Exhibit 4.18
GUARANTY
THIS GUARANTY ("GUARANTY"), dated as of January 18, 2002, is made by
AMERICA WEST AIRLINES, INC., a Delaware corporation (the "GUARANTOR"), in favor
of the Holders and the Trustee (each such term as defined in the Indenture
referred to below, with the Holders and the Trustee referred to herein as the
"BENEFICIARIES").
RECITALS
A. Reference is made to the Indenture, dated as of the date hereof (as
amended, restated, supplemented, modified or waived from time to time, the
"INDENTURE"), by and between America West Holdings Corporation, a Delaware
corporation (the "COMPANY"), and Wilmington Trust Company, as Trustee, under
which the Company is issuing its 7-1/2% Convertible Senior Notes due 2009 (the
"NOTES"). Capitalized terms used and not defined herein shall have the meaning
given to such terms in the Indenture.
B. The Guarantor is a wholly-owned subsidiary of the Company.
C. The Guarantor will obtain substantial direct and indirect benefit
from the transactions contemplated by the Transaction Documents (as defined
below).
D. Under the terms of the Indenture, the Guarantor and the Company are
required to enter into this Guaranty.
GUARANTY
NOW, THEREFORE, in consideration of the promises therein, the Guarantor
hereby agrees as follows:
1. GUARANTY.
(a) UNCONDITIONAL GUARANTY. The Guarantor hereby unconditionally,
absolutely and irrevocably guarantees to each of the Beneficiaries the prompt
and complete payment when due (whether at stated maturity, by acceleration or
otherwise) of all Guaranteed Obligations. The term "GUARANTEED OBLIGATIONS"
means all loans, advances, debts, liabilities and obligations for monetary
amounts from time to time owing by the Company to the Holders or the Trustee in
connection with the Notes or under the Indenture, whether due or to become due,
matured or unmatured, liquidated or unliquidated, contingent or non-contingent,
and all covenants and duties regarding such amounts, of any kind or nature,
present or future, whether or not evidenced by any note, agreement or
instrument, arising under or in respect of the Notes or under the Indenture.
This term includes all Principal, Interest (including Interest that accrues
after the commencement against the Company of any action under Bankruptcy Law),
fees, expenses, costs or other sums (including, without limitation, all fees and
disbursements of any law firm or other external counsel) chargeable to the
Company under the Notes or under the Indenture. Notwithstanding the foregoing,
Guaranteed Obligations shall not include any liabilities or obligations owing
from the Company to the Holders in connection with the Registration Rights
Agreement (as defined below).
1.
(b) REIMBURSEMENT OF EXPENSES UNDER THIS GUARANTY. The Guarantor
also agrees to pay any and all reasonable costs and expenses (including, without
limitation, all reasonable fees and disbursements of any law firm or other
external counsel) of any Holder or the Trustee in enforcing any rights under
this Guaranty.
(c) GUARANTEED OBLIGATIONS UNAFFECTED. No payment or payments made
by any other guarantor or by any other Person, or received or collected by any
of the Beneficiaries from any other guarantor or from any other Person by virtue
of any action or proceeding or any appropriation or application at any time or
from time to time in reduction of or in payment of the Guaranteed Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
the Guarantor hereunder which shall, notwithstanding any such payments, remain
liable for the Guaranteed Obligations, subject to Section 6 below, until this
Guaranty shall have terminated pursuant to Section 4 hereof.
(d) ENFORCEMENT OF GUARANTEED OBLIGATIONS. Upon the occurrence and
during the continuance of an Event of Default (as defined in the Indenture),
then and in any such event all or any part of the Guaranteed Obligations shall
automatically become (in the case of an Event of Default described in clauses
(f) or (g) of Section 4.1 of the Indenture) and may, at the option of the
Beneficiaries as provided in the Indenture (in the case of any Event of Default
described in Section 4.1 other than those described in clauses (f) or (g) of the
Indenture) and without demand, notice or legal process of any kind, be declared,
and immediately shall become, due and payable.
(e) NOTICE OF PAYMENT UNDER GUARANTY. The Guarantor agrees that
whenever, at any time, or from time to time, it shall make any payment to any of
the Beneficiaries on account of its liability hereunder, it will notify such
Beneficiary in writing that such payment is made under this Guaranty for such
purpose.
(f) RIGHT OF CONTRIBUTION; SUBORDINATION. The Company and the
Guarantor hereby agree that, to the extent that the Guarantor shall have paid an
amount hereunder to any of the Beneficiaries that is greater than the net value
of the benefits received, directly or indirectly, by the Guarantor as a result
of the issuance and sale of the Notes and the Transaction Documents (as
hereinafter defined), the Guarantor shall be entitled to contribution from the
Company. Any amount payable as a contribution under this Section 1(f) shall be
determined as of the date on which the related payment or distribution is made
by the Guarantor and the parties hereto acknowledge that the right to
contribution hereunder shall constitute an asset of the Guarantor.
Notwithstanding the foregoing, the provisions of this Section 1(f) shall in no
respect limit the obligations and liabilities of the Guarantor to the
Beneficiaries hereunder or under the Notes or the Indenture, and the Guarantor
shall remain liable for the full amount guaranteed hereunder. Any debt or other
obligation (including, without limitation, any obligation under this Section
1(f)) of the Company now or hereafter held by or owing to the Guarantor is
hereby subordinated in time and right of payment to all obligations of the
Company to the Beneficiaries.
2. SUBROGATION. Notwithstanding any payment or payments made by the
Guarantor hereunder, the Guarantor hereby irrevocably waives, solely with
respect to such payment or payments, any and all rights of subrogation to the
rights of the Beneficiaries against the Company and any and all rights of
reimbursement, assignment, indemnification or implied
2.
contract or any similar rights against the Company, any endorser or other
guarantor of all or any part of the Guaranteed Obligations, in each case until
such time as the Guaranteed Obligations have been paid in full (subject to
Section 6 below). If, notwithstanding the foregoing, any amount shall be paid to
the Guarantor on account of such subrogation rights at any time when all of the
Guaranteed Obligations shall not have been paid in full, such amount shall be
held by the Guarantor in trust for the Beneficiaries, segregated from other
funds of the Guarantor, and shall, forthwith upon receipt by the Guarantor, be
turned over to each Beneficiary (ratably based on the amount of Guaranteed
Obligations owed to such Beneficiary at such time as a percentage of the
aggregate total amount of the Guaranteed Obligations at such time) in the exact
form received by the Guarantor (duly endorsed by the Guarantor to such
Beneficiary if required), to be applied against the Guaranteed Obligations,
whether matured or unmatured, in such order as such Beneficiary may determine.
3. AMENDMENTS, ETC., WITH RESPECT TO THE GUARANTEED OBLIGATIONS. The
Guarantor shall remain obligated hereunder notwithstanding that: (a) any demand
for payment of any of the Guaranteed Obligations made by any Beneficiary may be
rescinded by such Beneficiary, and any of the Guaranteed Obligations continued;
(b) this Guaranty, the Guaranteed Obligations, or the liability of any other
party upon or for any part of the Guaranteed Obligations, or any collateral
security or guaranty therefor, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by any Beneficiary or such other party; (c) the
Indenture, the Notes and any other document executed in connection with any of
them may be renewed, extended, amended, modified, supplemented or terminated, in
whole or in part; or (d) any guaranty or collateral at any time held by any
Person for the payment of the Guaranteed Obligations may be sold, exchanged,
waived, surrendered or released. When making any demand hereunder against the
Guarantor, each Beneficiary may, but shall be under no obligation to, make a
similar demand on any other Person, and any failure by such Beneficiary to make
any such demand or to collect any payments from any other Person or any release
of any such other Person shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of such Beneficiary against the
Guarantor. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
4. GUARANTY ABSOLUTE AND UNCONDITIONAL; TERMINATION. The Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any
of the Guaranteed Obligations and notice of or proof of reliance by any
Beneficiary upon this Guaranty or acceptance of this Guaranty. The Indenture,
the Notes and the Guaranteed Obligations in respect of any of them, shall
conclusively be deemed to have been created, contracted for or incurred in
reliance upon this Guaranty; and all dealings between the Company or the
Guarantor, on the one hand, and any of the Beneficiaries, on the other, shall
likewise conclusively be presumed to have been had or consummated in reliance
upon this Guaranty. The Guarantor waives diligence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon the Company, any
other guarantor or itself with respect to the Guaranteed Obligations. This
Guaranty shall be construed as a continuing, irrevocable, absolute and
unconditional guaranty of payment, performance and compliance when due (and not
of collection) and is a primary obligation of the Guarantor without regard to
(a) the validity or enforceability of the Indenture, the Notes, any of the
Guaranteed Obligations or any other guaranty with respect thereto at any time or
from time to time held by any Beneficiary, (b) any defense or counterclaim
(other than a
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defense of payment or performance) which may at any time be available to or be
asserted by the Company or the Guarantor against any Beneficiary, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of the
Company, the Guarantor or any other guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Company or a
guarantor of the Guaranteed Obligations, in bankruptcy or in any other instance.
When pursuing its rights and remedies hereunder against the Guarantor, any
Beneficiary may, but shall be under no obligation to, pursue such rights and
remedies as it may have against any other Person under a guaranty of the
Guaranteed Obligations, and any failure by such Beneficiary to pursue such other
rights or remedies or to collect any payments from any other Person or to
realize upon any such guaranty, or any release of any such other Person or any
such guaranty, shall not relieve the Guarantor of any liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of each of the Beneficiaries against the
Guarantor. This Guaranty shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon the Guarantor and its
successors and assigns, and shall inure to the benefit of each of the
Beneficiaries and its successors, endorsees, transferees and assigns, until all
Guaranteed Obligations shall have been satisfied by payment in full (including
payment of any fees or expenses incurred, or interest accruing, on or after the
commencement of any insolvency or bankruptcy proceeding with respect to the
Company or the Guarantor), upon the occurrence of which this Guaranty shall,
subject to Section 6 below, terminate.
5. REPRESENTATIONS AND WARRANTIES. The Guarantor and the Company hereby
jointly and severally represent and warrant to each of the Beneficiaries that:
(a) Each of the Guarantor and the Company: (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its formation; (ii) is duly qualified to do business and is in good
standing in every jurisdiction where the nature of its business requires it to
be so qualified (except where the failure to so qualify could not reasonably be
expected to have a material adverse effect, individually or in the aggregate, on
its business, financial condition or operations of the Company and its
subsidiaries taken as a whole or on its ability to pay or perform its
obligations under the Indenture, the Notes, the Registration Rights Agreement or
this Guaranty (collectively, the "TRANSACTION DOCUMENTS") to which it is a
party); (iii) has received all permits necessary to conduct the businesses now
operated by it and has not received notice of proceedings relating to the
revocation or modification of any permit that, if adversely determined, would
reasonably be expected to have, individually or in the aggregate, a material
adverse effect on its business, financial condition or operations of the Company
and its subsidiaries taken as a whole, or on its ability to pay or perform its
obligations under the Transaction Documents to which it is a party; (iv) has all
requisite power and authority to own its properties and to carry on its business
as now conducted and as proposed to be conducted, and to execute and deliver the
Transaction Documents to which it is a party and to perform its obligations
thereunder; and (v) is in compliance in all material respects with all
applicable law, rules, regulations and orders;
(b) The execution, delivery and performance by each of the
Guarantor and the Company of the Transaction Documents to which it is a party:
(i) are within its powers and have been duly authorized by all necessary
corporate and stockholder action; (ii) do not contravene its charter documents
or any law, rule, regulation or administrative or court order binding on or
4.
affecting the Guarantor or the Company or their respective property; and (iii)
do not conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or the Guarantor pursuant to any material contract,
indenture, mortgage, loan agreement, note or other instrument by which either
the Company or the Guarantor may be bound;
(c) Each of the Transaction Documents to which either of the
Guarantor or the Company is a party constitutes a valid and binding obligation
of the Guarantor and the Company, as the case may be, enforceable against the
Guarantor or the Company, as the case may be, in accordance with its terms,
except as the enforceability thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws
relating to or affecting the rights of creditors generally and general equitable
principles (whether applied in an action at law or a suit in equity);
(d) There is no action, suit or proceeding affecting the Guarantor
or the Company pending or, to either of their knowledge, threatened before any
court, arbitrator, or governmental authority, domestic or foreign, which would
reasonably be expected to have, individually or in the aggregate, a material
adverse effect on its ability to pay or perform its obligations under the
Transaction Documents to which it is a party or on the business, financial
condition or operations of the Company and its subsidiaries taken as a whole;
(e) The Guaranteed Obligations are not subject to any offset or
defense of any kind against any Beneficiary or the Company;
(f) Neither the Guarantor nor the Company nor any of their
properties has any immunity from jurisdiction of any court or from any legal
process (whether through service of process or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) under
applicable law;
(g) The Notes have been duly authorized, executed, authenticated,
issued and delivered by the Company and are entitled to the benefits of the
Indenture;
(h) The Notes are convertible into Common Stock of the Company in
accordance with the terms of the Indenture. All of the outstanding shares of
Common Stock have been duly authorized and validly issued, fully paid and
nonassessable and free of any preemptive rights and the shares of Common Stock
deliverable upon conversion of the Notes have been, and at all times will be,
duly authorized and reserved for issuance upon such conversion, and, when
delivered upon such conversion, will be validly issued, fully paid and
nonassessable and free of any preemptive rights;
(i) Each of the Indenture, the Registration Rights Agreement and
this Guaranty has been duly executed and delivered by the Company and each of
the Registration Rights Agreement and this Guaranty has been duly executed and
delivered by the Guarantor;
(j) The Guarantor is a wholly-owned subsidiary of the Company;
(k) The offer, sale and issuance by the Company of the Notes and
the guaranty by the Guarantor pursuant to this Guaranty are, and the issuance of
the Common Stock
5.
upon conversion of the Notes will be, exempt from the registration requirements
of the Securities Act;
(l) No authorization, approval, consent or order of any
court or governmental authority or agency or any other Person is required in
connection with the offer, sale or issuance by the Company of the Notes and the
guaranty by the Guarantor pursuant to this Guaranty, or the consummation by the
Company or the Guarantor of any of the transactions contemplated by the
Transaction Documents;
(m) The Company's and the Guarantor's filings under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") do not include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading and complied, or will comply in all material respects as to
form with the Exchange Act and the rules and regulations thereunder;
(n) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act, an "AFFILIATE") of the Company
has directly, or though any agent, (i) sold, offered for sale, solicited offers
to buy or otherwise negotiated in respect of any security (as defined in the
Securities Act) which is or will be integrated with the sale of the Notes (as
guaranteed by this Guaranty), or the shares of Common Stock issuable upon
conversion of the Notes, in a manner that would require the registration under
the Securities Act of the Notes, this Guaranty or the shares of Common Stock
issuable upon the conversion of the Notes, or (ii) engaged in any form of
general solicitation or general advertising in connection with the offering of
the Notes (as guaranteed by this Guaranty) or the shares of Common Stock
issuable upon conversion of the Notes (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act; and
(o) None of the Company, its Affiliates or any person acting on
its or their behalf has engaged or will engage in any directed selling efforts
(within the meaning of Regulation S) with respect to the Notes (as guaranteed by
this Guaranty) and the Company and its Affiliates and any person acting on its
or their behalf have complied and will comply with the offering restrictions
requirements of Regulation S, except no representation, warranty or agreement is
made by the Company in this paragraph with respect to the Beneficiaries.
6. REINSTATEMENT. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time the payment, or any part thereof,
of any of the Guaranteed Obligations is rescinded or otherwise must be restored
or returned by any Beneficiary in connection with the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Company, the Guarantor or any
Subsidiary of the Company or the Guarantor, including, without limitation, upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, the Company, the Guarantor or any Subsidiary
of the Company or the Guarantor or any substantial part of their respective
property, or otherwise, all as though such payments had not been made.
7. PAYMENTS. The Guarantor hereby agrees that the Guaranteed
Obligations will be paid to each of the Beneficiaries in U.S. dollars in
immediately available funds.
6.
8. SEVERABILITY. Whenever possible, each provision of this Guaranty
shall be interpreted in such manner as to be effective and valid under all
applicable laws and regulations. If, however, any provision of this Guaranty
shall be prohibited by or invalid under any such law or regulation, it shall be
deemed modified to conform to the minimum requirements of such law or
regulation, or, if for any reason it is not deemed so modified, it shall be
ineffective and invalid only to the extent of such prohibition or invalidity
without the remainder thereof or any of the remaining provisions of this
Guaranty being prohibited or invalid.
9. HEADINGS. Section headings in this Guaranty are included herein for
convenience of reference only and shall not constitute a part of this Guaranty
for any other purpose or be given any substantive effect.
10. APPLICABLE LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
11. ENTIRE AGREEMENT. This Guaranty constitutes the final, entire
agreement among the parties hereto relating to the subject matter hereof and
supersedes any and all prior and contemporaneous commitments, agreements,
representations, and understandings, whether written or oral, relating to the
subject matter hereof and may not be contradicted or varied by evidence of
prior, contemporaneous, or subsequent oral agreements or discussions of the
parties hereto. There are no oral agreements between the parties hereto with
respect to this Guaranty.
12. CONSTRUCTION. Each of the Guarantor and the Beneficiaries
acknowledges that it has had the benefit of legal counsel of its own choice and
has been afforded an opportunity to review this Guaranty with such legal
counsel.
13. COUNTERPARTS; EFFECTIVENESS. This Guaranty and any amendments,
waivers, consents, or supplements may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which
counterparts together shall constitute but one and the same instrument.
14. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS. Any and all
amendments, consents and waivers to this Guaranty shall be subject to compliance
with the requirements of Article 7 of the Indenture; provided that, for purpose
of any contemplated amendment, consent or waiver of any provision of this
Guaranty, all references the "the Company" in Article 7 of the Indenture shall
be deemed to be references to "the Guarantor." This Guaranty shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, assigns and transferees.
15. ADDRESS FOR NOTICES. All written communications provided for
hereunder shall be sent by facsimile or nationwide overnight delivery service
(with charges prepaid) (a) if to the Guarantor, at its address set forth below
its name on the signature pages hereto and (b) if to the Holders or the Trustee,
as provided in the Indenture.
7.
16. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of any Beneficiary in the exercise of any power, right or
privilege hereunder shall impair such power, right or privilege or be construed
to be a waiver of any default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and
remedies existing under this Guaranty are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
17. REGISTRATION RIGHTS. The Company and the Guarantor agree, for the
benefit of the Holders from time to time of the Securities, to the terms set
forth in Exhibit A attached hereto setting forth certain rights of the Holders,
and obligations of the Company and the Guarantor, with respect to the
registration by the Company and the Guarantor of the Securities (such terms, the
"REGISTRATION RIGHTS AGREEMENT").
18. JURISDICTION. The Company and the Guarantor specifically and
irrevocably consent to the jurisdiction and venue of the federal and state
courts of the State of New York with respect to all matters concerning this
Guaranty or any of the other Transaction Documents to which they are a party or
the enforcement of any of the foregoing. The Company and the Guarantor agree
that the execution and performance of the Transaction Documents to which they
are a party shall have a State of New York situs and accordingly, the Company
and the Guarantor consent to personal jurisdiction in the State of New York.
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8.
IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be duly
executed as of the date first above written.
GUARANTOR:
AMERICA WEST AIRLINES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Executive Vice President -- Corporate
[c/o the Company at its address for notices set forth in the Indenture]
ACKNOWLEDGED AND AGREED:
AMERICA WEST HOLDINGS CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Executive Vice President -- Corporate
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
Reference is made to Exhibit 4.17 to the America West Holdings Corporation and
America West Airlines, Inc. Form 8-K filed on January 31, 2002 with the
Securities and Exchange Commission.
