Exhibit 10.1
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted text has been marked with a triple asterisk
(`***') and has been filed separately with the Securities and Exchange
Commission.
Amendment No.12
TO THE A319/A320/A321 PURCHASE AGREEMENT
dated as of October 31, 1997
between
AVSA, S.A.R.L.,
And
US AIRWAYS GROUP, INC.
This Amendment No. 12 (hereinafter referred to as the "Amendment") entered into
as of March 29, 2003, by and between AVSA, S.A.R.L., a societe a responsabilite
limitee organized and existing under the laws of the Republic of France, having
its registered office located at 0, Xxxx Xxxxx Xxxxxxx Xxxxxxxx, 00000 Xxxxxxx,
XXXXXX (hereinafter referred to as the "Seller"), and US Airways Group, Inc., a
corporation organized and existing under the laws of the State of Delaware,
United States of America, having its executive offices located at 0000 Xxxxxxx
Xxxxx, Xxxxxxxxx, XX 00000, X.X.X. (hereinafter referred to as the "Buyer");
WITNESSETH :
WHEREAS, the Buyer and the Seller entered into an Airbus A319/A320/A321 Purchase
Agreement, dated as of October 31, 1997, relating to the sale by the Seller and
the purchase by the Buyer of certain Airbus A319, A320 and A321 model aircraft
(the "Aircraft"), which agreement, together with all Exhibits, Appendices and
Letter Agreements attached thereto and as amended by Amendment No. 1 dated as of
June 10, 1998, Amendment No. 2 dated as of January 19, 1999, Amendment No. 3
dated as of March 31, 1999, Amendment No. 4 dated as of August 31, 1999,
Amendment No. 5 dated as of October 29, 1999, Amendment No. 6 dated as of April
19, 2000, Amendment No. 7 dated as of June 29, 2000, Amendment No. 8 dated as of
November 27, 2000, Amendment No. 9 dated as of December 29, 2000, Amendment No.
10 dated as of April 9, 2001, Amendment No. 11 dated as of July 17, 2002 and as
the same is hereby amended, is hereinafter called the "Agreement."
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WHEREAS, the Buyer and the Seller have agreed to cancel the order for certain
Aircraft, and reschedule the delivery of certain other Aircraft and to amend
certain provisions of the Agreement.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
Capitalized terms used herein and not otherwise defined in this Amendment will
have the meanings assigned to them in the Agreement. The terms "herein,"
"hereof," and "hereunder" and words of similar import refer to this Amendment.
1. ***
***
***
2. DELIVERY
2.1 At the request of the Buyer, the Buyer and the Seller agree to ***
***
2.2 As a consequence of Paragraphs 1, and 2.1 above, the delivery schedule
for Aircraft set forth in the Agreement is hereby deleted and replaced
with Appendix A to this Amendment which incorporates Paragraphs 1 and
2.1 above.
3. TERMINATION
The provisions of Clause 21.1.1 (6) are hereby deleted and replaced
with the following:
QUOTE
(6) The Buyer is in default of its obligation to make any Predelivery
Payment pursuant to Clause 6.2 of this Agreement *** following the
Seller's written notice to the Buyer to cure such default.
UNQUOTE
4. EFFECT OF AMENDMENT
The provisions of this Amendment are binding on both parties upon
execution hereof. The Agreement will be deemed to be amended to the
extent herein provided, and, except as specifically amended hereby,
will continue in full force and effect in accordance with its original
terms. This Amendment supersedes any previous understandings,
commitments, or representations whatsoever, whether oral or written,
related to the subject matter of this
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Amendment.
Both parties agree that this Amendment will constitute an integral,
nonseverable part of the Agreement, that the provisions of the
Agreement are hereby incorporated herein by reference, and that this
Amendment will be governed by the provisions of the Agreement, except
that if the Agreement and this Amendment have specific provisions that
are inconsistent, the specific provisions contained in this Amendment
will govern.
5. ASSIGNMENT
This Amendment and the rights and obligations of the Buyer hereunder
will not be assigned or transferred in any manner without the prior
written consent of the Seller, and any attempted assignment or transfer
in contravention of the provisions of this Paragraph 5 will be void and
of no force or effect. Notwithstanding the preceding sentence, the
terms of Subclauses 19.3 and 19.4 of the Agreement will apply to this
Amendment only to the extent this Amendment addresses matters that may
be assigned in such Subclauses, and the terms of Subclauses 19.5 and
19.6 of the Agreement will apply to this entire Amendment.
6. GOVERNING LAW
THIS AMENDMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. THE PERFORMANCE OF THIS AMENDMENT WILL
BE DETERMINED ALSO IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. THE PARTIES HEREBY ALSO AGREE THAT THE UNITED NATIONS CONVENTION
ON THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS TRANSACTION.
7. COURT APPROVALS
The parties acknowledge and agree that the effectiveness of this
Amendment, including, for the avoidance of doubt, any letter agreements
hereto, is subject to and expressly conditioned upon assumption of the
A319/A320/A321 Purchase Agreement as amended pursuant to the First
Amended Joint Plan of Reorganization of US Airways Group, Inc. and its
Affiliated Debtors and Debtors-in-Possession, as modified (the "Plan"),
which Plan was confirmed by the United States Bankruptcy Court for the
Eastern District of Virginia (the "Court") in the pending bankruptcy
proceedings of US Airways Group, Inc. et al, as debtors (Case No.
02-83984-SSM) on March 18, 2003, which assumption shall occur as of the
Effective Date of the Plan.
8. COUNTERPARTS
This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered will be an
original, but all such counterparts will together constitute but one
and the same instrument.
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If the foregoing correctly sets forth our understanding, please execute
this Amendment in the space provided below, whereupon, as of the date
first above written, this Amendment will constitute part of the
Agreement.
Agreed and accepted Yours sincerely,
US AIRWAYS GROUP, INC. AVSA, S.A.R.L.
By: /s/ Xxxxxxx X. XxXxxxxx By: /s/ Xxxxx-Xxxxxx Xxxxx-Xxxxx
Its: Vice President-Finance and Its: Chief Executive Officer
Treasurer
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Exhibit A to Amendment No. 12
to the A319/A320/A321 Purchase Agreement
dated as of October 31, 1997
***
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Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted text has been marked with a triple asterisk
(`***') and has been filed separately with the Securities and Exchange
Commission.
LETTER AGREEMENT NO. 1
To Amendment No. 12 dated March 29, 2003
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: Miscellaneous
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"), have
entered into Amendment No. 12, dated as of even date herewith (the "Amendment"),
to the Airbus A319/A320/A321 Purchase Agreement dated as of October 31, 1997 as
amended from time to time (the "Agreement"), which Agreement covers among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The Buyer
and the Seller have agreed to set forth in this Letter Agreement No. 1 to the
Amendment (the "Letter Agreement") certain additional terms and conditions
regarding the purchase and sale of the Aircraft. Capitalized terms used herein
and not otherwise defined in this Letter Agreement will have the meanings
assigned thereto in the Agreement. The terms "herein," "hereof" and "hereunder"
and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Amendment, that the provisions of said Amendment are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement, the
Amendment and this Letter Agreement have specific provisions which are
inconsistent, the specific provisions contained in this Letter Agreement will
govern.
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1. ***
The Buyer and the Seller agree to amend the terms of *** pursuant to
the Agreement as follows:
(i) The number of ***.
(ii) ***
(iii) The Buyer's rights with respect to any ***.
(iv) The Seller will ***.
2. Additional Aircraft
The Buyer and the Seller agree to reduce by a total of sixty-three (63)
the number of Additional Aircraft under the Agreement, thereby leaving
no Additional Aircraft. The Buyer and the Seller have no further rights
and/or obligations with respect to Additional Aircraft.
3. ***
The Buyer and the Seller hereby agree that the provisions in respect
of ***.
4. ***
The Buyer and the Seller hereby agree that the provisions of the
Agreement in respect of the *** are no longer in force or effect. Any
and all provisions relating to *** are hereby deleted and replaced with
the new provisions of Paragraph 2 of Letter Agreement No. 2 to the
Amendment dated as of the date hereof.
5. A320 Aircraft Considerations
The parties hereby agree that the provisions of Paragraph 4 of
Amendment No. 4 to the Agreement are hereby cancelled and are no longer
in force or effect. For avoidance of doubt, the parties hereto
acknowledge and agree that the provisions of Paragraph 5 of Amendment
No. 4 remain in full force and effect, that the ***.
6. ***
***.
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7. Other Aircraft Transaction
Subject to the Buyer and the Seller concluding an agreement as of the
date hereof whereby Seller will cause to be manufactured and will sell
and deliver to the Buyer and the Buyer will buy and take delivery of a
total of ten (10) A330-200 aircraft, the Buyer hereby requests and the
Seller agrees that *** in the said agreement between the Buyer and the
Seller, such agreement to be documented in Amendment No. 6 to the
A330/A340 Purchase Agreement dated as of November 24, 1998 between the
Buyer and the Seller.
8. ***
8.1 ***
8.2 Clause 6.2.2.1 of the Agreement is deleted and replace with the
following:
QUOTE
6.2.2.1 Predelivery Payments for the Aircraft will be paid according
to the following schedule:
Payment Date Percentage of Predelivery Payment
Reference Price or Dollar Amount
*** ***
***
UNQUOTE
9. ***
9.1 ***
9.2 The Buyer may at any time request from the Seller, and the Seller will
provide to the Buyer as soon as possible, confirmation of the then
prevailing Airbus catalogue price of any standard airframe which is the
subject of this Agreement.
10. CONVERSION RIGHTS
Notwithstanding any provisions in the Agreement to the contrary, the
Conversion Right provisions of Paragraph 1 in Letter Agreement No. 4 to
the Agreement remain in effect for
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each Aircraft on firm order as of the date hereof.
11. ***
11.1 ***
11.2 ***
11.3 ***
11.4 ***
11.5 Paragraphs 6.2 and 6.3 of Letter Agreement No. 1 to Amendment No. 11
to the Agreement are hereby deleted and replaced with the following:
QUOTE
6.2 ***
UNQUOTE
12. ***
***
13. ***
***
14. ASSIGNMENT
This Letter Agreement and the rights and obligations of the Buyer
hereunder will not be assigned or transferred in any manner without the
prior written consent of the Seller, and any attempted assignment or
transfer in contravention of the provisions of this Paragraph 13 will
be void and of no force or effect. Notwithstanding the preceding
sentence, the terms of Subclauses 19.3 and 19.4 of the Agreement will
apply to this Letter Agreement only to the extent this Letter Agreement
addresses matters that may be assigned in such Subclauses, and the
terms of Subclauses 19.5 and 19.6 of the Agreement will apply to this
entire Letter Agreement.
15. COUNTERPARTS
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This Letter Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered will be an
original, but all such counterparts will together constitute but one
and the same instrument.
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Xxxxx-Xxxxxx Xxxxx-Xxxxx
Its: Chief Executive Officer
Date: March 29, 2003
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxxx X. XxXxxxxx
Its: Vice President-Finance and Treasurer
Date: March 29, 2003
Exhibit 1 to Letter Agreement No. 1
To Amendment No. 12 dated March 29, 2003
***
5/6
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted text has been marked with a triple asterisk
(`***') and has been filed separately with the Securities and Exchange
Commission.
LETTER AGREEMENT NO. 2
To Amendment No. 12 dated March 29, 2003
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: ***
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"), have
entered into Amendment No. 12, dated as of even date herewith (the "Amendment"),
to the Airbus A319/A320/A321 Purchase Agreement dated as of October 31, 1997 as
amended from time to time (the "Agreement"), which Agreement covers among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in the said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No. 2 to
the Amendment (the "Letter Agreement") certain additional terms and conditions
regarding the purchase and sale of the Aircraft. Capitalized terms used herein
and not otherwise defined in this Letter Agreement will have the meanings
assigned thereto in the Agreement. The terms "herein," "hereof" and "hereunder"
and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Amendment, that the provisions of said Amendment are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement, the
Amendment and this Letter Agreement have specific provisions which are
inconsistent, the specific provisions contained in this Letter Agreement will
govern.
1. ***
1.1 ***
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1.2 ***
1.3 ***
1.4 ***
1.5 ***
2. ***
2.1 ***
3. ***
***
4. ASSIGNMENT
This Letter Agreement and the rights and obligations of the Buyer
hereunder will not be assigned or transferred in any manner without the
prior written consent of the Seller, and any attempted assignment or
transfer in contravention of the provisions of this Paragraph 4 will be
void and of no force or effect. Notwithstanding the preceding sentence,
the terms of Subclauses 19.3 and 19.4 of the Agreement will apply to
this Letter Agreement only to the extent this Letter Agreement
addresses matters that may be assigned in such Subclauses, and the
terms of Subclauses 19.5 and 19.6 of the Agreement will apply to this
entire Letter Agreement.
5. COUNTERPARTS
This Letter Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered will be an
original, but all such counterparts will together constitute but one
and the same instrument.
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If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Xxxxx-Xxxxxx Xxxxx-Xxxxx
Its: Chief Executive Officer
Date: March 29, 2003
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxxx X. XxXxxxxx
Its: Vice President-Finance and Treasurer
Date: March 29, 2003
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