock or other similar equity ownership interests of which (other than any director's qualifying shares or Investments by foreign nationals mandated by applicable law) is owned directly or indirectly by such Person. ARTICLE TWO SECURITIES SECTION 2.1 Form and Dating. The Securities and the related Trustee's certificate of authentication shall be substantially in the respective forms set forth in Exhibit A, which exhibit is a part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication. The Securities shall be issuable only in registered form in denominations of $1,000 and integral multiples thereof. The terms and provisions contained in the Securities shall constitute, and are hereby expressly made, a part of this Indenture and the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and agree to be bound thereby. SECTION 2.2 Execution and Authentication. Two Officers of the Company (each of whom shall have been duly authorized by all requisite corporate actions) shall sign each Security for the Company by manual or facsimile signature. If an Officer whose signature is on a Security no longer holds that office at the time any Securities are authenticated, such Securities shall nevertheless be valid. The Company's seal shall be reproduced on each Security. The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee. With respect to the sale and issuance of the Securities, the Trustee shall, upon receipt of a written order of the Company in the form of an Officers' Certificate, authenticate Securities for issuance on the Closing Date in the aggregate principal amount of $100,000,000. 8 15 If any Securities are to be issued in the form of one or more Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities, that (i) shall represent and shall be in denominations of $1,000 or integral multiples thereof (ii) shall be registered in the name of the Depository for such Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or pursuant to such Depository's instructions and (iv) shall bear a legend substantially to the following effect: Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository. Each Depository must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation. SECTION 2.3 Certificate of Authentication. Only such Securities as shall bear thereon a certificate of authentication substantially in the form set forth in Exhibit A hereto, executed (subject to Section 8.13) by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. The execution of such certificate by the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder of such Security is entitled to the benefits of this Indenture. SECTION 2.4 Payments of Interest. The Securities shall bear interest from the date of authentication, and such interest shall be payable on the dates set forth therein. The person in whose name any Security is registered at the close of business on any record date applicable to such Security with respect to any Interest Payment Date for such Security shall be entitled to receive the interest, if any, payable on such Interest Payment Date notwithstanding any transfer or exchange of such Security subsequent to the record date and prior to such Interest Payment Date, except if and to the extent the Company shall default in the payment of the interest due on such Interest Payment Date, in which case such defaulted interest shall be paid to the persons in whose names Outstanding Securities are registered at the close of business on a subsequent record date (which shall be not less then five Business Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Company to the Holders of Securities not less than 15 days preceding such subsequent record date. The term "record date" as used with respect to any Interest Payment Date (except a date for payment of defaulted interest) for the Securities shall mean the date specified as such in the terms of the Securities. Subject to the foregoing provisions of this Section 2.4, each Security delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. SECTION 2.5 Registration, Transfer and Exchange. The Company will keep at each office or agency to be maintained for the purpose as provided in Section 4.2 a register or registers in which, subject to such reasonable regulations as it may prescribe, it will provide for the registration of Securities and the registration of transfer of Securities. Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time. At all reasonable times such register or registers shall be open for inspection by the Trustee. Upon due presentation for registration of transfer of any Security at any such office or agency to be maintained for the purpose as provided in Section 4.2, the Company shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities. At the option of the Holder thereof, Securities (other than a Global Security, except as set forth below) may be exchanged for a Security or Securities having authorized denominations in an equal aggregate principal amount, upon surrender of such Securities to be exchanged at the agency of the Company that shall 9 16 be maintained for such purpose in accordance with Section 4.2 and upon payment, if the Company shall so require, of the amounts hereinafter provided. All Securities presented for registration of transfer, exchange, redemption or payment shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer, in form satisfactory to the Company and the Trustee and duly executed by the Holder or his attorney duly authorized in writing. The Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction. The Company shall not be required to exchange or register a transfer of (a) any Securities for a period of 15 days next preceding the first mailing of notice of redemption of Securities to be redeemed or (b) any Securities selected, called or being called for redemption, in whole or in part, except, in the case of any Security to be redeemed in part, the portion thereof not so to be redeemed. Notwithstanding any other provision of this Section 2.5, unless and until it is exchanged in whole or in part for Securities in non-global form, a Global Security representing all or a portion of the Securities may not be transferred except as a whole by the Depository to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such Depository or by such Depository or any such nominee to a successor Depository or a nominee of such successor Depository. If at any time the Depository for any Securities represented by one or more Global Securities notifies the Company that it is unwilling or unable to continue as Depository for such Securities or if at any time the Depository for such Securities shall no longer be eligible under Section 2.2, the Company shall appoint a successor Depository eligible under Section 2.2 with respect to such Securities. If a successor Depository eligible under Section 2.2 for such Securities is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of an Officer's Certificate of the Company for the authentication and delivery of Securities in non-global form, will authenticate and deliver Securities in non-global form in exchange for such Global Security or Securities. The Company may at any time and in its sole discretion determine that the Securities issued in the form of one or more Global Securities shall no longer be represented by a Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of an Company order for the authentication and delivery of Securities in non-global form, will authenticate and deliver, Securities in non-global form in exchange for such Global Security or Securities. Any person having a beneficial interest in a Global Security may upon request exchange such beneficial interest for Securities in non-global form. Upon receipt by the Trustee of written instructions (or such other form of instructions as is customary for the Depository) from the Depository or its nominee on behalf of any person having a beneficial interest in a Global Security and upon receipt by the Trustee of a written order or such other form of instructions as is customary for the Depository or the person designated by the Depository as having such a beneficial interest containing registration instructions, then the Trustee will cause, in accordance with the standing instructions and procedures existing between the Depository and the Trustee, the aggregate principal amount of the Global Security to be reduced and following such reduction, the Company will execute and upon receipt of an authentication order in the form of an Officers' Certificate, the Trustee will authenticate and deliver Securities in non-global form. Securities in non-global form issued in exchange for a beneficial interest in a Global Security pursuant to this Section 2.5 shall be registered in such names and in such authorized denominations as the Depository for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or an agent of the Company or the Trustee. The Trustee or such agent shall deliver such Securities to or as directed by the Person in whose names such Securities are so registered. 10 17 The Securities executed by the Company, and authenticated and delivered by the Trustee, upon any transfer or exchange contemplated by this Section 2.5 shall be dated the date of their authentication, shall be in authorized denominations, shall be in like aggregate principal amount and have the same Stated Maturity date and interest rate as, and bear interest from the most recent date to which interest has been paid on (or if no interest has been paid, from the date of), the Securities surrendered upon such transfer or exchange (or as the portion of any Global Security being exchanged for Securities in non-global form, as the case may be), and shall bear a number of other distinguishing symbol not appearing on any Security contemporaneously Outstanding. All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange. SECTION 2.6 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security shall become mutilated, defaced or be destroyed, lost or stolen, the Company in its discretion may execute, and upon the written request of any officer of the Company, the Trustee shall authenticate and deliver a new Security of the same Stated Maturity date appearing on any Security, interest rate as, bearing interest from the most recent date to which interest has been paid on (or if no interest has been paid, from the date of) the mutilated or defaced Security, or the Security so destroyed, lost or stolen, and bearing a number or other distinguishing symbol not contemporaneously Outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of or in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substitute Security shall furnish to the Company and to the Trustee and any agent of the Company or the Trustee such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof and in the case of mutilation or defacement, shall surrender the Security to the Trustee or such agent. Upon the issuance of any substitute Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee or its agent) connected therewith. In case any Security that has matured or is about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Company and to the Trustee and any agent of the Company or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee and any agent of the Company or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof. Every substitute Security issued pursuant to the provisions of this Section 2.6 by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities duly authenticated and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender. SECTION 2.7 Cancellation of Securities; Destruction Thereof. (a) All Securities surrendered for payment, redemption, registration of transfer or exchange, if surrendered to the Company or any agent of the Company or any agent of the Trustee, shall be delivered to the Trustee for cancellation and, upon receipt thereof by the Trustee, shall be cancelled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this 11 18 Indenture. The Trustee shall destroy cancelled Securities held by it and deliver a certificate of destruction to the Company. If the Company or any agent of the Company shall acquire any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation. (b) At such time as all beneficial interests in a Global Security have either been exchanged for Securities in non-global form, redeemed, repurchased or cancelled, such Global Security shall be returned to and cancelled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for Securities in non-global form, redeemed, repurchased or cancelled, the principal amount of Securities represented by such Global Security shall be reduced and an endorsement shall be made on such Global Security by the Trustee to reflect such reduction. SECTION 2.8 Temporary Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee, upon receipt of a written order signed by two Officers of the Company, shall authenticate definitive Securities in exchange for temporary Securities. Until such exchange, temporary Securities shall be entitled to the same rights, benefits and privileges as definitive Securities. SECTION 2.9 Currency and Manner of Payments in Respect of Securities. Payment of the principal of and premium (if any) and interest on, any Security will be made in U.S. Legal Tender. SECTION 2.10 CUSIP Number. A "CUSIP" number will be printed on the Securities, and the Trustee shall use the CUSIP number in notices of redemption, purchase or exchange as a convenience to Holders, provided that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP number printed in the notice or on the Securities and that reliance may be placed only on the other identification numbers printed on the Securities. The Company will promptly notify the Trustee of any change in the CUSIP number. ARTICLE THREE REDEMPTIONS SECTION 3.1 Notices to Trustee. If the Company elects to redeem Securities pursuant to Section 3.7 it shall furnish to the Trustee, at least 10 but not more than 15 days before notice of any redemption is to be mailed to Holders (or such shorter time as may be satisfactory to the Trustee), an Officers, Certificate stating that the Company has elected to redeem Securities pursuant to Section 3.7, the date notice of redemption is to be mailed to Holders, the Redemption Date, the aggregate principal amount of Securities to be redeemed, the Redemption Price for such Securities and the amount of accrued and unpaid interest on such Securities as of the Redemption Date. If the Trustee is not the registrar for the Securities, the Company shall, concurrently with delivery of its notice to the Trustee of a redemption, cause the registrar for the Securities to deliver to the Trustee a certificate (upon which the Trustee may rely) setting forth the name of, and the aggregate principal amount of Securities held by each Holder. The Company will also provide the Trustee with any additional information that the Trustee reasonably requests in connection with any redemption. SECTION 3.2 Selection of Securities to be Redeemed. If less than all outstanding Securities are to be redeemed, the Company shall select the outstanding Securities to be redeemed or accepted for payment in compliance with the requirements of the principal national securities exchange, if any, on which the Securities are listed or, if the Securities are not listed on a securities exchange, on a pro rata basis, by lot or by any other method that the Trustee deems fair and appropriate. If the Company elects to mail notice of a redemption to Holders, the Trustee shall, at least 5 days prior to the date notice of redemption is to be mailed, (i) select the Securities to be redeemed from Securities Outstanding not previously called for redemption, and (ii) promptly notify the Company of the names of each Holder of Securities selected for redemption, the principal amount of Securities held by each such Holder and the principal amount of such Holder's Securities that are to be 12 19 redeemed. The Trustee shall select for redemption Securities or portions of Securities in principal amounts of $1,000 or integral multiples of $1,000; except that if all of the Securities of a Holder are selected for redemption, the aggregate principal amount of the Securities held by such Holder, even if not a multiple of $1,000, may be redeemed. Except as provided in the preceding sentence, provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption. SECTION 3.3 Notice of Redemption. (a) At least 30 days but not more than 60 days before any Redemption Date, the Company shall mail by first class mail to each such Holder's registered address a notice of redemption to each Holder of Securities or portions thereof that are to be redeemed. With respect to any redemption of Securities, the notice shall identify the Securities or portions thereof to be redeemed and shall state: (1) the Redemption Date; (2) the Redemption Price for the Securities and the amount of unpaid and accrued interest on such Securities as of the date of redemption; (3) if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the Redemption Date, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion will be delivered; (4) the name and address of the Paying Agent; (5) that Securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price for, and any accrued and unpaid interest on, such Securities; (6) that, unless the Company defaults in making such redemption payment, interest on Securities called for redemption ceases to accrue on and after the Redemption Date and the only remaining right of the Holders of such Securities is to receive payment of the Redemption Price upon surrender to the Paying Agent of the Securities redeemed; and (7) if fewer than all the Securities are to be redeemed, the identification of the particular Securities (or portions thereof) to be redeemed, as well as the aggregate principal amount of Securities to be redeemed and the aggregate principal amount of Securities to be outstanding after such partial redemption. (b) At the Company's request, the Trustee shall (at the Company's expense) give the notice of any redemption to Holders; provided, however, that the Company shall deliver to the Trustee, at least 10 days prior to the date that notice of the redemption is to be mailed to Holders, an Officers' Certificate that (i) requests the Trustee to give notice of the redemption to Holders, (ii) sets forth the information to be provided to Holders in the notice of redemption, as set forth in the preceding paragraph, and (iii) sets forth the aggregate principal amount of Securities to be redeemed and the amount of accrued and unpaid interest thereon as of the redemption date. If the Trustee is not the registrar for the Securities, the Company shall, concurrently with any such request, cause the registrar for the Securities to deliver to the Trustee a certificate (upon which the Trustee may rely) setting forth the name of, the address of, and the aggregate principal amount of Securities held by, each Holder; provided further that any such Officers' Certificate may be delivered to the Trustee on a date later than permitted under this Section 3.3(b) if such later date is acceptable to the Trustee. SECTION 3.4 Effect of Notice of Redemption. Once notice of redemption is mailed to the Holders, Securities called for redemption shall become due and payable on the Redemption Date at the Redemption Price. Upon surrender to the Trustee or the Paying Agent, the Securities called for redemption shall be paid at the Redemption Price. SECTION 3.5 Deposit of Redemption Price. (a) On or prior to any Redemption Date, the Company shall deposit with the Paying Agent money sufficient to pay the Redemption Price of, and accrued interest on, all Securities to be redeemed on that date. After any Redemption Date, the Trustee or the Paying Agent shall promptly return to the Company any money that the Company deposited with the Trustee or the Paying Agent in excess of the amounts necessary to pay the Redemption Price of, and accrued interest on, all Securities to be redeemed. (b) If the Company complies with the preceding paragraph, unless the Company defaults in the payment of such Redemption Price, interest on the Securities to be redeemed will cease to accrue on such Securities on the applicable Redemption Date, whether or not such Securities are presented for payment. If a Security is redeemed on or after an interest record date but on or prior to the related 13 20 Interest Payment Date, then any accrued and unpaid interest shall be paid to the Person in whose name such Security was registered at the close of business on such record date. If any Security called for redemption shall not be so paid upon surrender for redemption because of the failure of the Company to comply with the preceding paragraph, interest will be paid on the unpaid principal and interest from the redemption date until such principal and interest is paid, at the rate of interest provided in the Securities and Section 4.1. SECTION 3.6 Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Company shall execute and the Trustee shall authenticate and deliver to the Holder at the Company's expense a new Security equal in principal amount to the unredeemed portion of the Security surrendered. If a Global Security is so surrendered, such new Security so issued shall be a new Global Security. SECTION 3.7 Optional Redemption. The Company, at its option on notice to the Holders as provided herein, may redeem the Securities: (a) prior to , 1997 (i) at any time in whole but not in part, at a Redemption Price equal to 105% of the aggregate principal amount of the Securities then Outstanding, plus accrued and unpaid interest thereon to the Redemption Date; or (ii) from time to time in part from the Net Offering Proceeds received by the Company prior to , 1997 from one or more Public Offering Sales at a Redemption Price equal to 105% of the aggregate principal amount of the Securities so redeemed, plus accrued and unpaid interest thereon to the Redemption Date; and (b) on and after , 1997, at any time in whole or from time to time in part, at a Redemption Price equal to the applicable percentage of the aggregate principal amount of the Securities so to be redeemed, set forth below, plus accrued and unpaid interest thereon to the Redemption Date.
IF REDEEMED DURING THE 12 MONTHS BEGINNING PERCENTAGE ___________________ __________ 1997.............................................................. 105.0 % 1998.............................................................. 103.3 % 1999.............................................................. 101.7 % 2000 and thereafter............................................... 100.0 %
ARTICLE FOUR COVENANTS OF THE COMPANY SECTION 4.1 Payment of Principal and Interest. The Company covenants and agrees that it will duly and punctually pay or cause to be paid the principal of, premium (if any) and interest on, each of the Securities at the place or places, at the respective times and in the manner provided in such Securities and in this Indenture. To the extent lawful, the Company shall pay interest on overdue principal, premium and interest at a rate equal to the then applicable interest rate on the Securities, compounded semi-annually. SECTION 4.2 Offices for Payments, etc. So long as any Securities are authorized for issuance pursuant to this Indenture or are outstanding hereunder, the Company will maintain in the Borough of Manhattan, the City of New York, an office or agency where the Securities may be presented for payment and for exchange and registration of transfer as in this Indenture provided. The Company will give prompt written notice to the Trustee of any change in the location of such office or agency. Until the Company shall furnish to the Trustee a different address therefor, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee as specified in Section 12.4 hereof. The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind 14 21 such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York, for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. SECTION 4.3 Appointment to Fill a Vacancy in Office of Trustee. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 8.9, a Trustee so that there shall at all times be a Trustee with respect to the Securities. SECTION 4.4 Paying Agents. Whenever the Company shall appoint a Paying Agent other than the Trustee with respect to the Securities, it will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.4, (a) that it will hold all sums received by it as such agent for the payment of the principal of, premium (if any) and interest on the Securities (whether such sums have been paid to it by the Company or any other obligor on the Securities) in trust for the benefit of the Holders of the Securities or of the Trustee, (b) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities) to make any payment of the principal of, premium (if any) or interest on the Securities when the same shall be due and payable, and (c) that it will pay any such sums so held in trust by it to the Trustee upon the Trustee's written request, at any time during the continuance of the failure referred to in clause (b) above. The Company will, on or prior to each due date of the principal of, premium (if any) or interest on the Securities, deposit with the Paying Agent a sum sufficient to pay such principal, premium or interest so becoming due, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any failure to take such action. If the Company shall act as its own Paying Agent with respect to the Securities it will, on or before each due date of the principal of, premium (if any) or interest on the Securities set aside, segregate and hold in trust for the benefit of the Holders of the Securities a sum sufficient to pay such amount so becoming due. The Company will promptly notify the Trustee of any failure to take such action. Anything in this Section 4.4 to the contrary notwithstanding, but subject to Section 11.1, the Company may at any time, for the purpose of obtaining a satisfaction and discharge with respect to the Securities or for any other reason, pay or cause to be paid to the Trustee all sums held in trust with respect to the Securities by the Company or any Paying Agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained. Anything in this Section 4.4 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 4.4 is subject to the provisions of Sections 11.3 and 11.4 hereof. SECTION 4.5 Reports and Information. (a) The Company will furnish to the Trustee within 120 days after the end of each fiscal year an Officers' Certificate stating that (i) a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made to determine whether the Company has kept, observed, performed and fulfilled all of its obligations under this Indenture and the Securities, (ii) such review was supervised by the Officers of the Company signing such certificate, and (iii) that to the best knowledge of each Officer signing such certificate, (A) during such year the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default occurred, describing all such Defaults or Events of Default of which each such Officer may have knowledge and what action the Company has taken or proposes to take with respect thereto), and (B) no event has occurred and remains in existence by reason of which payments on account of the principal of, premium (if any) or interest on, the Securities are prohibited or if such event has occurred, a description 15 22 of the event and what action the Company is taking or proposes to take with respect thereto. The Company will, so long as any of the Securities are outstanding, deliver to the Trustee, promptly after any Officer of the Company becomes aware of (i) any Default or Event of Default, or (ii) any default or event of default under any issue of Indebtedness that could result in an Event of Default under Section 7.1, an Officers' Certificate specifying such Default, Event of Default or default and what action the Company is taking or proposes to take with respect thereto. (b) If the Company is subject to the requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the Commission all quarterly and annual reports and such other information, documents or other reports (or copies of such portions of any of the foregoing as the Commission may by rules and regulations prescribe) required to be filed pursuant to such provisions of the Exchange Act. The Company shall file with the Trustee, within 5 days after it files the same with the Commission, copies of the quarterly and annual reports and such other information, documents, and reports (or copies of such portions of any of the foregoing as the Commission may by rules and regulations prescribe) that it files with the Commission as contemplated by this Section 4.5(b). The Company shall also comply with the other provisions of Section 314(a) of the TIA. If the Company is not required to file the aforementioned reports, the Company (at its own expense) shall file with the Trustee and mail, or cause the Trustee to mail, to Holders at their addresses appearing in the register of Securities at the time of such mailing within 5 days after it would have been required to file such information with the Commission, all information and financial statements, including any notes thereto and with respect to annual reports, an auditors' report by an accounting firm of established national reputation, and a "Management's Discussion and Analysis of Financial Condition and Results of Operations," comparable to the disclosure that the Company would have been required to include in annual and quarterly reports, information, documents or other reports, including, without limitation, reports on Forms 10-K, 10-Q and 8-K, if the Company was subject to the requirements of Section 13 or 15(d) of the Exchange Act. SECTION 4.6 Corporate Existence. Subject to Article Six, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate, partnership or other existence of each Subsidiary of the Company and the rights (charter and statutory) and franchises of the Company and any Subsidiary of the Company; provided, that the Company shall not be required to preserve any such corporate, partnership or other existence of any Subsidiary or any such right or franchise, if the Board of Directors of the Company shall determine in the exercise of its business judgment that the preservation thereof is no longer desirable in the conduct of the business of the Company or any Subsidiary and that abandonment of any such right or franchise shall have no material adverse effect on the Company and its Subsidiaries taken as a whole, or the Holders. SECTION 4.7 Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary, and (2) all lawful claims for labor, materials and supplies that, if unpaid, might by law become a lien upon the property of the Company, or any Subsidiary; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim the amount, applicability or validity of which is being contested in good faith by appropriate proceedings and with respect to which an adequate reserve has been established by the Company to the extent required by GAAP. SECTION 4.8 Maintenance of Properties. The Company shall, and shall cause each of its Subsidiaries to, maintain all properties used or useful in the conduct of its business in good condition, repair and working order and supply such properties with all necessary equipment and make all necessary repairs, renewals, replacements, betterments and improvements thereto, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section shall prevent the Company or any Subsidiary from discontinuing the operation and maintenance of any of such properties if such discontinuance is, in the good faith judgment of the Company or such Subsidiary, as the case may be, desirable in the conduct of its respective business and not disadvantageous in any material respect to the Holders. 16 23 SECTION 4.9 Maintenance of Insurance. The Company will insure and keep insured, and will cause each Subsidiary to insure and keep insured, with reputable insurance companies, such of their respective properties, to such an extent and against such risks, and will maintain liability insurance, to the extent that property of a similar character is usually so insured by companies engaged in a similar business and owning similar properties in accordance with good business practice. SECTION 4.10 Compliance with Laws. The Company shall comply, and shall cause each of its Subsidiaries to comply, with all applicable statutes, rules, regulations, orders and restrictions of the United States of America, all states and municipalities thereof, and of any governmental department, commission, board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the conduct of their respective businesses and the ownership of their respective properties, except such as are being contested in good faith and by appropriate proceedings and except for such noncompliance as would not in the aggregate have a material adverse effect on the Company and its Subsidiaries, taken as a whole. SECTION 4.11 Disposition of Proceeds of Public Offering Sale. (a) If the Company shall consummate a Public Offering Sale at any time or from time to time prior to , 1997, it shall, promptly after each Public Offering Sale so consummated at a time when, immediately prior to such consummation, the Company shall have cash and Cash Equivalents, not subject to any restriction on disposition, of at least $100,000,000, make an offer to apply a portion of the Net Offering Proceeds thereof equal to the lesser of (x) 50% of such Net Offering Proceeds and (y) the excess, if any, of (i) $20,000,000 over (ii) the amount of any Net Offering Proceeds of any prior Public Offering Sale received prior to , 1997, and applied to purchase Securities pursuant to a prior Net Proceeds Offer pursuant to this Section 4.11), to purchase Securities on a pro rata basis from all Holders (a "Net Proceeds Offer") at a purchase price equal to 104% of the principal amount of the Securities so purchased, plus accrued and unpaid interest to the date of purchase. Any Net Proceeds Offer shall remain open from the time of mailing until 5 days (or such shorter period as may be required under applicable law) before the Net Proceeds Purchase Date. (b) Notice of a Net Proceeds Offer pursuant to this Section 4.11 shall be mailed, by first class mail, by the Trustee on behalf of the Company not more than 60 days after the consummation of the relevant Public Offering Sale to all Holders at their last registered addresses. The notice shall contain all instructions and material necessary to enable such Holders to tender Securities pursuant to the Net Proceeds Offer and shall state the following terms: (i) that the Net Proceeds Offer is being made pursuant to this Section 4.11 and that all Securities tendered will be accepted for purchase; provided, however, that if the aggregate purchase price of Securities tendered in a Net Proceeds Offer (including accrued interest at the expiration of such offer) exceeds the aggregate amount of the Net Offering Proceeds required to be applied in such Net Proceeds Offer, the Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 or integral multiples thereof shall be purchased); (ii) the purchase price (including the amount of accrued interest) and the purchase date (which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the "Net Proceeds Purchase Date"); (iii) that any security not tendered will continue to accrue interest if interest is then accruing; (iv) that, unless the Company defaults in making payment therefor, any Security accepted for purchase pursuant to the Net Proceeds Offer shall cease to accrue interest on the Net Proceeds Purchase Date; (v) that Holders electing to have a Security purchased pursuant to a Net Proceeds Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day prior to the Net Proceeds Purchase Date; 17 24 (vi) that each Holder will be entitled to withdraw its election (in whole but not in part) if the Paying Agent receives, not later than the close of business on the third Business Day immediately preceding the Net Proceeds Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Securities purchased; and (vii) that Holders whose Securities were purchased only in part will be issued new Securities equal in aggregate principal amount to the unpurchased portion of the Securities surrendered. On the Net Proceeds Purchase Date, the Company shall: (i) accept for purchase on a pro rata basis Securities or portions thereof tendered pursuant to the Net Proceeds Offer; (ii) deposit with the Paying Agent money sufficient to pay the purchase price of all Securities or portions thereof so accepted; and (ii) deliver, or cause to be delivered, to the Trustee all Securities or portions thereof so accepted together with an Officers' Certificate specifying the Securities or portions thereof accepted for purchase by the Company. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price, and the Company shall execute and the Trustee shall promptly authenticate and mail to each of such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered; provided that each Security purchased and each new Security delivered shall be in a principal amount of $1,000 or an integral multiple thereof. The Company will publicly announce the results of the Net Proceeds Offer as soon as practicable after the Net Proceeds Purchase Date. For purposes of this Section 4.11, the Trustee shall act as the Paying Agent. SECTION 4.12 Limitation on Issuances and Dispositions of Capital Stock of Subsidiaries. Each Subsidiary of the Company shall at all times be a Wholly Owned Subsidiary of the Company. The Company (i) shall not, and shall not permit any Subsidiary to, transfer, convey, sell, or otherwise dispose of any Capital Stock of a Subsidiary, or securities convertible or exchangeable into, or options, warrants, rights or any other interest with respect to, Capital Stock of a Subsidiary to any Person (other than the Company or a Wholly Owned Subsidiary) and (ii) shall not permit any Subsidiary to issue shares of its Capital Stock (other than directors' qualifying shares), or securities convertible or exchangeable into, or options, warrants, rights or any other interest with respect to, its Capital Stock to any Person other than to the Company or a Wholly Owned Subsidiary. SECTION 4.13 Limitation on Restricted Payments. (a) Except as otherwise provided in this Section 4.13, the Company shall not, and shall not permit any Subsidiary to, directly or indirectly, (i) declare or pay any dividends on or make any distributions in respect of the Capital Stock of the Company (other than dividends or distributions payable solely in shares of Capital Stock (other than Redeemable Stock) or in options, warrants, or other rights to purchase Capital Stock (other than Redeemable Stock)) to holders of Capital Stock of the Company; (ii) purchase, redeem or otherwise acquire or retire for value (other than through the issuance solely of Capital Stock (other than Redeemable Stock) or options, warrants or other giths to purchase Capital Stock (other than Redeemable Stock)) any Capital Stock or warrants, rights (other than exchangeable or convertible Indebtedness of the Company not prohibited under clause (iii) below) or options to acquire Capital Stock of the Company; or (iii) redeem, repurchase, defease (including, but not limited to, in substance or legal defeasance), or otherwise acquire or retire for value (other than through the issuance solely of Capital Stock (other than Redeemable Stock) or warrants, rights or options to acquire Capital Stock (other than Redeemable Stock)) (collectively, a "prepayment"), directly or indirectly (including by way of amendment of the terms of any Indebtedness in connection with any retirement or acquisition of such Indebtedness), other than at any scheduled maturity thereof or by any scheduled repayment or scheduled sinking fund payment, any Indebtedness which is subordinated in right of payment to the 18 25 Securities or which matures after the maturity date of the Securities (except out of the proceeds of Refinancing Indebtedness); if, at the time of such transaction described in clause (i), (ii) or (iii) (such transactions being hereinafter collectively referred to as "Restricted Payments") or after giving effect thereto, either (x) a Default or an Event of Default shall have occurred and be continuing or (y) the aggregate amount expended by the Company and its Subsidiaries for all Restricted Payments (the amount of any Restricted Payment if other than cash to be the fair market value of the property included in such payment as determined in good faith by the Board of Directors as evidenced by a Board Resolution) from and after the Closing Date shall exceed the sum of (A) 50% (or, if the Securities at the time of the proposed Restricted Payment are rated Investment Grade by both S&P and Moody's, 75%) of the aggregate Adjusted Consolidated Net Income (or if such Adjusted Consolidated Net Income is a loss, minus 100% of such loss) of the Company and its Subsidiaries for the period from the first day of the first quarter ended subsequent to the Closing Date and through the last day of the most recently completed quarter immediately preceding the quarter in which the Restricted Payment occurs, calculated on a cumulative basis as if such period were a single accounting period; (B) the aggregate net proceeds received by the Company after the Closing Date (including the fair market value of non-cash proceeds as determined in good faith by the Board of Directors as evidenced by a Board Resolution) from any Person other than a Subsidiary, as a result of the issuance of (or contribution to capital on) Capital Stock of the Company (other than any Redeemable Stock) or warrants, rights or options to acquire Capital Stock (other than any Redeemable Stock); (C) the aggregate net proceeds received by the Company after the Closing Date from any Person other than a Subsidiary as a result of the issuance of Capital Stock (other than Redeemable Stock) upon conversion or exchange of Indebtedness or upon exercise of options, warrants or other rights to acquire such Capital Stock and (D) $25,000,000. For purposes of any calculation that is required to be made in respect of, or after, the declaration of a dividend by the Company, such dividend shall be deemed to be paid at the date of declaration and shall be included in determining the aggregate amount of Restricted Payments. For the purposes of this Section 4.13, the net proceeds from the issuance of shares of Capital Stock of the Company upon conversion of debt securities shall be deemed to be an amount equal to the net book value of such debt securities (plus the additional amount required to be paid upon such conversion, if any), less any cash payment on account of fractional shares; the "net book value" of a security shall be the net amount received by the Company on the issuance of such security, as adjusted on the books of the Company to the date of conversion. (b) Notwithstanding the foregoing, if no Default or Event of Default shall have occurred or be continuing at the time or as a result thereof, the provisions of this Section 4.13 shall not prohibit (i) the payment of any dividend in respect of the Company's Capital Stock within 60 days after the date of declaration thereof, if at such date of declaration such payment complied with the provisions hereof; (ii) the purchase, redemption or other acquisition or retirement for value of any shares of the Company's Capital Stock or the prepayment of any indebtedness of the Company which is subordinated in right of payment to the Securities or which matures after the maturity date of the Securities by any exchange for, or out of and to the extent the Company has received cash proceeds from the substantially concurrent sale or issuance (other than to a Subsidiary) of, shares of Capital Stock (other than any Redeemable Stock) of the Company or warrants, rights or options to acquire Capital Stock (other than any Redeemable Stock); or (iii) the purchase or redemption of shares of Capital Stock of the Company (including options on any such shares or related stock appreciation rights or similar securities) held by officers or employees of the Company or its Subsidiaries (or their estates or beneficiaries under their estates) upon death, disability, retirement, termination of employment of any such Person pursuant to the terms of any Plan or any other agreement under which such shares of stock or related rights were issued; provided that the aggregate amount of such purchases or redemptions of such Capital Stock shall not exceed $3,000,000 in any one fiscal year of the Company. For purposes of determining the aggregate amount of Restricted Payments permitted under clause (y) of Section 4.13(a), all amounts expended pursuant to clauses (i) (to the extent deemed to have been paid and already included in determining the 19 26 aggregate amount of Restricted Payments pursuant to clause (y) of Section 4.13(a)), (ii) and (iii) of this paragraph shall be excluded. Prior to making any Restricted Payment under this Section, the Company shall deliver to the Trustee an Officers' Certificate setting forth the computation by which the amount available for Restricted Payments was determined. The Trustee shall have no duty or responsibility to determine the accuracy or correctness of this computation or that the provisions of this Section have been satisfied and shall be fully protected in relying on such Officers' Certificate. SECTION 4.14 Limitation on Transactions with Affiliates. (a) Neither the Company nor any Subsidiary of the Company shall, directly or indirectly (i) sell, lease, transfer or otherwise dispose of any of its properties or assets, or issue securities to, (ii) purchase any property, assets or securities from, (iii) make any Investment in, or (iv) enter into or suffer to exist any contract or agreement with or for the benefit of, an Affiliate or holder of 5% or more of any class of Capital Stock (and any Affiliate of such holder) of the Company (an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under Section 4.14(b) and (y) Affiliate Transactions (including lease transactions) which are on fair and reasonable terms no less favorable to the Company or such Subsidiary, as the case may be, than those as might reasonably have been obtainable at such time from an unaffiliated party; provided that if an Affiliate Transaction or series of related Affiliate Transactions involves or has a value in excess of $1,000,000 and less than or equal to $5,000,000, the Company or such Subsidiary, as the case may be, shall not enter into such Affiliate Transaction or series of related Affiliate Transactions unless a majority of the disinterested members of the Board of Directors of the Company or such Subsidiary or an Independent Financial Advisor shall reasonably and in good faith determine that such Affiliate Transaction is fair to the Company or such Subsidiary, as the case may be, or is on terms no less favorable to the Company or such Subsidiary, as the case may be, than those as might reasonably have been obtainable at such time from an unaffiliated party. In addition, neither the Company nor any Subsidiary shall enter into an Affiliate Transaction or series of related Affiliate Transactions involving or having a value of more than $5,000,000 unless the Company or such Subsidiary, as the case may be, has received an opinion from an Independent Financial Advisor to the effect that the financial terms of such Affiliate Transaction are fair to the Company or such Subsidiary or are at least as favorable as might reasonably have been obtained at such time from an unaffiliated party. (b) The provisions of Section 4.14(a) shall not apply to (i) any agreement as in effect as of the Closing Date, or any amendment thereto so long as any such amendment is not disadvantageous to the Holders in any material respect or any transaction contemplated thereby (including pursuant to any amendment thereto); (ii) any transaction between the Company and any Wholly Owned Subsidiary or between Wholly Owned Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) reasonable and customary fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Subsidiary, as determined by the Board of Directors of the Company or any Subsidiary or the senior management thereof in good faith; (iv) any Restricted Payments not prohibited by Section 4.13; (v) any payments or other transactions pursuant to any tax sharing agreement between the Company and any other Person with which the Company is required or permitted to file a consolidated tax return or with which the Company is or could be part of a consolidated group for tax purposes; and (vi) transactions with Continental Airlines, Inc., Mesa Airlines, Inc. and their respective Affiliates as contemplated by the Alliance Agreements. SECTION 4.15 Limitation on Asset Sales. Subject to the following paragraphs of this Section, in the event and to the extent that on any date after the Closing Date the Company and its Subsidiaries shall receive Net Cash Proceeds from one or more Asset Sales (other than Asset Sales by the Company or any Subsidiary to the Company or another Subsidiary), then the Company shall, or shall cause such Subsidiary to, within 12 months after such date apply an amount equal to such Net Cash Proceeds (A) to repay Indebtedness of the Company or Indebtedness of any Subsidiary, in each case owing to a Person other than the Company or any of its Subsidiaries, and/or (B) as an Investment (or enter into a definitive agreement committing to so invest 20 27 within 12 months after the date of such agreement), in property or assets of a nature or type or that are used in a business (or in a Person having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or the business of, the Company and its Subsidiaries existing on the date thereof (as determined in good faith by the Board of Directors of the Company or such Subsidiary, as the case may be, whose determination shall be conclusive and evidenced by a Board Resolution). The amount of such Net Cash Proceeds required to be applied (or to be committed to be applied) during such 12-month period as set forth in clause (A) or (B) of the preceding sentence shall constitute "Excess Proceeds." If on the first Business Day following any 12-month period referred to in the preceding paragraph, the aggregate amount of Excess Proceeds from all Asset Sales, not previously applied as provided in clause (A) or (B) of the preceding paragraph, exceeds $15,000,000, the Company, within 10 Business Days after the end of any such 12-month period, make an offer to purchase on a pro rata basis from all Holders (an "Excess Proceeds Offer"), and shall purchase from Holders accepting such Excess Proceeds Offer, the maximum principal amount (expressed as an integral multiple of $1,000) of Securities that may be purchased from funds in an amount equal to all such outstanding Excess Proceeds at a purchase price equal to 100% of the principal amount of the Securities so purchased, plus accrued and unpaid interest thereon (if any) to the date of purchase ("Excess Proceeds Payment"). Upon completion of an Excess Proceeds Offer (or upon termination of such offer if no repurchases are required), the amount of such Excess Proceeds relating thereto shall be equal to zero. The Company shall commence an Excess Proceeds Offer by causing the Trustee to mail a notice to each Holder stating: (i) that the Excess Proceeds Offer is being made pursuant to this Section 4.15 and that all Securities validly tendered will be accepted for purchase; provided, however, that if the aggregate purchase price of Securities tendered in an Excess Proceeds Offer (including accrued interest to the date of purchase) exceeds the aggregate amount of the Excess Proceeds required to be applied in such Excess Proceeds Offer, the Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 or integral multiples thereof shall be purchased); (ii) the purchase price (including the amount of accrued interest) and the purchase date (which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the "Excess Proceeds Purchase Date"); (iii) that any Security not tendered will continue to accrue interest pursuant to its terms; (iv) that, unless the Company defaults in the purchase of such Security on the Excess Proceeds Purchase Date, any Security accepted for purchase pursuant to the Excess Proceeds Offer shall cease to accrue interest after the Excess Proceeds Purchase Date; (v) that Holders electing to have a Security purchased pursuant to the Excess Proceeds Offer will be required to surrender the Security, together with the form entitled "Option of the Holder to Elect Purchase" on the reverse side of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day immediately preceding the Excess Proceeds Purchase Date; (vi) that each Holder will be entitled to withdraw its election (in whole but not in part) if the Paying Agent receives, not later than the close of business on the third Business Day immediately preceding the Excess Proceeds Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for purchase and a statement that such Holder is withdrawing its election to have such Securities purchased; and (vii) that Holders whose Securities are being purchased only in part will be issued new Securities equal in aggregate principal amount to the unpurchased portion of the Securities surrendered. On the Excess Proceeds Purchase Date, the Company shall: (i) accept for purchase on a pro rata basis Securities or portions thereof tendered pursuant to the Excess Proceeds Offer; (ii) deposit with the Paying Agent money sufficient to pay the purchase price of all Securities or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Securities or portions thereof so accepted together with an Officers' Certificate specifying the Securities or portions thereof accepted for purchase by the Company. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price, and the Company shall execute and the Trustee shall promptly authenticate and mail to each such Holders a new Security equal in principal amount to any unpurchased portion of the Security 21 28 surrendered; provided that each Security purchased and each new Security delivered shall be in a principal amount of $1,000 or an integral multiple thereof. The Company will publicly announce the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Purchase Date. For purposes of this Section 4.15, the Trustee shall act as the Paying Agent. Notwithstanding the foregoing: (i) to the extent that any or all of the Net Cash Proceeds of any Asset Sale are prohibited or delayed by applicable local law from being repatriated to the United States of America, the portion of such Net Cash Proceeds so affected will not be required to be applied pursuant to this Section 4.14 but may be retained for so long, but only for so long, as the applicable local law will not permit repatriation to the United States of America (the Company hereby agrees to promptly take all reasonable actions required by the applicable local law to permit such repatriation) and once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local law, such repatriation will be immediately effected and such repatriated Net Cash Proceeds will be applied in the manner set forth in this Section 4.15 as if such Asset Sale had occurred on the date of repatriation; and (ii) to the extent that the Board of Directors of the Company has determined in good faith that repatriation of any or all of the Net Cash Proceeds would have an adverse tax consequence to the Company, the Net Cash Proceeds so affected may be retained outside the United States of America for so long as such adverse tax consequences would continue. The Company will comply with Rule 14e-1 under the Securities Exchange Act of 1934, as amended, and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable, in the event that such Excess Proceeds are received by the Company as contemplated by this Section 4.15 and the Company is required to repurchase Securities as described above. SECTION 4.16 Limitation on Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any Subsidiary to, create or otherwise cause or suffer to exist or become effective any Payment Restriction or consensual encumbrance with respect to any Subsidiary thereof to (a) pay dividends or make any other distributions on such Subsidiary's Capital Stock; (b) make any loans or advances to the Company or any other Subsidiary; or (c) transfer any of its property or assets to the Company or any other Subsidiary except (i) restrictions imposed by applicable law; (ii) any restrictions existing under this Indenture; and (iii) encumbrances or restrictions contained in any agreement or instrument (A) relating to any property acquired by the Company or any of its Subsidiaries after the Closing Date, provided that such encumbrance or restriction relates only the property which is acquired; (B) relating to any Indebtedness of any Subsidiary at the date of acquisition of such Subsidiary by the Company or any Subsidiary of the Company, provided that such Indebtedness was not incurred in connection with, or in contemplation of, such acquisition (the Company being entitled to rely upon a certificate of such Subsidiary as to whether such Indebtedness was incurred in contemplation thereof); (C) arising pursuant to an agreement effecting a refinancing of Indebtedness issued pursuant to an agreement referred to in the foregoing clauses (A) and (B), so long as the encumbrances and restrictions contained in any such refinancing agreement are no more restrictive than the encumbrances and restrictions contained in such agreements; (D) which constitute customary provisions restricting subletting or assignment of any lease of the Company or any Subsidiary or provisions in agreements that restrict the assignment of such agreement or any rights thereunder; and (E) which constitute restrictions on the sale or other disposition of any property securing Indebtedness as a result of a lien on such property. SECTION 4.18 Limitation on Investments. The Company shall not, and shall not permit any Subsidiary to make any Investment other than (i) Investments consisting of non-cash proceeds from Asset Sales permitted by this Indenture; (ii) Investments in cash and Cash Equivalents; (iii) accounts receivable if credited or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; (iv) payroll advances and advances for business and travel expenses in the ordinary course of business; (v) Investments by the Company in its Subsidiaries in the ordinary course of business; or (vi) Investments by any Subsidiary of the Company in the Company or in any Subsidiary. 22 29 SECTION 4.19 Waiver of Stay, Extension or Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of, premium, if any, or interest on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) the Company hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE FIVE SECURITYHOLDERS LISTS AND REPORTS BY COMPANY AND THE TRUSTEE SECTION 5.1 The Company to Furnish Trustee Information as to Names and Addresses of Securityholders. If and so long as the Trustee shall not be the Security registrar for the Securities, the Company covenants and agrees that it will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of the Securities pursuant to Section 312 of the TIA: (a) semi-annually and not more than 15 days after each record date for the payment of interest on such Securities, as hereinabove specified and as of such record date, and (b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request as of a date not more than 15 days prior to the time such information is furnished. SECTION 5.2 Disclosure of Names and Addresses of Securityholders. Each and every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with Section 312 of the TIA, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 312(b) of the TIA. SECTION 5.3 Reports by the Trustee. Any Trustee's report required under Section 313(m) of the TIA shall be transmitted on or before May 15 in each year beginning May 15, 1995, as provided in Section 313(c) of the TIA, so long as any Securities are outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 days prior thereto. ARTICLE SIX CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER SECTION 6.1 Merger or Consolidation. The Company shall not consolidate with or merge into any other corporation or convey, lease or transfer its properties and assets substantially as an entirety to any Person, unless: (a) the corporation formed by such consolidation or into which the Company is merged or the Person that acquires by conveyance, lease or transfer the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing under the laws of the United States of America or any State or the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the Company's obligation for the due and punctual payment of the principal of and interest on all the Securities according to their tenor and the performance of every covenant of this Indenture on the part of the Company to be performed or observed; 23 30 (b) immediately before and after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time, or both, would become an Event of Default, shall have happened and be continuing; (c) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance, lease or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with; and (d) the Person formed by such consolidation or surviving such merger or to which the properties and assets of the Company as an entirety or substantially as an entirety are transferred or leased shall have a Consolidated Tangible Net Worth (immediately after and giving effect to such transaction) equal to or greater than that of the Company (immediately preceding such transaction). This Section shall only apply to a merger or consolidation in which the Company is not the surviving corporation and to conveyances, leases, and transfers by the Company, as transferee or lessor. SECTION 6.2 Successor Corporation Substituted. Upon any consolidation or merger by the Company with or into any other corporation, or any conveyance or transfer by the Company of its properties and assets substantially as an entirety to any Person, in accordance with Section 6.1, the successor corporation formed by such consolidation or into which the Company is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation had been named as the Company and in the event of any such conveyance or transfer, the Company, except in the event of a conveyance by way of lease, shall be discharged from all obligations and covenants under this Indenture and the Securities and may be dissolved and liquidated. Such successor corporation may cause to be signed, and may issue either in its own name or in the name of the Company prior to such succession, any or all of the Securities issuable hereunder that theretofore shall not have been signed by the Company or and delivered to the Trustee; and, upon the order of such successor corporation, instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities that such successor corporation thereafter shall, cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. In case of any such consolidation, merger, conveyance or transfer, such changes in phrasing and form (but not in substance) may be made in the Securities that may be endorsed thereon, as the case may be, thereafter to be delivered as may be appropriate. ARTICLE SEVEN REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT SECTION 7.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default. "Event of Default", with respect to the Securities, means any one of the following events that shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) default in the payment of the principal of or premium (if any) on any Security when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise; (b) default in the payment of interest on any Security when the same becomes due and payable, and such default continues for a period of 30 days; 24 31 (c) the Company defaults in the performance of or breaches any other covenant or agreement of the Company in this Indenture or under the Securities and such default or breach continues for a period of 30 consecutive days after the date on which written notice specifying such failure, stating that such notice is a "Notice of Default" under the Indenture and demanding that the Company remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company by the Trustee or to the Company and the Trustee by the Holders of 25% or more in aggregate principal amount of the Securities Outstanding; (d) there occurs with respect to any issue or issues of Indebtedness of the Company and/or one or more Subsidiaries having an outstanding principal amount of $10 million or more in the aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall hereafter be created, an event of default that has caused the holder thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and such Indebtedness has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such acceleration; (e) any final judgment or order (not covered by insurance) for the payment of money in excess of $10 million in the aggregate for all such final judgments or orders against all such Persons (treating any deductibles, self-insurance or retention as not so covered) shall be rendered against the Company or any Subsidiary and shall not be discharged, and there shall be any period of 60 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding against all such Persons to exceed $10 million during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; (f) a court having jurisdiction in the premises enters a decree or order for (i) relief in respect of the Company or any Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any Subsidiary or for all or substantially all of the property and assets of the Company or any Subsidiary or (iii) the winding up or liquidation of the affairs of the Company or any Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; (g) the Company or any Subsidiary (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any Subsidiary or for all or substantially all of the property and assets of the Company or any Subsidiary or (iii) effects any general assignment for the benefit of creditors of the Company or any Subsidiary; (h) the Company and/or one or more Subsidiaries fail to make at the final (but not any interim) fixed maturity of one or more issues of Indebtedness a principal payment or principal payments aggregating more than $10 million and all such defaulted payments shall not have been made, waived or extended within 30 days of the payment default that caused the aggregate amount of such defaulted payments to exceed $10 million; or (i) any of the Applicable Documents shall cease, for any reason, to be in full force and effect in any material respect, except as a result of an amendment, waiver or termination thereof as contemplated or permitted therein. If an Event of Default (other than an Event of Default specified in clause (f) or (g) above that occurs with respect to the Company) occurs and is continuing, the Trustee or the Holders of at least 25% of the aggregate principal amount of the Securities then Outstanding, by written notice to the Company (and to the Trustee if such notice is given by the Holders (the "Acceleration Notice" )), may, and the Trustee at the request of the Holders shall, declare the entire unpaid principal, premium (if any) and accrued interest on the Securities to be immediately due and payable as specified below. Upon a declaration of acceleration, such principal, premium (if any) and accrued interest shall be immediately due and payable. In the event of a 25 32 declaration of acceleration because an Event of Default set forth in clause (d) above has occurred and is continuing, such declaration of acceleration shall be automatically rescinded and annulled if the event of default triggering such Event of Default shall be remedied, cured by the Company or waived by the holders of the relevant Indebtedness within 30 days after the occurrence of the Event of Default with respect thereto and the Company has delivered an Officer's Certificate as to such effect. If an Event of Default specified in clause (f) or (g) above occurs with respect to the Company, all unpaid principal of, premium (if any) and accrued interest on the Securities then outstanding shall ipso facto become and be immediately due and payable without declaration or other act on the part of the Trustee or any Holder. The Holders of at least a majority in principal amount of the outstanding Securities, by written notice to the Company and the Trustee, may waive all past defaults and rescind and annul a declaration of acceleration and its consequences if (i) all existing Events of Default, other than the non-payment of the principal of, premium, if any, and interest on Securities that have become due solely by such declaration of acceleration, have been cured or waived and (ii) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. Upon receipt by the Trustee of any Notice of Default pursuant to this Section 7.1 with respect to Securities all or part of which are represented by a Global Security, a record date shall be established for determining Holders of Outstanding Securities entitled to join in such Notice of Default, which record date shall be at the close of business on the day the Trustee receives such Notice of Default. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such Notice of Default, whether or not such Holders remain Holders after such record date; provided, that unless Holders of at least 25% in principal amount of the Outstanding Securities, or their proxies, shall have joined in such Notice of Default prior to the day which is 90 days after such record date, such Notice of Default shall automatically and without further action by any Holder be cancelled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new Notice of Default identical to a Notice of Default which has been cancelled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 7.1. Upon receipt by the Trustee of any Acceleration Notice or any rescission and annulment thereof, with respect to Securities all or part of which are represented by a Global Security, a record date shall be established for determining Holders of Outstanding Securities entitled to join in such notice, which record date shall be at the close of business on the day the Trustee receives such notice. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders after such record date; provided, that unless such declaration of acceleration, or rescission and annulment, as the case may be, shall have become effective by virtue of the requisite percentage having joined in such notice prior to the day which is 90 days after such record date, such notice of declaration of acceleration or rescission and annulment, as the case may be, shall automatically and without further action by any Holder be cancelled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new written notice of declaration of acceleration, or rescission and annulment thereof, as the case may be, that is identical to a written notice which has been cancelled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 7.1. SECTION 7.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt. The Company covenants that (a) in case default shall be made in the payment of any installment of interest on any of the Securities when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal of any of the Securities when the same shall have become due and payable, whether upon maturity of the Securities or upon any redemption or by declaration or otherwise, then upon demand of the Trustee, the Company will pay to the Trustee for the benefit of the Holders of the Securities the whole amount that then shall have become due and payable an all Securities for principal or interest, as the case may be (with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest specified in the 26 33 Securities); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred, and all advances made by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith. Until such demand is made by the Trustee, the Company may pay the principal of and interest on the Securities to the registered Holders, whether or not the Securities are overdue. In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company or other obligor upon the Securities and collect in the manner provided by law out of the property of the Company or other obligor upon the Securities, wherever situated the monies adjudged or decreed to be payable. In case there shall be pending proceedings relative to the Company or any other obligor upon the Securities under Title 11 of the United States Code or any other applicable Federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company or the property of the Company or such other obligor, or in case of any other judicial proceedings relative to the Company or other obligor upon the Securities, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee will have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise: (a) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Securityholders allowed in any judicial proceedings relative to the Company or other obligor upon the Securities, or to the creditors or property of the Company or such other obligor, (b) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of the Securities in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing similar functions in comparable proceedings, and (c) to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person. 27 34 All rights of action and of asserting claims under this Indenture, or under any of the Securities may be enforced by the Trustee without the possession of any of the Securities or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered. In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Securities in respect of which such action was taken, and it shall not be necessary to make any Holders of such Securities parties to any such proceedings. SECTION 7.3 Application of Proceeds. Any monies collected by the Trustee pursuant to this Article Seven in respect of the Securities shall be applied in the following order at the date or dates fixed by the Trustee and, in the case of the distribution of such monies on account of principal or interest, upon presentation of the several Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities in reduced principal amounts in exchange for the presented Securities if only partially paid, or upon surrender thereof if fully paid: FIRST: To the payment of amounts due the Trustee or any predecessor Trustee under Section 8.6; SECOND: In case the principal of the Securities shall not have become and be then due and payable, to the payment of interest on the Securities in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest specified in the Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference; THIRD: In case the principal of the Securities shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities for principal and interest, with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the same rate as the rate of interest specified in the Securities and in case such monies shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities, then to the payment of such principal and interest without preference or priority of principal over interest or of interest over principal, or of any installment of interest over any other installment of interest, or of any Security over any other Security, ratably to the aggregate of such principal and accrued and unpaid interest; and FOURTH: To the payment of the remainder, if any, to the Company or any other person lawfully entitled thereto. SECTION 7.4 Suits for Enforcement. In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. SECTION 7.5 Restoration of Rights on Abandonment of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the Company and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Trustee and the Securityholders shall continue as though no such proceedings had been taken. 28 35 SECTION 7.6 Limitations on Suits by Securityholders. A Holder of Securities may not pursue any remedy with respect to this Indenture or the Securities unless; (i) such Holder gives to the Trustee written notice of a continuing Event of Default; (ii) the Holders of at least 25% in aggregate principal amount of outstanding Securities make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense; (iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and (v) during such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding Securities do not give the Trustee a direction that is inconsistent with the request. For purposes of this Section 7.6, the Trustee shall comply with Section 316(a) of the TIA in making any determination of whether the Holders of the required aggregate principal amount of outstanding Securities have concurred in any request or direction of the Trustee to pursue any remedy available to the Trustee or the Holders with respect to this Indenture or the Securities or otherwise under the law. A Holder of Securities may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder. SECTION 7.7 Unconditional Right of Securityholders to Institute Certain Suits. Notwithstanding any other provision in this Indenture and any provision of any Security, the right of any Holder of any Security to receive payment of the principal of, premium (if any) and interest on such Security on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. SECTION 7.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default. Except as provided in Section 7.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. No delay or omission of the Trustee or of any Holder to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and, subject to Section 7.6, every power and remedy given by this Indenture or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders. SECTION 7.9 Control by Holders of Securities. The Holders of a majority in aggregate principal amount of the Securities at the time outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities by this Indenture; provided, that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture; and provided, further, that (subject to the provisions of Section 8.1) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive committee, or a trust committee of directors or Responsible Officers of the Trustee shall determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders not joining in the giving of said direction. It being understood that (subject to Section 8.1) the Trustee shall have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders. Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and that is not inconsistent with such direction or directions by the Holders. Upon receipt by the Trustee of any written notice directing the time, method or place of conducting any such proceeding or exercising any such trust or power, with respect to Securities all or part of which are 29 36 represented by a Global Security, a record date shall be established for determining Holders of Outstanding Securities entitled to join in such notice, which record date shall be at the close of business on the day the Trustee receives such notice. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders after such record date; provided, that unless the Holders of a majority in principal amount of the Outstanding Securities shall have joined in such notice prior to the day which is 90 days after such record date, such notice shall automatically and without further action by any Holder be cancelled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new notice identical to a notice which has been cancelled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 7.9. SECTION 7.10 Waiver of Past Defaults. Subject to Sections 7.1 and 7.7, the Holders of at least a majority in principal amount of the outstanding Securities, by notice to the Trustee, may waive an existing Event of Default and its consequences, except a default in the payment of principal of or interest on any Security as specified in clause (a) or (b) of Section 7.1. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to waive any past default hereunder. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to waive any default hereunder, whether or not such Holders remain Holders after such record date; provided, that unless such majority in principal amount shall have waived such default prior to the date which is 90 days after such record date, any such waiver previously given shall automatically and without further action by any Holder be cancelled and of no further effect. Upon any such waiver, such Default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default at Event of Default or impair any right consequent thereon. SECTION 7.11 Trustees to Give Notice of Default, But May Withhold in Certain Circumstances. The Trustee shall, within ninety days after the occurrence of a Default with respect to the Securities, give notice of all Defaults known to the Trustee to all Holders of Securities in the manner and to the extent provided in Section 313(c) of the TIA, unless in each case such Defaults shall have been cured before the mailing or publication of such notice; provided, however, that, except in the case of Default in the payment of the principal of or interest on any of the Securities, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or trustees or Responsible Officers of the Trustee, or any combination of the foregoing, in good faith determines that the withholding of such notice is in the interests of the Securityholders. SECTION 7.12 Right of Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merit and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders holding in the aggregate more than 10% in aggregate principal amount of the Securities or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or interest on any Security on or after the due date expressed in such Security or any date fixed for redemption. 30 37 ARTICLE EIGHT CONCERNING THE TRUSTEE SECTION 8.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default. With respect to the Holders of the Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities and after the curing or waiving of all Events of Default that may have occurred, has undertaken to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the Securities has occurred (that has not been cured or waived), the Trustee shall exercise with respect to such Securities such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own wilful misconduct, except that: (a) prior to the occurrence of an Event of Default with respect to the Securities and after the curing or waiving of all such Events of Default with respect to such Securities that may have occurred: (i) the duties and obligations of the Trustee with respect to the Securities shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such statements, certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; (b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders pursuant to Section 7.9 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture. None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. The provisions of this Section 8.1 are in furtherance of and subject to Section 315 of the TIA. SECTION 8.2 Certain Rights of the Trustee. In furtherance of and subject to the TIA, and subject to Section 8.1: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officers' Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers' Certificate of the Company (unless other evidence in respect thereof be herein 31 38 specifically prescribed); and any resolution of the Board of Directors of the Company may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Company; (c) the Trustee may consult with counsel and any written advice or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in reliance thereon in accordance with such advice or Opinion of Counsel; (d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred therein or thereby; (e) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture; and (f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing to so do by the Holders of not less than a majority in aggregate principal amount of the Securities then Outstanding; provided, however, that, if the payment within a reasonable time to the Trustee of the costs, expenses, or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Company or, if paid by the Trustee or any predecessor Trustee, shall be repaid by the Company upon demand. SECTION 8.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds thereof. SECTION 8.4 Trustee and Agents May Hold Securities; Collections, etc. The Trustee or any agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such agent and may otherwise deal with the Company and receive, collect, hold and retain collections from the Company with the same rights it would have if it were not the Trustee or such agent. SECTION 8.5 Monies Held by Trustee. Subject to the provisions of Section 11.4 hereof, all monies received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the Company or the Trustee shall be under any liability for interest on any monies received by it hereunder. SECTION 8.6 Compensation and Indemnification of Trustee and Its Prior Claim. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and the Company covenants and agrees to pay or reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith. The Company also covenants to indemnify the Trustee and each predecessor Trustee for, and to 32 39 hold it harmless against, any loss, liability or expense incurred, without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in the premises. The obligations of the Company under this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness of the Company hereunder and shall survive the satisfaction and discharge of this Indenture. Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities, and the Securities are hereby subordinated to such senior claim. SECTION 8.7 Right of Trustee to Rely on Officers' Certificate, etc. Subject to Sections 8.1 and 8.2, whenever in the administration of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate of the Company delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof. SECTION 8.8 Persons Eligible for Appointment as Trustee. The Trustee shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State or the District of Columbia, or a corporation or other Person permitted to act as Trustee by the Commission pursuant to the TIA, having a combined capital and surplus of at least $50,000,000, and that is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by Federal, State or District of Columbia authority. Such corporation shall have an address in the Borough of Manhattan, The City of New York for the presentment of Securities. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 8.9. The provisions of this Section 8.8 are in furtherance of and subject to Section 310(a) of the TIA. SECTION 8.9 Resignation and Removal; Appointment of Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign by giving written notice of resignation to the Company and by mailing notice of such resignation to the Holders of then Outstanding Securities at their addresses as they shall appear on the registry books. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee or trustees by written instrument in duplicate, executed by authority of the Board of Directors of the Company, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities for at least six months may, subject to the provisions of Section 8.12, on behalf of itself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. (b) In case at any time any of the following shall occur: (i) the Trustee shall fail to comply with the provisions of Section 310(b) of the TIA with respect to the Securities after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security or Securities for at least six months; or 33 40 (ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 8.8 and Section 310(a) of the TIA and shall fail to resign after written request therefor by the Company or by any Securityholder; or (iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case, unless the Trustee's duty to resign has been stayed as provided pursuant to Section 310(b) of the TIA, the Company may remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 315(e) of the TIA, any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee. (c) The Holders of a majority in aggregate principal amount of the Securities at the time Outstanding may at any time remove the Trustee and appoint a successor trustee by delivering to the Trustee so removed, to the successor trustee so appointed, and to the Company the evidence provided for in Section 9.1 of the action in that regard taken by the Securityholders. (d) Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section 8.9 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 8.10. SECTION 8.10 Acceptance of Appointment by Successor Trustee. Any successor trustee appointed as provided in Section 8.9 shall execute and deliver to the Company and to its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as trustee hereunder; but nevertheless, on the written request of the Company or of the successor trustee, upon payment of its charges then unpaid, the Trustee ceasing to act shall, subject to Section 11.4, pay over to the successor trustee all monies at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 8.6. No successor trustee shall accept appointment as provided to this Section 8.10 unless at the time of such acceptance such successor trustee shall be qualified under Section 310(b) of the TIA and eligible under the provisions of Section 8.8. Upon acceptance of appointment by any successor trustee as provided in this Section 8.10, the Company shall give notice thereof to the Holders of Securities, by mailing such notice to such Holders at their addresses as they shall appear on the registry books. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding sentence may be combined with the notice called for by Section 8.9. If the Company fails to give such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be given at the expense of the Company. SECTION 8.11 Merger, Conversion, Consolidation or Succession to Business of Trustee. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or 34 41 any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided, however, that such corporation shall be qualified under Section 310(b) of the TIA and eligible under the provisions of Section 8.8, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case at the time such successor to the Trustee shall succeed to the trust created by this Indenture any of the Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor Trustee hereunder or in the name of the successor Trustee; and in all such cases such certificate shall have the full force that it has anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation. SECTION 8.12 Preferential Collection of Claims Against the Company. The Trustee shall comply with Section 311(a) of the TIA. Any Trustee that has resigned or been removed is subject to Section 311(s) of the TIA to the extent indicated therein. SECTION 8.13 Appointment of Authenticating Agent. As long as any Securities remain Outstanding, the Trustee may, by an instrument in writing, appoint an authenticating agent (the "Authenticating Agent") that shall be authorized to act on behalf of the Trustee to authenticate Securities, including Securities issued upon exchange, registration of transfer, partial redemption or pursuant to Section 2.5. Securities authenticated by such Authenticating Agent shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee. Whenever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or to the Trustee's Certificate of Authentication (including, without limitation, in Section 2.3), such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a Certificate of Authentication executed on behalf of the Trustee by such Authenticating Agent. Such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $5,000,000 (determined as provided in Section 8.8 with respect to the Trustee) and subject to supervision or examination by Federal or State authority. Any corporation into which any Authenticating Agent may be merged or converted, or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with respect to all Securities for which it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent. Any Authenticating Agent may at any time, and if it shall cease to be eligible shall, resign by giving written notice of resignation to the Trustee and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 8.13, the Trustee shall upon receipt of an Company Order appoint a successor Authenticating Agent and the Company shall provide notice of such appointment to all Holders in the manner and to the extent provided in Section 12.4. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Company agrees to pay to the Authenticating Agent from time to time reasonable compensation. The Authenticating Agent for the Securities shall have no responsibility or liability for any action taken by it as such at the direction of the Trustee. Sections 8.2, 8.3, 8.4, 8.6, 8.8 and 9.3 shall be applicable to any Authenticating Agent as if each reference to "Trustee" therein referred to the Authenticating Agent. 35 42 ARTICLE NINE CONCERNING THE SECURITYHOLDERS SECTION 9.1 Evidence of Action Taken by Securityholders. Any request demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal amount of the Securityholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Securityholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 8.1 and 8.2) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Article Nine. SECTION 9.2 Proof of Execution of Instruments and of Holding of Securities. Subject to Sections 8.1 and 8.2, the execution of any instrument by a Securityholder or his agent or proxy may be proved in the following manner: (a) The fact and date of the execution by any Holder of any instrument may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the person executing such instruments acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute sufficient proof of the authority of the person executing the same. (b) The ownership of Securities shall be proved by the Security register or by a certificate of the Security registrar. The Company may set a record date for purposes of determining the identity of Holders of Securities entitled to vote or consent to any action referred to in Section 9.1, which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration not more than 60 days nor less than five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other provisions hereof, only Holders of Securities of record on such record date shall be entitled to so vote or give such consent or revoke such vote or comment. SECTION 9.3 Holders to be Treated as Owners. The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the person in whose name any Security shall be registered upon the Security register as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of, premium (if any) and interest on such Security and for all other purposes, and neither the Company or the Trustee nor any agent of the Company or the Trustee shall be affected by any notice to the contrary. SECTION 9.4 Securities Owned by the Company Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities have concurred in any direction, consent or waiver under this Indenture, Securities that are owned by the Company or any other obligor on the Securities with respect to which such determination is being made or by any Affiliate of the Company or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver only Securities that the Trustee knows are so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made 36 43 by the Trustee in accordance with such advice. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer's Certificate listing and identifying all Securities, if any, known by the Company, to be owned or held by or for the account of any of the above-described persons; and, subject to Sections 8.1 and 8.2, the Trustee shall be entitled to accept such Officer's Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination. SECTION 9.5 Right of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 9.1, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article Nine, revoke such action so far as it concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange of substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities affected by such action. ARTICLE TEN AMENDMENTS SECTION 10.1 Amendments and Supplements Permitted Without Consent of Holders. (a) Notwithstanding Section 10.2, the Company and the Trustee may amend or supplement this Indenture or the Securities without the consent of any Holder to: (i) cure any ambiguity, correct or supplement any provisions herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture; provided that such amendment does not adversely affect the rights of the Holders; (ii) provide for uncertificated Securities in addition to or in place of certificated Securities; (iii) evidence the succession of another corporation to the Company and provide for the assumption by such successor of the Company's obligations to the Holders hereunder and under the Notes as permitted under Article Six; (iv) make any change that would (1) provide any additional rights or benefits to Holders or (2) not adversely affect the legal rights under the Indenture of any Holder, or (v) comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the TIA. (b) Upon the Company's request, after receipt by the Trustee of a resolution of the Board of Directors authorizing the execution of any amended or supplemental indenture, and the documents described in Section 10.6, the Trustee shall join with the Company in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be contained in any such amended or supplemental indenture, but the Trustee shall not be obligated to enter into an amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise. SECTION 10.2 Amendments and Supplements Requiring Consent of Holders. (a) Except as otherwise provided in Section 10.1(a) and 10.2(c), this Indenture and the Securities may be amended or supplemented with the written consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Securities (including consents obtained in connection with a tender offer or exchange offer for the Securities), and any existing Default or Event of Default or non-compliance with any provision of the Indenture or the Securities may be waived with the consent of 37 44 Holders of at least a majority in principal of the then outstanding Securities (including consents obtained in connection with a tender offer or exchange offer for the Securities). (b) Upon the Company's request and after receipt by the Trustee of a resolution of the Board of Directors authorizing the execution of any supplemental indenture, evidence of the Holders' consent, and the documents described in Section 10.6, the Trustee shall join with the Company in the execution of such amended or supplemental indenture unless such amended or supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture. (c) Without the consent of each Holder affected, no amendment, supplement or waiver to this Indenture shall: (i) reduce the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver of any provision of this Indenture on the Securities, (ii) reduce the principal of or change the fixed maturity of any Security, or alter the provisions with respect to the redemption of the Securities in a manner adverse to the Holders, (iii) reduce the rate of or change the time for payment of interest on any Security, (iv) waive a Default or Event of Default in the payment of principal of, or premium (if any) or interest on, the Securities (except that Holders of at least a majority in aggregate principal amount of the then outstanding Securities may (1) rescind an acceleration of the Securities that resulted from a non-payment default, and (2) waive the payment default that resulted from such acceleration), (v) make any Security payable in money other than U.S. Legal Tender, (vi) make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of Holders to receive payments of principal of, or premium (if any) or interest on, the Securities, (vii) waive a redemption payment with respect to any Security, or (ix) make any change in Section 7.7, Section 7.10 or this sentence. (d) The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided, that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 90 days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect. (e) It shall not be necessary for the consent of the Holders under this Section 10.2 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof. After an amendment, supplement or waiver under this Section 10.2 becomes effective, the Company shall mail to each Holder affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. SECTION 10.3 Compliance with TIA. Every amendment or supplement to this Indenture or the Securities shall be set forth in an amended supplemental indenture that complies with the TIA as then in effect. SECTION 10.4 Revocation and Effect of Consents. (a) Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent holder of a Security or portion of a Security that evidences the same Indebtedness as the consenting Holder's Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to its Security or portion of a Security if the Trustee receives the notice of revocation before the date on which the Trustee receives an Officers' Certificate certifying that the Holders of the requisite principal amount of Securities have consented (and not theretofore revoked such consent) to the amendment or waiver. 38 45 (b) The Company may, but shall not be obligated to, fix a record date for the purpose of determining the holders of Securities entitled to consent to any amendment or waiver. If a record date is fixed, then notwithstanding the provisions of the immediately preceding paragraph, those Persons who were holders of Securities at such record date (or their duly designated proxies), and only those Persons, shall be entitled to consent to such amendment or waiver or to revoke any consent previously given, whether or not such Persons continue to be holders of Securities after such record date. No consent shall be valid or effective for more than 90 days after such record date. (c) After an amendment or waiver becomes effective it shall bind every Holder, unless it is of the type described in Section 10.2(c), in which case the amendment or waiver shall only bind each Holder that consented to it and every subsequent holder of a Security that evidences the same debt as the consenting Holder's Security. SECTION 10.5 Notation on or Exchange of Securities. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Security thereafter authenticated. The Company in exchange for all Securities may issue and the Trustee shall authenticate new Securities that reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Security shall not affect the validity and effect of such amendment, supplement or waiver. SECTION 10.6 Trustee Protected. The Trustee shall sign any amendment or supplemental indenture authorized pursuant to this Article Ten if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing such amendment or supplemental indenture, the Trustee shall be entitled to receive and, subject to Section 8.1, shall be fully protected in relying upon, an Officers' Certificate and Opinion of Counsel as conclusive evidence that such amendment or supplemental indenture is authorized or permitted by this Indenture, that it is not inconsistent herewith, and that it will be valid and binding upon the Company in accordance with its terms. The Company may not sign an amendment or supplemental indenture until the Board of Directors approves it. ARTICLE ELEVEN SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONIES SECTION 11.1 Satisfaction and Discharge of Indenture. (A) Except as otherwise provided in this Section 11.1, the Company may terminate its obligations under the Securities and this Indenture with respect to the Securities if: (i) all Securities previously authenticated and delivered (other than destroyed, lost or stolen Securities that have been replaced or Securities that are paid pursuant to Section 4.1 of this Indenture or Securities for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Company, as provided in Section 11.4 of this Indenture) have been delivered to the Trustee for cancellation and the Company has paid all sums payable by it hereunder; or (ii) (A) the Securities mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (B) the Company irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for the benefit of the Holders for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal and interest on the Securities to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (C) no Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, (D) such deposit will not result in a breach or violation of, or constitute a default under, this 39 46 Indenture or any other agreement or instrument to which the Company is a party or by which either is bound and (E) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (i), the Company's obligations under Section 8.6 shall survive. With respect to the foregoing clause (ii), the Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 4.1, 4.2, 4.3, 4.4, 8.6, 8.9, 11.2, 11.4 and 11.5 of this Indenture shall survive until the Securities are no longer outstanding. Thereafter, only the Company's obligations in Section 8.6 and 11.2 of this Indenture shall survive. After any such irrevocable deposit, the Trustee upon request shall acknowledge in writing the discharge of the Company's obligations under the Securities and this Indenture with respect to the Securities except for those surviving obligations specified above. (B) The Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Securities on the 123rd day after the deposit referred to in clause (d) of this paragraph, and the provisions of this Indenture will no longer be in effect with respect to the Securities, except as to (i) rights of registration of transfer and exchange, (ii) substitution of apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of Holders to receive payments of principal thereof and interest thereon, (iv) the Company's obligations under Section , (v) the rights, obligations and immunities of the Trustee hereunder and (vi) the rights of the Holders of Securities as beneficiaries of this Indenture with respect to the property so deposited with the Trustee payable to all or any of them, and the Trustee, at the expense of the Company, shall at the Company's request execute proper instruments acknowledging the same; provided that the following conditions shall have been satisfied: (a) with reference to this Section 11.1(B), the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee (or another trustee satisfying the requirements of Section 8.8) and conveyed all right, title and interest for the benefit of the Holders of the Securities, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee as trust funds in trust, in and to (1) money in an amount, (2) U.S. Government Obligations that, through the payment of interest and principal in respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment referred to in this clause (a), money in an amount or (3) a combination thereof in an amount sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, without consideration of the reinvestment of such interest and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, the principal of, premium, if any, and interest on the outstanding Securities at the Stated Maturity of such principal or interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations to the payment of such principal, premium, if any, and interest with respect to the Securities; (b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which either is bound; (c) the Company shall have delivered to the Trustee (1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of Securities will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 11.1(B) and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such option had not been exercised or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and (2) an Opinion of Counsel to the effect that (w) the creation of the defeasance trust does not violate the Investment Company Act of 1940, (x) the Holders have a valid first-priority security interest in the trust funds and (y) after the passage of 123 days following the deposit (except, with respect to any trust funds for the account of any Holder who may be 40 47 deemed to be an "insider" for purposes of the United States Bankruptcy Code, after one year following the deposit), the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law in a case commenced by or against the Company under either such statute, and either (I) the trust funds will not longer remain the property of the Company (and therefore will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally) or (II) if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company, (a) assuming such trust funds remained in the possession of the Trustee prior to such court ruling to the extent not paid to the Holders, the Trustee will hold, for the benefit of the Holders, a valid and perfected security interest in such trust funds that is not avoidable in bankruptcy or otherwise except for the effect of Section 552(b) of the United States Bankruptcy Code on interest on the trust funds accruing after the commencement of a case under such statute and (b) the Holders will be entitled to receive adequate protection of their interests in such trust funds if such trust funds are used in such case or proceeding; (d) if the Securities are then listed on a national securities exchange, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause the Securities to be delisted; and (e) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 11.1(B) have been complied with. Notwithstanding the foregoing clause (a), prior to the end of the 123-day period referenced to in clause (d)(2)(y) above, none of the Company's obligations under this Indenture shall be discharged. Subsequent to the end of such 123-day period with respect to this Section 11.1, the Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 4.1, 4.2, 4.3, 4.4, 8.6, 8.9, 11.2, 11.4 and 11.5 shall survive until the Securities are no longer outstanding. Thereafter, only the Company's obligations in Section 8.6 and 11.2 shall survive. If and when a ruling from the Internal Revenue Service or an Opinion of Counsel referred to in clause (d)(1) above is able to be provided specifically without regard to, and not in reliance upon, the continuance of the Company's obligations under Section 4.1, then the Company's obligations under such Section 4.1 shall cease upon delivery to the Trustee of such ruling or Opinion of Counsel and compliance with the other conditions precedent provided for herein relating to the defeasance contemplated by this Section 11.1. After any such irrevocable deposit, the Trustee upon request, shall acknowledge in writing the discharge of the Company's obligations under the Securities and this Indenture with respect to the Securities except for those surviving obligations in the immediately preceding paragraph. (C) The Company may omit to comply with any term, provision or condition set forth in clause (d) of Section 6.1 of this Indenture, the covenants described in Sections 4.11, 4.13, 4.14, 4.15 and 4.18 of this Indenture and clause (c) of Section 7.1 of this Indenture with respect to such covenants, and clauses (d), (e) and (h) of Section 7.1 shall be deemed not to be Events of Default, in each case with respect to the outstanding Securities if: (a) with reference to this Section 11.1(C), the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee (or another trustee satisfying the requirements of Section 8.8) and conveyed in and to all right, title and interest to the Trustee for the benefit of the Holders, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee as trust funds in trust, specifically pledged to the Trustee as security for payment of the principal of, premium, if any, and interest, in any, on the Securities for, and dedicated solely to, the benefit of the Holders of the Securities, in and to (1) money in an amount, (2) U.S. Government Obligations that, through the payment of interest and principal in respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment referred to in this clause (a), money in an amount or (3) a combination thereof in an amount sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, without consideration of the reinvestment of 41 48 such interest and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, the principal of, premium, if any, and interest on the outstanding Securities on the Stated Maturity of such principal or interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations to the payment of such principal, premium, if any, and interest with respect to the Securities; (b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; (c) no Default or Event of Default shall have occurred and be continuing on the date of such deposit; (d) the Company has delivered to the Trustee an Opinion of Counsel to the effect that (1) the creation of the defeasance trust does not violate the Investment Company Act of 1940, (2) the Holders of the Securities have a valid first-priority security interest in the trust funds, (3) the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance of certain obligations and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred and (4) after the passage of 123 days following the deposit (except, with respect to any trust funds for the account of any Holder who may be deemed to be an "insider" for purposes of the United States Bankruptcy Code, after one year following the deposit), the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law in a case commenced by or against the Company under either such statute, and either (x) the trust funds will no longer remain the property of the Company (and therefore will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally) or (y) if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company, and (i) assuming such trust funds remained in the possession of the Trustee prior to such court ruling to the extent not paid to the Holders the Trustee will hold, for the benefit of the Holders, a valid and perfected security interest in such trustee funds that is not avoidable in bankruptcy or otherwise except for the effect of Section 552(b) of the United States Bankruptcy Code on interest on the trust funds accruing after the commencement of a case under such statute and (ii) the Holders will be entitled to receive adequate protection of their interests in such trust funds if such trust funds are used in such case or proceeding; (e) if the Securities are then listed on a national securities exchange, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause the Securities to be delisted; and (f) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 11.1 have been complied with. SECTION 11.2 Application by Trustee of Funds Deposited for Payment of Securities; Other Miscellaneous Provisions. Subject to Section 11.4, all monies deposited with the Trustee (or other trustee) pursuant to Section 11.3 shall be held in trust and applied by it to the payment, either directly or through any Paying Agent (including the Company or the guarantor acting as Paying Agent), to the Holders of the Securities for the payment or redemption of which such monies have been deposited with the Trustee, of all sums due and to become due thereon for principal premium, if any, and interest if may; but such money need not be segregated from other funds except to the extent required by law. If the Trustee or any Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 11.1 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such applications, the 42 49 Company's obligations under this Indenture and the Securities related thereto shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.1B(a) or 11.1C(a) until such time as the Trustee or any Paying Agent is permitted to apply all such money or U.S, Government Obligations in accordance with Section 11.1; provided, however, that if the Company has made any payment of interest on or principal of and premium (if any) on the Securities because of the reinstatement of its obligations hereunder, the Company shall be subrogated to the rights of the holders of the Securities to receive such payment from the money or U.S. Government obligations held by the Trustee for such purpose. SECTION 11.3 Repayment of Monies Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities, all monies then held by any Paying Agent under the provisions of this Indenture with respect to such Securities shall, upon demand of the Company, be repaid to the Company or paid to the Trustee and thereupon such Paying Agent shall be released from all further liability with respect to such monies. SECTION 11.4 Return of Monies Held by Trustee and Paying Agent Unclaimed for Two Years. Any monies deposited with or paid to the Trustee or any Paying Agent for the payment of the principal of, premium (if any) or interest on any Security and not applied but remaining unclaimed for two years after the date upon which such principal or interest shall have become due and payable shall, upon the written request of the Company and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Company by the Trustee or such Paying Agent, and the Holder of the Securities shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Company for any payment that such Holder may be entitled to collect, and all liability of the Trustee or any Paying Agent with respect to such monies shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment with respect to monies deposited with it for any payment, may at the expense of the Company, mail by first-class mail to Holders of such Securities at their addresses as they shall appear on the security register notice, that such monies remain and that, after a date specified therein, which shall not be less than thirty days from the date of such mailing, any unclaimed balance of such money then remaining will be, repaid to the Company. SECTION 11.5 Indemnity for U.S. Government Obligations. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited by the Company pursuant to Section 11.1 or the principal or interest received in respect of such obligations. ARTICLE TWELVE MISCELLANEOUS PROVISIONS SECTION 12.1 Incorporators, Stockholders, Officers and Directors of the Company Exempt from Individual Liability. No director, officer, employee, incorporator or shareholder of the Company or the Trustee shall have any liability for any obligation of the Company under this Indenture or the Securities or for any claim based on, in respect of, or by reason of, any such obligation or the creation of any such obligation. Each Holder by accepting a Security waives and releases such Persons from all such liability and such waiver and release is part of the consideration for the issuance of the Securities. SECTION 12.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities. Nothing in this Indenture or in the Securities expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities. SECTION 12.3 Successors and Assigns of the Company Bound by Indenture. All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not. 43 50 SECTION 12.4 Notices. Any notice, communication or demand that by any provision of this Indenture is required or permitted to be given or served may be given or served by being personally delivered, deposited postage prepaid, first-class mail, return receipt requested or delivered by telecopier or overnight air courier guaranteeing next day delivery addressed if to the Company to: 4000 East Sky Harbor Blvd., Phoenix, Arizona 85034; if to the Trustee to: . The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. Where this Indenture provides for notice to Holders of Registered Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided) it in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address an it appears in the Security register. In any case where notice to such Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but each filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. SECTION 12.5 Officers' Certificates and Opinions of Counsel; Statements to be Contained Therein. Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished. Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. Any certificate, statement or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, information with respect to which is in the possession of the Company, upon the certificate, statement or opinion of or representations by an officer or officers of the Company unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of an officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Company, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate or opinion of any independent firm of public accountants filed with and directed to the Trustee shall contain a statement that such firm is independent. 44 51 SECTION 12.6 Payments Due on Saturdays, Sundays and Holidays. If the date of maturity of interest on or principal of the Securities the date fixed for redemption or repayment of any Security shall not be a Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date. SECTION 12.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by, or with another provision (an "incorporated provision") included in this Indenture by operation of, Sections 310 to 316, inclusive, of the Trust Indenture Act of 1939, such imposed duties or incorporated provision shall control. SECTION 12.8 New York Law to Govern. This Indenture and each Security, shall be deemed to be a contract under the law of the State of New York, and for all purposes shall be construed in accordance with the law of such State, except as may otherwise be required by mandatory provisions of law. SECTION 12.9 Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. SECTION 12.10 Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. 45 52 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of , 1994. AMERICA WEST AIRLINES, INC. By:__________________________________ Title: Attest: By:______________________________________________ Title: [TRUSTEE] By:___________________________________ Title: Attest: By:______________________________________________ Title: 46 53 STATE OF NEW YORK | | | ss.: | COUNTY OF NEW YORK | On this of , 199 before me personally came , to me personally known, who, being by me duly sworn, did depose and say that he resides at ; that he is the of America West Airlines, Inc., one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that It was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. (NOTARIAL SEAL) ______________________________________ Notary Public 47 54 STATE OF NEW YORK | | | ss.: | COUNTY OF NEW YORK | On this of , 199 before me personally came , to me personally known, who, being by me duly sworn, did depose and say that he resides at ; that he is the of [TRUSTEE], one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that It was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. (NOTARIAL SEAL) ______________________________________ Notary Public 48 55 EXHIBIT A [FORM OF FACE OF SECURITY] THE ISSUANCE OF THE SECURITIES PRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR PURSUANT TO THE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT PURSUANT TO (i) A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT, (ii) RULE 144 OR RULE 144A UNDER SUCH ACT, OR (iii) ANY OTHER EXEMPTION FROM REGISTRATION UNDER SUCH ACT RELATING TO SUCH ACT, PROVIDED THAT, IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM AND SUBSTANCE IS FURNISHED TO THE COMPANY THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE. [OID LEGEND] AMERICA WEST AIRLINES, INC. % SENIOR UNSECURED NOTES DUE 2001 No. R- $ America West Airlines, Inc. a Delaware corporation (the "Company"), which term includes any successor corporation, for value received, promises to pay , or registered assigns, the principal sum of on , 2001. Interest Payment Dates: 15 and 15, commencing , 1994. Record Dates: 1 and 1. This Security is continued on the following page and the additional provisions set forth therein shall for all purposes have the same effect as if set forth at this place. A-1 56 IN WITNESS WHEREOF, the Company has caused this Security to be signed manually or by facsimile by its duly authorized officers and a facsimile of its corporate seal to be affixed to, or imprinted on, this Security. Dated: AMERICA WEST AIRLINES, INC. By:__________________________________ Name: Title: Attest: _________________________________________________________ Assistant Secretary [Seal] TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities described in the within mentioned Indenture. [TRUSTEE], as trustee By:___________________________________ Authorized Signature A-2 57 AMERICA WEST AIRLINES, INC. [FORM OF REVERSE OF SECURITY] % SENIOR UNSECURED NOTES DUE 2001 1. INTEREST. America West Airlines, Inc., a Delaware corporation (the "Company"), promises to pay interest on the unpaid principal amount of this Security to Persons who are registered Holders at the close of business on the relevant Record Date at the rate of % per annum. Interest shall be computed on the basis of a 360-day year of twelve 30-day months and shall be payable semi-annually on 15 and 15 of each year commencing 15, 1994, or if any such day is not a Business Day, on the next succeeding Business Day. Interest will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance. Interest shall accrue with respect to principal on this Security to, but not including the date of repayment of such principal; provided, however, that if payment to the Paying Agent occurs after 10:00 a.m., New York City time, interest shall be deemed to accrue until the following Business Day. To the extent lawful, the Company shall pay interest on overdue principal, premium (if any) and interest at the rate of interest borne by this Security. On each Interest Payment Date, interest on the Securities will be paid for the immediately preceding accrual period. 2. METHOD OF PAYMENT. The Company will pay interest on the Securities (except defaulted interest) to the persons who are registered Holders at the close of business on the Record Date next preceding the applicable Interest Payment Date. If the Company defaults in the payment of the interest due on such Interest Payment Date, such defaulted interest will be paid to the Persons who are registered Holders of Securities at the close of business on a subsequent record date established by notice given not less than 15 days prior to such subsequent record date. The Company will pay the principal of this Security to the Holder that surrenders this Security to a Paying Agent on or after , 2001 or, in the event of a redemption of this Security, on or after the Redemption Date, as described below. The Company will pay principal and interest in U.S. Legal Tender by Federal funds bank wire transfer or (in the case of payment of interest) by check. If this Security is a Global Security, all payments in respect of this Security will be made to the Depository or its nominee in immediately available funds in accordance with customary procedures established from time to time by the Depository. 3. PAYING AGENT AND REGISTRAR. Initially, (the "Trustee"), will act as Paying Agent and registrar for the Securities. The Company may change any Paying Agent, co-Paying Agent, registrar or co-registrar without notice. Except as provided in the Indenture, the Company or any of its Subsidiaries may, subject to certain exceptions, act as Paying Agent, registrar or co-registrar. 4. INDENTURE. The Company issued this Security under an Indenture dated as of , 1994 (the "Indenture") between the Company and the Trustee. Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code sec.sec. 77aaa -- 77bbbb). The Securities are subject to all such terms, and Holders of the Securities are referred to the Indenture and said Act for a statement of such terms. In the event of any conflict between this Security and the Indenture, the Indenture shall govern. The Securities are general unsecured obligations of the Company limited in aggregate principal amount to $100,000,000. 58 5. OPTIONAL REDEMPTION. The Securities may be redeemed prior to , 1997 (a) at any etime in whole but not in part, at a Redemption Price equal to 105% of the aggregate principal amount of the Securities then Outstanding plus accrued and unpaid interest hereon to the Redemption Date, or (b) from time to time in part from the Net Offering Proceeds received by the Company prior to , 1997 from one or more Public Offering Sales at a Redemption Price equal to 105% of the aggregate principal amount of the Securities so redeemed, plus accrued and unpaid interest thereon to the Redemption Date. The Securities further may be redeemed on and after , 1997, at any time in whole or from time to time in part, at a Redemption Price equal to the applicable percentage of the aggregate principal amount of the Securities so to be redeemed, set forth below, plus accrued and unpaid interest thereon to the Redemption Date.
IF REDEEMED DURING THE 12 MONTHS BEGINNING % OF , PRINCIPAL AMOUNT _____________________ ________________ 1997................................................. 105.0 1998................................................. 103.3 1999................................................. 101.7 2000 and thereafter.................................. 100.0
If the Redemption Date is subsequent to a Record Date with respect to any Interest Payment Date and on or prior to such Interest Payment Date, then such accrued interest, if any, will be paid to the person in whose name such Securities are registered at the close of business on such Record Date and no other interest will be payable thereon. 6. NOTICE OF REDEMPTION. Notice of Redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of Securities to be redeemed at his registered address. Securities in denominations larger than $1,000 may be redeemed in part, but not in denominations of less than $1,000. From and after any Redemption Date, if monies for the redemption of the Securities called for redemption shall have been made available for redemption on such Redemption Date, the Securities called for redemption will cease to bear interest and the only right of the Holders of such Securities will be to receive payment of the Redemption Price. 7. LIMITATION ON PUBLIC OFFERING SALES. As more fully set forth in the Indenture, under certain circumstances the Company is required to apply 50% (but not more than $20,000,000) of the net proceeds from one or more Public Offering Sales to purchase Securities in a Net Proceeds Offer at a purchase price equal to 104% of the principal amount of the Securities plus any accrued and unpaid interest to the date of purchase. A Holder of Securities may tender in any Net Proceeds Offer all or any portion of its Securities at its discretion by completing the form entitled "Option of Holder to Elect Purchase" appearing on the reverse side of this Security. 8. DENOMINATIONS; TRANSFER; EXCHANGE. The Securities are in fully registered form, without coupons, in denominations of $1,000 and integral multiples of $1,000. A Holder may register the transfer of or exchange Securities in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Company need not register the transfer of or exchange any Securities selected for redemption. Also, the Company need not issue, exchange or register the transfer of any Securities for a period of 15 days prior to the selection of the Securities to be redeemed. 2 59 In accordance with the provisions of the Indenture and subject to certain limitations therein set forth, an owner of a beneficial interest in a Global Security may request a Security in certificated form, in exchange in whole or in part, as the case may be, for such beneficial owner's interest in the Global Security. In any such instance, an owner of a beneficial interest in a Global Security will be entitled to physical delivery in certificated form of Securities in authorized denominations equal in principal amount to such beneficial interest and to have such Securities registered in its name. 9. PERSONS DEEMED OWNERS. The registered Holder of a Security may be treated as the owner of it for all purposes. With respect to Global Securities, the Depository shall grant proxies and otherwise authorize Holders of Global Securities to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder of a Security is entitled to give or take under the Indenture. 10. UNCLAIMED MONEY. If money deposited with or paid to the Trustee or any Paying Agent for the payment of principal, premium (if any) or interest on the Securities remains unclaimed for 2 years, the Trustee and any such Paying Agent will pay the money back to the Company at its request. After that, all liability of the Trustee and such Paying Agent with respect to such money shall cease. 11. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Company at any time deposits with the Trustee money or U.S. Government Obligations sufficient to pay the principal of and interest on the Securities to redemption or maturity and complies with the other provisions of the Indenture relating thereto, the Company will be discharged from certain provisions of the Indenture and the Securities (including the financial covenants, but excluding certain obligations, including without limitation its obligation to pay the principal of or interest on the Securities). 12. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities and certain existing Defaults or Events of Default or compliance with any provisions may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities. Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture or the Securities to, among other things, cure any ambiguity, correct or supplement any provision which may be inconsistent with any other provision, or to make any other provisions with respect to matters or questions arising under the Indenture which shall not be inconsistent with the provisions of the Indenture (provided such amendment or supplement does not adversely affect the rights of any of the Holders), provide for any additional rights or benefits to Holders or make any change that does not adversely affect the rights of any Holder. 13. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations on the ability of the Company and its Subsidiaries to, among other things, make payments in respect of its Capital Stock or certain Indebtedness, merge or consolidate with any other person or sell, lease, transfer or otherwise dispose of all or substantially all of its properties or assets and undertake certain transactions with Affiliates. The limitations are subject to a number of important qualifications and exceptions. The Company must annually (and in certain instances, more frequently) report to the Trustee on compliance with such limitations. 3 60 14. ASSET SALES. As more fully set forth in the Indenture, the Indenture provides that the Company must apply certain proceeds resulting from certain Asset Sales to the repurchase Securities under certain circumstances in an Excess Proceeds Offer at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase. A Holder of Securities may tender or refrain from tendering in any Excess Proceeds Offer all or any portion of its Securities at its discretion by completing the form entitled "Option of Holder to Elect Purchase" appearing on the reverse side of this Security. 15. SUCCESSORS. When a successor assumes all the obligations of its predecessor under the Securities and the Indenture, the predecessor will be released from those obligations. 16. DEFAULTS AND REMEDIES. If an Event of Default occurs and is continuing, subject to certain exceptions, the Trustee or the Holders of at least 25% in principal amount of Securities may declare all the Securities to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Securities may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a majority in principal amount of the Securities then outstanding may direct the Trustee in its exercise of any trust or power. The Trustee may withhold notice in certain circumstances. 17. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates as if it were not the Trustee. 18. NO RECOURSE AGAINST OTHERS. No stockholder, director, officer, employee or incorporator, as such, past, present or future, of the Company or any successor corporation shall have any liability for any obligation of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of a Security by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration of the issue for the Securities. 19. AUTHENTICATION. This Security shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on the face of this Security. 20. ABBREVIATION. Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants by the entireties), TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). 21. INDENTURE. The Holder hereof, by accepting this Security, agrees to be bound by all of the terms and provisions of the Indenture applicable to such Holder. The Company will furnish to any Holder of a Security upon written request and without charge a copy of the Indenture. Requests may be made to: America West Airlines, Inc., 4000 East Sky Harbour Blvd., Phoenix, Arizona 85034. 4 61 [FORM OF ASSIGNMENT] I or we assign and transfer this Security to ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Print or type name, address and zip code of assignee) Please insert social security or other identifying number of assignee and irrevocably appoint agent to transfer this Security on the books of the Company. The agent may substitute another to act for him. Dated Signed __________________ ______________________________ (Sign exactly as name appears on the other side of this Security) Signature Guarantee: 5 62 OPTION OF HOLDER TO ELECT PURCHASE If you elect to have this Security purchased by the Company pursuant to Section 4.11 or 4.15 of the Indenture, check the box: Section 4.11 / / Section 4.15 / / If you wish to have a portion of this Security purchased by the Company pursuant to Section 4.11 or 4.15 of the Indenture, state the amount (in original principal amount): $ . Date:___________________________ Your Signature:___________________________ (Sign exactly as your name appears on the other side of this Security) Signature Guarantee:___________________________ 6 EX-4.3 6 WARRANT AGREEMENT 1 EXHIBIT 4.3 ================================================================================ AMERICA WEST AIRLINES, INC. AND [ ], AS WARRANT AGENT _______________________________________ WARRANT AGREEMENT DATED AS OF [ ], 1994 _______________________________________ ================================================================================ 2 TABLE OF CONTENTS
PAGE ---- Parties................................................................................. 1 Recitals................................................................................ 1 ARTICLE I DEFINITIONS............................................................................. SECTION 1.01. Definitions........................................................ 1 ARTICLE II ISSUANCE, EXECUTION AND TRANSFER OF WARRANT CERTIFICATES................................ SECTION 2.01. Form of Warrant Certificates....................................... 4 SECTION 2.02. Execution of Warrant Certificates.................................. 4 SECTION 2.03. Issuance, Delivery and Registration of Warrant Certificates........ 5 SECTION 2.04. Transfer and Exchange of Warrant Certificates...................... 5 ARTICLE III WARRANT PRICE, EXPIRATION DATE AND EXERCISE OF WARRANTS................................. SECTION 3.01. Warrant Price; Expiration Date..................................... 7 SECTION 3.02. Exercise of Warrants; Common Stock Record Date..................... 7 SECTION 3.03. No Fractional Shares to Be Issued.................................. 9 SECTION 3.04 Acquisition of Warrants by the Company; Cancellation of Warrants... 10 ARTICLE IV ADJUSTMENT OF WARRANT PRICE, SHARES OF COMMON STOCK PURCHASABLE AND NUMBER OF WARRANTS.............................................................................. SECTION 4.01. Adjustment of Warrant Price........................................ 11 SECTION 4.02. Adjustment of Shares of Class B Common Stock Purchasable Upon Exercise of Warrants............................................. 16 SECTION 4.03. Election to Adjust Warrants Instead of Shares Per Warrant.......... 17 SECTION 4.04. No Fractional Warrants to Be Issued................................ 18 SECTION 4.05. Rights Upon Consolidation, Merger, Sale, Transfer or Reclassification................................................. 18 SECTION 4.06. Covenant to Reserve Shares for Issuance on Exercise................ 20 SECTION 4.07. Condition Precedent to Reduction of Warrant Price Below Par Value of Shares of Class B Common Stock; Compliance with Governmental Requirements; Suspension of Exercise of Warrants................. 21 SECTION 4.08. Payment of Taxes on Stock Certificates Issued upon Exercise........ 21 SECTION 4.09. Warrant Agent Not Responsible for Adjustments or Validity of Stock............................................................ 22 SECTION 4.10. Statements on Warrants............................................. 22 ARTICLE V OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS.............................. SECTION 5.01. No Rights as Stockholders.......................................... 23 SECTION 5.02. Mutilated or Missing Warrant Certificates.......................... 23 SECTION 5.03. Delivery of Prospectuses........................................... 24 ARTICLE VI CONCERNING THE WARRANT AGENT............................................................ SECTION 6.01. Payment of Certain Taxes........................................... 24 SECTION 6.02. Change of Warrant Agent............................................ 24 SECTION 6.03. Compensation; Further Assurances................................... 26 SECTION 6.04. Reliance on Counsel................................................ 27 SECTION 6.05. Proof of Actions Taken............................................. 27 SECTION 6.06. Correctness of Statements.......................................... 27 SECTION 6.07. Validity of Agreement.............................................. 27 SECTION 6.08. Use of Agents...................................................... 28
i 3
PAGE ---- SECTION 6.09. Liability of Warrant Agent......................................... 28 SECTION 6.10. Legal Proceedings.................................................. 28 SECTION 6.11. Other Transactions in Securities of the Company.................... 28 SECTION 6.12. Actions as Agent................................................... 28 SECTION 6.13. Appointment and Acceptance of Agency............................... 29 ARTICLE VII MISCELLANEOUS PROVISIONS................................................................ SECTION 7.01. Supplements and Amendments......................................... 29 SECTION 7.02. Successors and Assigns............................................. 29 SECTION 7.03. Notices............................................................ 30 SECTION 7.04. Applicable Law..................................................... 30 SECTION 7.05. Benefits of this Agreement......................................... 30 SECTION 7.06. Registered Warrant Holders......................................... 31 SECTION 7.07. Inspection of Agreement............................................ 31 SECTION 7.08. Headings........................................................... 31 SECTION 7.09. Counterparts....................................................... 32 Signatures and Seals.................................................................... 32 Exhibit A -- Form of Warrant Certificate................................................ A-1 Exhibit B -- Schedule of Fees To Be Paid to Warrant Agent............................... B-1
ii 4 WARRANT AGREEMENT THIS AGREEMENT (the "Agreement" ) made as of [ ], 1994 between AMERICA WEST AIRLINES, INC., a Delaware Corporation (including, on or after the effective date of the Plan, as defined herein, its successor, as reorganized pursuant to Chapter 11, Title 11 of the United States Bankruptcy Code (the "Bankruptcy Code" )) (the "Company" ), and the Warrant Agent, as defined herein. WITNESSETH THAT: WHEREAS, pursuant to, among other things, a Plan of Reorganization of the Company (the "Plan" ), that certain Third Revised Investment Agreement, dated as of April 21, 1994 (as it may be further amended, modified or supplemented from time to time, the "Investment Agreement" ), among the Company and AmWest Partners, L.P., a Texas limited partnership ("AmWest" ), and a confirmation order confirming the Plan issued by the Bankruptcy Court for the District of Arizona (the "Bankruptcy Court" ), the Company proposes to issue and deliver its Warrant Certificates evidencing Warrants (each, as defined herein) to acquire up to an aggregate of 10,384,615 shares, subject to adjustment, of its Class B Common Stock, as defined herein; WHEREAS, the Company wishes the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to act in connection with the issuance, exchange, transfer, substitution and exercise of Warrants; and WHEREAS, the Company desires to enter into this Agreement to set forth the terms and conditions of the Warrants and the rights of the holders thereof. NOW THEREFORE in consideration of the mutual agreements herein contained, the parties hereto agree as follows: ARTICLE I DEFINITIONS SECTION 1.01. Definitions. As used in this Agreement, the following terms shall have the following respective meanings (all terms defined herein in the singular are to have the correlative meanings when used in the plural and vice versa): 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 AmWest or any of its partners or assignees. AmWest: shall have the meaning specified in the recitals. Bankruptcy Code: shall have the meaning specified in the preamble. Bankruptcy Court: shall have the meaning specified in the recitals. Board of Directors: shall mean the Board of Directors of the Company. 5 Business Day: shall mean any day of the week other than a Saturday, Sunday or a day which shall be in New York, New York or in the city in which the principal office of the Warrant Agent is located a day on which banking institutions are authorized or required by law to close. Class A Common Stock: shall mean the Class A Common Stock, par value $[ ] per share, of the Company. Class B Common Stock: shall mean the Class B Common Stock, par value $[ ] per share, of the Company. Common Stock: shall mean the Class A Common Stock, Class B Common Stock and all other stock of any class or classes (however designated) of the Company from time to time outstanding the holders of which have the right, without limitation as to amount, either to all or to a share of the balance of current dividends and liquidating dividends after the payment of dividends and distributions on any shares entitled to preference. Company: shall have the meaning specified in the preamble. Distribution Date: shall mean the date of the closing of the transactions contemplated by the Investment Agreement. Equity Holders: shall mean the holders (including holders of Common Stock and preferred stock) of record of the Company's equity securities as of the applicable record date fixed by the Bankruptcy Court. Expiration Date: shall mean [ ], 1999. GPA: shall mean GPA Group plc., an Irish company, and any direct or indirect subsidiary thereof. Investment Agreement: shall have the meaning specified in the recitals. 1933 Act: shall mean the Securities Act of 1933, as amended from time to time, or any successor statute, and the rules and regulations promulgated thereunder. Officer's Certificate: shall have the meaning specified in Section 4.01(e). Person: shall mean a natural person, a corporation, a partnership, a trust, a joint venture, a governmental authority or any other entity or organization. Plan: shall have the meaning specified in the recitals. Related Agreements: shall have the meaning specified in the Investment Agreement. Restricted Securities: shall have the meaning specified in Section 2.04. Subsidiary: shall mean a corporation, association or other business entity in which the Company or one or more Subsidiaries owns sufficient voting securities to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such business entity. Warrant Agent: shall mean [ ] or any successor to it appointed pursuant to Section 6.02. Warrant Agent's Office: shall mean, for so long as [ ] shall be the Warrant Agent, the principal business address of [ ] as specified in Section 7.03 and, thereafter, the office or agency maintained by the Warrant Agent in the Borough of Manhattan, New York, New York or the principal office of the Warrant Agent. Warrant Certificates: shall have the meaning specified in Section 2.01. Warrant Price: shall mean a price of [$ ] for each share of Class B Common Stock issuable upon exercise of a Warrant, subject to adjustment as provided herein. Warrant Register: shall have the meaning specified in Section 2.03. 2 6 Warrants: shall mean the Warrants to purchase Class B Common Stock issued pursuant to this Agreement, the Plan and the Investment Agreement and all Warrants issued in substitution therefor. ARTICLE II ISSUANCE, EXECUTION AND TRANSFER OF WARRANT CERTIFICATES SECTION 2.01. Form of Warrant Certificates. The Warrants shall be evidenced by certificates in temporary or definitive fully registered form (the "Warrant Certificates" ) substantially in the form of Exhibit A hereto, and designated as Warrants to Purchase Class B Common Stock of America West Airlines, Inc., and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange, or to conform to usage, or as may, consistently herewith, be determined to be necessary or appropriate by the officers of the Company executing such Warrant Certificates as evidenced by their execution of the Warrant Certificates. Each Warrant shall evidence the right, subject to the provisions of this Agreement and of the Warrant Certificate, to purchase one share of Class B Common Stock at the Warrant Price, subject to adjustment pursuant to the provisions of Article IV. SECTION 2.02. Execution of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be dated as of the date of countersignature thereof by the Warrant Agent either upon initial issuance or upon exchange, substitution or transfer, shall be signed manually by, or bear the facsimile signature of, the Chairman of the Board, the Chief Executive Officer, the President or a Vice President of the Company, shall have the Company's seal or a facsimile thereof affixed or imprinted thereon and shall be attested by the manual or facsimile signature of the Secretary or an Assistant Secretary of the Company. In case any officer of the Company whose manual or facsimile signature has been placed upon any Warrant Certificate shall have ceased to be such before such Warrant Certificate is issued, it may be issued with the same effect as if such officer had not ceased to be such at the date of issuance. Warrant Certificates shall be countersigned manually by the Warrant Agent and shall not be valid for any purpose unless so countersigned. Warrant Certificates may be countersigned by the Warrant Agent, with the same effect, notwithstanding that any Persons whose manual or facsimile signatures appear thereon as proper officers of the Company shall have ceased to be such officers at the time of such countersignature. Any Warrant Certificate may be signed on behalf of the Company by any Person who, at the actual date of the execution of such Warrant Certificate, shall be a proper officer of the Company to sign such Warrant Certificate, although at the date of the execution of this Agreement any such Person was not such an officer. SECTION 2.03. Issuance, Delivery and Registration of Warrant Certificates. The Warrant Agent shall, and the Company shall cause the Warrant Agent to, countersign, issue and deliver: (a) to AmWest or its assignees, on the Distribution Date, Warrant Certificates representing 2,769,231 Warrants; (b) to [the Equity Holders/the Trust as provided for in the Plan], on the Distribution Date, Warrant Certificates representing 6,230,769 Warrants; (c) to GPA, on the Distribution Date, Warrant Certificates representing 1,384,615 Warrants; and shall countersign and deliver Warrant Certificates upon exchange or transfer of or substitution for, one or more previously countersigned Warrant Certificates as hereinafter provided. The Warrant Agent shall maintain books (the "Warrant Register" ) for the registration of Warrant Certificates (including, without limitation, registration of the Warrant Certificates described above) and the registration of transfers of Warrant Certificates after the Distribution Date. SECTION 2.04. Transfer and Exchange of Warrant Certificates. (a) Notwithstanding anything herein to the contrary, neither any Warrant nor the Class B Common Stock underlying any Warrant may be sold, assigned or otherwise transferred to any Person unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the 3 7 requirements of the 1933 Act and applicable state securities laws. Until the Restricted Securities cease to be Restricted Securities, certificates evidencing Restricted Securities (and only such certificates) will bear a legend in substantially the following form: 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 "1933 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 1933 ACT OR AN EXEMPTION THEREFROM AND FROM ANY APPLICABLE STATE SECURITIES LAWS. During such period, the Company may instruct its transfer agent to mark its records to restrict the transfer of Restricted Securities. For purposes of this Agreement, the term "Restricted Securities" shall mean the Warrants issued to AmWest[, GPA] or any of their respective Affiliates or assignees on the Distribution Date and (a) any shares of Class B Common Stock which have been issued upon exercise of such Warrants and (b) any shares of Class B Common Stock which are issuable upon the exercise of such Warrants. For the purposes of this Agreement, such securities will cease to be Restricted Securities (i) when they have been sold pursuant to an effective registration statement under the 1933 Act, (ii) when they are distributed to the public pursuant to Rule 144 (or any similar provision then in force) under the 1933 Act or (iii) when (A) they have been otherwise transferred without registration under the 1933 Act pursuant to an exemption from the registration requirements of the 1933 Act and (B) if it has so requested, the Company has received an opinion of counsel (either its own counsel or, if the Company so requests, counsel to the holders of such Restricted Securities) acceptable to the Company that such Restricted Securities may be so transferred without registration or pursuant to an exemption, and in each such instance has delivered new certificates or other evidence of ownership for such securities that are not subject to any stop transfer order or other restriction on transfer and not bearing the legend prescribed by the preceding paragraph. (b) Subject to paragraph (a) above, the Warrant Agent, from time to time, shall register the transfer of all or any whole number of Warrants covered by any outstanding Warrant Certificates in the Warrant Register upon surrender at the Warrant Agent's Office of Warrant Certificates accompanied by a written instrument or instruments of transfer, in form satisfactory to the Company and the Warrant Agent, duly executed by the registered Warrant holder or his attorney duly authorized in writing. Upon any such registration of transfer, a new Warrant Certificate shall be countersigned by the Warrant Agent and issued to the transferee and the surrendered Warrant Certificate shall promptly be canceled by the Warrant Agent. Warrant Certificates may be exchanged at the option of the holder thereof, upon surrender, properly endorsed, at the Warrant Agent's Office, with written instructions, for other Warrant Certificates countersigned by the Warrant Agent representing in the aggregate a like number of Warrants. The Company or the Warrant Agent may require the payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any such exchange or transfer. ARTICLE III WARRANT PRICE, EXPIRATION DATE AND EXERCISE OF WARRANTS SECTION 3.01. Warrant Price; Expiration Date. Each Warrant Certificate shall entitle the registered holder thereof, subject to the provisions thereof and of this Agreement, to purchase from the Company at any time commencing at the opening of business on the day after the Distribution Date and before 5:00 p.m., New York time, on the Expiration Date, one share of Class B Common Stock for each of the Warrants specified therein, at the Warrant Price, subject to adjustment as provided in Article IV hereof, payable in full at the time of purchase. Each Warrant not exercised during the applicable period set forth above shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at the end of such period. 4 8 SECTION 3.02. Exercise of Warrants; Common Stock Record Date. (a) Commencing at the opening of business on the day after the Distribution Date, Warrants may be exercised by surrendering the Warrant Certificate evidencing such Warrants at the Warrant Agent's Office with the Election to Exercise form set forth on the reverse of the Warrant Certificate duly completed and executed by the registered holder thereof or his attorney duly authorized in writing, and by paying in full to the Warrant Agent for the account of the Company (i) in cash, (ii) by certified or official bank check or (iii) by any combination of the foregoing, the Warrant Price for each share of Class B Common Stock as to which Warrants are exercised and any applicable taxes that the Company is not required to pay as set forth in Section 4.08 or 6.01. A registered Warrant holder may exercise all or any number of whole Warrants represented by a Warrant Certificate. [In the alternative, the registered holder of a Warrant Certificate may exercise its rights to purchase some or all of the shares of Class B Common Stock represented by such Warrant Certificate on a net basis such that, without the exchange of any funds, such holder receives that number of shares of Class B Common Stock subscribed to pursuant to such Warrant Certificate less that number of shares of Class B Common Stock having an aggregate current market price per share, as computed pursuant to Section 4.01(d) hereof, at the time of exercise equal to the sum of (i) the aggregate Warrant Price for such shares subscribed to pursuant to such Warrant Certificate and (ii) any applicable taxes that the Company is not required to pay as set forth in Section 4.08 or 6.01 (unless such holder has otherwise paid to the Warrant Agent in cash or by certified bank check the amount of such taxes).] (b) Subject to the provisions of subsection (e) below and Section 4.08 hereof, as soon as practicable (and in any event within five (5) Business Days) after the exercise of any Warrants and payment [, if applicable,] by the registered Warrant holder of the full Warrant Price for the shares as to which such Warrants are then being exercised, the Warrant Agent shall promptly requisition from the transfer agent of the Class B Common Stock and deliver to or upon the order of such registered Warrant holder a certificate or certificates for the number of full shares of Class B Common Stock to which such Warrant holder is entitled, registered in such name or names as may be directed by him (if other than to such registered holder, (i) to the extent such transfer is not validly restricted and (ii) upon payment of any transfer taxes that are required to be paid by such holder or its transferees in connection with any transfer by such registered holder), together with cash or scrip, as provided in Section 3.03 hereof, in respect of any fractional shares, and, if the number of Warrants represented by a Warrant Certificate shall not have been exercised in full, a new Warrant Certificate delivered to the holder of the Warrant Certificate or to his duly authorized assignee, countersigned by the Warrant Agent, for the number of Warrants remaining unexercised, together with cash or scrip, as provided in Section 4.04 hereof, in respect of the balance of any fractional Warrants represented by the surrendered Warrant Certificate. Any shares of Class B Common Stock issued upon a Warrant holder's exercise of any Warrant shall be validly authorized and issued, fully paid, non-assessable, free of pre-emptive rights and free from all taxes (other than those specified in clause (ii) above), liens, charges, security interests and claims created or incurred by the Company in respect of the issuance thereof. (c) A Warrant shall be deemed to have been exercised immediately prior to the close of business on the date of the due surrender for exercise of the Warrant Certificate and payment [, if applicable,] to the Warrant Agent for the account of the Company of the Warrant Price and any applicable taxes that the Company is not required to pay as set forth in Section 4.08 or 6.01. Each Person in whose name any such certificate for shares of Class B Common Stock is issued shall for all purposes be deemed to have become the holder of record of such shares at the close of business on the date on which the Warrant Certificate was duly surrendered to the Warrant Agent and payment of the Warrant Price and any such applicable taxes was made to the Warrant Agent for the account of the Company, irrespective of the date of delivery of such share certificate, except that, if the date of such surrender and payment is a date when the stock transfer books of the Company are closed, such Person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the stock transfer books are open (whether before or after the Expiration Date). 5 9 (d) The Warrant Agent shall promptly notify both the Company and the transfer agent of the Class B Common Stock in writing of any exercise of any Warrant and of the number of shares delivered upon the exercise of such Warrant and shall pay to the Company within 72 hours after receipt by wire transfer or certified or official bank check payable to the order of the Company the amount of money received by it upon the exercise of Warrants (less any amount paid by the Warrant Agent in respect of a fractional share upon such exercise in accordance with Section 3.03 hereof). The Warrant Agent shall hold any proceeds collected and not yet paid to the Company in a federally insured escrow account. A detailed accounting statement setting forth the number of Warrants exercised, the amount of funds received [and/or Warrants surrendered] upon such exercise and all expenses incurred by the Warrant Agent as provided in this Agreement shall be transmitted to the Company on payment to the Company of the funds so received [(or upon the receipt of the Warrants so surrendered)] upon exercise. The Warrant Agent shall render to the Company a complete accounting setting forth the number of Warrants exercised [and surrendered], the identity of the Persons exercising such Warrants, the number of shares issued, the amounts distributed to the Company and all expenses incurred by the Warrant Agent as provided in this Agreement as of the Expiration Date. (e) The Warrant Agent may deem and treat the Person named as the registered holder on the face of any Warrant as the true and lawful owner thereof for all purposes. If the Warrant Agent is instructed to deliver shares upon the exercise of Warrants or to deliver a Warrant Certificate representing unexercised Warrants, in either case registered in a name or names other than the name or names in which a Warrant Certificate tendered in connection with such exercise is registered, the Warrant Agent may require such documents, and such evidence of payment of applicable transfer taxes, as it may deem necessary to enable it to carry out the instructions of the bearer. SECTION 3.03. No Fractional Shares to Be Issued. Notwithstanding anything to the contrary contained in this Agreement, if the number of shares of Class B Common Stock purchasable on the exercise of each Warrant is adjusted pursuant to the provisions of Section 4.02 hereof, the Company shall not be required to issue any fraction of a share of Class B Common Stock or to distribute stock certificates that evidence fractional shares of Class B Common Stock. If Warrant Certificates evidencing more than one Warrant shall be surrendered for exercise at one time by the same holder, the number of full shares which shall be issuable upon exercise thereof shall be computed on the basis of the aggregate number of Warrants so surrendered. If any fraction of a share of Class B Common Stock would, except for the provisions of this Section 3.03, be issuable on the exercise of any Warrant or Warrants, the Company shall, at its option upon notice to the Warrant Agent given within two (2) Business Days of exercise of any such Warrant or Warrants, either (a) purchase such fraction for an amount in cash equal to the then-current market value of such fraction computed in accordance with Section 4.01(d) hereof (assuming, for the purpose of such computation, that the date of surrender of such Warrants to the Warrant Agent shall be the applicable record date referred to in Section 4.01(d)) or (b) issue scrip of the Company in lieu thereof, rounded up to the nearest one-hundredth of a share. Such scrip shall be non-dividend bearing and non-voting, shall be exchangeable in combination with other similar scrip for the number of full shares of Class B Common Stock represented thereby, shall be issued in such denominations (not less than one-hundredth of a share) and in such form, shall expire after such reasonable time (which shall not be sooner than either (i) five years from the date of issue or (ii) one year after the Expiration Date, whichever first occurs) and may contain such provisions for sale for the account of the holders of such scrip of shares of Class B Common Stock for which such scrip is exchangeable or the payment to such holders of the market value of such shares, and be subject to such other terms and provisions, if any, as the Board of Directors may from time to time determine. The Warrant holders, by their acceptance of the Warrant Certificates, expressly waive their right to receive any fraction of a share of Class B Common Stock or a stock certificate representing a fraction of a share of Class B Common Stock. SECTION 3.04. Acquisition of Warrants by the Company; Cancellation of Warrants. The Company shall have the right, except as limited by law or other agreement, to purchase or otherwise acquire Warrants at such times, in such manner and for such consideration as it may deem appropriate. The Warrant Agent shall cancel any Warrant Certificate delivered to it for exercise, in whole or in part, or delivered to it for transfer, exchange, or substitution, and no Warrant Certificates shall be issued in lieu thereof unless such exercise, 6 10 transfer, exchange or substitution is expressly permitted by the provisions of this Agreement. On request of the Company, the Warrant Agent shall destroy canceled Warrant Certificates held by it and shall deliver its certificates of destruction to the Company. If the Company shall acquire any of the Warrants, such acquisition shall not operate as a redemption or termination of the right represented by such Warrants unless and until the Warrant Certificates evidencing such Warrants are surrendered to the Warrant Agent for cancellation. ARTICLE IV ADJUSTMENT OF WARRANT PRICE, SHARES OF COMMON STOCK PURCHASABLE AND NUMBER OF WARRANTS SECTION 4.01. Adjustment of Warrant Price. The Warrant Price specified in Section 3.01 shall be subject to adjustment from time to time as follows: (a) If the Company after the date hereof shall (i) pay a dividend or make a distribution to all holders of Common Stock or any class thereof in shares of Common Stock or any class thereof, (ii) subdivide the outstanding shares of Common Stock or any class thereof, or (iii) combine the outstanding shares of Common Stock or any class thereof into a smaller number of shares, then in any such case the Warrant Price in effect immediately prior thereto shall be adjusted to a price obtained by multiplying such Warrant Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding prior to such action and the denominator shall be the number of shares of Common Stock outstanding after giving effect to such action. An adjustment made pursuant to clause (i) of this subsection (a) shall become effective retroactively immediately after the record date for such dividend or distribution, and an adjustment made pursuant to clause (ii) or (iii) of this subsection (a) shall become effective immediately after the effective date of such subdivision or combination. (b) If the Company after the date hereof shall issue rights or warrants to all holders of Common Stock or any class thereof entitling them [for a period expiring within 45 days after the record date mentioned below] to subscribe for or purchase shares of Common Stock or any class thereof at a price per share less than the then-current market price per share (as determined pursuant to subsection (d) below) on the record date (or, if applicable, the ex-distribution date) mentioned below, the Warrant Price in effect immediately prior thereto shall be adjusted to a price obtained by multiplying such Warrant Price by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights or warrants plus the number of shares of Common Stock of the class subject to such rights or warrants which the aggregate offering price of the total number of shares so to be offered would purchase at the current market price of the Common Stock subject to such rights or warrants, and (ii) the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights or warrants plus the number of additional shares of Common Stock, or the applicable class thereof, to be offered for subscription or purchase; provided, however, that no adjustment shall be made if the Company issues or distributes to each holder of Warrants the rights or warrants which each holder of Warrants would have been entitled to receive had such Warrants been exercised prior to the record date mentioned below. Any such adjustments shall be made whenever such rights or warrants are issued and shall become effective retroactively immediately after the record date for the determination of stockholders entitled to receive such rights or warrants. [Upon expiration of the period during which any such rights or warrants may be exercised, any adjustment previously made pursuant to the foregoing provisions shall be recalculated to take into consideration only those rights or warrants actually exercised during the applicable period for exercise and notice of any such further adjustment to the Warrant Price shall be given to Warrant holders as herein provided.] (c) If the Company after the date hereof shall issue or distribute to all holders of Common Stock or any class thereof evidences of its indebtedness or assets (excluding any cash dividend or distribution), shares of capital stock of any class other than the Common Stock or rights to subscribe therefor (excluding those referred to in subsection (b) above), in each such case the Warrant Price in effect immediately prior thereto shall be adjusted to a price obtained by multiplying such Warrant Price by a 7 11 fraction of which (i) the numerator shall be the sum of the amount, for each class of Common Stock then outstanding, of the then-current market price per share (determined as provided in subsection (d) below) of the Common Stock of such class, multiplied by the number of outstanding shares of such class, in each case on the record date (or, if applicable, the ex-distribution date) mentioned below less the then-current fair market value (as determined by the Board of Directors in its reasonable judgment whose determination shall be conclusive, and described in a statement filed with the Warrant Agent) of the assets or evidences of indebtedness so distributed, such shares of capital stock of any class other than Common Stock or rights to subscribe therefor, and (ii) the denominator shall be the sum of the amount, for each class of Common Stock then outstanding, of the then-current market price per share of the Common Stock of such class, multiplied by the number of outstanding shares of such class, in each case on the record date (or, if applicable, the ex-distribution date) mentioned below; provided, however, that no adjustment shall be made (1) if the Company issues or distributes to each holder of Warrants the subscription rights referred to above in this subsection (c) that each holder of Warrants would have been entitled to receive had the Warrants been exercised prior to the record date mentioned below, or (2) if the Company grants to each holder of Warrants the right to receive, upon the exercise thereof at any time after the distribution of the evidences of indebtedness or assets or shares of capital stock of any class other than the Common Stock referred to above in this subsection (c), the evidences of indebtedness or assets or shares of capital stock of any class other than the Common Stock that such holder would have been entitled to receive had the Warrants been exercised prior to the record date mentioned below. The Company shall provide the Warrant Agent, upon receipt of a written request therefor, with any indenture or other instrument defining the rights of the holders of any indebtedness, assets, capital stock or subscription rights referred to in this subsection 4.01(c). Any such adjustment shall be made whenever any such distribution is made and shall become effective retroactively immediately after the record date for the determination of stockholders entitled to receive such distribution. [Upon expiration of the period during which any subscription rights granted pursuant to this subsection (c) may be exercised, any adjustment previously made pursuant to the foregoing provisions shall be recalculated to take into consideration only those subscription rights actually exercised during the applicable period for exercise and notice of any such further adjustment to the Warrant Price shall be given to Warrant holders as herein provided.] (d) For the purpose of any computation under subsection (b) or (c) above, the current market price per share of any class of Common Stock on any date shall be deemed to be the average of the daily mean between the high and low sales prices regular way of the shares of such class of Common Stock on the exchange on which such shares are listed as specified below for the ten consecutive trading days (as defined below) preceding the applicable record date (or, if earlier, the date on which such class of Common Stock commences trading on an ex-distribution basis). If there shall not have been a sale regular way on any such trading day, the mean of the last reported bid and asked quotations regular way on the specified exchange on such day shall be deemed to be the only sale price. The exchange specified for purposes of this subsection 4.01(d) shall be the [New York Stock Exchange, Inc.] if the shares of the applicable class of Common Stock are listed thereon or, if the shares of the applicable class of Common Stock shall not be listed on such exchange, then that national securities exchange on which the applicable class of Common Stock is listed having the largest volume of trading in the applicable class of Common Stock during the calendar year or portion thereof next preceding such computation. If the shares of the applicable class of Common Stock shall not be listed on any such exchange on all such ten trading days, the average of the closing high bid and low asked prices for the applicable class of Common Stock in the over-the-counter market on each trading day on which such shares are not so listed as reported by the National Association of Securities Dealers Automatic Quotation System or, if not so reported, then as reported by the National Quotation Bureau Incorporated, or if such organization is not in existence, by an organization providing similar services (as determined by the Board of Directors of the Company), shall be deemed to be the only sale price on such trading day. If the shares of the applicable class of Common Stock shall not be so reported on any of such trading days, then the current market price per share of such shares of Common Stock shall be the fair market value thereof as determined in the reasonable judgement of the Board of Directors. For the purpose of this subsection 4.01(d), "trading day" shall 8 12 mean a day on which the securities exchange specified for purposes of this subsection 4.01(d) shall be open for business or, if the shares of the applicable class of Common Stock shall not be listed on such exchange for such period, a day with respect to which quotations of the character specified for purposes of this subsection 4.01(d) shall be reported. (e) In any case in which this Section 4.01 shall require that an adjustment be made retroactively immediately following a record date, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Warrant Agent of a certificate signed by the Chairman of the Board, Chief Executive Officer, the President or any Vice President of the Company (an "Officers' Certificate" ) [or a certificate of a firm of independent public accountants] as required in subsection (g) of this Section 4.01) issuing to the holder of any Warrant exercised after such record date the shares of Class B Common Stock issuable upon such exercise in excess of the shares of Class B Common Stock issuable upon such exercise prior to such adjustment. (f) No adjustment shall be required unless such adjustment would require an increase or decrease of at least $[0.05] in the Warrant Price then subject to adjustment; provided, however, that any adjustments that are not made by reason of this subsection (f) shall be carried forward and taken into account in any subsequent adjustment. In case the Company shall at any time issue Common Stock or any class thereof by way of dividend on any stock of the Company or subdivide or combine the outstanding shares of Common Stock or any class thereof, said amount of $[0.05] specified in the preceding sentence (as theretofore increased or decreased, if said amount shall have been adjusted in accordance with the provisions of this paragraph (f)) shall forthwith be proportionately increased in the case of such a combination or decreased in the case of such a subdivision or stock dividend so as appropriately to reflect the same. All calculations under this Section 4.01 shall be made to the nearest hundredth of a cent. (g) Whenever an adjustment in the Warrant Price is made as required or permitted by the provisions of Section 4.01, 4.02 or 4.03 of this Agreement, the Company shall promptly file with the Warrant Agent [(i)] an Officers' Certificate [in the case of an adjustment pursuant to subsection (a) or (i) of this Section 4.01, or (ii) a certificate of a firm of independent public accountants in the case of any other adjustment pursuant to this Section 4.01, in each case] (A) setting forth the adjusted Warrant Price as provided in this Section 4.01 and setting forth a brief statement of the facts requiring such adjustment and the computation thereof, and (B) setting forth the number of shares of Class B Common Stock (or portions thereof) purchasable upon exercise of a Warrant after such adjustment in the Warrant Price in accordance with Section 4.02 hereof or the number of Warrants outstanding in accordance with Section 4.03 hereof after such adjustment in the Warrant Price and the record date therefor, which Officers' Certificate [or certificate of a firm of independent public accountants, as the case may be,] shall be conclusive evidence (absent manifest error) of the correctness of any such adjustment, and promptly after such filing shall mail or cause to be mailed a notice of such adjustment to each Warrant holder at his last address as the same appears on the Warrant Register. The Warrant Agent shall be under no duty or responsibility with respect to any such certificate except to exhibit the same to any holder of Warrants desiring inspection thereof. (h) In case: (1) the Company shall declare a dividend (or any other distribution) on shares of Common Stock or any class thereof payable from sources other than its retained earnings (as such term is used in generally accepted accounting principles); or (2) the Company shall authorize the granting to the holders of shares of Common Stock or any class thereof of rights to subscribe for or purchase any shares of capital stock of any class or of any other right; or (3) of any reclassification of shares of Common Stock or any class thereof (other than a subdivision or combination of outstanding shares of Common Stock or any class thereof), or of any consolidation or merger to which the Company is a party and for which approval of any stockholders 9 13 of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or (4) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; then the Company shall cause to be filed with the Warrant Agent, and shall cause to be mailed to the holders of the Warrants, at their last addresses as they shall appear upon the Warrant Register, at least 10 days prior to the applicable record date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or rights, or, if a record is not to be taken, the date as of which the holders of Common Stock (or any class thereof) of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up is expected to become effective, and, if applicable, the date as of which it is expected that holders of Common Stock (or any class thereof) of record shall be entitled to exchange their shares of Common Stock for securities or other property (including cash) deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up. Failure to give any such notice, or any defect therein, shall not affect the validity of the proceedings referred to in clauses (1), (2), (3) and (4) above. (i) Notwithstanding anything to the contrary contained in this Section 4.01, the Company shall be entitled, but not required, to make such reductions in the Warrant Price, in addition to those required by this Section 4.01, as it in its discretion shall determine to be advisable, including, without limitation, in order that any dividend in or distribution of shares of Common Stock (or any class thereof) or shares of capital stock of any class other than Common Stock, subdivision, reclassification or combination of shares of Common Stock, issuance of rights or warrants, or any other transaction having a similar effect, shall not be treated as a distribution of property by the Company to its stockholders under Section 305 of the Internal Revenue Code of 1986, as amended or any successor provision and shall not be taxable to them. (j) Notwithstanding anything to the contrary contained in this Agreement, no adjustment to the Warrant Price or the number of shares of Common Stock purchasable upon exercise of a Warrant (or the number of Warrants) shall be made as a result of, or in connection with, the issuance of (i) options or rights to purchase Common Stock issued to directors, officers or employees of the Company or its Subsidiaries pursuant to a stock option or other similar plan adopted by the Board of Directors, or the modification, renewal or extension of any such plan if approved by the Board of Directors, (ii) shares of Common Stock or other securities issued by the Company pursuant to and in accordance with the Plan, the Investment Agreement or the Related Agreements, or (iii) upon conversion of shares of any class of Common Stock into shares of any other class of Common Stock pursuant to and in accordance with the provisions of the Certificate of Incorporation of the Company as in effect from time to time. SECTION 4.02. Adjustment of Shares of Class B Common Stock Purchasable Upon Exercise of Warrants. Unless the Company shall have exercised its election as provided in Section 4.03 hereof, upon each adjustment of the Warrant Price pursuant to Section 4.01 hereof the number of shares of Class B Common Stock purchasable upon exercise of a Warrant outstanding prior to the effectiveness of such adjustment shall be adjusted to the number of shares of Class B Common Stock, calculated to the nearest one-hundredth of a share, obtained by (i) multiplying the number of shares of Class B Common Stock purchasable immediately prior to such adjustment upon the exercise of a Warrant by the Warrant Price in effect prior to such adjustment, and (ii) dividing the product so obtained by the Warrant Price in effect after such adjustment of the Warrant Price. SECTION 4.03. Election to Adjust Warrants Instead of Shares Per Warrant. The Company may elect on or after the date of any adjustment of the Warrant Price pursuant to Section 4.01 hereof to adjust the number of Warrants outstanding in substitution for any adjustment in the number of shares of Class B Common Stock purchasable upon the exercise of a Warrant as provided in Section 4.02 hereof. Each of the Warrants outstanding after such adjustment of the number of Warrants shall be exercisable for one share of Class B Common Stock. Each Warrant held of record prior to such adjustment of the number of Warrants shall become that number of Warrants (calculated to the nearest hundredth) obtained by (i) multiplying the 10 14 number of Warrants held of record prior to adjustment of the number of Warrants by the Warrant Price in effect prior to adjustment of the Warrant Price, and (ii) dividing the product so obtained by the Warrant Price in effect after adjustment of the Warrant Price. The Company shall make a public announcement of its election to adjust the number of Warrants, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the Warrant Price is adjusted or any day thereafter, but shall not be less than 10 or more than 30 days later than the date of public announcement. Upon each adjustment of the number of Warrants pursuant to this Section 4.03, the Company shall cause the Warrant Agent, as promptly as practicable, to distribute to holders of record of the Warrant Certificates on such record date either (i) Warrant Certificates evidencing any additional Warrants to which such holders shall be entitled as a result of such adjustment, or (ii) in substitution and replacement for the Warrant Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Warrant Certificates evidencing all the Warrants to which such holders shall be entitled after such adjustment. Warrant Certificates to be so distributed shall be issued, executed and countersigned in the manner specified in this Agreement (but may bear, at the option of the Company, the adjusted Warrant Price), shall represent the same class of Warrants as was represented by the Warrant Certificates so surrendered and shall be registered in the names of the holders of record of the Warrant Certificates on the record date specified in the public announcement. For the purposes of this Section 4.03, "public announcement" shall mean publication at least once in a newspaper printed in the English language and customarily published at least once a day for at least five days in each calendar week and of general circulation in the Borough of Manhattan, New York, New York. SECTION 4.04. No Fractional Warrants to Be Issued. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be required to issue fractions of Warrants on any distribution of Warrants to Warrant holders pursuant to Section 4.03 hereof or otherwise or to distribute Warrant Certificates that evidence fractional Warrants. If any fraction of a Warrant would, except for the provisions of this Section 4.04, be issuable upon an adjustment of the Warrant Price and distribution of Warrants pursuant to Section 4.03 hereof or otherwise, the Company shall, at its option, either (a) purchase such fraction for an amount in cash equal to the then-current market value of such fraction computed in accordance with Section 4.01(d) hereof (with respect to the current market price of the Warrant rather than the per share current market price of the Class B Common Stock and assuming, for the purpose of such computation, that the effective date of such adjustment of the Warrant Price, or such other relevant date, shall be the applicable record date referred to in Section 4.01(d)) or (b) issue scrip of the Company in lieu thereof, rounded up to the nearest one-hundredth of a Warrant. Such scrip shall be exchangeable in combination with other similar scrip for the number of full Warrants represented thereby, shall be issued in such denominations (not less than one-hundredth of a Warrant) and in such form, shall expire on the Expiration Date and may contain such provisions for sale for the account of the holders of such scrip of the Warrants for which such scrip is exchangeable or the payment to such holders of the market value of such Warrants, and be subject to such other terms and provisions, if any, as the Board of Directors may from time to time determine. The Warrant holders, by their acceptance of the Warrant Certificates, expressly waive their right to receive any fraction of a Warrant or a Warrant Certificate representing a fraction of a Warrant upon the adjustment thereof in accordance with this Article IV or otherwise. SECTION 4.05. Rights Upon Consolidation, Merger, Sale, Transfer or Reclassification. (a) In case of any consolidation with or merger of the Company into another corporation (other than a merger or consolidation in which the Company is the continuing corporation), or in case of any lease, sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, such successor, leasing or purchasing corporation, as the case may be, shall execute with the Warrant Agent a supplemental agreement (1) providing that the holder of each Warrant then outstanding shall have the right thereafter (until the Expiration Date) to receive, upon exercise thereof, in lieu of each share of Class B Common Stock deliverable upon such exercise immediately prior to such event, only the kind and amount of shares and/or other securities and/or property and/or cash receivable upon such consolidation, merger, lease, sale or conveyance by a holder of one share of Class B Common Stock, and (2) setting forth the Warrant Price for the shares and/or other 11 15 securities and/or property and/or cash so issuable, which shall be an amount equal to the Warrant Price per share of Class B Common Stock immediately prior to such event. (b) In case of any liquidation, dissolution or winding up of the affairs of the Company, the Company shall make prompt, proportionate, equitable, lawful and adequate provision as part of the terms of such dissolution, liquidation or winding up such that the holder of a Warrant may thereafter receive, on exercise of such Warrant, in lieu of each share of Class B Common Stock of the Company which such holder would have been entitled to receive upon exercise of such Warrant, the same kind and amount of any stock, securities or assets as may be issuable, distributable or payable on any such dissolution, liquidation or winding up with respect to each share of Class B Common Stock of the Company; provided, however, that in the event of any such dissolution, liquidation or winding up, the right to exercise the Warrants shall terminate on a date fixed by the Company, such date to be not earlier than the 60th day next succeeding the date on which notice of such termination of the right to exercise the Warrants has been given by mail to the holders thereof in accordance with Section 4.01(h). (c) In case of any reclassification or change of the shares of Class B Common Stock issuable upon exercise of the Warrants (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination) or in case of any consolidation or merger of another corporation into the Company in which the Company is the continuing corporation and in which the holders of the shares of Common Stock thereafter receive shares and/or other securities and/or property and/or cash for such shares of Common Stock (including for this purpose shares reflecting a change in par value or from par value to no par value or as a result of a subdivision or combination of the shares of Common Stock), the Company shall execute with the Warrant Agent a supplemental agreement (1) providing that the holder of each Warrant then outstanding shall have the right thereafter (until the Expiration Date) to receive, upon exercise thereof, in lieu of each share of Class B Common Stock, deliverable upon such exercise immediately prior to such event, only the kind and amount of shares and/or other securities and/or property and/or cash receivable upon such reclassification, change, consolidation or merger by a holder of one share of Class B Common Stock, and (2) setting forth the Warrant Price for the shares and/or other securities and/or property and/or cash so issuable, which shall be an amount equal to the Warrant Price per share of Class B Common Stock immediately prior to such event. If, as a result of this subsection (c), the holder of any Warrant thereafter surrendered for exercise shall become entitled to receive shares of two or more classes of capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Warrant Agent) shall determine the allocation of the Warrant Price between or among shares of such classes of capital stock. (d) Any supplemental agreement entered into pursuant to this Section 4.05 shall, where appropriate, state the Warrant Price in terms of one full share of Class B Common Stock of the Company or one full share of the common stock of any successor, leasing or purchasing corporation. (e) The above provisions of this Section 4.05 shall similarly apply to successive reclassifications and changes of shares of Class B Common Stock and to successive consolidations, mergers, leases, sales or conveyances, mutatis mutandis. (f) Notice of the execution of any such supplemental agreement shall be mailed by the Company to registered holders of Warrants as soon as practicable after the execution of such supplemental agreement. (g) In the event that at any time as a result of the provisions of this Section 4.05, the holder of any Warrant thereafter surrendered for exercise shall become entitled to receive any shares or other securities other than shares of Class B Common Stock, thereafter the price or prices of such other shares or other securities so receivable upon exercise of any Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions of Article IV with respect to Class B Common Stock, and the provisions of Article III with respect to the Class B Common Stock shall apply on like terms to any such other shares or other securities. 12 16 SECTION 4.06. Covenant to Reserve Shares for Issuance on Exercise. The Company covenants that it will at all times reserve and keep available free of preemptive rights out of its authorized and unissued Class B Common Stock, solely for the purpose of issue upon exercise of Warrants and exchange of scrip as herein provided, the full number of shares of Class B Common Stock, if any, then issuable if all outstanding Warrants then exercisable were to be exercised. The Company covenants that all shares of Class B Common Stock which shall be so issuable shall be duly and validly issued and fully paid and non-assessable. The Company hereby authorizes and directs its current and future transfer agents for the Class B Common Stock and for any shares of the Company's capital stock issuable upon the exercise of any of the Warrants at all times to reserve such number of authorized shares as shall be requisite for such purpose. The Warrant Agent is hereby authorized to requisition from time to time from any such transfer agents stock certificates required to honor outstanding Warrants upon exercise thereof in accordance with the terms of this Agreement, and the Company hereby authorizes and directs such transfer agents to comply with all such requests of the Warrant Agent. The Company will supply such transfer agents with duly executed stock certificates for such purposes and will provide or otherwise make available any cash or scrip which may be payable as provided in this Article IV. Promptly after the Expiration Date, the Warrant Agent shall certify to the Company the aggregate number of Warrants then outstanding, and thereafter no shares shall be reserved in respect of such Warrants. SECTION 4.07. Condition Precedent to Reduction of Warrant Price Below Par Value of Shares of Class B Common Stock; Compliance with Governmental Requirements; Suspension of Exercise of Warrants. Before taking any action that would cause an adjustment reducing the Warrant Price to below the then par value of any of the shares of Class B Common Stock issuable upon exercise of the Warrants, the Company will take any corporate action that may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and non-assessable shares of such Class B Common Stock at such adjusted Warrant Price. The Company covenants that if any shares of Class B Common Stock required to be reserved for purposes of exercise of Warrants or exchange of scrip require, under any Federal or state law or rule or regulation of any national securities exchange, registration with or approval of any governmental authority, or listing on any national securities exchange before such shares may be issued upon exercise, the Company will in good faith and as expeditiously as possible endeavor to cause such shares to be duly registered, approved or listed on the relevant national securities exchange, as the case may be; provided, however, that in no event shall such shares of Class B Common Stock be issued, and the Company is hereby authorized to suspend the exercise of all Warrants, for the period during which such registration, approval or listing is required but not in effect. SECTION 4.08. Payment of Taxes on Stock Certificates Issued upon Exercise. The initial issuance of certificates of Class B Common Stock upon the exercise of Warrants shall be made without charge to the exercising Warrant holders for any transfer, stamp or similar tax or for any other governmental charges that may be imposed in respect of the issuance of such stock certificates, and such stock certificates shall be issued in the respective names of, or in such names as may be directed by, the registered holders of the Warrants exercised; provided, however, that the Company shall not be required to pay any tax or such other charges that may be payable in respect of any transfer involved in the issuance and delivery of any such stock certificate, any Warrant Certificates or other securities in a name other than that of the registered holder of the Warrant Certificate surrendered upon exercise of the Warrant, and the Company shall not be required to issue or deliver such certificates or other securities unless and until the Person or Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. SECTION 4.09. Warrant Agent Not Responsible for Adjustments or Validity of Stock. The Warrant Agent shall not at any time be under any duty or responsibility to any Warrant holder to determine whether any facts exist that may require an adjustment of the Warrant Price, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed herein or in any supplemental agreement in making the same. The Warrant Agent shall not be accountable with respect to the validity or 13 17 value (or the kind or amount) of any shares of Class B Common Stock or of any securities or property or scrip which may at any time be issued or delivered upon the exercise of any Warrant or upon any adjustment pursuant to this Article IV, and it makes no representation with respect thereto. The Warrant Agent shall not be responsible for any failure of the Company to make any cash payment or to issue, transfer or deliver any shares of Class B Common Stock or stock certificates or other securities or property upon the surrender of any Warrant for the purpose of exercise or upon any adjustment pursuant to this Article IV, or to comply with any of the covenants of the Company contained in this Article IV. SECTION 4.10. Statements on Warrants. The form of Warrant Certificate need not be changed because of any adjustment made pursuant to this Article IV, and Warrant Certificates issued after such adjustment may state the same Warrant Price and the same number of shares of Class B Common Stock as are stated in the Warrant Certificates initially issued pursuant to this Agreement. The Company, however, may at any time in its sole discretion (which shall be conclusive) make any change in the form of Warrant Certificate that it may deem appropriate and that does not affect the substance thereof; and any Warrant Certificate thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant Certificate or otherwise, may be in the form as so changed. ARTICLE V OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS SECTION 5.01. No Rights as Stockholders. Nothing contained in this Agreement or in any Warrant Certificate shall be construed as conferring on the holder of any Warrant or its transferee any rights whatsoever as a stockholder of the Company, either at law or equity, including but not limited to the right to vote at, or to receive notice of, any meeting of stockholders of the Company; nor shall the consent of any such holder be required with respect to any action or proceeding of the Company; nor shall any such holder, by reason of the ownership or possession of a Warrant or the Warrant Certificate representing the same, either at, before or after exercising such Warrant, have any right to receive any cash dividends, stock dividends, allotments or rights, or other distributions (except as specifically provided herein), paid, allotted or distributed or distributable to the stockholders of the Company prior to the date of the exercise of such Warrant, nor shall such holder have any right not expressly conferred by this Agreement or the Warrant Certificate that he holds. SECTION 5.02. Mutilated or Missing Warrant Certificates. If any Warrant Certificate is lost, stolen, mutilated or destroyed, the Company shall issue and the Warrant Agent shall countersign, in exchange and substitution for and upon cancellation of the mutilated Warrant Certificate, or in lieu of and substitution for the Warrant Certificate lost, stolen or destroyed, upon receipt of a proper affidavit or other evidence satisfactory to the Company and the Warrant Agent (and surrender of any mutilated Warrant Certificate) and bond of indemnity in form and amount and with corporate surety satisfactory to the Company and the Warrant Agent in each instance protecting the Company and the Warrant Agent, a new Warrant Certificate of like tenor and representing an equivalent number of Warrants as the Warrant Certificate so lost, stolen, mutilated or destroyed. Any such new Warrant Certificate shall constitute an original contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant Certificate shall be at any time enforceable by anyone. An applicant for such a substitute Warrant Certificate shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company or the Warrant Agent may prescribe. Notwithstanding the foregoing, in the event that a lost, stolen, mutilated or destroyed Warrant Certificate was held by a Person to which Warrant Certificates were originally issued pursuant to Section 2.03(a), [(b)] or (c), or by a Person holding Warrants to purchase not less than 100,000 shares of Class B Common Stock, (i) an indemnity agreement from such Person in lieu of a bond shall be acceptable and (ii) no charges shall be made for such substitution. All Warrant Certificates shall be held and owned upon the express condition that the foregoing provisions are exclusive, with respect to the replacement of lost, stolen, mutilated or destroyed Warrant Certificates, and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement of negotiable instruments or other securities without their surrender. 14 18 SECTION 5.03. Delivery of Prospectuses. If, and to the extent that, the Company may be required by the 1933 Act or any other applicable Federal or state law to furnish a prospectus to Warrant holders upon their exercise of Warrants, the Company shall cause to be kept, either at the Warrant Agent's Office or at such other location designated by the Company, sufficient quantities of such prospectuses for delivery to Warrant holders upon their exercise of Warrants, and shall deliver such prospectuses or cause such prospectuses to be delivered to such Warrant holders together with the shares of Class B Common Stock or other securities receivable by such Warrant holders upon their exercise of Warrants. ARTICLE VI CONCERNING THE WARRANT AGENT SECTION 6.01. Payment of Certain Taxes. The Company will from time to time promptly pay all transfer, stamp or similar taxes and all other governmental charges that may be imposed upon the Company or otherwise in respect of the initial issuance or delivery of shares of Class B Common Stock upon the exercise of Warrants, but the Company shall not be obligated to pay any transfer, stamp or similar taxes or other governmental charges in respect of any transfer of the Warrants or such shares effected by any holder thereof. SECTION 6.02. Change of Warrant Agent. (a) The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder (except liabilities arising as a result of the Warrant Agent's own negligence, willful misconduct or bad faith) after giving 60 days' notice in writing to the Company, except that such shorter notice may be given as the Company and AmWest shall, in writing, accept as sufficient. At least 15 days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the registered holder of each Warrant Certificate. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint a successor Warrant Agent in place of the Warrant Agent [; provided that in the event that AmWest is the holder of any Warrants at such time, the Company shall notify and consult with AmWest with respect to such proposed appointment]. If the Company shall fail to make such appointment within a period of 60 days after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated Warrant Agent or by any holder of Warrants (who shall, with such notice, submit a copy of his Warrant Certificate for inspection by the Company), then the holder of any Warrants may apply, at the expense of the Company, to any court of competent jurisdiction for the appointment of a successor warrant agent. (b) The Warrant Agent may be removed by the Company at any time upon 30 days' written notice to the Warrant Agent; provided, that the Warrant Agent shall not be removed until a successor Warrant Agent meeting the qualifications hereof shall have been appointed and provided further that in the event AmWest is the holder of any Warrants at such time, the Company shall obtain the consent of AmWest, which consent shall not be unreasonably withheld. (c) Any successor Warrant Agent, whether appointed by the Company or by a court, shall be a corporation organized, in good standing and doing business under the laws of the United States of America or any state thereof or the District of Columbia, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by Federal or state authority and having a combined capital and surplus of not less than $10,000,000. The combined capital and surplus of any such successor Warrant Agent shall be deemed to be the combined capital and surplus as set forth in the most recent report of its condition published prior to its appointment pursuant to law or to the requirements of a Federal or state supervising or examining authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further assurance, conveyance, act or deed; provided, however, that in no event shall any successor Warrant Agent be liable for any breach, default or failure of performance by the predecessor Warrant Agent of any covenant or obligation under this Agreement existing on the date the successor 15 19 Warrant Agent assumes authority pursuant to this Section 6.02. If for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent, the Company shall make, execute, acknowledge and deliver any and all instruments in writing to more fully and effectually vest in and confirm to such successor Warrant Agent all such authority, powers, rights, immunities, duties and obligations. Upon assumption by a successor Warrant Agent of the duties and responsibilities hereunder, the predecessor Warrant Agent shall deliver and transfer, at the expense of the Company, to the successor Warrant Agent any property at the time held by it hereunder. As soon as practicable after such appointment, the Company shall give notice thereof to the predecessor Warrant Agent, the registered holders of the Warrants and each transfer agent for the shares of its Class B Common Stock. Failure to give such notice, or any defect therein, shall not affect the validity of the appointment of the successor Warrant Agent. (d) Any corporation into which the Warrant Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party, shall be the successor Warrant Agent under this Agreement without any further act, provided that such corporation is eligible for appointment as a successor to the Warrant Agent. Any such successor Warrant Agent shall promptly cause notice of its succession as Warrant Agent to be mailed to the Company and to the registered holder of each Warrant Certificate. In case at the time such successor Warrant Agent shall succeed to the agency created by this Agreement, any of the Warrant Certificates shall have been countersigned but not delivered, any such successor Warrant Agent may adopt the countersignature of the original Warrant Agent and deliver such Warrant Certificates so countersigned, and in case at that time any of the Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrant Certificates either in the name of the predecessor Warrant Agent or in the name of the successor Warrant Agent; and in all such cases Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. (e) In case at any time the name of the Warrant Agent shall be changed and at such time any of the Warrant Certificates shall have been countersigned but not delivered, the Warrant Agent may adopt the countersignatures under its prior name and deliver such Warrant Certificates so countersigned; and in case at that time any of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant Certificates either in its prior name or in its changed name; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. SECTION 6.03. Compensation; Further Assurances. The Company agrees (i) that it will pay the Warrant Agent the fees set forth in Exhibit B for its services as Warrant Agent hereunder and, except as otherwise expressly provided, will pay or reimburse the Warrant Agent upon demand for all reasonable expenses, disbursements and advances incurred or made by the Warrant Agent in accordance with any of the provisions of this Agreement (including the reasonable compensation, expenses and disbursements of its agents and counsel) except any such expense, disbursement or advance as may arise from its or any of their negligence, willful misconduct or bad faith; and (ii) that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement. SECTION 6.04. Reliance on Counsel. The Warrant Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such counsel or any advice of legal counsel subsequently confirmed by a written opinion of such counsel shall be full and complete authorization and protection to the Warrant Agent as to any action taken or omitted by it in good faith and in accordance with such written opinion or advice, provided that such counsel shall be reasonably acceptable to the Company. SECTION 6.05. Proof of Actions Taken. Whenever in the performance of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any matter be proved or established by 16 20 the Company prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of bad faith on the part of the Warrant Agent, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Warrant Agent; and such Officers' Certificate shall, in the absence of bad faith on the part of the Warrant Agent be full authority to the Warrant Agent for any action taken, suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon such certificate; but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such fact or matter or may require such further or additional evidence as to it may deem reasonable. SECTION 6.06. Correctness of Statements. The Warrant Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Warrant Certificates (except its countersignature thereof) or be required to verify the same, and all such statements and recitals are and shall be deemed to have been made by the Company only. SECTION 6.07. Validity of Agreement. The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (other than such execution and delivery by the Warrant Agent) or in respect of the validity or execution of any Warrant Certificates (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant Certificate; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Class B Common Stock to be issued pursuant to this Agreement or any Warrants or as to whether any shares of Class B Common Stock will, when issued, be validly issued and fully paid and non-assessable. SECTION 6.08. Use of Agents. The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents and the Warrant Agent shall not be responsible for the misconduct or negligence of any agent or attorney, provided due care had been exercised in the appointment and continued employment thereof. SECTION 6.09. Liability of Warrant Agent. The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of Warrants for any action taken in reliance on any notice, resolution, waiver, consent, order, certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Company agrees to indemnify the Warrant Agent and hold it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted in good faith by the Warrant Agent in the execution of this Warrant Agreement, except as a result of the Warrant Agent's negligence or willful misconduct or bad faith. SECTION 6.10. Legal Proceedings. The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more holders of Warrants shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may consider proper, whether with or without any such security or indemnity. SECTION 6.11. Other Transactions in Securities of the Company. The Warrant Agent in its individual or any other capacity may become the owner of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Warrant Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity. SECTION 6.12. Actions as Agent. The Warrant Agent shall act hereunder solely as agent and not in a ministerial capacity, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in good faith in connection with this Agreement except for its own negligence or willful misconduct or bad faith. SECTION 6.13. Appointment and Acceptance of Agency. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth in this Agreement, and the 17 21 Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth. ARTICLE VII MISCELLANEOUS PROVISIONS SECTION 7.01. Supplements and Amendments. (a) Notwithstanding the provisions of subsection (b) below, the Warrant Agent may, without the consent or concurrence of the registered holders of the Warrants, enter into one or more supplemental agreements or amendments with the Company for the purpose of evidencing the rights of Warrant holders upon consolidation, merger, sale, transfer, reclassification, liquidation or dissolution pursuant to Section 4.05 hereof, making any changes or corrections in this Agreement that are required to cure any ambiguity, to correct or supplement any provision contained herein that may be defective or inconsistent with any other provision herein or any clerical omission or mistake or manifest error herein contained, or making such other provisions in regard to matters or questions arising under this Agreement as shall not adversely affect the interests of the holders of the Warrants or be inconsistent with this Agreement or any supplemental agreement or amendment. (b) With the consent of the registered holders of at least a majority in number of the Warrants at the time outstanding, the Company and the Warrant Agent may at any time and from time to time by supplemental agreement or amendment add any provisions to or change in any manner or eliminate any of the provisions of this Agreement or of any supplemental agreement or modify in any manner the rights and obligations of the Warrant holders and of the Company; provided, however, that no such supplemental agreement or amendment shall, without the consent of the registered holder of each outstanding Warrant affected thereby, (1) alter the provisions of this Agreement so as to affect adversely in any material respect the terms upon which the Warrants are exercisable; or (2) reduce the number of Warrants outstanding the consent of whose holders is required for any such supplemental agreement or amendment. SECTION 7.02. Successors and Assigns. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. SECTION 7.03. Notices. Any notice or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given or made if sent by mail first-class, postage prepaid or by facsimile, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows: America West Airlines, Inc. [4000 E. Sky Harbor Blvd. Phoenix, AZ 85035 Attention: General Counsel Facsimile No.: (602) 693-5904] Any notice or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given or made if sent by mail first-class, 18 22 postage prepaid or by facsimile, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows: [ ] Any notice of demand authorized by this Agreement to be given or made to the holder of any Warrants shall be sufficiently given or made if sent by first-class mail, postage prepaid to the last address of such holder as it shall appear on the Warrant Register. SECTION 7.04. Applicable Law. THE VALIDITY, INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT AND OF THE WARRANT CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SECTION 7.05. Benefits of this Agreement. Nothing in this Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any Person other than the parties hereto and the holders of the Warrants any right, remedy or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and agreements in this Agreement contained shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the holders of the Warrants. SECTION 7.06. Registered Warrant Holders. Prior to due presentment for registration of transfer, the Company and the Warrant Agent may deem and treat the Person in whose name any Warrants are registered in the Warrant Register as the absolute owner thereof for all purposes whatever (notwithstanding any notation of ownership or other writing thereon made by anyone other than the Company or the Warrant Agent) and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary or be bound to recognize any equitable or other claim to or interest in any Warrants on the part of any other Person and shall not be liable for any registration of transfer of Warrants that are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary unless made with actual knowledge that a fiduciary or nominee is committing a breach of trust in requesting such registration of transfer or with such knowledge of such facts that its participation therein amounts to bad faith. The terms "Warrant" holder and holder of any "Warrants" and all other similar terms used herein shall mean such Person in whose name Warrants are registered in the Warrant Register. SECTION 7.07. Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times for inspection by any registered Warrant holder at the principal office of the Warrant Agent. The Warrant Agent may require any such holder to submit his Warrant Certificate for inspection by it before allowing such holder to inspect a copy of this Agreement. SECTION 7.08. Headings. The Article and Section headings herein are for convenience only and are not a part of this Agreement and shall not affect the interpretation thereof. SECTION 7.09. Counterparts. The Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original. 19 23 IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto under their respective seals as of the day and year first above written. AMERICA WEST AIRLINES, INC. [CORPORATE SEAL] By:__________________________________ Name: Title: Attest:___________________________ Name: Title: [NAME OF WARRANT AGENT] [CORPORATE SEAL] By:__________________________________ Name: Title: Attest:____________________________ Name: Title: 20 24 EXHIBIT A [FORM OF WARRANT CERTIFICATE] [INSERT LEGEND FROM STOCKHOLDERS AGREEMENT] [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 "1933 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 1933 ACT OR AN EXEMPTION THEREFROM AND FROM ANY APPLICABLE STATE SECURITIES LAWS.] NO. [ ]-[ ] WARRANTS VOID AFTER , 1999 WARRANTS TO PURCHASE CLASS B COMMON STOCK OF AMERICA WEST AIRLINES, INC. AMERICA WEST AIRLINES, INC., a Delaware corporation (hereinafter called the ("Company" ), for value received, hereby certifies that or registered assigns, is the owner of the number of Warrants set forth above, each of which represents the right, at any time commencing on the day after , 1994, and before 5:00 p.m., New York time, on , 1999, on which date such Warrants expire, initially to purchase, subject to the terms hereof and of the Warrant Agreement (as hereinafter defined), one share of Class B Common Stock, par value $[ ] per share, of the Company (hereinafter called the "Class B Common Stock" ) at the price of $[ ] per share (the "Warrant Price" ), subject to the terms and conditions hereof and of the Warrant Agreement, each such purchase to be made, and to be deemed effective for the purpose of determining the date of exercise, only upon surrender hereof to the Company at the Warrant Agent's Office, with the Election to Exercise Form on the reverse hereof duly completed and signed, and upon [either (i)] payment in full to the Warrant Agent for the account of the Company of the Warrant Price (a) in cash, (b) by certified or official bank check, or (c) by any combination of the foregoing [or (ii) payment in full to the Warrant Agent as provided pursuant to the last sentence of Section 3.02(c) of the Warrant Agreement], and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement. Capitalized terms that are not otherwise defined herein shall have the meanings ascribed to them in the Warrant Agreement (as hereinafter defined). The Warrant Price and, at the Company's option, either (1) the number of shares of Class B Common Stock purchasable on the exercise of each Warrant or (2) the number of Warrants outstanding, are subject to adjustment in certain events as provided in the Warrant Agreement. In the event the Company elects to adjust the number of Warrants outstanding rather than the number of shares of Class B Common Stock purchasable on the exercise of each Warrant, the Company shall cause the Warrant Agent to distribute to registered holders of Warrant Certificates either Warrant Certificates representing any additional Warrants issuable pursuant to the adjustment or substitute Warrant Certificates to replace all outstanding Warrant Certificates in accordance with the provisions of the Warrant Agreement. The Company shall not be required to issue fractions of Warrants or Warrant Certificates evidencing fractional Warrants upon any such adjustment or otherwise, but the Company shall make adjustment in cash or scrip for any fraction of a Warrant which the registered holder of Warrants would have been entitled to receive upon such adjustment or otherwise on the basis of the then-current market value of such fraction of a Warrant (computed as provided in the Warrant Agreement). This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of [ ], 1994 (herein called the "Warrant Agreement" ), between the Company and the Warrant Agent and is subject to and is to be construed in accordance with the terms and provisions of the Warrant A-1 25 Agreement, which terms and provisions are hereby incorporated by reference herein and made a part hereof. Every holder of this Warrant Certificate consents to all of the terms contained in the Warrant Agreement by acceptance hereof. A copy of the Warrant Agreement is available for inspection by the registered holder hereof at the Warrant Agent's Office. The Company shall not be required upon the exercise of the Warrants represented hereby to issue fractions of shares of Class B Common Stock, to distribute stock certificates that evidence fractional shares of Class B Common Stock or to issue Warrant Certificates representing fractional Warrants, but shall make adjustment in cash or scrip for any fraction of a share which the same registered holder of Warrants exercised in the same transaction would have been entitled to purchase on the basis of the then-current market value of any such fraction of a share (computed as provided in the Warrant Agreement). If the Warrants represented hereby shall be exercised in part, the registered holder hereof shall be entitled to receive, upon surrender hereof, another Warrant Certificate for the balance of the number of whole Warrants not exercised as provided in the Warrant Agreement. Commencing on the day after the Distribution Date, this Warrant Certificate may be exchanged either separately or in combination with other Warrant Certificates at the Warrant Agent's Office for new Warrant Certificates representing the same aggregate number of Warrants evidenced by the Warrant Certificate or Warrant Certificates exchanged, upon surrender of this Warrant Certificate and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement. Commencing on the day after the Distribution Date, this Warrant Certificate is transferable at the Warrant Agent's Office by the registered holder hereof in Person or by his attorney duly authorized in writing, upon surrender of this Warrant Certificate and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement. Upon any such transfer, a new Warrant Certificate or new Warrant Certificates of different denominations, representing in the aggregate a like number of Warrants, will be issued to the transferee. Every holder of Warrants, by accepting this Warrant Certificate, consents and agrees with the Company, the Warrant Agent and with every subsequent holder of this Warrant Certificate that until due presentation for the registration of transfer of this Warrant Certificate on the Warrant Register maintained by the Warrant Agent, the Company and the Warrant Agent may deem and treat the Person in whose name this Warrant Certificate is registered as the absolute and lawful owner for all purposes whatsoever and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. The Company is authorized by the Warrant Agreement to suspend the exercise of all Warrants for any period during which any shares of Class B Common Stock reserved for exercise of Warrants require, under any Federal or state law or rule or regulation of any national securities exchange, registration with or approval of any governmental authority or listing on any national securities exchange and such registration, approval or listing is not in effect. Nothing contained in the Warrant Agreement or in this Warrant Certificate shall be construed as conferring on the holder of any Warrants or his transferee any rights whatsoever as a stockholder of the Company. This Warrant Certificate shall not be valid unless countersigned manually by the Warrant Agent. The Warrant Agreement and each Warrant Certificate, including this Warrant Certificate, shall be deemed a contract made under the laws of the State of New York and for all purposes shall be governed by and construed in accordance with the laws of the State of New York. A-2 26 IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed under its corporate seal. Dated: , 1994 AMERICA WEST AIRLINES, INC. [CORPORATE SEAL] By:___________________________________ Name: Title: ATTEST: By:___________________________________ Name: Title: COUNTERSIGNED: [NAME OF WARRANT AGENT] By:___________________________________ Name: Title: A-3 27 ELECTION TO EXERCISE (TO BE EXECUTED UPON EXERCISE OF WARRANT) To AMERICA WEST AIRLINES, INC.: The undersigned hereby irrevocably elects to exercise the right of purchase represented by the within Warrant Certificate for, and to purchase thereunder, shares of Class B Common Stock, as provided for therein, and [either (i)] tenders herewith payment of the purchase price in full in the form of cash or a certified or official bank check in the amount of $ [or (ii) provide for cashless exercise option]. Please issue a certificate or certificates for such shares of Class B Common Stock in the name of, and pay any cash for any fractional share to: PLEASE INSERT SOCIAL SECURITY OR OTHER Name________________________________________ IDENTIFYING NUMBER OF ASSIGNEE (Please Print Name and Address) _______________________________________________ Address_____________________________________ _______________________________________________ Signature___________________________________
NOTE: The above signature should correspond exactly with the name on the face of this Warrant Certificate or with the name of assignee appearing in the assignment form below. In the event of any assignment, the Warrant Agent may require evidence of payment of any applicable transfer taxes. AND, if said number of shares shall not be all the shares purchasable under the within Warrant Certificate, a new Warrant Certificate is to be issued in the name of said undersigned for the balance remaining of the shares purchasable thereunder less any fraction of a share paid in cash or scrip. Dated: , 19 A-4 28 ASSIGNMENT (TO BE EXECUTED ONLY UPON ASSIGNMENT OF WARRANT CERTIFICATE) For value received, hereby sells, assigns and transfers unto the within Warrant Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint attorney, to transfer said Warrant Certificate on the books of the within-named Company, with full power of substitution in the premises. Dated: , 19 ______________________________________ NOTE: The above signature should correspond exactly with the name on the face of this Warrant Certificate. Signature guaranteed: _____________________________________________ A-5 29 EXHIBIT B [SCHEDULE OF FEES TO BE PAID TO WARRANT AGENT] EX-4.5 7 STOCKHOLDERS AGREEMENT 1 EXHIBIT 4.5 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 others; 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 1 2 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 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" shall have the meaning set forth above, and in the event AmWest Partners, L.P., by dissolution or otherwise, designates any or all of its general and limited partners to receive Common Stock attributable to AmWest Partners, L.P., upon consummation of the Plan, "AmWest" shall collectively include all such general and limited partners. "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. "Lehman" shall mean Lehman Brothers Inc. or any successor. "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. 2 3 "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. 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 (on a fully diluted basis), 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 3 4 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 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 (i) to 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 4 5 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: (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 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 that this Agreement shall not be binding (x) upon and Fidelity Fund or Lehman with respect to Class B Common and warrants to purchase Class B Common acquired by them contemporaneous with the consummation of the Plan pursuant to an assignment or transfer from AmWest, or (y) upon 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 5 6 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 or transfer, 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 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 ACCOR- 6 7 DANCE 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 by and subject to this Agreement, the Company shall, without charge and upon the surrender of certificates by 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 7 8 GPA and a copy to the party designated in Section 7.1, reflecting information as to the Company's total issued and outstanding capital stock as of a date therein specified (the "Determination Date") 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 fails to acquire (by purchase, or otherwise) sufficient voting equity securities of the Company such that it continues to hold less than two percent (2%) of the voting equity securities of the Company (on a fully diluted basis) determined as of the Determination Date for 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-10Qs constitutes delivery to GPA within the meaning of this Section 6.2. 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
8 9 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 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 any 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. 9 10 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: 10 EX-4.6 8 FORM OF REGISTRATION RIGHTS AGREEMENT 1 EXHIBIT 4.6 ================================================================================ REGISTRATION RIGHTS AGREEMENT AMONG AMERICA WEST AIRLINES, INC., AMWEST PARTNERS, L.P. AND THE OTHER HOLDERS NAMED HEREIN DATED AS OF , 1994 ================================================================================ 2 TABLE OF CONTENTS
PAGE ---- 1. Definitions....................................................................... 2 2. Registration under the Securities Act............................................. 6 2.1 Shelf Registration Statement............................................... 6 2.2 Demand Registration........................................................ 7 2.3 Piggyback Registration..................................................... 8 2.4 Trust Indenture Act Qualification; Rating.................................. 10 2.5 Registration Terms and Procedures.......................................... 10 2.6 Underwritten Offerings..................................................... 18 2.7 Preparation; Reasonable Investigation...................................... 19 2.8 Indemnification............................................................ 19 [2.9 Liquidated Damages......................................................... 23] 3. Rule 144 and Rule 144A............................................................ 25 4. Term.............................................................................. 26 5. Amendments and Waivers............................................................ 26 6. Entire Agreement.................................................................. 27 7. No Third-Party Beneficiary........................................................ 27 8. Invalid Provisions................................................................ 27 9. Nominees for Beneficial Owners.................................................... 27 10. Notices........................................................................... 27 11. Assignment........................................................................ 29 12. Descriptive Headings.............................................................. 29 [13. Specific Performance.............................................................. 28] 14. Governing Law..................................................................... 29 15. Registration Rights to Others..................................................... 29 16. Attorney's Fees................................................................... 30 17. Limitation of Liability........................................................... 30 18. Termination of Certain Rights..................................................... 30 19. Counterparts...................................................................... 30
i 3 SCHEDULES SCHEDULE 1 -- ADDITIONAL NOTICES ii 4 REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT, dated as of , 1994 among AMERICA WEST AIRLINES, INC., a Delaware corporation (including its successor, as reorganized pursuant to Chapter 11, Title 11 of the United States Bankruptcy Code (the "Bankruptcy Code"), the "Company"), AMWEST PARTNERS, L.P., a Texas limited partnership ("Investor"), and the funds or accounts managed or advised by Fidelity Management Trust Company or its affiliates listed on the signature pages hereto (each, a "Fidelity Fund" and collectively, "Fidelity"). W I T N E S S E T H : WHEREAS, the Company is a Debtor and Debtor-in-Possession in the case (the "Chapter 11 Case") filed in the United States Bankruptcy Court for the District of Arizona (the "Bankruptcy Court"), entitled "In re America West Airlines, Inc., Debtor," Chapter 11 Case No. 91-07505-PHX-RGM, under the Bankruptcy Code; WHEREAS, the Company and Investor have entered into that certain Third Revised Investment Agreement dated as of April 21, 1994 (as it may be further amended, modified or supplemented from time to time, the "Investment Agreement") and the Company and Fidelity have entered into a Note Purchase Agreement dated as of , 1994 (as amended, modified or supplemented from time to time, the "Note Purchase Agreement"), which agreements among other things provide for the purchase of the Securities (as defined in the Investment Agreement) in connection with and as part of the transactions to be consummated pursuant to the confirmation of a Plan of Reorganization (as amended, modified or supplemented from time to time) of the Company in the Chapter 11 Case (the "Plan of Reorganization"); WHEREAS, as a condition to Investor's obligations to consummate the transactions contemplated by the Investment Agreement, the Company has agreed to file a shelf registration statement with respect to the Securities issued or issuable to Investor, Fidelity and their respective Affiliates [and such shelf registration shall have been declared effective on or prior to the Effective Date]; WHEREAS, by Order dated , 1994, the Bankruptcy Court confirmed the Plan of Reorganization; and WHEREAS, the Investment Agreement, the Note Purchase Agreement and the Plan of Reorganization contemplate that the Company, Investor, and Fidelity will enter into certain agreements, including, without limitation, this Registration Rights Agreement; NOW THEREFORE, the parties hereby agree as follows: 1. Definitions. Capitalized terms used herein that are not otherwise defined herein shall have the meanings ascribed to them in the Investment Agreement. In addition, the following terms, as used herein, have the following meanings (all terms defined herein in the singular to have the correlative meanings when used in the plural and vice versa): "Agreement" means this Registration Rights Agreement, as the same shall be amended, modified or supplemented from time to time. "Chapter 11 Case" has the meaning ascribed to it in the preamble. "Demand Registration" means any registration of Registrable Securities under the Securities Act effected in accordance with Section 2.2. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, or any successor statute, and the rules and regulations promulgated thereunder. "Fidelity Funds" has the meaning ascribed to it in the preamble. "Holders" means the holders of record of Registrable Securities. "Indemnified Party" has the meaning ascribed to it in Section 2.9(a). 5 "Indenture" means that certain Indenture between the Company and , as Trustee, dated as of , 1994 and relating to $ principal amount of the Notes. "Loss" has the meaning ascribed to it in Section 2.9(a). "Material Adverse Change" means (i) any general suspension of trading in, or limitation on, prices for securities on any national securities exchange or in the over-the-counter market in the United States of America, (ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States of America, (iii) the commencement of a war, armed hostilities or other international or national calamity involving the United States of America, (iv) any limitation (whether or not mandatory) by any governmental authority on, or any other event which is reasonably likely to significantly affect the extension of credit by banks or other financial institutions, (v) any material adverse change in the Company's business, condition (financial or otherwise) or prospects or (vi) a % or more decline in the Dow Jones Industrial average or the Standard and Poor's Index of 400 Industrial Companies, in each case from the date a Notice of Demand is made. "Notes" has the meaning ascribed to it in the Note Purchase Agreement. "Notice of Demand" means a request by Investor or any Fidelity Fund, as the case may be, pursuant to Section 2.2 that the Company effect the registration under the Securities Act of all or part of the Registrable Securities held by it and its Affiliates and, at its option, any direct or indirect transferee of Registrable Securities held by it, and any other Holder that requests to have its Registrable Securities included in such registration pursuant to Section 2.2(c). A Notice of Demand shall specify (i) the type and amount of Registrable Securities proposed to be registered, (ii) the intended method or methods and plan of disposition thereof and (iii) whether or not such requested registration is to be an underwritten offering. "Participating Holders" means, with respect to any registration of Registrable Securities by the Company pursuant to this Agreement, the Requesting Holder and any other Holders that are entitled to participate in, and are participating in or seeking to participate in, such registration. "Piggyback Registration" means any registration of Registrable Equity Securities under the Securities Act effected in accordance with Section 2.3. "Piggyback Registration Notice" has the meaning ascribed to it in Section 2.3(a). "Registrable Debt Securities" means the Notes sold to any Fidelity Fund or any of their respective assignees or Affiliates pursuant to the Note Purchase Agreement or subsequently acquired by any transferee (direct or indirect) of such Persons. As to any particular Registrable Debt Securities, once issued such securities shall cease to be Registrable Debt Securities when (a) such securities shall have been distributed pursuant to the Plan of Reorganization without registration or qualification under the Securities Act or any similar state law then in force pursuant to Section 1145 of the Bankruptcy Code, (b) a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with the plan of distribution set forth in such registration statement, (c) such securities shall have been distributed in accordance with Rule 144 or (d) such securities shall have been otherwise transferred, new certificates therefor not bearing a legend restricting further transfer shall have been delivered in exchange therefor by the Company and subsequent disposition of such securities shall not require registration or qualification under the Securities Act or any similar state law then in force. "Registrable Equity Securities" means the equity securities acquired by Investor, any Fidelity Fund or any of their respective assignees or Affiliates pursuant to the Plan or subsequently acquired by any transferee (direct or indirect) of such Persons, including, without limitation, (a) any shares of Class A Common or Class B Common issued or issuable on the Effective Date, (b) any Warrant, (c) any shares of Class B Common issued or issuable upon the exercise of the Warrants and (d) any securities issued or issuable with respect to any such Class A Common, Class B Common or Warrants by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise. As to any particular Registrable Equity Securities, once issued such securities shall cease to be Registrable Equity Securities when (i) such securities shall have been distributed pursuant to the Plan of 2 6 Reorganization without registration or qualification under the Securities Act or any similar state law then in force pursuant to Section 1145 of the Bankruptcy Code, (ii) a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with the plan of distribution set forth in such registration statement, (iii) such securities shall have been distributed in accordance with Rule 144 or (iv) such securities shall have been otherwise transferred, new certificates therefor not bearing a legend restricting further transfer shall have been delivered in exchange therefor by the Company and subsequent disposition of such shares shall not require registration or qualification under the Securities Act or any similar state law then in force. "Registrable Securities" means the Registrable Debt Securities and the Registrable Equity Securities. "Registration Expenses" means all expenses incident to the Company's performance of or compliance with this Agreement, including, without limitation, (a) all registration, filing, securities exchange listing, rating agency and National Association of Securities Dealers fees, (b) all registration, filing, qualification and other fees and expenses of complying with securities or blue sky laws and any legal fees and expenses incurred in connection with the blue sky qualifications of the Registrable Securities and the determination of their eligibility for investment under the laws of any jurisdiction, (c) all word processing, duplicating, printing, messenger and delivery expenses, (d) the fees and disbursements of counsel for the Company and of its independent public accountants, including, without limitation, the expenses of any special audits or "cold comfort" letters required by or incident to such performance and compliance, (e) the fees and disbursements incurred by the Holders of the Registrable Securities being registered (including, without limitation, the fees and disbursements for one counsel or firm of counsel selected by the Requisite Holders of Registrable Debt Securities and Registrable Equity Securities), (f) premiums and other costs of policies of insurance against liabilities arising out of the public offering of the Registrable Securities being registered to the extent the Company elects to obtain such insurance, (g) any fees and disbursements of underwriters customarily paid by issuers or sellers of securities (but excluding underwriting discounts and commissions and transfer taxes, if any, relating to the Registrable Securities being registered) and (h) fees and expenses of other Persons retained or employed by the Company. "Requesting Holder" means the party providing a Notice of Demand to the Company pursuant to Section 2.2(a). "Requisite Holders" means, (a) with respect to any Registrable Equity Securities, any Holder or Holders of a majority in interest of the Registrable Equity Securities included or to be included in such registration and (b) with respect to any Registrable Debt Securities, any Holder or Holders of a majority of the aggregate principal amount of the Registrable Debt Securities included or to be included in such registration. "Rule 144" means Rule 144 promulgated by the SEC under the Securities Act, and any successor provision thereto. "Rule 144A" means Rule 144A promulgated by the SEC under the Securities Act, and any successor provision thereto. "SEC" means the United States Securities and Exchange Commission, or any successor governmental agency or authority thereto. "Securities Act" means the Securities Act of 1933, as amended from time to time, or any successor statute, and the rules and regulations promulgated thereunder. "Shelf Period" has the meaning ascribed to it in Section 2.1(b). "Shelf Registration Statement" has the meaning ascribed to it in Section 2.1. "Successor" means, with respect to any Person, a successor to such Person by merger, consolidation, liquidation or other similar transaction. "Suspension Notice" has the meaning ascribed to it in Section 2.5(h). "Suspension Period" has the meaning ascribed to it in Section 2.5(h). 3 7 "Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C. sec.sec. 77aaa-77bbbb), as amended from time to time, or any successor statute, and the rules and regulations promulgated thereunder. 2. Registration under the Securities Act. 2.1 Shelf Registration Statement. (a) Filing of Shelf Registration Statement. If, as of the Effective Date, (i) the Company shall not have filed, or the SEC shall not have declared (or there shall not remain) effective, a shelf registration statement covering all of the Registrable Securities (the "Shelf Registration Statement") or (ii) the securities covered under the Shelf Registration Statement shall not qualify under all blue sky or other securities laws, the Company shall, as appropriate, promptly file a Shelf Registration Statement with the SEC and use [commercially reasonable] [its best] efforts to cause a Shelf Registration Statement to be declared effective as soon as practicable and to qualify such securities under all blue sky and other securities laws as soon as practicable. (b) Continuous Effectiveness of Shelf Registration Statement. Once the Shelf Registration Statement has been filed and declared effective, the Company shall use [commercially reasonable] [its best] efforts to cause the Shelf Registration Statement to remain continuously effective until the earlier of (i) the third (3rd) anniversary of the Effective Date and (ii) the date on which all of the Registrable Securities covered by such Shelf Registration Statement have been sold, but in no event prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder (the "Shelf Period"); provided, however, that (x) the Company may (no more than twice during any twelve (12) month period and for a period not to exceed forty-five (45) days) suspend use of the Shelf Registration Statement at any time if the continued effectiveness thereof would require the Company to disclose a material transaction, which disclosure the Board of Directors of the Company shall have determined in good faith is not in the best interests of the Company and its stockholders and (y) the Company may suspend use of the Shelf Registration Statement during any period (not to exceed forty-five (45) days) if each of the Company, Investor and each Fidelity Fund agrees in writing to such suspension for such period. (c) Underwritten Offering. If Investor and Fidelity so elect, the offering of Registrable Securities pursuant to the Shelf Registration Statement shall be in the form of an underwritten offering, with such book-running managing underwriter or underwriters as they shall jointly select with the approval of the Company, such approval not to be unreasonably withheld. 2.2 Demand Registration. (a) Registration on Request. Except as provided in subsection (b) below, (i) at any time after the Shelf Period, Investor may provide the Company with a Notice of Demand[; and (ii) if at any time during the Shelf Period the Shelf Registration Statement is not effective for any reason (other than under the circumstances and during the periods permitted by the proviso to Section 2.1(b)), each of Investor and Fidelity may, at any time and from time to time, provide the Company with up to two (2) additional Notices of Demand.] Upon receipt of a Notice of Demand, the Company shall use [commercially reasonable] [its best] efforts to effect at the earliest practicable date the registration under the Securities Act of the Registrable Securities that the Company has been so requested to register (whether pursuant to the Notice of Demand or pursuant to Section 2.2(c)), for disposition in accordance with the intended method or methods of disposition specified in the Notice of Demand or such other notice. (b) Limitations on Demand Registration. The Company shall not be obligated to take any action to effect any registration pursuant to this Section 2.2: (i) after the Company has, in accordance with the provisions of Section 2.5(c), effected [(A) one (1) registration of Registrable Securities with respect to 4 8 a registration requested pursuant to Section 2.2(a)(i) and (B) four (4) registrations of Registrable Securities with respect to a registration requested pursuant to Section 2.2(a)(ii); (ii) during any period (occurring no more than twice during any twelve (12) month period and not to exceed forty-five (45) days) in which such registration would require the Company to disclose a material transaction, which disclosure the Board of Directors of the Company shall have determined in good faith is not in the best interests of the Company and its stockholders; or (iii) during any period (not to exceed forty-five (45) days) if each of the Company, Investor and each Fidelity Fund agrees in writing to suspend such registration for such period. (c) Notice to certain non-Requesting Holders. Upon receipt of any Notice of Demand from a Requesting Holder, the Company will give prompt (but in any event within ( ) days after such receipt) notice to all Holders of Registrable Securities of such Notice of Demand and of such Holders' rights under this Section 2.2. Upon the request of any such Holder made within ( ) days after the receipt by such Holder of any such notice (which request shall specify the Registrable Securities intended to be disposed of by such Holder and the intended method or methods of disposition thereof), the Company will use [commercially reasonable] [its best] efforts to effect the registration of all Registrable Securities which the Company has been so requested to register pursuant to the Notice of Demand. (d) Priority in Demand Registrations. If (i) a registration pursuant to this Section 2.2(c) involves an underwritten offering of the securities being registered to be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing under underwriting terms appropriate for such a transaction and (ii) the managing underwriter of such underwritten offering shall inform the Company and the Requesting Holder by letter of its belief that the amount of securities requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering within a price range acceptable to the Requesting Holder, then the Company will include in such registration such amount of securities which the Company is so advised can be sold in (or during the time of) such offering as follows: first, such Registrable Securities requested to be included in such registration by the Requesting Holder, its Affiliates and any direct or indirect transferees of its Registrable Securities pro rata on the basis of the amount of such securities so proposed to be sold and so requested to be included by such parties; and second, such Registrable Securities requested to be included in such registration by all other Holders pro rata on the basis of the amount of such securities so proposed to be sold and so requested to be included by such Holders. 2.3 Piggyback Registration. (a) Right to Include Registrable Securities. If the Company at any time proposes to register any of its equity securities under the Securities Act (other than by a registration on Form S-4 or Form S-8 or any successor or similar form then in effect and other than pursuant to Section 2.1 or 2.2) in a form and in a manner that would permit registration of the Registrable Equity Securities, whether or not for sale for its own account, it will give prompt (but in no event less than [thirty (30)] days prior to the proposed date of filing the registration statement relating to such registration) notice to all Holders of Registrable Equity Securities of the Company's intention to do so and of such Holders' rights under this Section 2.3. Upon the request of any such Holder made within [twenty (20)] days after the receipt by such Holder of any such notice (which request shall specify the Registrable Equity Securities intended to be disposed of by such Holder and the intended method or methods of disposition thereof) (the "Piggyback Registration Notice"), the Company will use [commercially reasonable] [its best] efforts to effect the registration under the Securities Act of all Registrable Equity Securities which the Company has been so requested to register by the Holders thereof, to the extent required to permit the disposition (in accordance with the intended method or methods thereof as aforesaid) of the Registrable Equity Securities so to be registered, provided that if, at any time after giving notice of its intention to register any equity securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register or to delay registration of such equity securities, the Company may, at its election, give notice of such determination to each such Holder and, thereupon, (i) in the case of a determination not to register, shall be relieved of its obligation to register any 5 9 Registrable Equity Securities in connection with such registration (but not from its obligation to pay all Registration Expenses in connection therewith as provided in Section 2.5(b)), without prejudice, however, to the right of Investor to request that such registration be effected as a registration under Section 2.2, and (ii) in the case of a determination to delay registering, shall be permitted to delay registering any Registrable Equity Securities for the same period as the delay in registering such other equity securities. No registration effected under this Section 2.3 shall be deemed to have been effected pursuant to Section 2.1 or 2.2 or shall relieve the Company of its obligation to effect any registration under such Sections. (b) Priority in Piggyback Registrations. If (i) a registration pursuant to this Section 2.3 involves an underwritten offering of the securities being registered, whether or not for sale for the account of the Company, to be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing under underwriting terms appropriate for such a transaction and (ii) the managing underwriter of such underwritten offering shall inform the Company and the Holders requesting such registration by letter of its belief that the amount of securities requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering within a price range acceptable to the Company, then the Company will include in such registration such amount of securities which the Company is so advised can be sold in (or during the time of) such offering as follows: first, all securities proposed by the Company to be sold for its own account; second, such Registrable Equity Securities requested to be included in such registration by Investor, any Fidelity Fund or any of their respective Affiliates pro rata on the basis of the amount of such securities so proposed to be sold and so requested to be included by such parties; third, such Registrable Equity Securities requested to be included in such registration by all other Holders pro rata on the basis of the amount of such securities so proposed to be sold and so requested to be included by such Holders; and fourth, all other securities of the Company requested to be included in such registration pro rata on the basis of the amount of such securities so proposed to be sold and so requested to be included. 2.4 Trust Indenture Act Qualification; Rating. At or prior to the date the SEC declares the Shelf Registration Statement to be effective, the Company shall qualify the Indenture under the Trust Indenture Act, and shall use [commercially reasonable] [its best] efforts to effect such registration to permit the sale of the Notes thereunder in accordance with the intended method or methods of disposition thereof. If notified by a nationally recognized rating agency that the Notes are being rated, the Company shall cooperate in providing information and making a presentation to such agency in connection therewith. 2.5 Registration Terms and Procedures. (a) Registration Statement Form. Registrations under Section 2.2 shall be on such appropriate registration forms of the SEC (i) as shall be acceptable to the Requesting Holder (such acceptance not to be unreasonably withheld) and (ii) as shall permit the disposition of such Registrable Securities in accordance with the intended method or methods of disposition. The Company agrees to include in any such registration statement all information that any Participating Holder shall reasonably request (to the extent such information relates to such Participating Holder). (b) Registration Expenses. Subject to Section 2.5(f), the Company will pay all Registration Expenses incurred in connection with a registration to be effected (whether or not effected or deemed effected pursuant to subsection (c) below) pursuant to Sections 2.1, 2.2 or 2.3. (c) Effectiveness of Demand Registration. A registration will not be deemed to have been effected under Section 2.2 unless the registration statement with respect thereto has been declared effective by the SEC [and remains effective for [nine (9)] months]; provided, however, that if (i) after such registration statement has been declared effective, the offering of Registrable Securities pursuant to such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court (for reasons other than a misrepresentation or omission by the Requesting Holder or any Participating Holder) or (ii) the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration have not been satisfied (for reasons other than a wrongful or bad faith act, omission or misrepresentation by the 6 10 Requesting Holder or any Participating Holder), such registration statement will be deemed not to have become effective. If a registration pursuant to Section 2.2 is deemed not to have been effected hereunder, then the Company shall continue to be obligated to effect a registration pursuant to such Section. (d) Selection of Underwriter. If, in connection with a registration effected pursuant to Section 2.2, the Requesting Holder so elects, the offering of Registrable Securities pursuant to such Section shall be in the form of an underwritten offering. If the Requesting Holder so elects, it shall select one or more nationally recognized firms of investment bankers to act as the book-running managing underwriter or underwriters in connection with such offering, provided that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. (e) Registration of Securities. Participating Holders may seek to register different types of Registrable Securities and/or different classes of the same type of Registrable Securities simultaneously and the Company shall use its, and in the case of an underwritten offering, shall cause the managing underwriter or underwriters to use [commercially reasonable] [its best] efforts to effect such registration and sale in accordance with the intended method or methods of disposition specified by such Holders. (f) Withdrawal. Any Holder participating in a registration pursuant to this Agreement shall be permitted to withdraw all or part of its Registrable Securities from such registration at any time prior to the effective date of the registration statement covering such securities; provided that, in the event of a withdrawal from a registration effected pursuant to Section 2.2, such registration shall be deemed to have been effected for purposes of Section 2.5(c) unless (i) the Requesting Holder and any Participating Holders shall have paid or reimbursed the Company for the reasonable fees and expenses paid by the Company hereunder to the extent such fees and expenses would customarily have been paid by sellers in connection with a registration of similar securities or (ii) the Requesting Holder elects to terminate such registration due to the occurrence of a Material Adverse Change; provided, however, that only one such withdrawal shall be permitted pursuant to this clause (ii). (g) Registration Procedures. In connection with the Company's obligations to register Registrable Securities pursuant to this Agreement, the Company will use [commercially reasonable] [its best] efforts to effect such registration so as to permit the sale of any Registrable Securities included in such registration in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible: (i) prepare and (as soon thereafter as possible) file with the SEC the requisite registration statement containing all information required thereby to effect such registration and thereafter use [commercially reasonable] [its best] efforts to cause such registration statement to become and remain effective in accordance with the terms of this Agreement, provided that as far in advance as practicable before filing such registration statement or any amendment, supplement or exhibit thereto (but, with respect to the filing of such registration statement, in no event later than ten (10) days prior to such filing), the Company will furnish to the Participating Holders or their counsel copies of reasonably complete drafts of all such documents proposed to be filed (excluding exhibits, which shall be made available upon request by any Participating Holder), and any such Holder shall have the opportunity to object to any information contained therein and the Company will make the corrections reasonably requested by such Holder with respect to such information prior to filing any such registration statement, amendment, supplement or exhibit; (ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith (A) as reasonably requested by any Participating Holder to which such registration statement relates (but only to the extent such request relates to information with respect to such Holder) and (B) as may be necessary to keep such registration statement effective for the period referred to in Section 2.1(b) in the case of a Shelf Registration Statement or [nine (9) months] in the case of a registration effected pursuant to Section 2.2 or 2.3 (or such shorter period as shall be necessary to complete the distribution of the securities covered thereby, but not before the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder), and comply with the provisions of the 7 11 Securities Act with respect to the sale or other disposition of all securities covered by such registration statement during such period in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such registration statement; (iii) furnish to each Holder covered by, and each underwriter or agent participating in the disposition of securities under, such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits and documents incorporated by reference), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act relating to such Holder's Registrable Securities, in conformity with the requirements of the Securities Act, and such other documents as such Holder, underwriter or agent may reasonably request to facilitate the disposition of such Registrable Securities; (iv) use [commercially reasonable] [its best] efforts to register or qualify all Registrable Securities and other securities covered by such registration statement under (A) with respect to the Shelf Registration Statement, all blue sky and other securities laws and (B) with respect to a registration effected pursuant to Section 2.2, all applicable blue sky and other securities laws, and to keep such registration or qualification in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary or advisable to enable such Holder to consummate the disposition of the securities owned by such Holder, except that the Company shall not for any such purpose be required to (a) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (b) subject itself to taxation in any such jurisdiction [or (c) consent to general service of process in any jurisdiction]; (v) use [commercially reasonable] [its best] efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities applicable to the Company as may be reasonably necessary to enable the seller or sellers thereof (or underwriter or agent, if any) to consummate the disposition of such Registrable Securities in accordance with the plan of distribution set forth in such registration statement; (vi) furnish to each Holder of at least percent ( %) in interest of Registrable Equity Securities or at least percent ( %) in aggregate principal amount of Registrable Debt Securities covered by such registration statement a signed counterpart, addressed to such Holder (and underwriter or agent, if any) of: (A) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), and (B) a "comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have certified the Company's financial statements included in such registration statement, in each case, reasonably satisfactory in form and substance to such Holder (and underwriter or agent and their respective counsel) and covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriter or agent in underwritten public offerings of securities; (vii) promptly notify each Holder and any underwriter or agent participating in the disposition of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the 8 12 happening of any event known to the Company as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, and promptly prepare and furnish to such Holder (or underwriter or agent, if any) a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made; (viii) otherwise use [commercially reasonable] [its best] efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable (but not more than fifteen (15) months) after the effective date of the registration statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder, and furnish to each Holder covered by such registration statement or any participating underwriter or agent at least five (5) business days prior to the filing a copy of any amendment or supplement to such registration statement or prospectus; (ix) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement; (x) use [commercially reasonable] [its best] efforts to (A) list, on or prior to the effective date of such registration statement, all Registrable Equity Securities covered by such registration statement on any securities exchange on which any of the Registrable Equity Securities is then listed, if any or (B) have authorized for quotation and/or listing, as applicable, on the National Association of Securities Dealers, Inc. Automated Quotation ("NASDAQ") of the National Market System of NASDAQ if the Registrable Equity Securities so qualify; (xi) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers; (xii) use [commercially reasonable] [its best] efforts to prevent the issuance by the SEC or any other governmental agency or court of a stop order, injunction or other order suspending the effectiveness of such registration statement and, if such an order is issued, use [commercially reasonable] [its best] efforts to cause such order to be lifted as promptly as practicable; [(xiii) enter into such agreements and take such other actions as the Requisite Holders of such Registrable Securities shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;] (xiv) promptly notify each seller and the underwriter or agent, if any: (A) when such registration statement or any prospectus used in connection therewith, or any amendment or supplement thereto, has been filed and, with respect to such registration statement or any post-effective amendment thereto, when the same has become effective; (B) of any written comments from the SEC with respect to any filing referred to in clause (A) and of any written request by the SEC for amendments or supplements to such registration statement or prospectus; (C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to, or of the issuance by the SEC of, any stop order suspending the effectiveness of such registration statement; and 9 13 (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction; (xv) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the distribution of such Registrable Securities to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends, other than as required by applicable law, the Investment Agreement or the Note Purchase Agreement) representing securities sold under a registration statement hereunder, and enable such securities to be in such denominations and registered in such names as such seller, underwriter or agent may request and keep available and make available to the Company's transfer agent, prior to the effectiveness of such registration statement, an adequate supply of such certificates; (xvi) not later than the effective date of such registration statement, provide a CUSIP number for all Registrable Securities covered by a registration statement hereunder; (xvii) incorporate in the registration statement or any amendment, supplement or post-effective amendment thereto such information as each Holder, the underwriter or agent (if any) or their respective counsel may reasonably request to be included therein with respect to any Registrable Securities being sold by such Holder to such underwriter or agent, the purchase price being paid therefor by such underwriter or agent and any other terms of the offering of such Registrable Securities; (xviii) during any period when a prospectus is required to be delivered under the Securities Act, make periodic filings with the SEC pursuant to and containing the information required by the Exchange Act (whether or not the Company is required to make such filings pursuant to such Act); (xix) in connection with an underwritten offering, participate, to the extent reasonably requested by the Requisite Holders or the managing underwriter for the offering, in customary efforts to sell the securities under the offering, including, without limitation, participating in "road shows." (h) Agreements of Certain Holders. (i) Each Holder of Registrable Securities as to which any registration is being effected shall furnish to the Company such information regarding such Holder, the Registrable Securities held by such Holder and the intended plan of distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration. If any registration statement refers to Investor, any Fidelity Fund or any of their respective Affiliates by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require [(A) the insertion therein of language, in form and substance reasonably satisfactory to such Holder, to the effect that the holding by such Holder of such securities is not to be construed as a recommendation by such Holder of the investment quality of the Company's securities covered thereby and that such holding does not imply that such Holder will assist in meeting any future financial requirements of the Company, or (B)] in the event that such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal or state blue sky statute and the rules and regulations thereunder then in force, the deletion of the reference to such Holder. (ii) Each Holder of Registrable Securities as to which any registration is being effected agrees, by acquisition of such Registrable Securities, that upon receipt of any notice (a "Suspension Notice") from the Company of the happening of any event of the kind described in clause (vii) of Section 2.5(g), such Holder will forthwith discontinue such Holder's disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such Holder's receipt of the copies of the supplemented or amended prospectus contemplated by clause (vii) of Section 2.5(g)[; provided, however, that in no event shall the period (the "Suspension Period") from the date on which such Holder receives a Suspension Notice to and including the date on which such Holder receives copies of the supplemented or amended prospectus contemplated by clause (vii) of Section 2.5(g) exceed twenty (20) days]. The Company shall [use commercially reasonable efforts to] take such actions as are necessary to 10 14 end the Suspension Period as promptly as practicable. In the event the Company shall give any such notice, the period referred to in clause (ii) of Section 2.5(g) shall be extended by a number of days equal to the number of days of the Suspension Period. 2.6 Underwritten Offerings. (a) Underwritten Offerings in Connection with a Shelf or a Demand Registration. If requested by the underwriters for any underwritten offering in connection with a registration pursuant to Section 2.1 or 2.2, the Company will enter into an underwriting agreement with such underwriters for such offering, such agreement (i) to be satisfactory in substance and form to the Company and to each of Investor and each Fidelity Fund (so long as it or any of its Affiliates holds Registrable Securities to be included in such registration) and (ii) to contain such representations and warranties by the Company and such Holders (subject to the last sentence of this Section 2.6(a)) and such other terms as are generally prevailing in agreements of such type, including, without limitation, indemnities to the effect and to the extent provided in Section 2.8. Each of Investor and each Fidelity Fund (so long as it or any of its Affiliates holds Registrable Securities to be included in such registration) shall be a party to such underwriting agreement and may, at its option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for its benefit and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement be conditions precedent to its obligations thereunder. [No Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder's Registrable Securities and such Holder's intended method of distribution and any other representation required by law.] (b) Underwritten Offerings in Connection with Piggyback Registrations. If the Company at any time proposes to register any of its equity securities under the Securities Act as contemplated by Section 2.3 and such securities are to be distributed by or through one or more underwriters, the Company will, if requested by any Participating Holder and subject to Section 2.3(b), arrange for such underwriters to include all of the Registrable Equity Securities to be offered and sold by such Holder or Holders among the securities to be distributed by such underwriters. The Holders of Registrable Equity Securities to be distributed by such underwriters shall be parties to the underwriting agreement between the Company and such underwriters, provided that such agreement is reasonably satisfactory in substance and form to the Requisite Holders, and may, at their option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement be conditions precedent to the obligations of such Holders thereunder. Any such Holder shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, such Holder's Registrable Equity Securities and such Holder's intended method of distribution and any other representation required by law. 2.7 Preparation; Reasonable Investigation. In connection with the preparation and filing of each registration statement under the Securities Act pursuant to this Agreement, the Company will give the Holders of Registrable Securities to be registered under such registration statement, their underwriters or agents, if any, and their respective counsel and accountants reasonable access to its books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified its financial statements as shall be necessary, in the opinion of such Holders' and such underwriters' or agents' respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act. 2.8 Indemnification. (a) Indemnification by the Company. The Company agrees to indemnify and hold harmless, to the full extent permitted by law, each Holder participating in an offering hereunder, its directors, officers, 11 15 shareholders, employees, investment advisers, agents and Affiliates, either direct or indirect (and such Affiliates', directors, officers, shareholders, employees, investment advisers and agents), and each other Person, if any, who controls such Persons within the meaning of the Securities Act (each such Person, an "Indemnified Party"), from and against any losses, claims, damages, liabilities or expenses, joint or several (each a "Loss" and collectively, "Losses"), to which such Indemnified Party may become subject under the Securities Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act (including all documents incorporated therein by reference), any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse such Indemnified Party for any legal or any other expenses reasonably incurred by it in connection with investigating or defending against any such Loss, action or proceeding; provided that in any such case the Company shall not be liable to any particular Indemnified Party to the extent that such Loss (or action or proceeding in respect thereof) arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by such Indemnified Party specifically for inclusion therein; and provided, further, that the Company shall not be liable in any such case to the extent it is finally determined by a court of competent jurisdiction that any such Loss (or action or proceeding in respect thereof) arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made (i) in any such preliminary prospectus, if (A) it was the responsibility of such Indemnified Party to provide the Person asserting such Loss with a current copy of the prospectus and such Indemnified Party failed to deliver or cause to be delivered a copy of the prospectus to such Person after the Company had furnished such Indemnified Party with a sufficient number of copies of the same prior to the sale of Registrable Securities to the Person asserting such Loss and (B) the prospectus corrected such untrue statement or omission; or (ii) in such prospectus, if such untrue statement or omission is corrected in an amendment or supplement to such prospectus and such amendment or supplement has been delivered to the Indemnified Party prior to the sale of Registrable Securities to the Person asserting such Loss and the Indemnified Party thereafter fails to deliver the prospectus as so amended or supplemented prior to or concurrently with such sale after the Company had furnished such Indemnified Party with a sufficient number of copies of the same [and informed the Indemnified Party of the necessity to deliver such amendment or supplement to purchasers of securities]. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Party and shall survive the transfer of such securities by such Indemnified Party. The Company shall also indemnify each other Person who participates (including as an underwriter) in the offering or sale of Registrable Securities hereunder, their officers and directors and each other Person, if any, who controls any such participating Person within the meaning of the Securities Act to the same extent as provided above with respect to Indemnified Parties. (b) Indemnification by the Sellers. The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2.3 and as a condition to indemnifying such sellers pursuant to this Section 2.8, that the Company shall have received an undertaking reasonably satisfactory to it from each prospective seller of such securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in paragraph (a) of this Section 2.8) the Company, each director, officer, employee and agent of the Company, and each other Person, if any, who controls the Company within the meaning of the Securities Act, from and against any Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arising out of or 12 16 based upon any untrue statement or alleged untrue statement of a material fact contained in any registration statement under which such securities were registered under the Securities Act (including all documents incorporated therein by reference), any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission from such registration statement, preliminary prospectus, final prospectus or summary prospectus, or any amendment or supplement thereto required to be stated therein or necessary to make the statements therein not misleading, if (but only if) such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by such prospective seller specifically for inclusion therein; provided, however, that such prospective seller shall not be obligated to provide such indemnity to the extent that such Losses result, directly or indirectly, from the failure of the Company to promptly amend or take action to correct or supplement any such registration statement, prospectus, amendment or supplement based on corrected or supplemental information provided in writing by such prospective seller to the Company expressly for such purpose; and provided further, that the obligation to provide indemnification pursuant to this Section 2.8(b) shall be several, and not joint and several, among such indemnifying parties. Notwithstanding anything in this Section 2.8(b) to the contrary, in no event shall the liability of any prospective seller under such indemnity be greater in amount than the amount of the proceeds received by such seller upon the sale of its Registrable Securities in the offering to which the Losses relate. Such indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of the Company or any such director, officer, employee, agent or participating or controlling Person and shall survive the transfer of such securities by such prospective seller. (c) Notices of Claims, etc. Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in paragraph (a) or (b) of this Section 2.8, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give prompt written notice to the latter of the commencement of such action, provided that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under this Section 2.8, except to the extent that the indemnifying party is actually and materially prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, the indemnifying party shall be entitled to participate in and to assume the defense thereof [(such assumption to constitute its acknowledgement of its agreement to indemnify the indemnified party with respect to such matters)], jointly with any other indemnifying party similarly notified to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal fees or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if, in such indemnified party's reasonable judgment, a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, such indemnified party shall be entitled to separate counsel at the expense of the indemnifying party; and provided, further, that[, unless there exists a conflict of interest among indemnified parties,] all indemnified parties in respect of such claim shall be entitled to only one counsel or firm of counsel for all such indemnified parties. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense of a claim, such indemnifying party shall not be obligated to pay the fees and expenses of more than one counsel or firm of counsel for all parties indemnified by such indemnifying party in respect of such claim, unless in the reasonable judgment of any such indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties in respect of such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel for such indemnified party or parties. No indemnifying party shall, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement that (i) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all Losses in respect of such claim or litigation or (ii) would impose injunctive relief on such indemnified party. No indemnifying party shall be subject to 13 17 any Losses for any settlement made without its consent, which consent shall not be unreasonably withheld. (d) Other Indemnification. The provisions of this Section 2.8 shall be in addition to any other rights to indemnification or contribution which an indemnified party may have pursuant to law, equity, contract or otherwise. (e) Indemnification Payments. The indemnification required by this Section 2.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, promptly as and when bills are received or Losses are incurred. (f) Contribution. If for any reason the foregoing indemnity and reimbursement is unavailable or is insufficient to hold harmless an indemnified party under paragraph (a) or (b) of this Section 2.8, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of any Loss (or actions or proceedings, whether commenced or threatened, in respect thereof), including, without limitation, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such Loss, action or proceeding, in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. Notwithstanding anything in this Section 2.8(f) to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 2.8(f) to contribute any amount in excess of the amount by which the net proceeds received by such indemnifying party from the sale of Registrable Securities in the offering to which the Losses of the indemnified parties relate exceeds the amount of any damages which such indemnifying party has otherwise been required to pay by reason of such untrue statement or omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. [2.9 Liquidated Damages. (a) If the Company shall not have filed, or the SEC shall not have declared effective, a Shelf Registration Statement as of the Effective Date, the Company shall pay liquidated damages to each Holder covered or to be covered by such registration statement in an amount equal to (i) in the case of Registrable Debt Securities, $.10 per $1,000 outstanding principal amount of such Registrable Debt Securities and (ii) in the case of Registrable Equity Securities, $. per share (or, in the case of any Warrant, $. per share based on the number of shares issuable upon exercise of the Warrant) for each week specified in subsection (g) below. (b) If the late filing or late declaration of effectiveness referred to in clause (a) above shall not have been cured within ninety (90) days after the Effective Date, the daily liquidated damages set forth in clause (a) above shall increase by an amount equal to (i) in the case of Registrable Debt Securities, $.15 per $1,000 outstanding principal amount of such Registrable Debt Securities and (ii) in the case of Registrable Equity Securities, $. per share (or in the case of any Warrant, $. per share based on the number of shares issuable upon exercise of the Warrant) for each week specified in subsection (g) below. (c) If the late filing or late declaration of effectiveness referred to in clause (a) above shall not have been cured within one hundred and eighty (180) days after the Effective Date, the daily liquidated damages set forth in clause (a) above shall increase by an amount equal to (i) in the case of Registrable Debt Securities, $.20 per $1,000 outstanding principal amount of such Registrable Debt Securities and (ii) in the case of Registrable Equity Securities, $. per share (or in the case of any Warrant, $. per share based on the number of shares issuable upon exercise of the Warrant) for each week specified in subsection (g) below. 14 18 (d) If a stop order is imposed or if for any other reason the effectiveness of the Shelf Registration Statement is suspended during the period specified in the first sentence of Section 2.1(b), the Company shall pay liquidated damages to each Holder covered or to be covered by such registration statement in an amount equal to (i) in the case of Registrable Debt Securities, $.10 per $1,000 outstanding principal amount of such Registrable Debt Securities and (ii) in the case of Registrable Equity Securities, $. per share (or in the case of any Warrant, $. per share based on the number of shares issuable upon exercise of the Warrant) for each week specified in subsection (g) below. (e) If the stop order or other suspension of effectiveness of the Shelf Registration Statement referred to in clause (d) above shall not have been cured within ninety (90) days after such stop order was imposed or the effectiveness of the Shelf Registration Statement was otherwise suspended, the daily liquidated damages set forth in clause (d) above shall increase by an amount equal to (i) in the case of Registrable Debt Securities, $.15 per $1,000 outstanding principal amount of such Registrable Debt Securities and (ii) in the case of Registrable Equity Securities, $. per share (or in the case of any Warrant, $. per share based on the number of shares issuable upon exercise of the Warrant) for each week specified in subsection (g) below. (f) If the stop order or other suspension of effectiveness of the Shelf Registration Statement referred to in clause (d) above shall not have been cured within one hundred and eighty (180) days after such stop order was imposed or the effectiveness of the Shelf Registration Statement was otherwise suspended, the daily liquidated damages set forth in clause (d) above shall increase by an amount equal to (i) in the case of Registrable Debt Securities, $.20 per $1,000 outstanding principal amount of such Registrable Debt Securities and (ii) in the case of Registrable Equity Securities, $. per share (or in the case of any Warrant, $. per share based on the number of shares issuable upon exercise of the Warrant) for each week specified in subsection (g) below. (g) The liquidated damages payable to any Holder set forth in this Section 2.9 shall begin accruing on the date on which the event triggering such liquidated damages occurs and shall cease to accrue (i) with respect to clauses (a) through (c) above, on the earlier of the date after the SEC declares the Shelf Registration Statement to be effective and the date after the SEC declares effective a registration statement effected pursuant to Section 2.2 covering such Holder's Registrable Securities and (ii) with respect to clauses (d) through (f) above, on the date after reinstatement of the effectiveness of the Shelf Registration Statement. The Company will pay the liquidated damages due with respect to any Registrable Securities at the end of each month during which such damages accrue. Liquidated damages shall be paid to the Holders entitled to receive such liquidated damages by wire transfer in immediately available funds to the accounts designated by such Holders. (h) The parties hereto agree that (i) the liquidated damages provided for in this Section 2.9 constitute a reasonable estimate of the damages that will be suffered by each Holder covered or to be covered by the Shelf Registration Statement by reason of the failure of the Shelf Registration Statement to be filed, to be declared effective and to remain effective in accordance with this Agreement and (ii) such liquidated damages shall be the sole remedy of each such Holder with respect to the matters set forth in this Section 2.9.] 3. Rule 144 and Rule 144A. (a) The Company will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder and will take such further action as Investor and/or any Fidelity Fund may reasonably request, all to the extent required from time to time to enable Investor and/or such Fidelity Fund to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144, (ii) Rule 144A or (iii) any similar rule or regulation hereafter adopted by the SEC. Upon the request of Investor and/or any Fidelity Fund, the Company will deliver to Investor and/or such Fidelity Fund a written statement as to whether it has complied with such requirements and will, at its expense, forthwith upon the request of Investor and/or such Fidelity Fund, deliver to Investor and/or such Fidelity Fund a certificate, signed by the Company's principal financial officer, stating (A) the Company's name, address and telephone number (including area code), (B) the Company's Internal Revenue Service identification number, (C) the 15 19 Company's SEC file number, (D) the amount of shares of each class of capital stock outstanding as shown by the most recent report or statement published by the Company, and (E) whether the Company has filed the reports required to be filed under the Exchange Act for a period of at least ninety (90) days prior to the date of such certificate and in addition has filed the most recent annual report required to be filed thereunder. (b) If at any time the Company is not required to file reports in compliance with either Section 13 or Section 15(d) of the Exchange Act, the Company at its expense will, forthwith upon the request of Investor and/or any Fidelity Fund, (i) make available adequate current public information with respect to the Company within the meaning of paragraph (c)(2) of Rule 144 and (ii) deliver the information required by Section (d) of Rule 144A (such information to be "reasonably current" within the meaning of Section (d)(4)(ii) of Rule 144A). 4. Term. This Agreement shall enter into force on the date hereof and shall continue in full force and effect until the [sixth (6th)] [twelfth (12th)] anniversary of the date hereof. 5. Amendments and Waivers. This Agreement may be amended, supplemented or modified at any time; provided that (i) each of Investor and each Fidelity Fund (so long as it or any of its Affiliates holds Registrable Securities), (ii) each Holder of at least percent ( %) in interest of Registrable Equity Securities and percent ( %) in aggregate principal amount of Registrable Debt Securities then outstanding and (iii) the Company has provided its written consent to such amendment, supplement or modification. Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. No waiver by any party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same term or condition of this Agreement on any future occasion. 6. Entire Agreement. This Agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof (including, without limitation, Section 11 of the Investment Agreement) and contains the sole and entire agreement between the parties hereto with respect to the subject matter hereof. 7. No Third-Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of each party, their respective Successors or permitted assigns and it is not the intention of the parties to confer third-party beneficiary rights upon any other Person other than (i) any Affiliate of Investor or Fidelity, (ii) any transferee, direct or indirect, of any of the Registrable Securities held by Investor or Fidelity or (iii) any other Person entitled to notice of the registration of Registrable Securities under Sections 2.2(c) or 2.3(a), to indemnity under Section 2.8 [or to liquidated damages under Section 2.9]. 8. Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, (i) such provision will be fully severable, (ii) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, (iii) 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 (iv) 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. 9. Nominees for Beneficial Owners. In the event that any Registrable Securities are held by a nominee for the beneficial owner thereof, the beneficial owner thereof may, at its election, be treated as the holder of such Registrable Securities for purposes of request or other action by any Holder or Holders pursuant to this Agreement or any determination of any amount of shares of Registrable Securities held by any Holder or Holders of Registrable Securities contemplated by this Agreement. If the beneficial owner of any Registrable Securities so elects, the Company may require assurances reasonably satisfactory to it of such owner's beneficial ownership of such Registrable Securities. For purposes of this Agreement, "beneficial ownership" and "beneficial owner" refer to beneficial ownership as defined in Rule 13d-3 (without regard to the 60-day provision in paragraph (d)(1)(i) thereof) under the Exchange Act. 16 20 10. 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) to the parties at the following addresses or facsimile numbers: If to the Company, to: America West Airlines, Inc. 4000 East Sky Harbor Boulevard Phoenix, Arizona 85034 Attention: William A. Franke and Martin J. Whalen Fax No.: (602) 693-5904 If to Investor, to: AmWest Partners, L.P. 201 Main Street, Suite 2420 Fort Worth, Texas 76102 Attention: James G. Coulter Fax No.: (817) 871-4010 If to Fidelity, to: Fidelity Management Trust Company 82 Devonshire Street, MS F7E Boston, Massachusetts 02109 Attention: Daniel S. Harmetz Fax No.: (617) 227-2536 and to: Fidelity Management Trust Company 82 Devonshire Street, MS F7D Boston, Massachusetts 02109 Attention: Wendy Schnipper-Clayton, Esq. Fax No.: (617) 570-7688 with a copy to: Goodwin, Procter & Hoar Exchange Place Boston, Massachusetts 02109-2881 Attention: Laura Hodges Taylor Fax No.: (617) 523-1231 With respect to any other holder of Registrable Securities entitled to receive notice, requests or other communications hereunder, such notices, requests and other communications shall be sent to the addresses and telecopy numbers set forth in SCHEDULE 1 hereto (as it may be amended, modified or supplemented from time to time). All such notices, requests and other communications will (i) if delivered personally to the address as provided in this Section 10, be deemed given upon delivery, (ii) if delivered by facsimile transmission to the facsimile number as provided in this Section 10, be deemed given upon receipt, and (iii) if delivered by mail in the manner described above to the address as provided in this Section 10, be deemed given upon receipt (in each case regardless of whether such notice, request or other communication is received by any other Person to whom a copy of such notice is to be delivered pursuant to this Section 10). Any Person from time to time may change its address, facsimile number or other information for the purpose of notices to that Person by giving notice in accordance with this Section 10 specifying such change to the Company and the Investor. 17 21 11. Assignment. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties and their respective Successors (including, in the case of the Company, the Company as reorganized pursuant to the Plan of Reorganization) and permitted assigns. In addition, each of Investor and Fidelity may assign [(by written instrument)] any of its rights hereunder (in whole or in part) to one or more Affiliates or to one or more direct or indirect transferees of its Registrable Securities. 12. Descriptive Headings. The descriptive headings of the several sections and paragraphs of this Agreement are inserted for convenience of reference only and do not define or limit the provisions hereof or otherwise affect the meaning hereof. [13. Specific Performance. [Except with respect to the matters set forth in Section 2.9], the parties agree that, to the extent permitted by law, (i) the obligations imposed on them in this Agreement are special, unique and of an extraordinary character, and that in the event of a breach by any such party damages would not be an adequate remedy; (ii) each of the other parties shall be entitled to specific performance and injunctive and other equitable relief in addition to any other remedy to which it may be entitled at law or in equity; and (iii) any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief is hereby waived.] 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 15. Registration Rights to Others. [The Company shall not provide to any other holder of its securities rights with respect to the registration of such securities under the Securities Act without the prior written consent of Investor and each Fidelity Fund (so long as they or their Affiliates hold Registrable Securities).] The Company represents and warrants that, other than as provided herein, it has not granted to any other Person rights with respect to the registration of any Registrable Securities or any other securities issued or to be issued by it. 16. Attorneys' Fees. In any action or proceeding brought to enforce any provision of this Agreement or where any provision hereof is validly asserted as a defense, the successful party shall, to the extent permitted by applicable law, be entitled to recover reasonable attorneys' fees in addition to any other available remedy. 17. Limitation of Liability. Each party to this Agreement acknowledges and agrees that (i) this Agreement is not executed on behalf of or binding upon any of the trustees, officers, directors, partners or shareholders of any Fidelity Fund individually, but is binding only upon the assets and property of each Fidelity Fund and (ii) the obligations of each Fidelity Fund hereunder are several and not joint. With respect to the obligations of any Fidelity Fund arising out of this Agreement, each party to this Agreement shall look for payment or satisfaction of any claim solely to the assets and property of such Fidelity Fund. 18. Termination of Certain Rights. The rights and obligations hereunder of each of Investor and each Fidelity Fund shall terminate with respect to such party at such time when neither it nor any of its respective Affiliates holds Registrable Securities, provided that the provisions of Section 2.8 shall survive termination of this Agreement. 19. Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument. 18 22 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their respective officers thereunto duly authorized as of the date first above written. AMERICA WEST AIRLINES, INC. By:__________________________________ Name: Title: AMWEST PARTNERS, L.P. By [AmWest GenPar Inc.] its General Partner [By ] By:___________________________________ Name: Title: [LIST EACH FIDELITY FUND] By:___________________________________ Name: Title: 19 -----END PRIVACY-ENHANCED MESSAGE-----