EXHIBIT 10.43
UNCONDITIONAL GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("GUARANTY") is executed as of December 23, 2004, by
America West Airlines, Inc., a Delaware corporation ("GUARANTOR"), in favor of
Citibank, N.A. ("LENDER").
A. FTCHP LLC ("BORROWER") may from time to time be indebted to Lender
pursuant to that certain Senior Secured Term Loan Agreement ("LOAN AGREEMENT")
dated of even date herewith by and between Lender and Borrower;
B. Lender is not willing to extend credit to Borrower unless Guarantor
unconditionally guarantees payment of all present and future indebtedness and
obligations of Borrower to Lender; and
C. Guarantor will benefit from Lender's extension of credit to Borrower.
ACCORDINGLY, as an inducement to Lender to enter into the Loan Agreement and to
extend credit to Borrower under this Guaranty, Guarantor guarantees payment of
the Guaranteed Obligation (as defined below) and agrees as follows:
1. DEFINITIONS.
"BORROWER" means that party described in the recitals above. "Borrower"
includes any successor to Borrower, including, without limitation, any new
entity formed as a result of the dissolution of Borrower, or the admission of
new members to, or withdrawal of members from, Borrower, and, any successor
entity, any entity formed as a result of any reorganization of Borrower or the
entity that survives in the event of any merger including Borrower.
"GUARANTEED OBLIGATION" means:
(a) All principal, interest, attorneys' fees, commitment fees,
liabilities for costs and expenses and other indebtedness, obligations and
liabilities of Borrower to Lender at any time created or arising in connection
with the Loan Agreement, or any amendment thereto or substitution therefor,
including but not limited to all indebtedness, obligations and liabilities of
Borrower to Lender arising under that certain promissory note dated of even date
herewith in the original principal amount of Thirty Five Million Nine Hundred
and Eighty Eight Thousand and No/100 Dollars ($35,988,000.00), executed by
Borrower and payable to Lender (the "NOTE") and under any renewals,
modifications, increases and extensions of the Note (collectively, the
"GUARANTEED NOTES");
(b) All liabilities of Borrower for future advances, extensions of
credit, sales on account or other value at any time given or made by Lender to
Borrower in connection with the Loan Agreement and Guaranteed Notes, whether or
not the advances, credit or value are given pursuant to a commitment;
(c) Any and all other indebtedness, liabilities, obligations and
duties of every kind and character of Borrower to Lender arising in connection
with the Loan Agreement and Guaranteed Notes, whether now or hereafter existing
or arising, whether arising prior to or subsequent to any filing of any
bankruptcy or similar proceeding filed by or against Borrower, (and including
any "debtor-in-possession" and post-petition financing under any bankruptcy
proceeding), regardless of whether such present or future indebtedness,
liabilities, obligations or duties be direct or indirect, primary or secondary,
joint, several, or joint and several, fixed or contingent, and regardless of
whether such present or future indebtedness, liabilities, obligations or duties
may, prior to their acquisition by Lender, be or have been payable to, or be or
have been in favor of, some other person or have been acquired by Lender in any
transaction with one other than Borrower and regardless of whether Borrower
shall ever cease to be liable to Lender for any such present or future
indebtedness, liabilities, obligations, and duties (except by reason of the
indefeasible payment in full thereof by Borrower); together with any and all
renewals, extensions, modifications and increases of such indebtedness,
liabilities, obligations and duties, or any part thereof; and
(d) All reasonable costs, expenses and fees, including but not
limited to court costs and reasonable attorneys' fees, arising in connection
with the collection of any or all amounts, indebtedness, obligations and
liabilities of Borrower to Lender described in items (a) through (c) above.
"GUARANTOR CLAIMS" shall mean all debts and liabilities of Borrower to
Guarantor whether such debts and liabilities now exist or are hereafter incurred
or arise, or whether the obligations of Borrower thereon be direct, contingent,
primary, secondary, several, joint and several, or otherwise, and irrespective
of whether such debts or liabilities be evidenced by note, contract, open
account, or otherwise, and irrespective of the person or persons in whose favor
such debts or liabilities may, at their inception, have been, or may hereafter
be created, or the manner in which they have been or may hereafter be acquired
by Guarantor.
2. GUARANTEED OBLIGATION NOT REDUCED BY OFFSET. The Guaranteed Notes,
indebtedness, liabilities, obligations and any Guaranteed Obligation guaranteed
in this Guaranty, and the liabilities and obligations of Guarantor to Lender
under this Guaranty, shall not be reduced, discharged or released because or by
reason of any existing or future offset, claim or defense of Borrower, or any
other party, against Lender or against payment of the Guaranteed Obligation,
whether such offset, claim or defense arises in connection with the Guaranteed
Obligation (or the transactions creating the Guaranteed Obligation) or
otherwise. Without limiting the foregoing or Guarantor's liability, to the
extent that Lender provides loans or advances or extends credit to Borrower
pursuant to the Guaranteed Notes or Loan Agreement and does not receive payments
or benefits thereon in the amounts and at the times required or provided by
applicable agreements or laws, including any applicable notice and cure periods
afforded to Borrower, Guarantor is absolutely liable to make such payments to
and confer such benefits on Lender on a timely basis pursuant to SECTION 5
herein.
3. GUARANTY OF OBLIGATION. Guarantor irrevocably and unconditionally
guarantees to Lender and its successors and assigns (i) the due and punctual
payment of the Guaranteed Obligation, and (ii) the timely performance of all
other obligations now or in the future owed by Borrower to Lender, including
without limitation those under the Loan Agreement.
4. NATURE OF GUARANTY. This Guaranty is intended to be an irrevocable,
absolute, continuing guaranty of payment and is not a guaranty of collection.
This Guaranty may not be revoked or limited by Guarantor and shall continue to
be effective with respect to any Guaranteed Obligation arising or created after
any attempted revocation by Guarantor. The fact that at any time or from time to
time the Guaranteed Obligation may be increased or reduced, pursuant to the
terms hereof, shall not release the obligation of Guarantor with respect to the
Guaranteed Obligation. This Guaranty may be enforced by Lender and any
subsequent holder of the Guaranteed Obligation and shall not be discharged by
the assignment or negotiation of all or part of the Guaranteed Obligation.
5. PAYMENT BY GUARANTOR. If all or any part of the Guaranteed Obligation
is not punctually paid when due, whether at maturity or earlier by acceleration
or otherwise, Guarantor shall, immediately upon demand by Lender, and without
presentment, protest, notice of protest, notice of nonpayment, notice of
intention to accelerate or acceleration or any other notice whatsoever, pay in
lawful money of the United States of America, the amount due on the Guaranteed
Obligation to Lender at Lender's principal office at:
2
Citibank, N.A.
000 Xxxxxxxxx Xx. 0xx Xx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Fax/Telecopy No.: (000) 000-0000
Such demand(s) may be made at any time coincident with or after the time for
payment of all or part of the Guaranteed Obligation, and may be made from time
to time with respect to the same or different items of Guaranteed Obligation.
Such demand shall be deemed made, given and received in accordance with SECTION
14.2.
6. PAYMENT OF EXPENSES. In the event that Guarantor should breach or fail
to timely perform any provisions of this Guaranty, Guarantor shall, immediately
upon demand by Lender, pay Lender all costs and expenses (including court costs
and reasonable attorneys' fees) incurred by Lender in the enforcement or the
preservation of Lender's rights under this Guaranty. The covenant contained in
this SECTION 6 shall survive the payment of the Guaranteed Obligation.
7. NO DUTY TO PURSUE OTHERS. It is not necessary for Lender (and Guarantor
waives any rights which Guarantor may have to require Lender), in order to
enforce such payment by Guarantor, first to (i) institute suit or exhaust its
remedies against Borrower or others liable on the Guaranteed Obligation or any
other person, (ii) enforce Lender's rights against any security which shall ever
have been given to secure the Guaranteed Obligation, (iii) enforce Lender's
rights against any other guarantors of the Guaranteed Obligation, (iv) join
Borrower or any others liable on the Guaranteed Obligation in any action seeking
to enforce this Guaranty, (v) exhaust any remedies available to Lender against
any security which shall ever have been given to secure the Guaranteed
Obligation, or (vi) resort to any other means of obtaining payment of the
Guaranteed Obligation. Lender shall not be required to mitigate damages or take
any other action to reduce, collect or enforce the Guaranteed Obligation.
Further, Guarantor expressly waives each and every right to which it may be
entitled by virtue of the suretyship law of the state of New York.
8. WAIVER OF NOTICES, ETC. Guarantor agrees to the provisions of the
Guaranteed Notes and the Loan Agreement, and waives notice of (i) any loans or
advances made by Lender to Borrower, (ii) acceptance of this Guaranty, (iii) any
amendment, increase or extension of the Guaranteed Notes or the Loan Agreement
or of any other instrument or document pertaining to all or any part of the
Guaranteed Obligation, (iv) the execution and delivery by Borrower and Lender of
any other loan or credit agreement or of Borrower's execution and delivery of
any promissory notes or other documents in connection therewith, (v) the
occurrence of any breach by Borrower or default in connection with the
Guaranteed Obligation, the Guaranteed Notes and any instruments, agreements or
security documents with respect to this Guaranty, (vi) Lender's transfer or
disposition of the Guaranteed Obligation, or any part thereof, (vii) sale or
foreclosure (or posting or advertising for sale or foreclosure) of any
collateral for the Guaranteed Obligation, (viii) protest, proof of nonpayment or
default by Borrower, or (ix) any other action at any time taken or omitted by
Lender, and, generally, all demands and notices of every kind in connection with
this Guaranty, the Loan Agreement, and any documents or agreements evidencing,
securing or relating to any of the Guaranteed Obligation.
9. EFFECT OF BANKRUPTCY, OTHER MATTERS. In the event that, pursuant to any
insolvency, bankruptcy, reorganization, receivership or other debtor relief law,
or any judgment, order or decision thereunder, or for any other reason, (i)
Lender must rescind or restore any payment, or any part thereof, received by
Lender in satisfaction of the Guaranteed Obligation, as set forth in this
Guaranty, any prior
3
release or discharge from the terms of this Guaranty given to Guarantor by
Lender shall be without effect, and this Guaranty shall remain in full force and
effect or, (ii) Borrower shall cease to be liable to Lender for any of the
Guaranteed Obligation (other than by reason of the indefeasible payment in full
thereof by Borrower), the obligations of Guarantor under this Guaranty shall
remain in full force and effect. It is the intention of Lender and Guarantor
that Guarantor's obligations under this Guaranty shall not be discharged except
by Guarantor's performance of such obligations and then only to the extent of
such performance. Without limiting the generality of the foregoing, it is the
intention of Lender and Guarantor that the filing of any bankruptcy or similar
proceeding by or against Borrower or any other person or party obligated on any
portion of the Guaranteed Obligation shall not affect the obligations of
Guarantor under this Guaranty or the rights of Lender under this Guaranty,
including, without limitation, the right or ability of Lender to pursue or
institute suit against Guarantor for the entire Guaranteed Obligation.
10. FINANCIAL INFORMATION. Guarantor agrees to deliver to Lender current
balance sheets and other financial information of Guarantor as shall be required
by Lender, not later than forty-five (45) days after the end of each calendar
quarter.
11. ADDITIONAL TERMS. Guarantor consents and agrees to each of the
following, and agrees that Guarantor's obligations under this Guaranty shall not
be released, diminished, impaired, reduced or adversely affected by any of the
following, and waives any common law, equitable, statutory or other rights
(including without limitation rights to notice) which Guarantor might otherwise
have as a result of or in connection with any of the following:
11.1 MODIFICATIONS, ETC. Any renewal, extension, increase,
modification, alteration or rearrangement of all or any part of the Guaranteed
Obligation, or of the Guaranteed Notes, or any Loan Agreement, security
agreement, collateral document or other document, instrument, contract or
understanding between Borrower and Lender, or any other parties, pertaining to
the Guaranteed Obligation;
11.2 ADJUSTMENT, ETC. Any adjustment, indulgence, forbearance or
compromise that might be granted or given by Lender to Borrower or Guarantor;
11.3 CONDITION, COMPOSITION OR STRUCTURE OF BORROWER OR GUARANTOR.
The insolvency, bankruptcy, arrangement, adjustment, composition, structure,
liquidation, disability, dissolution or lack of power of Borrower or any other
party at any time liable for the payment of all or part of the Guaranteed
Obligation; or any dissolution of Borrower or Guarantor, or any sale, lease or
transfer of any or all of the assets of Borrower or Guarantor, or any changes in
name, business, location, composition, structure or changes in the shareholders,
partners or members (whether by accession, secession, cessation, death,
dissolution, transfer of assets or other matter) of Borrower; or any
reorganization of Borrower;
11.4 INVALIDITY OF GUARANTEED OBLIGATION. The invalidity, illegality
or unenforceability of all or any part of the Guaranteed Obligation, or any
document or agreement executed in connection with the Guaranteed Obligation, for
any reason whatsoever, including without limitation the fact that (i) the
Guaranteed Obligation, or any part thereof, exceeds the amount permitted by law,
(ii) the act of creating the Guaranteed Obligation or any part thereof is ultra
xxxxx, (iii) the officers or representatives executing the Guaranteed Notes or
other documents or otherwise creating the Guaranteed Obligation acted in excess
of their authority, (iv) the Guaranteed Obligation violates applicable usury
laws, (v) the Borrower has valid defenses, claims or offsets (whether at law, in
equity or by agreement) which render the Guaranteed Obligation wholly or
partially uncollectible from Borrower, (vi) the creation, performance or
repayment of the Guaranteed Obligation (or the execution, delivery and
4
performance of any document or instrument representing part of the Guaranteed
Obligation or executed in connection with the Guaranteed Obligation, or given to
secure the repayment of the Guaranteed Obligation) is illegal, uncollectible or
unenforceable, or (vii) the Guaranteed Notes, Loan Agreement or other documents
or instruments pertaining to the Guaranteed Obligation have been forged or
otherwise are irregular or not genuine or authentic.
11.5 RELEASE OF OBLIGORS. Any full or partial release of the
liability of Borrower on the Guaranteed Obligation or any part thereof, or any
other person or entity now or hereafter liable, whether directly or indirectly,
jointly, severally, or jointly and severally, to pay, perform, guarantee or
assure the payment of the Guaranteed Obligation or any part thereof, it being
recognized, acknowledged and agreed by Guarantor that Guarantor may be required
to pay the Guaranteed Obligation in full without assistance or support of any
other party, and Guarantor has not been induced to enter into this Guaranty on
the basis of a contemplation, belief, understanding or agreement that other
parties (other than Borrower pursuant to the Loan Agreement) will be liable to
perform the Guaranteed Obligation, or that Lender will look to other parties to
perform the Guaranteed Obligation; notwithstanding the foregoing, Guarantor does
not waive or release (expressly or impliedly) any rights of subrogation,
reimbursement or contribution which it may have, after payment in full of the
Guaranteed Obligation, against others liable on the Guaranteed Obligation;
Guarantor's rights of subrogation and reimbursement are, however, subordinate to
the rights and claims of Lender until such time as the Guaranteed Obligation is
paid in full;
11.6 OTHER SECURITY. The taking or accepting of any other security,
collateral or guaranty, or other assurance of payment, for all or any part of
the Guaranteed Obligation;
11.7 RELEASE OF COLLATERAL, ETC. Any release, surrender, exchange,
subordination, deterioration, waste, loss or impairment (including without
limitation negligent, willful, unreasonable or unjustifiable impairment) of any
collateral, property or security, at any time existing in connection with, or
assuring or securing payment of, all or any part of the Guaranteed Obligation;
11.8 CARE AND DILIGENCE. The failure of Lender or any other party to
exercise diligence or reasonable care or act, fail to act or comply with any
duty in the administration, preservation, protection, enforcement, sale
application, disposal or other handling or treatment of all or any part of
Guaranteed Obligation or any collateral, property or security at any time
securing any portion thereof, including, without limiting the generality of the
foregoing, the failure to conduct any foreclosure or other remedy fairly or in
such a way so as to obtain the best possible price or a favorable price or
otherwise act or fail to act;
11.9 STATUS OF LIENS. The fact that any collateral, security,
security interest or lien contemplated or intended to be given, created or
granted as security for the repayment of the Guaranteed Obligation shall not be
properly perfected or created, or shall prove to be unenforceable or subordinate
to any other security interest or lien, it being recognized and agreed by
Guarantor that Guarantor is not entering into this Guaranty in reliance on, or
in contemplation of the benefits of, the validity, enforceability,
collectibility or value of any of the collateral for the Guaranteed Obligation;
notwithstanding the foregoing, Guarantor does not waive or release (expressly or
impliedly) any right to be subrogated to the rights of Lender in any collateral
or security for the Guaranteed Obligation after payment in full of the
Guaranteed Obligation; Guarantor's rights of subrogation are, however,
subordinate to the rights, claims, liens and security interests of Lender until
such time as the Guaranteed Obligation is paid in full;
11.10 OFFSET. The Guaranteed Notes and any part or all of the
Guaranteed Obligation guaranteed, and the liabilities and obligations of
Guarantor to Lender under this Guaranty, shall not be
5
reduced, discharged or released because of or by reason of any existing or
future right of offset, claim or defense of Borrower against Lender, or any
other party, or against payment of the Guaranteed Obligation, whether such right
of offset, claim or defense arises in connection with the Guaranteed Obligation
(or the transactions creating the Guaranteed Obligation) or otherwise;
11.11 MERGER. The reorganization, merger or consolidation of
Borrower into or with any other corporation or entity;
11.12 PREFERENCE. Any payment by Borrower to Lender is held to
constitute a preference under bankruptcy laws, or for any reason Lender is
required to refund such payment or pay such amount to Borrower or someone else;
or
11.13 OTHER ACTIONS TAKEN OR OMITTED. Any other action taken or
omitted to be taken with respect to the Loan Agreement, the Guaranteed
Obligation, or the security and collateral therefor, whether or not such action
or omission prejudices Guarantor or increases the likelihood or risk that
Guarantor will be required to pay the Guaranteed Obligation; it is the
unambiguous and unequivocal intention of Guarantor that Guarantor shall be
obligated to pay the Guaranteed Obligation when due pursuant to SECTION 5
hereof, notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or uncontemplated, and whether or not otherwise
or particularly described in this Guaranty, except for the full and final
payment and satisfaction of the Guaranteed Obligation.
12. REPRESENTATIONS AND WARRANTIES. To induce Lender to enter into the
Loan Agreement and extend credit to Borrower, Guarantor represents and warrants
to Lender that:
12.1 FAMILIARITY AND RELIANCE. Guarantor is familiar with, and has
independently reviewed books and records regarding, the financial condition of
the Borrower and is familiar with the value of any and all collateral intended
to be created as security for the payment of the Guaranteed Obligation; however,
Guarantor is not relying on such financial condition or the collateral as an
inducement to enter into this Guaranty;
12.2 NO REPRESENTATION BY LENDER. Neither Lender nor any other party
has made any representation, warranty or statement to Guarantor in order to
induce the Guarantor to execute this Guaranty;
12.3 LEGALITY. The execution, delivery and performance by Guarantor
of this Guaranty and the consummation of the transactions contemplated hereunder
(i) have been duly authorized by all necessary corporate and stockholder action
of Guarantor, and (ii) do not, and will not, contravene or conflict with any
law, statute or regulation whatsoever to which Guarantor is subject or
constitute a default (or an event which with notice or lapse of time or both
would constitute a default) under, or result in the breach of, any indenture,
mortgage, deed of trust, charge, lien, or any contract, agreement or other
instrument to which Guarantor is a party or which may be applicable to Guarantor
or any of its assets, or violate any provisions of its Certificate of
Incorporation, Bylaws or any other organizational document of Guarantor.
12.4 ORGANIZATION AND GOOD STANDING. Guarantor (i) is, and will
continue to be, a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware, and (ii) possesses all
requisite authority, power, licenses, permits and franchises necessary to own
its assets, to conduct its business and to execute and deliver and comply with
the terms of this Guaranty.
6
12.5 SURVIVAL. All representations and warranties made by Guarantor
in this Guaranty shall survive the execution of this Guaranty.
13. WAIVER, SUBORDINATION OF CERTAIN INDEBTEDNESS.
13.1 WAIVER, SUBORDINATION OF GUARANTOR CLAIMS. Until the Guaranteed
Obligation shall be paid and satisfied in full and Guarantor shall have
performed all of its obligations under this Guaranty, Guarantor shall not
receive or collect, directly or indirectly, from Borrower or any other party any
amount upon the Guarantor Claims.
13.2 CLAIMS IN BANKRUPTCY. In the event of receivership, bankruptcy,
reorganization, arrangement, debtor's relief, or other insolvency proceedings
involving Borrower as debtor, Lender shall have the right to prove its claim in
any such proceeding so as to establish its rights under this Guaranty and
receive directly from the receiver, trustee or other court custodian dividends
and payments which would otherwise be payable upon Guarantor Claims. Guarantor
assigns such dividends and payments to Lender. Should Lender receive, for
application upon the Guaranteed Obligation, any such dividend or payment which
is otherwise payable to Guarantor, and which, as between Borrower and Guarantor,
shall constitute a credit upon the Guarantor Claims, then upon payment to Lender
in full of the Guaranteed Obligation, Guarantor shall become subrogated to the
rights of Lender to the extent that such payments to Lender on the Guarantor
Claims have contributed toward the liquidation of the Guaranteed Obligation, and
such subrogation shall be with respect to that proportion of the Guaranteed
Obligation which would have been unpaid if Lender had not received dividends or
payments upon the Guarantor Claims.
13.3 PAYMENTS HELD IN TRUST. In the event that, notwithstanding
SECTIONS 13.1 and 13.2 above, Guarantor should receive any funds, payment, claim
or distribution which is prohibited by such Sections, Guarantor agrees to hold
in trust for Lenders, in kind, all funds, payments, claims or distributions so
received, and agrees that it shall have absolutely no dominion over such funds,
payments, claims or distributions so received except to pay them promptly to
Lenders, and Guarantor covenants promptly to pay the same to Lenders until such
time as the Guaranteed Obligation is paid and satisfied in full.
13.4 LIENS SUBORDINATE. Until such time as the Guaranteed Obligation
is paid and satisfied in full, Guarantor agrees that any liens, security
interests, judgment liens, charges or other encumbrances upon Borrower's assets
securing payment of the Guarantor Claims shall be and remain inferior and
subordinate to any liens, security interests, judgment liens, charges or other
encumbrances upon Borrower's assets securing payment of the Guaranteed
Obligation, regardless of whether such encumbrances in favor of Guarantor or
Lender presently exist or are subsequently created or attach. Without the prior
written consent of Lender, Guarantor shall not, for so long as the Guaranteed
Obligation is outstanding, (i) exercise or enforce any creditor's right it may
have against Borrower, or (ii) foreclose, repossess, sequester or otherwise take
steps or institute any action or proceedings (judicial or otherwise, including
without limitation the commencement of, or joinder in, any liquidation,
bankruptcy, rearrangement, debtor's relief or insolvency proceeding) to enforce
any liens, mortgages, deeds of trust, security interest, collateral rights,
judgments or other encumbrances on assets of Borrower held by Guarantor.
13.5 NOTATION OF RECORDS. Guarantor shall use reasonable efforts to
ensure that all promissory notes, accounts receivable ledgers or other evidences
of the Guarantor Claims accepted by or held by Guarantor shall contain a
specific written notice thereon that the indebtedness evidenced thereby is
subordinated under the terms of this Guaranty; provided, however, if such
written notice is not indicated on the indebtedness, the same shall nonetheless
be subordinated under the terms of this
7
Guaranty until such time as the Guaranteed Obligation is paid and satisfied in
full.
13.6 WAIVER OF INCIDENTAL CLAIMS. Notwithstanding anything to the
contrary contained in this Guaranty, Guarantor waives all rights of subrogation,
reimbursement, indemnification, contribution and all other claims against
Borrower and every other party which is or shall ever be in any way obligated on
the Guaranteed Obligation which Guarantor may ever have as a result of payment
of any of the Guaranteed Obligation, as well as all incidental rights and
benefits in favor of Guarantor in connection with payment of any of the
Guaranteed Obligation until such time as the Guaranteed Obligation is paid and
satisfied in full.
13.7 SET OFF AGAINST GUARANTOR. Lender shall have the right to
setoff and apply against this Guaranty or the Guaranteed Obligation or both,
without notice to Guarantor, any and all deposits (general or special, time or
demand, provisional or final) or other sums at any time credited by or owing
from Lender to Guarantor, or either of them, to the extent that the Guaranteed
Obligation is then due and Lender has made demand under this Guaranty.
14. MISCELLANEOUS.
14.1 WAIVER. No failure to exercise, and no delay in exercising, on
the part of Lender, any right under this Guaranty shall operate as a waiver, nor
shall any single or partial exercise preclude any other or further exercise
thereof or the exercise of any other right. The rights of Lender under this
Guaranty shall be in addition to all other rights provided by law. No
modification or waiver of any provision of this Guaranty, nor consent to
departure therefrom, shall be effective unless in writing and no such consent or
waiver shall extend beyond the particular case and purpose involved. No notice
or demand given in any case shall constitute a waiver of the right to take other
action in the same, similar or other instances without such notice or demand.
14.2 NOTICES. Any notices or other communications required or
permitted to be given by this Guaranty must be (i) given in writing and
personally delivered, or (ii) mailed by express carrier, or (ii) made by
facsimile with telephone confirmation of receipt, to the party to whom such
notice or communication is directed, to the address of such party as follows:
Guarantor: America West Airlines, Inc.
000 X. Xxx Xxxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxx
Facsimile: 000-000-0000
Telephone: 000-000-0000
With copy to: America West Airlines, Inc.
000 X. Xxx Xxxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx, General Counsel
Facsimile:
Telephone:
Lender: Citibank, N.A.
000 Xxxxxxxxx Xx. 0xx Xx
0
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Fax/Telecopy No.: (000) 000-0000
With a copy to:
Citibank, N.A.
000 Xxxxxxxxx Xx. 0xx Xx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxxx
Fax/Telecopy No.: (000) 000-0000
Any such notice or other communication shall be deemed to have been given
(whether actually received or not) on the day it is personally delivered as
aforesaid or, if mailed by express carrier, on the day it is received, or, if
transmitted by facsimile, on the day that it is confirmed by telephone as having
been received. Any party may change its address for purposes of this Guaranty by
giving notice of such change to the other party pursuant to this SECTION 14.2.
14.3 GOVERNING LAW. The substantive laws of the State of New York
shall govern the validity, construction, enforcement and interpretation of this
Guaranty.
14.4 INVALID PROVISIONS. If any provision of this Guaranty is held
to be illegal, invalid, or unenforceable under present or future laws effective
during the term of this Guaranty, such provision shall be fully severable, and
this Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Guaranty, and the
remaining provisions of this Guaranty shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Guaranty, unless such continued effectiveness of this
Guaranty, as modified, would be contrary to the basic understandings and
intentions of the parties as expressed in this Guaranty.
14.5 ENTIRETY AND AMENDMENTS. This Guaranty embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings, if any, relating to the subject matter of this Guaranty, and
this Guaranty may be amended only by an instrument in writing executed by an
authorized officer of the party against whom such amendment is sought to be
enforced.
14.6 PARTIES BOUND; ASSIGNMENT. This Guaranty shall be binding upon
and inure to the benefit of the parties hereto and their respective successors,
assigns and legal representatives; provided, however, that Guarantor may not,
without the prior written consent of Lender, assign any of its rights, powers,
duties or obligations under this Guaranty.
14.7 HEADINGS. Section headings are for convenience of reference
only and shall in no way affect the interpretation of this Guaranty.
14.8 RIGHTS AND REMEDIES. If Guarantor becomes liable for any
indebtedness owing by Borrower to Lender, by endorsement or otherwise, other
than under this Guaranty, such liability shall not be in any manner impaired or
affected and the rights of Lender under this Guaranty shall be cumulative of any
and all other rights that Lender may ever have against Guarantor. The exercise
by Lender of any right or remedy under this Guaranty or under any other
instrument, or at law or in equity, shall not preclude the concurrent or
subsequent exercise of any other right or remedy; provided, however, Guarantor
shall not be liable for any sums in excess of the Guaranteed Obligations and the
amounts
9
provided under SECTION 6 hereof.
14.9 TIME OF THE ESSENCE. Time is of the essence of this Guaranty.
10
EXECUTED as of the day and year first above written.
GUARANTOR:
America West Airlines, Inc.
By: /s/ Xxxxx X. Xxxx
-----------------------------
Xxxxx X. Xxxx
Senior Vice President and Chief
Financial Officer
UNCONDITIONAL GUARANTY AGREEMENT SIGNATURE PAGE
