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Exhibit 10.34
SECOND AMENDMENT
TO
AIRPORT USE AGREEMENT
AMONG
CITY OF PHOENIX
AND
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE
CITY OF PHOENIX, ARIZONA
AND
AMERICA WEST AIRLINES, INC.
DATED AS OF AUGUST 25, 1994
The rights, title and interests of The Industrial Development Authority of the
City of Phoenix, Arizona in this Second Amendment to Airport Use Agreement
(except for certain Unassigned Rights) have been assigned to First Bank National
Association, St. Xxxx, Minnesota, as trustee under a Restated and Amended Trust
Indenture dated as of August 25, 1994
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SECOND AMENDMENT
TO
AIRPORT USE AGREEMENT
This Second Amendment to Airport Use Agreement (the "Second Amendment"),
dated as of August 25, 1994, is entered into by and among the City of Phoenix,
Arizona, a municipal corporation (the "City"), The Industrial Development
Authority of the City of Phoenix, Arizona (the "Authority") and America West
Airlines, Inc., a corporation organized and existing under the laws of the State
of Delaware and authorized to do business in the State of Arizona (the
"Company");
W I T N E S S E T H:
WHEREAS, the City is the owner and operator of Sky Harbor International
Airport ("Airport") located in Phoenix, Arizona and has the power and authority
to grant certain rights and privileges in connection with the Airport; and
WHEREAS, the Company is a corporation primarily engaged in the business of
providing Air Transportation for persons, property, cargo, and mail which has
its principal location at the Airport; and
WHEREAS, the Authority has entered into an Airport Use Agreement dated as
of July 1, 1989 (the "Original Agreement") with the City and the Company,
providing for the acquisition, construction, installation, maintenance and
operation by the Authority of certain improvements (the "Original Improvements")
to Terminal 4 at Sky Harbor International Airport located in the City and for
the use of the Original Improvements by the Company and providing for the terms
and conditions of the payments due under the Original Agreement; and
WHEREAS, the Authority issued and sold on July 20, 1989 its Airport
Facility Revenue Bonds (America West Airlines, Inc. Project) Series 1989 (the
"Series 1989 Bonds") for the purpose of financing the costs of the acquisition,
construction and installation of the Original Improvements; and
WHEREAS, the Authority has entered into a First Amendment to Airport Use
Agreement dated as of August 1, 1990 (the "First Amendment" and with the
Original Agreement, the "Amended Agreement") with the City and the Company
providing for the financing for and the construction and installation by the
authority of certain additional improvements (the "Enhanced Improvements" and
with the Original Improvements, the "Improvements") to Terminal 4 at Sky Harbor
International Airport located in the City and for the use of the Enhanced
Improvements by the Company and providing for the terms and conditions of the
payments due under the Amended Agreement; and
WHEREAS, the Authority issued and sold on September 6, 1990 its Airport
Facility Revenue Bonds (America West Airlines, Inc. Project) Series 1990 (the
"Series 1990 Bonds" and with the Series 1989 Bonds, the "Prior Bonds") for the
purpose of financing the costs of the acquisition, construction and installation
of the Enhanced Improvements; and
WHEREAS, on June 27, 1991 the Company filed its voluntary petition under
Chapter 11 of the Bankruptcy Code; and
WHEREAS, pursuant to an Order Granting Motion for Authority to Compromise
Controversies with GE Entities dated October 8, 1993, certain obligations of the
Company under the Amended Agreement were amended in accordance with that
Stipulation to Settle Adversary Proceedings and Contested Matters among the
Company, the Trustee and GE Capital Public Finance, Inc. and various related
entities (collectively, "GE") dated September 10, 1993 (as subsequently amended,
the "Stipulation"); and
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WHEREAS, the Company desires that the Authority reissue certain of the
Prior Bonds in the form of refunding bonds (the "Bonds") so as to implement the
provisions of the Stipulation on or about the effective date of the Plan (as
defined in the Stipulation) with the holder of the Prior Bonds redeeming the
remainder of the Prior Bonds contemporaneously with said reissuance in exchange
for other consideration provided by the Company in accordance with the Plan; and
WHEREAS, the Authority is authorized by the Act to issue revenue bonds for
the purpose of refunding the Prior Bonds, which refunding shall be effected by
an exchange of the Bonds for those of the Prior Bonds not otherwise redeemed,
after which exchange and redemption the Prior Bonds shall no longer be
outstanding (except for purposes of the Stipulation); and
WHEREAS, subject to the terms and conditions set forth below, the Authority
is willing to issue the Bonds in an aggregate amount not to exceed
$22,500,000.00 for the purpose of reissuing, refunding and exchanging an equal
amount of the Prior Bonds; and
WHEREAS, by this Second Amendment, the parties hereto desire to provide for
certain amendments to the Amended Agreement, as permitted by Section 10.4
thereof and Section 12.07 of the Indenture;
NOW, THEREFORE, in consideration of the mutual covenants and considerations
herein contained, the City, the Authority and the Company agree as follows:
1. All of the terms defined in the Amended Agreement shall have the same
meanings herein, except as otherwise provided herein or unless the context
otherwise so indicates, and upon the execution and delivery of this Second
Amendment, the term "Agreement" as used in the Amended Agreement and this Second
Amendment shall include and incorporate this Second Amendment.
2. Section 1.1 of the Amended Agreement, encaptioned Definitions, is hereby
amended in part by substitution of the lettered definitions set forth below for
those definitions bearing the same letter designation in the Amended Agreement:
H. "Arbitrage Certificate" means the Tax Exemption Certificate and
Agreement among the Authority, the Company and the Trustee, and the
Certificate Re: Refunding Bonds and Use of Proceeds of Series 1989 Bonds
and Series 1990 Bonds from the Company and the Authority to Bond Counsel,
both dated as of the Closing Date.
I. "Authority" means The Industrial Development Authority of the City
of Phoenix, Arizona, a nonprofit corporation designated a political
subdivision of the State incorporated with the approval of the City,
pursuant to the provisions of the Constitution of the State of Arizona and
Title 35, Chapter 5, Arizona Revised Statutes, enacted by Chapter 204,
Section 2, Laws of Arizona of 1968 as amended and supplemented, or any
public body or corporation succeeding to its rights and obligations under
this Agreement.
M. "Bonds" means the Series 1994A Bonds and the Series 1994B Bonds.
O. "Closing Date" means July 20, 1989 as to the Series 1989 Bonds,
September 6, 1990 as to the Series 1990 Bonds, and as to the Bonds, the
date upon which there is an exchange of the Bonds for certain of the Prior
Bonds.
R. "Completion Date" means June 14, 1991 as to the Series 1989 Bonds
and as to the Series 1990 Bonds.
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S. [Intentionally left blank.]
AD. "Indenture" means the Trust Indenture relating to the Series 1989
Bonds, dated as of July 1, 1989, between the Authority and First Interstate
Bank of Arizona, N.A., as supplemented by the First Supplement to Trust
Indenture relating to the Series 1990 Bonds dated as of August 1, 1990, and
as amended, supplemented and restated by the Restated and Amended Trust
Indenture dated as of August 25, 1994 between the Authority and the
Trustee, and as such Trust Indenture may be further amended and
supplemented from time to time in accordance with its terms.
AG. [Intentionally left blank.]
AM. [Intentionally left blank.]
AN. [Intentionally left blank.]
AX. "Series 1989 Bonds" means the Airport Facility Revenue Bonds
(America West Airlines, Inc. Project) Series 1989, issued by the Authority
in the amount of $34,589,000 on July 20, 1989, pursuant to the Indenture.
AY. "Series 1990 Bonds" means the Airport Facility Revenue Bonds
(America West Airlines, Inc. Project) Series 1990, issued by the Authority
in the amount of $9,800,000 on their Closing Date pursuant to the
Indenture.
3. Section 1.1 of the Amended Agreement, encaptioned Definitions, is hereby
amended in part by the addition of the following definitions:
AZ. "Effective Date" means August 25, 1994.
BA. "Prior Bonds" means the Series 1989 Bonds and the Series 1990
Bonds.
BB. "Series 1994A Bonds" means the Airport Facility Revenue Bonds
(America West Airlines, Inc. Project) Series 1994A, issued by the Authority
in the amount of $17,127,659.78.
BE. "Series 1994B Bonds" means the Airport Facility Revenue Bonds
(America West Airlines, Inc. Project) Series 1994B Bonds issued by the
Authority in the amount of $4,736,842.02.
4. Subsection A of Section 2.3 of the Amended Agreement, encaptioned Term,
is hereby amended to read as follows:
A. The term of this Master Use Agreement shall be seventeen (17) years
subject to prior termination as provided herein.
5. Section 2.5 of the Amended Agreement is hereby amended to read as
follows:
SECTION 2.5 Refinancing of Improvements.
City acknowledges and hereby consents to (1) the issuance of the Bonds
by the Authority to refinance the purchase, construction and installation
of the Improvements, (2) the security interest, and assignment of rights,
title and interests, in this Agreement and each of the Improvements granted
by Authority in favor of the Trustee and the perfection of the same by
filing and recording all financing statements required under Arizona law,
and (3) the
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authorization of the Trustee to take all actions and do all things
permitted or required under this Agreement and any future Use Agreement
permitted hereunder.
6. Subsection A of Section 2.6 of the Amended Agreement, encaptioned
Ownership of Improvements, is hereby amended to read as follows:
A. Subject to the rights of the Trustee pursuant to the Security
Agreement including without limitation the right to remove the Improvements
that are subject to this Master Use Agreement, Authority grants to City,
and the City hereby agrees to accept, all rights, title and interests in
each of the Improvements, effective, without further action required, upon
the earlier of (1) the payment in full of the Bonds or (2) a term,
commencing upon the Completion Date, which is the lesser of (a) eighty
percent (80%) of the reasonably expected economic life of the specific
Improvements as shown in Exhibit "A" or (b) seventeen (17) years; provided,
however, that the grant of the Authority to the City and the acceptance of
the City of all rights, title and interests in the Improvements described
as Other Tenant Improvements on Exhibit "A" hereto shall be effective upon
the Completion Date. Upon any such transfer to the City by the Authority,
the transferred Improvements shall no longer be subject to this Master Use
Agreement, any other Article or Section of this Agreement or any Use
Agreement and may be used by the Company, any other Air Transportation
company or any other User together with the Gates in accordance with the
City's Rates and Charges Program described in Section 2.4 hereof.
7. Section 3 of the First Amendment is deleted in its entirety.
8. Representations of the Authority as to the New Bonds.
The Authority makes the following representations to the City and the
Company as the basis for its covenants herein:
A. The Authority is duly organized pursuant to the Act as a nonprofit
corporation under the laws of the State and is designated by the Act as a
political subdivision of the State.
B. To the extent within its reasonable control, the Authority will not
knowingly engage in any activity which might result in the income of the
Authority to be received hereunder becoming taxable to it or interest on the
Bonds becoming includable in the gross income of the Holders under Federal
income tax laws.
C. Under the provisions of the Act, the Authority is authorized to
enter into the transactions contemplated by this Second Amendment and the
Indenture and to carry out its obligations hereunder and thereunder.
D. The Authority has duly authorized the execution and delivery of
this Second Amendment and the Indenture.
E. To refinance the Costs of the Improvements, and in anticipation of
the collection of the Revenues to be received hereunder, the Authority has duly
authorized the Series 1994A Bonds in the aggregate principal amount not to
exceed $17,500,000 and the Series 1994B Bonds in the aggregate principal amount
not to exceed $5,000,000 to be issued upon the terms set forth in the Indenture,
under the provisions of which certain of the Authority's rights, title and
interests in, to and under this Agreement and the Revenues hereunder are pledged
as security for the payment of the principal of, premium, if any, and interest
on the Bonds.
F. The Authority has not pledged and will not pledge or grant (except
as provided in the Indenture) any security interest in, or assign any
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of its rights under, this Agreement, or the Revenues or income to be derived by
the Authority hereunder for any purpose other than to secure the Bonds.
G. The Authority has and will have title to the Improvements
sufficient to carry out the purposes of this Agreement, and such title shall be
in and remain in the Authority, except as permitted by Sections 2.5 and 2.6 of
the Original Agreement.
9. Representations of the Company as to the Bonds.
The Company makes the following representations to the Authority and the
City as the basis for its undertakings herein contained:
A. The Company has been incorporated and is validly existing as a
corporation under the laws of the State of Delaware, is in good standing in the
State of Delaware, is duly qualified to do business in and is in good standing
in the State, has the corporate power and authority to own its properties and
assets and to carry on its business as now conducted and as contemplated to be
conducted as described in the Agreement and the Indenture, and has the corporate
power to enter into and has duly authorized, by all requisite corporate action,
the execution and delivery of this Second Amendment and all other documents
contemplated hereby to be executed by the Company.
B. Neither the execution and delivery of this Second Amendment or any
other document in connection with the financing of the Improvements, the
consummation of the transactions contemplated hereby and thereby, nor the
fulfillment of or compliance with the terms and conditions hereof and thereof,
results or will result in a material breach of or conflict with any of the
terms, conditions or provisions of the Company's Certificate of Incorporation,
Bylaws, or any statute or order of any court or regulatory agency or of any
material agreement or instrument to which the Company is now a party or by which
it is bound, or constitutes a material default (with due notice or the passage
of time or both) under any of the foregoing, or results in the creation or
imposition of any prohibited lien, charge or encumbrance whatsoever upon any of
the property or assets of the Company under the terms of any instrument or
agreement to which the Company is now a party or by which it is bound.
C. The Company is not in default with respect to any order or decree
of any court or any order, regulation or decree of any federal, state, municipal
or other governmental agency, which default would materially and adversely
affect its operation or its properties. The Company is not in material default
in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any material agreement or instrument to
which it is a party.
D. Neither the Company nor any "related person" (as defined in Section
147(a)(2) of the Code) is, or will be, a party to any arrangement, formal or
informal, pursuant to which it has or will purchase any of the Bonds.
E. The information used in preparing the certification pursuant to
Section 148 of the Code and information statement pursuant to Section 149(e) of
the Code, will be accurate and complete as of the date of the issuance of the
Bonds.
F. No portion of the Bonds shall be federally guaranteed within the
meaning of Section 149(b) of the Code.
G. The Improvements consist of those facilities and that equipment
described in Exhibit "A" to the Original Agreement and those facilities and that
equipment described in Exhibit "A" to the Amended Agreement and the Company
shall make no changes to the Improvements or to the operation thereof which
would affect the qualification of the Improvements under the Act or impair the
exclusion of the interest on the Bonds from the gross income of the Holders
thereof for federal income tax purposes. The Company intends to
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utilize the Improvements as part of its Air Transportation facilities at the
Airport during the term of the Bonds.
H. The average reasonably expected economic life of the Improvements
is at least ten years; the average maturity of the Bonds is not more than 120%
of such economic life.
I. There is no action, suit or proceeding at law or in equity or by or
before any governmental instrumentality or other agency now pending, or, to the
best knowledge of the Company, threatened against or affecting the Company or
any of its properties or rights, which, if adversely determined, would
materially and adversely impair its right to carry on business substantially as
now conducted or as now contemplated to be conducted, or would materially and
adversely affect its financial condition, assets, properties or operations, and
the Company is not in default with respect to any order or decree of any court
or any order, regulation or decree of any federal, state, municipal or other
governmental agency, which default would materially and adversely affect its
operation or its properties or the completion of the acquisition, construction
and equipping of the Improvements. The Company is not in material default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any material agreement or instrument to which it is a
party.
J. The operation and design of the Improvements in the manner
presently contemplated and as described herein will not conflict with any
applicable zoning, water or air pollution or other ordinance, order, law or
regulation relating to zoning, building, safety or environmental quality, which
conflict would materially and adversely affect its operation or the completion
of its acquisition, construction and equipping.
K. The Company has obtained, or will obtain on or before the date
required therefor, all necessary certificates, approvals, permits and
authorizations with respect to the Improvements from applicable local, state,
and federal governmental agencies.
L. The information used in preparing the certification pursuant to
Section 148 of the Code and information statement pursuant to Section 149(e) of
the Code, will be accurate and complete as of the date of the issuance of the
Bonds.
M. To the best knowledge of the Company, there exists no security
interest in the Improvements perfected under the laws of any other jurisdiction
that is prior to that held by the Trustee pursuant to the Security Agreement.
N. To the best knowledge of the Company, there exists no security
interest in the Improvements created by any person other than the Company or the
Authority prior to the acquisition of title and possession thereof by the
Company or the Authority.
10. Section 4.4 of the Amended Agreement, encaptioned Financing Fee, is
hereby amended to read as follows:
The Company agrees to pay as the Financing Fee during the Term of the
Bonds an amount which, together with any monies held by the Trustee in the
Bond Fund, shall at all times be sufficient to pay all principal of,
premium, if any, and interest on the Bonds as such principal, premium, if
any, and interest become due, at maturity, upon acceleration, upon optional
or mandatory redemption or otherwise, at the dates and in the places and
manner required herein. Payments of the Financing Fee shall be made in
immediately available funds.
11. Section 4.5 of the Amended Agreement, encaptioned Semiannual
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Payments is hereby amended to read as follows:
Section 4.5 Payments.
Payment of interest on the Bonds shall be due commencing October 1,
1994 for interest accrued from the Effective Date, and payment of principal
on the Bonds shall be due commencing October 1, 1994, both continuing on
each Bond Payment Date thereafter, to and including the date that all such
unpaid principal of the Bonds shall be paid in full. Payments on the Bonds
are to be made to the Trustee in accordance with the schedule set forth on
Exhibit E, as amended by this Second Amendment. Payments of the Financing
Fee on the Bonds are to be made to the Trustee by the close of business one
(1) Business Day before each Bond Payment Date and shall, together with any
balance then held in the Bond Fund, equal the sum of the principal of and
interest due on all Outstanding Bonds on such Bond Payment Date. The
Company shall only be required to make payments of the Financing Fee to the
extent that monies held in the Bond Fund for the payment of the principal
of and interest due on all Outstanding Bonds on the next succeeding Bond
Payment Date are not sufficient for such purpose. In the event the Company
proposes to make a payment of defaulted interest on the Bonds, the Company
shall follow the procedures specified in Section 2.02(b) of the Indenture.
12. Section 4.6 of the Amended Agreement, encaptioned Restoration of
Security Reserve Fund, is deleted and the references in the Agreement to Section
4.6 are deleted.
13. Section 4.12 of the Amended Agreement, encaptioned Prepayment of
Financing Fee, is hereby amended to read as follows:
A. The Financing Fee with respect to the Prior Bonds not reissued by
the Bonds is prepayable in accordance with the Plan.
B. So long as all amounts which have become due pursuant to this
Article 4 hereof have been paid and the Company is not in default
hereunder, the Company may:
(1) on any Interest Payment Date pay in advance all or part of
the Financing Fee with respect to the Series 1994A Bonds to become due
pursuant to Article 4 hereof if the Company (a) gives the Trustee notice of
its intent to prepay, (b) deposits with the Trustee an amount equal to the
redemption price of the Series 1994A Bonds to be prepaid, and (c) directs
the Trustee to apply such amount to the redemption of Series 1994A Bonds in
accordance with Section 3.01 of the Indenture; and
(2) on July 1, 1995 and on any Interest Payment Date thereafter
pay in advance all or part of the Financing Fee with respect to the Series
1994B Bonds to become due pursuant to Article 4 hereof if the Company (a)
gives the Trustee notice of its intent to prepay, (b) deposits with the
Trustee an amount equal to the redemption price of the Series 1994B Bonds
to be prepaid (including without limitation any premium due), and (c)
directs the Trustee to apply such amount to the redemption of Series 1994B
Bonds in accordance with Section 3.01 of the Indenture.
14. Section 4.15 of the Amended Agreement, encaptioned Relationship of
Payments to the Use of Improvements, is hereby amended to read as follows:
A. All portions of Financing Fee payments representing principal
payments on the Series 1994A Bonds shall relate to the use of the Original
Improvements in accordance with their
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respective reasonably expected economic life (those with the shortest life
first, those with the longest life last) as specified on Exhibit "A" to the
First Amendment. No such payments shall relate to the use of an Original
Improvement after a term, commencing upon the Completion Date, of eighty
percent (80%) of the reasonably expected economic life of the specific
Original Improvements as shown on Exhibit "A" to the First Amendment.
B. All portions of Financing Fee payments representing principal
payments on the Series 1994B Bonds shall relate to the use of the Enhanced
Improvements in accordance with their respective reasonably expected
economic life (those with the shortest life first, those with the longest
life last) as specified on Exhibit "A" to the First Amendment. No such
payments shall relate to the use of an Enhanced Improvement after a term,
commencing upon the Completion Date, of eighty percent (80%) of the
reasonably expected economic life of the specific Enhanced Improvements as
shown on Exhibit "A" to the First Amendment.
15. Section 6.9 of the Amended Agreement, encaptioned Rebate Payments, is
hereby amended by inserting new subsection C as follows:
C. On each date as determined by Section 6.15(a) of the Indenture and
not later than sixty (60) days after the payment in full of all principal
and interest on the Bonds, the Company will direct the Trustee to pay to
the United States the amounts as calculated in said Section 6.15(a) of the
Indenture. Should any further deposits be made to the accounts of the
Rebate Fund relating to the Bonds after such payment is made, such further
deposit will immediately be paid to the United States of America. Such
payments will be by check and mailed to:
Internal Revenue Service Center
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Each payment shall be accompanied by a Form 8038-T duly executed by an
authorized representative of the Issuer.
16. Section 6.11 of the Amended Agreement, encaptioned Net Worth, is hereby
amended to read as follows:
Section 6.11 Chief Executive Office. The Company will not change its
chief executive office to a new jurisdiction outside the State unless:
(a) The Company shall first have provided written notice to the
Trustee; and
(b) All actions necessary to perfect the security interest
granted to the Trustee in the Improvements pursuant to the Security
Agreement shall have been taken in the new jurisdiction, to the extent
required by such new jurisdiction as a result of such change.
17. Exhibit "E" is hereby amended to read as attached to this Second
Amendment and by this reference is incorporated herein.
18. Section 1.1 of Exhibit "F" of the Amended Agreement, encaptioned
Definitions, is hereby amended in part by substitution of the lettered
definition set forth below for those definitions bearing the same letter
designation in Exhibit "F" to the Amended Agreement:
H. "Arbitrage Certificate" means the Tax Exemption
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Certificate and Agreement among the Authority, the Original User and the
Trustee, the Project Certificate from the Original User and the Authority
to Bond Counsel, both dated as of the Closing Date.
L. "Bonds" means the Series 1994A Bonds and the Series 1994B Bonds.
AA. "Indenture" means the Trust Indenture, dated as of July 1, 1989,
as supplemented by the First Supplement to Trust Indenture dated as of
August 1, 1990, as restated and supplemented by the Restated and Amended
Trust Indenture dated as of August 25, 1994 between the Authority and the
Trustee, as such Trust Indenture may be further amended and supplemented
from time to time in accordance with its terms.
AC. "Original Agreement" means the Airport Use Agreement dated as of
July 1, 1989, as amended by the First Amendment to the Airport Use
Agreement dated as of August 1, 1990 and by the Second Amendment to the
Airport Use Agreement dated as of August 25, 1994, among the City, the
Authority and the Original User.
AJ. [Intentionally left blank.]
AK. [Intentionally left blank.]
19. Section 1.1 of Exhibit "F" of the Amended Agreement, encaptioned
Definitions, is hereby amended in part by the addition of the following
definitions:
AV. "Bonds" means the Series 1994A Bonds and the Series 1994B Bonds.
AW. "Effective Date" means August 25, 1994.
AX. "Prior Bonds" means the Series 1989 Bonds and the Series 1990
Bonds.
AY. "Series 1994A Bonds" means the Airport Facility Revenue Bonds
(America West Airlines, Inc. Project) Series 1994A, issued by the Authority
in the amount of $17,127,659.78.
AZ. "Series 1994B Bonds" means the Airport Facility Revenue Bonds
(America West Airlines, Inc. Project) Series 1994B, issued by the Authority
in the amount of $4,736,842.02.
20. Section 4.4 of Exhibit "F" to the Amended Agreement, encaptioned
Financing Fee, is hereby amended to read as follows:
The Company agrees to pay as the Financing Fee during the Term of the
Bonds its Pro Rata Share of an amount which, together with any monies held
by the Trustee in the Bond Fund, shall at all times be sufficient to pay
all principal of, premium, if any, and interest on the Bonds as such
principal, premium, if any, and interest become due, at maturity, upon
acceleration, upon optional or mandatory redemption or otherwise at the
dates and in the places and manner required herein. Payments of the
Financing Fee shall be made in immediately available funds.
21. Section 4.5 of Exhibit "F" to the Amended Agreement, encaptioned
Semiannual Payments, is hereby amended to read as follows:
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Section 4.5 Payments.
Payment of interest on the Bonds shall be due commencing October 1,
1994 for interest accrued from the Effective Date and payment of principal
on the Bonds shall be due commencing October 1, 1994, both continuing on
each Bond Payment Date, to and including the date that all such unpaid
principal of the Bonds shall be paid in full. Payments on the Bonds are to
be made to the Trustee in accordance with the schedule set forth on Exhibit
"E". Payments of the Financing Fee are to be made to the Trustee by the
close of business two (2) Business Days before each Bond Payment Date and
shall, together with any balance then held in the Bond Fund, equal the
Company's Pro Rata Share of the sum of the principal of and interest due on
all Outstanding Bonds on such Bond Payment Date. The Company shall only be
required to make payments of the Financing Fee to the extent that monies
held in the Bond Fund for the payment of the principal of and interest due
on all Outstanding Bonds on the next succeeding Bond Payment Date are not
sufficient for such purpose. In the event the Company proposes to make a
payment of defaulted interest, the Company shall follow the procedures
specified in Section 2.02(b) of the Indenture.
22. Section 4.6 of Exhibit "F" to the Amended Agreement, encaptioned
Restoration of the Security Reserve Fund, is deleted and the references therein
to said Section 4.6 are deleted.
23. Section 4.12 of Exhibit "F" of the Amended Agreement, encaptioned
Prepayment of Financing Fee, is hereby amended to read as follows:
So long as all amounts which have become due pursuant to this Article
4 hereof have been paid and the Company is not in default hereunder, the
Company may:
(1) on any Interest Payment Date pay in advance all or part of
the Financing Fee with respect to the Series 1994A Bonds which become
due pursuant to Article 4 hereof if the Company (a) gives the Trustee
notice of its intent to prepay, (b) deposits with the Trustee an
amount equal to the redemption price of the Series 1994A Bonds to be
prepaid, and (c) directs the Trustee to apply such amount to the
redemption of Series 1994A Bonds in accordance with Section 3.01 of
the Indenture; and
(2) on July 1, 1995 and on any Interest Payment Date thereafter
pay in advance all or part of the Financing Fee with respect to the
Series 1994B Bonds which become due pursuant to Article 4 hereof if
the Company (a) gives the Trustee notice of its intent to prepay, (b)
deposits with the Trustee an amount equal to the redemption price of
the Series 1994B Bonds to be prepaid (including without limitation any
premium due), and (c) directs the Trustee to apply such amount to the
redemption of Series 1994B Bonds in accordance with Section 3.01 of
the Indenture.
24. Section 4.15 of Exhibit "F" of the Amended Agreement, encaptioned
Relationship of Payments To The Use of Improvements, is hereby amended to read
as follows:
(a) All portions of Financing Fee payments representing principal
payments on the Series 1994A Bonds shall relate to the use of the Original
Improvements in accordance with their respective reasonably expected
economic life (those with the
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shortest life first, those with the longest life last) as specified on
Exhibit "A" hereto. No such payments shall relate to the use of an Original
Improvement after a term, commencing upon the Completion Date, of eighty
percent (80%) of the reasonably executed economic life of the specific
Original Improvements as shown on Exhibit "A" hereto.
(b) All portions of Financing Fee payments representing principal
payments on the Series 1994B Bonds shall relate to the use of the Enhanced
Improvements in accordance with their respective reasonably expected
economic life (those with the shortest life first, those with the longest
life last) as specified on Exhibit "A" hereto. No such payments shall
relate to the use of an Enhanced Improvement after a term, commencing upon
the Completion Date, of eighty percent (80%) of the reasonably expected
economic life of the specific Enhanced Improvement as shown on Exhibit "A"
hereto.
25. Exhibits "B" and "E" to Exhibit "F" of the Amended Agreement are hereby
amended to read as attached to this Second Amendment and by this reference are
incorporated herein.
26. All parties acknowledge that this Second Amendment is subject to
cancellation pursuant to Section 38-511 of the Arizona Revised Statutes, the
provisions of which are incorporated herein. All parties represent, as of the
date hereof, that, to the best of their knowledge, no circumstances or
conditions exist which would provide a basis for cancellation of this Second
Amendment pursuant to Section 38-511 of the Arizona Revised Statutes. The
Company covenants not to employ or appoint as an agent, or to retain as a
consultant with respect to the subject matter of this Second Amendment, for a
period of three (3) years following the execution hereof, any person who was
significantly involved in initiating, negotiating, securing, drafting or
creating this Second Amendment on behalf of the City or the Authority unless a
waiver of the provisions of Section 38-511 of the Arizona Revised Statutes is
obtained from the City or the Authority.
27. This Second Amendment may be executed in any number of counterparts,
each of which, when so executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same Second Amendment,
and, in making proof of this Second Amendment, it shall not be necessary to
produce or account for more than one such counterpart.
28. The Company reaffirms for the benefit of the holders of the Bonds its
agreements, covenants and representations stated in Article 6 of the Amended
Agreement, as amended by this Second Amendment.
29. The Company hereby represents and agrees that, for purposes of the
Stipulation, the Series 1994A Bonds are and shall be deemed to be the Series
1989 Bonds and the Series 1994B Bonds are and shall be deemed to be the Series
1990 Bonds. Neither the City or the Authority has any objection to such
representation and agreement by the Company.
-11-
13
30. Except as expressly amended herein, the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the City, the Authority and the Company have caused
this Second Amendment to be duly executed in their respective names, all as of
the date herein before written.
CITY OF PHOENIX, a municipal corporation
By /s/ illegible
______________________________________
Its Aviation Director
_________________________________
ATTEST:
By /s/ illegible
___________________________________
City Clerk
APPROVED AS TO FORM:
By /s/ illegible
___________________________________
City Attorney
THE INDUSTRIAL DEVELOPMENT AUTHORITY OF
THE CITY OF PHOENIX, ARIZONA
By /s/ illegible
_____________________________________
Its President
ATTEST:
By /s/ illegible
___________________________________
Its Treasurer
______________________________
AMERICA WEST AIRLINES, INC.
By /s/ illegible
______________________________________
Its Senior Vice President
_________________________________
-12-
14
EXHIBIT "B" TO EXHIBIT "F"
SPECIFIC TERMS
The following are the specific terms of this Agreement:
1. The Company is: ____________________________________.
2. The Gates at the Terminal to be used by the Company pursuant to the City's
Rates and Charges program (as described in Section 2.4 of the Master Use
Agreement) are: _____________________________.
3. The Company's state of incorporation is: _________________.
4. The amount of general liability insurance to be provided by the Company
pursuant to Section 6.5A hereof is $_____________.
5. The Gate-based Percentage (the number of Gates specified in No. 2 divided
by 28) is: ______________________%.
6. The Company intends only to make use of the following Gate-related
Improvements (as specified in Exhibit "A" hereto) as they relate to the
Gates specified in paragraph 2 of this Exhibit "B".
[List Improvements]
The costs paid from proceeds of the Bonds for the above-listed Gate-related
Improvements total $_________ which is equal to ___% (the "Usage Rate") of the
original cost of the Project ($29,885,000 of the Series 1989 Bonds and
$5,796,000 of the Series 1990 Bonds originally deposited in the Construction
Fund, less the amount of Bonds redeemed pursuant to Section 3.02(a) of the
Indenture).
In the event the Company wishes to use some of the Improvements that are not
Gate-related Improvements, it shall negotiate such usage and payment therefor
directly with America West Airlines, Inc.
The Usage-based Percentage is ___% (the Usage Rate times the Gate-based
Percentage calculated in paragraph 5 of this Exhibit "B").
7. The Company's Pro Rata Share is equal to [choose one]
a. The Gate-based Percentage (if the Company intends to make use of
all the Improvements).
b. The Usage-based Percentage (if the Company intends only to make
use of some or all the Gate-related Improvements).
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15
EXHIBIT "E"
SCHEDULE OF PAYMENTS DUE ON THE BONDS
Series
1994A BONDS
Total
Due Principal Interest Payment
--- --------- -------- -------
10/1/94 $ 372,340.43 $ 142,159.58 $ 514,500.01
1/1/95 372,340.43 347,672.88 720,013.31
4/1/95 372,340.43 339,946.81 712,287.24
7/1/95 372,340.43 332,220.75 704,561.18
10/1/95 372,340.43 324,494.68 696,835.11
1/1/96 372,340.43 316,768.62 689,109.05
4/1/96 372,340.43 309,042.56 681,382.99
7/1/96 372,340.43 301,316.49 673,656.92
10/1/96 372,340.43 293,590.43 665,930.86
1/1/97 372,340.43 285,864.37 658,204.80
4/1/97 372,340.43 278,138.30 650,478.73
7/1/97 372,340.43 270,412.24 642,752.67
10/1/97 372,340.43 262,686.17 635,026.60
1/1/98 372,340.43 254,960.11 627,300.54
4/1/98 372,340.43 247,234.05 619,574.48
7/1/98 372,340.43 239,507.98 611,848.41
10/1/98 372,340.43 231,781.92 604,122.35
1/1/99 372,340.43 224,055.85 596,396.28
4/1/99 372,340.43 216,329.79 588,670.22
7/1/99 372,340.43 208,603.73 580,944.16
10/1/99 372,340.43 200,877.66 573,218.09
1/1/00 372,340.43 193,151.60 565,492.03
4/1/00 372,340.43 185,425.53 557,765.96
7/1/00 372,340.43 177,699.47 550,039.90
10/1/00 372,340.43 169,973.41 542,313.84
1/1/01 372,340.43 162,247.34 534,587.77
4/1/01 372,340.43 154,521.28 526,861.71
7/1/01 372,340.43 146,795.21 519,135.64
10/1/01 372,340.43 139,069.15 511,409.58
1/1/02 372,340.43 131,343.09 503,683.52
4/1/02 372,340.43 123,617.02 495,957.45
7/1/02 372,340.43 115,890.96 488,231.39
10/1/02 372,340.43 108,164.89 480,505.32
1/1/03 372,340.43 100,438.83 472,779.26
4/1/03 372,340.43 92,712.77 465,053.20
7/1/03 372,340.43 84,986.70 457,327.13
10/1/03 372,340.43 77,260.64 449,601.07
1/1/04 372,340.43 69,534.58 441,875.01
4/1/04 372,340.43 61,808.51 434,148.94
7/1/04 372,340.43 54,082.45 426,422.88
10/1/04 372,340.43 46,356.38 418,696.81
1/1/05 372,340.43 38,630.32 410,970.75
4/1/05 372,340.43 30,904.26 403,244.69
7/1/05 372,340.43 23,178.19 395,518.62
10/1/05 372,340.43 15,452.13 387,792.56
1/1/06 372,340.43 7,726.06 380,066.49
-----------------
Total Principal $ 17,127,659.78
-14-
16
Series
1994B BONDS
Total
Due Principal Interest Payment
--- --------- -------- -------
10/1/94 $ 263,157.89 $ 38,842.10 $ 301,999.99
1/1/95 263.157.89 91,710.52 354,868.41
4/1/95 263.157.89 86,315.79 349,473.68
7/1/95 263,157.89 80,921.05 344,078.94
10/1/95 263,157.89 75,526.31 338,684.20
1/1/96 263,157.89 70,131.58 333,289.47
4/1/96 263,157.89 64,736.84 327,894.73
7/1/96 263,157.89 59,342.10 322,499.99
10/1/96 263,157.89 53,947.37 317,105.26
1/1/97 263,157.89 48,552.63 311,710.52
4/1/97 263,157.89 43,157.89 306,315.78
7/1/97 263,157.89 37,763.16 300,921.05
10/1/97 263,157.89 32,368.42 295,526.31
1/1/98 263,157.89 26,973.68 290,131.57
4/1/98 263,157.89 21,578.95 284,736.84
7/1/98 263,157.89 16,184.21 279,342.10
10/1/98 263,157.89 10,789.47 273,947.36
1/1/99 263,157.89 5,394.74 268,552.63
----------------
Total Principal $ 4,736,842.02
-15-
17
EXHIBIT "E" TO EXHIBIT "F"
SCHEDULE OF PAYMENTS DUE ON THE BONDS
Series
1994A BONDS
Total
Due Principal Interest Payment
--- --------- -------- -------
10/1/94 $ 372,340.43 $ 142,159.58 $ 514,500.01
1/1/95 372,340.43 347,672.88 720,013.31
4/1/95 372,340.43 339,946.81 712,287.24
7/1/95 372,340.43 332,220.75 704,561.18
10/1/95 372,340.43 324,494.68 696,835.11
1/1/96 372,340.43 316,768.62 689,109.05
4/1/96 372,340.43 309,042.56 681,382.99
7/1/96 372,340.43 301,316.49 673,656.92
10/1/96 372,340.43 293,590.43 665,930.86
1/1/97 372,340.43 285,864.37 658,204.80
4/1/97 372,340.43 278,138.30 650,478.73
7/1/97 372,340.43 270,412.24 642,752.67
10/1/97 372,340.43 262,686.17 635,026.60
1/1/98 372,340.43 254,960.11 627,300.54
4/1/98 372,340.43 247,234.05 619,574.48
7/1/98 372,340.43 239,507.98 611,848.41
10/1/98 372,340.43 231,781.92 604,122.35
1/1/99 372,340.43 224,055.85 596,396.28
4/1/99 372,340.43 216,329.79 588,670.22
7/1/99 372,340.43 208,603.73 580,944.16
10/1/99 372,340.43 200,877.66 573,218.09
1/1/00 372,340.43 193,151.60 565,492.03
4/1/00 372,340.43 185,425.53 557,765.96
7/1/00 372,340.43 177,699.47 550,039.90
10/1/00 372,340.43 169,973.41 542,313.84
1/1/01 372,340.43 162,247.34 534,587.77
4/1/01 372,340.43 154,521.28 526,861.71
7/1/01 372,340.43 146,795.21 519,135.64
10/1/01 372,340.43 139,069.15 511,409.58
1/1/02 372,340.43 131,343.09 503,683.52
4/1/02 372,340.43 123,617.02 495,957.45
7/1/02 372,340.43 115,890.96 488,231.39
10/1/02 372,340.43 108,164.89 480,505.32
1/1/03 372,340.43 100,438.83 472,779.26
4/1/03 372,340.43 92,712.77 465,053.20
7/1/03 372,340.43 84,986.70 457,327.13
10/1/03 372,340.43 77,260.64 449,601.07
1/1/04 372,340.43 69,534.58 441,875.01
4/1/04 372,340.43 61,808.51 434,148.94
7/1/04 372,340.43 54,082.45 426,422.88
10/1/04 372,340.43 46,356.38 418,696.81
1/1/05 372,340.43 38,630.32 410,970.75
4/1/05 372,340.43 30,904.26 403,244.69
7/1/05 372,340.43 23,178.19 395,518.62
10/1/05 372,340.43 15,452.13 387,792.56
1/1/06 372,340.43 7,726.06 380,066.49
-----------------
Total Principal $ 17,127,659.78
-16-
18
Series
1994B BONDS
Total
Due Principal Interest Payment
--- --------- -------- -------
10/1/94 $ 263,157.89 $ 38,842.10 $ 301,999.99
1/1/95 263.157.89 91,710.52 354,868.41
4/1/95 263.157.89 86,315.79 349,473.68
7/1/95 263,157.89 80,921.05 344,078.94
10/1/95 263,157.89 75,526.31 338,684.20
1/1/96 263,157.89 70,131.58 333,289.47
4/1/96 263,157.89 64,736.84 327,894.73
7/1/96 263,157.89 59,342.10 322,499.99
10/1/96 263,157.89 53,947.37 317,105.26
1/1/97 263,157.89 48,552.63 311,710.52
4/1/97 263,157.89 43,157.89 306,315.78
7/1/97 263,157.89 37,763.16 300,921.05
10/1/97 263,157.89 32,368.42 295,526.31
1/1/98 263,157.89 26,973.68 290,131.57
4/1/98 263,157.89 21,578.95 284,736.84
7/1/98 263,157.89 16,184.21 279,342.10
10/1/98 263,157.89 10,789.47 273,947.36
1/1/99 263,157.89 5,394.74 268,552.63
----------------
Total Principal $ 4,736,842.02
-17-
