Exhibit 2.1
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[*] |
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Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission. |
EXECUTION VERSION
AMENDED AND RESTATED MUTUAL ASSET PURCHASE AND SALE
AGREEMENT
Dated as of May 20, 2011
Among
Delta Air Lines, Inc.,
US Airways, Inc.,
and
US Airways Group, Inc.
TABLE OF CONTENTS
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Page |
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ARTICLE I |
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Definitions |
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Section 1.01 Certain Defined Terms |
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1 |
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Section 1.02 Interpretation |
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20 |
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ARTICLE II |
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Purchase and Sale of the DCA Slots |
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Section 2.01 Purchase and Sale of the DCA Slots |
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21 |
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Section 2.02 Excluded Delta Assets |
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21 |
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Section 2.03 Reserved |
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21 |
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Section 2.04 Excluded Delta Liabilities |
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22 |
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Section 2.05 US Airways Purchase Price |
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22 |
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ARTICLE III |
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Purchase and Sale of the US Airways Transferred Assets |
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Section 3.01 Purchase and Sale of the US Airways Transferred Assets |
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23 |
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Section 3.02 Excluded US Airways Assets |
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24 |
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Section 3.03 Assumed US Airways Liabilities |
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24 |
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Section 3.04 Excluded US Airways Liabilities |
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25 |
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Section 3.05 Delta Purchase Price |
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26 |
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Section 3.06 Consent of Third Parties |
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27 |
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Section 3.07 US Airways Credits and Prorations |
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27 |
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ARTICLE IV |
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Section 4.01 Closings |
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32 |
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Section 4.02 Deliveries by Delta |
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33 |
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Section 4.03 Deliveries by US Airways |
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35 |
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Section 4.04 Contemporaneous Effectiveness |
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37 |
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ARTICLE V |
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Representations and Warranties of US Airways |
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Section 5.01 Organization, Standing and Power |
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37 |
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[*] |
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Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission. |
i
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Page |
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Section 5.02 Authority; Execution and Delivery; Enforceability |
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38 |
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Section 5.03 No Conflicts |
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38 |
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Section 5.04 Consents |
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38 |
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Section 5.05 Litigation |
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38 |
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Section 5.06 Compliance with Applicable Laws |
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39 |
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Section 5.07 Undisclosed Liabilities |
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39 |
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Section 5.08 Title to Assets |
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39 |
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Section 5.09 Condition of Assets |
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39 |
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Section 5.10 Assumed US Airways Contracts |
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40 |
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Section 5.11 Slots |
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40 |
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Section 5.12 Insurance |
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41 |
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Section 5.13 Real Property |
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41 |
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Section 5.14 Bonds |
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41 |
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Section 5.15 Environmental Matters |
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42 |
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Section 5.16 Taxes |
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43 |
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Section 5.17 Brazilian Route Authorities |
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44 |
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Section 5.18 Brokers or Finders |
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44 |
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ARTICLE VI |
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Representations and Warranties of Delta |
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Section 6.01 Organization, Standing and Power |
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44 |
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Section 6.02 Authority; Execution and Delivery; Enforceability |
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44 |
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Section 6.03 No Conflicts |
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45 |
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Section 6.04 Consents |
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45 |
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Section 6.05 Litigation |
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45 |
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Section 6.06 Compliance with Applicable Laws |
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45 |
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Section 6.07 Undisclosed Liabilities |
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46 |
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Section 6.08 Title to Assets |
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46 |
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Section 6.09 Reserved |
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46 |
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Section 6.10 Reserved |
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46 |
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Section 6.11 DCA Slots |
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46 |
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Section 6.12 Reserved |
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46 |
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Section 6.13 Reserved |
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46 |
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Section 6.14 Reserved |
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46 |
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Section 6.15 Reserved |
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46 |
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Section 6.16 Taxes |
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47 |
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Section 6.17 Delta Brazilian Route Authorities/GRU Slots |
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47 |
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Section 6.18 Brokers or Finders |
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47 |
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ARTICLE VII |
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Section 7.01 Operation of the US Airways Transferred Assets Prior to Closing |
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47 |
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Section 7.02 Operation of the DCA Slots Prior to Closing |
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49 |
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[*] |
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Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission. |
ii
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Page |
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Section 7.03 Slot Trades |
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50 |
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Section 7.04 Delta Investigations |
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52 |
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Section 7.05 Reserved |
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53 |
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Section 7.06 Reserved |
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53 |
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Section 7.07 Notification |
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53 |
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Section 7.08 Required Actions |
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54 |
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Section 7.09 Reserved |
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57 |
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Section 7.10 Fees and Expenses; Transfer Taxes |
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57 |
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Section 7.11 Publicity |
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57 |
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Section 7.12 Further Assurances |
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58 |
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Section 7.13 Tax Cooperation |
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58 |
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Section 7.14 LaGuardia Call Right |
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58 |
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Section 7.15 DCA Call Right |
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59 |
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Section 7.16 Preservation of Books and Records |
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60 |
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Section 7.17 Reserved |
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60 |
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Section 7.18 Bond Accounts |
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60 |
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Section 7.19 Reserved |
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62 |
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Section 7.20 US Airways Maintenance Obligations |
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62 |
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Section 7.21 Reserved |
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63 |
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Section 7.22 In-Line Screening System |
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63 |
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Section 7.23 [*] |
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63 |
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Section 7.24 Transfer of Brazilian Route Authorities/Transfer of GRU Slots |
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64 |
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Section 7.25 Disclaimer of Warranty |
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68 |
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ARTICLE VIII |
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Conditions Precedent to the Closings |
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Section 8.01 Conditions to Each Party’s Obligation to Effect the Initial Transaction |
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69 |
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Section 8.02 Conditions to Obligations of Delta to Effect the Initial Transaction |
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69 |
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Section 8.03 Conditions to Obligation of US Airways to Effect the Initial Transaction |
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71 |
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Section 8.04 Conditions to Closing Subsequent Transaction |
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72 |
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ARTICLE IX |
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Survival; Indemnification |
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Section 9.01 Survival |
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74 |
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Section 9.02 Indemnification by Delta |
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75 |
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Section 9.03 Indemnification by US Airways |
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76 |
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Section 9.04 Indemnification Procedures |
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77 |
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Section 9.05 Set Off; Etc. |
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80 |
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Section 9.06 Reserved |
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80 |
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Section 9.07 Tax Effect |
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80 |
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Section 9.08 Sole and Exclusive Remedy |
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81 |
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[*] |
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Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission. |
iii
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Page |
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ARTICLE X |
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Termination |
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Section 10.01 Prior to Closing Termination |
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81 |
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Section 10.02 Effect of Termination |
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84 |
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ARTICLE XI |
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General Provisions |
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Section 11.01 Amendment |
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85 |
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Section 11.02 Extension; Waiver |
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85 |
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Section 11.03 Notices |
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86 |
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Section 11.04 Severability |
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87 |
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Section 11.05 Counterparts |
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87 |
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Section 11.06 Entire Agreement |
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87 |
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Section 11.07 Governing Law; Jurisdiction |
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88 |
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Section 11.08 Assignment |
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88 |
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Section 11.09 Specific Enforcement |
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88 |
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Section 11.10 Waiver of Jury Trial |
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88 |
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Section 11.11 Bulk Transfer |
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89 |
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ARTICLE XII |
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Guaranty |
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Section 12.01 US Airways Parent Guaranty |
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89 |
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[*] |
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Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission. |
iv
Exhibits†
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Exhibit A
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Reserved |
Exhibit B
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Reserved |
Exhibit C
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Form of Assignment and Assumption Agreement — Contract/Permit or Otherwise |
Exhibit D
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Form of Xxxx of Sale |
Exhibit E-1
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Form of DCA Initial Slot Lease |
Exhibit E-2
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Form of DCA Subsequent Slot Lease |
Exhibit F
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Transition Plan |
Exhibit G
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DCA Slots |
Exhibit H
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Purchase Price Allocation |
Exhibit I
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Reserved |
Exhibit J-1
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Form of LaGuardia Initial Slot Lease |
Exhibit J-2
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Form of LaGuardia Subsequent Slot Lease |
Exhibit K
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LaGuardia Slots |
Exhibit L
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Reserved |
Exhibit M
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Reserved |
Exhibit N
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Reserved |
Exhibit O
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Reserved |
Exhibit P
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Reserved |
Exhibit Q
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Reserved |
Exhibit R
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Jet Bridge Maintenance and Operability Testing Requirements |
Exhibit S
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Reserved |
Exhibit T
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Reserved |
Exhibit U
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Reserved |
Exhibit V
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Form of US Airways LaGuardia Facilities License |
Exhibit W
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Reserved |
Exhibit X
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Form of US Airways LaGuardia Facilities Sublease |
Exhibit Y
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Form of US Airways LaGuardia GSE Permit |
Schedules†
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Schedule 1.01-A
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Assumed Bond Documents |
Schedule 1.01-B
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Bond Accounts |
Schedule 1.01-C
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Bond Documents |
Schedule 1.01-D
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Reserved |
Schedule 1.01-E
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East End Terminal Lease |
Schedule 1.01-F
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Existing GSE Facilities Permit |
Schedule 1.01-G
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Reserved |
Schedule 1.01-H
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Reserved |
Schedule 1.01-I
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Reserved |
Schedule 1.01-J
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Parking Permit #1 |
Schedule 1.01-K
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Parking Permit #2 |
Schedule 1.01-L
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Reserved |
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† |
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Issuer herby undertakes to furnish supplementally a copy of any omitted schedule or exhibit to the Commission upon request |
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[*] |
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Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission. |
v
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Schedule 1.01-M
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Reserved |
Schedule 1.01-N
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Reserved |
Schedule 1.01-O
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Eastern Shuttle Documents |
Schedule 1.01-P
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Reserved |
Schedule 1.01-Q
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Shuttle Terminal Lease |
Schedule 1.01-R
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US Airways LaGuardia Contracts |
Schedule 1.01-S
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US Airways LaGuardia Permits |
Schedule 1.01-T
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US Airways LaGuardia Tangible Personal Property |
Schedule 1.01-U
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Requested Slot Times |
Schedule 1.01-V
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[*] Slots |
Schedule 1.01-W
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[*] Slots |
Schedule 3.06
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Third Party Consents |
Schedule 7.01
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Operation of the US Airways Transferred Assets |
Schedule 7.02
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Operation of the DCA Slots |
Schedule 7.08(a)(iv)
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Port Authority Items |
US Airways Disclosure Schedules†
Delta Disclosure Schedules†
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† |
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Issuer herby undertakes to furnish supplementally a copy of any omitted schedule or exhibit to the Commission upon request |
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[*] |
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Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission. |
vi
This AMENDED AND RESTATED
MUTUAL ASSET PURCHASE AND SALE AGREEMENT (this “
Agreement”)
dated as of May 20, 2011 among Delta Air Lines, Inc., a Delaware corporation (“
Delta”), US
Airways, Inc., a Delaware corporation (“
US Airways”), and US Airways Group, Inc., a
Delaware corporation (“
US Airways Parent”) (solely with respect to the matters set forth in
the definition of “Excluded Transfer” in Section 1.01, Section 7.23 and Article XII) (each a
“
Party” and collectively “
Parties”).
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. For purposes of this Agreement:
“[*]” [*].
“[*]” [*].
“Action” means any action (at law or in equity), suit, arbitration, review, inquiry,
proceeding or investigation.
“Additional Allocated Amount” has the meaning set forth in Section 7.18(a).
“Additional US Airways Agreements” means, collectively, the Personal Property Security
Interest and that certain Operating Agreement, by and between US Airways and the Port Authority,
dated January 17, 1992.
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[*] |
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Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission. |
1
“Affiliate” of any Person means another Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common control with, such first
Person.
“Aggregate Bond Escrow Funds” has the meaning set forth in Section 7.18(a).
“Agreement” has the meaning set forth in the Recitals.
“Air Services Agreement” means the agreement between the Government of the United
States of America and the Federative Republic of Brazil, authorizing the scheduled foreign air
transportation of persons, property and mail between the United States of America, on the one hand,
and Brazil on the other hand.
“Ancillary Documents” has the meaning set forth in Section 5.02.
“Assignment and Assumption Agreement” means (i) with respect to the Delta Port
Authority Documents, one or more agreements the form of which shall be acceptable to the Port
Authority, or (ii) with respect to any other Contract (excluding the US Airways LaGuardia Leases,
the Existing GSE Facilities Permit, and the US Airways LaGuardia Parking Permits), Permit, or other
document required to be transferred pursuant to the terms of this Agreement, an assignment and
assumption agreement substantially in the form attached hereto as Exhibit C.
“Assumed Bond Documents” means those certain documents set forth on Schedule
1.01-A attached hereto.
“Assumed Liabilities” means the Assumed US Airways Liabilities.
“Assumed US Airways Contracts” means the US Airways LaGuardia Leases, the Existing GSE
Facilities Permit, the US Airways LaGuardia Contracts, the US Airways LaGuardia Permits, the US
Airways LaGuardia Parking Permits, and the Assumed Bond Documents.
“Assumed US Airways Liabilities” has the meaning set forth in Section 3.03.
“Bankruptcy Event” means any of the following events: (i) the passage of a resolution
of the Board of Directors for the dissolution of a Person; (ii) a Person becoming the subject of
(A) the entry of an order for relief by a Governmental Authority having jurisdiction in the
premises judging such Person bankrupt or insolvent under any applicable bankruptcy, insolvency,
reorganization, liquidation, rehabilitation, conservation, examination or other similar Law, (B)
the appointment of a receiver, liquidator, rehabilitator, conservator, assignee, trustee,
sequestrator or examiner (or other similar official) of such Person or of substantially all of the
property of such Person, (C) an order to wind up or liquidate the affairs of such Person, or (D) an
involuntary bankruptcy, insolvency, reorganization, liquidation, rehabilitation, conservation,
examination or other similar proceeding with respect to such Person that is unstayed or undismissed
for a period of thirty (30) consecutive days; or (iii) any of (A) the commencement by a Person of a
proceeding to be adjudicated a bankrupt or insolvent; (B) the consent by a Person to the
institution of bankruptcy, insolvency or examination proceedings against it, (C) the filing or
consent to the filing by a Person of a petition or answer or consent seeking
reorganization or relief under any applicable bankruptcy, insolvency, reorganization,
liquidation, rehabilitation, conservation, examination or other similar Law, (D) the consent or
application by a Person to the appointment of a receiver, liquidator, rehabilitator, conservator,
assignee, trustee, sequestrator, examiner (or other similar official) of a Person, as applicable,
or of any substantial part of such Person’s property, or (E) the making by a Person of an
assignment for the benefit of creditors.
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[*] |
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Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission. |
2
“Beneficial Ownership” has the meaning given such term in Rules 13d-3 and 13d-5 under
the Securities Exchange Act of 1934, as amended.
“Xxxx of Sale” means the xxxx of sale in substantially the form attached hereto as
Exhibit D.
“Bond Accounts” means those certain funds or accounts related to the Bonds and set
forth on Schedule 1.01-B attached hereto.
“Bond Documents” means those certain documents set forth on Schedule 1.01-C
attached hereto.
“Bond Fund” has the meaning set forth in the East End Terminal Lease (as in effect on
the date hereof).
“Bond Fund Closing Balance” has the meaning set forth in Section 7.18.
“Bond Obligations” means any and all obligations of US Airways with respect to the
Bonds and/or the Bond Documents.
“Bond Repayment Date” has the meaning set forth in Section 7.18.
“Bonds” means those certain Special Project Bonds Series 2 issued by the Port
Authority in the original principal amount of $202,075,000, the proceeds of which were used to
finance a portion of the construction of the East End Terminal.
“Books and Records” means all books, ledgers, files, data, metadata, reports, plans,
records, manuals and other materials, whether existing in hard copy or magnetic or electronic form,
to the extent related to the Delta Transferred Assets or the US Airways Transferred Assets, but (i)
to the extent the underlying information is provided, no data shall be required to be extracted and
delivered from general abstracts or summaries prepared on an internal company basis and (ii)
excluding any such items if any Law prohibits their transfer.
“Brazil Slot Coordinator” means the National Civil Aviation Agency of the Federative
Republic of Brazil or any successor agency.
“Brazil Slot Regulations” shall mean the regulations promulgated under Brazil law, if
any, relating to take-off and landing slots at any commercial airport in Brazil, including any
successor provisions or regulations.
“Brazil Transfer Date” has the meaning set forth in Section 7.24.
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[*] |
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Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission. |
3
“Brazil Use Provisions” shall mean the applicable regulatory provisions promulgated
under the laws of Brazil, if any, relating to usage requirements for GRU Slots and shall include
any future statutory or regulatory amendments to such provisions or successor statutes or
regulations, including any waivers of such requirements in effect from time to time.
“Brazilian Route Authorities” means the Delta Brazilian Route Authorities and the US
Airways Brazilian Route Authorities.
“Burdensome Restriction” has the meaning set forth in Section 7.08.
“
Business Day” means any day other than (i) a Saturday or a Sunday or (ii) a day on
which banking and savings and loan institutions are authorized or required by Law to be closed in
New York City.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase,
options, warrants, participation or other equivalents of or interest in (however designated) the
equity of such Person, including any preferred stock.
“Citi Loan Agreement” means that certain Loan Agreement, dated as of March 23, 2007
among US Airways Group, Inc., as Borrower, certain subsidiaries of Borrower, Citicorp North
America, Inc. as Administrative Agent, and the lenders from time to time party thereto, together
with the applicable Collateral Documents (as defined therein), as each such agreement may be
amended, modified, supplemented or replaced from time to time.
“Claims” means any and all claims, counterclaims, demands, damages, actions, causes of
actions, and claims for relief of every kind and nature, known or unknown, existing, claimed to
exist or which could be asserted in a lawsuit, either in law or in equity, whether direct or
indirect (whether by assignment or otherwise), or arising under any Law, obligation, right, duty,
or other requirement.
“Closing” has the meaning set forth in Section 4.01.
“Closing Date” has the meaning set forth in Section 4.01.
“Code” means the United States Internal Revenue Code of 1986, as amended.
“Contract” means any written agreement, contract, lease, sublease, or other occupancy
agreement, obligation, promise, license, commitment instrument, undertaking, order, or other
arrangement or warranty that is legally binding on a Party.
“DCA” means Xxxxxx Xxxxxx Washington National Airport located in Arlington, Virginia.
“DCA Initial Slot Lease” means that certain slot lease dated as of the Initial Closing
Date, by and between US Airways and Delta substantially in the form attached hereto as Exhibit
E-1.
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[*] |
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Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission. |
4
“DCA Initial Slots” means the sixty-eight (68) Slots at DCA to be transferred from
Delta to US Airways at the Initial Closing pursuant to the terms and conditions of this Agreement,
as more fully described on Exhibit G attached hereto.
“DCA Slots” has the meaning set forth in Section 2.01(b).
“DCA Subsequent Slot Lease” means that certain slot lease dated as of the Subsequent
Closing Date, by and between US Airways and Delta substantially in the form attached hereto as
Exhibit E-2.
“DCA Subsequent Slots” means the sixteen (16) Slots at DCA to be transferred from
Delta to US Airways at the Subsequent Closing pursuant to the terms and conditions of this
Agreement, as more fully described on Exhibit G attached hereto.
“Debt Service Fund” has the meaning set forth in the East End Terminal Lease (as in
effect on the date hereof).
“Delta” has the meaning set forth in the Recitals.
“[*] Slots” has the meaning set forth in Section 7.03.
“[*] Transfer” has the meaning set forth in Section 7.03.
“Delta Bond Escrow Funds” has the meaning set forth in Section 7.18.
“Delta Brazil Transfer” has the meaning set forth in Section 7.24.
“Delta Brazilian Route Authorities” means seven (7) unrestricted U.S.-Brazil
frequencies allocated to Delta by DOT Order 2005-4-13 originally for Atlanta-Rio de Janeiro
service, which are available under the U.S.-Brazil Air Transport Agreement and DOT Order 2004-6-25
for service on any U.S.-Brazil city-pair route.
“Delta Bylaws” means the Delta Air Lines, Inc. Bylaws, as amended.
“Delta Cap Amount” has the meaning set forth in Section 9.02.
“Delta Charter” means the Amended and Restated Certificate of Incorporation of Delta
Air Lines, Inc., as amended.
“Delta Connection Carrier” means a regional airline that operates under a codeshare
and service agreement with Delta pursuant to which it provides scheduled air transportation
services under the flight designator codes of Delta and/or certain of its Affiliates.
“Delta DCA Call Notice” has the meaning set forth in Section 7.15.
“Delta DCA Call Period” has the meaning set forth in Section 7.15.
“Delta DCA Call Right” has the meaning set forth in Section 7.15.
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[*] |
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“[*]” has the meaning set forth in Section 10.02.
“Delta Disclosure Schedule” has the meaning set forth in the introductory paragraph of
Article VI.
“Delta Indemnified Persons” has the meaning set forth in Section 9.03.
“Delta Initial Purchase Price” has the meaning set forth in Section 3.05.
“Delta Investigation” has the meaning set forth in Section 7.04.
“Delta Lender Restriction” has the meaning set forth in Section 7.14.
“Delta Material Adverse Effect” means any state of facts, change, event, action,
omission, loss or damage that individually or in the aggregate, has resulted in or would reasonably
be expected to result in (a) a material adverse effect on the condition or the ability to operate
or use the Delta Transferred Assets, in the aggregate; except in clause (a) above, any adverse
effect arising out of, resulting from or attributable to (1) changes or conditions generally
affecting the airline industry, other than changes or conditions related to regulations and
legislation applicable to Slots, (2) general economic or political conditions or securities,
credit, financial or other capital markets conditions, in each case in the United States or any
foreign jurisdiction (including increases in the price of fuel), (3) the execution and delivery of
this Agreement or the public announcement or pendency of the Transaction or any of the other
transactions contemplated by this Agreement with respect to the impact thereof on the
relationships, contractual or otherwise, of Delta or any of its Affiliates with employees, labor
unions, customers, suppliers or partners, and including any lawsuit, action or other proceeding
with respect to the Transaction or any of the other transactions contemplated by this Agreement,
other than any impact with respect to regulations and legislation applicable to Slots, (4) any
change, in and of itself, in the market price, credit rating or trading volume of Delta’s
securities, (5) any change in GAAP (or authoritative interpretation thereof) and (6) geopolitical
conditions, the outbreak or escalation of hostilities, any acts of war, sabotage or terrorism, or
any escalation or worsening of any such acts of war, sabotage or terrorism threatened or underway
as of the date of this Agreement; or (b) an impairment in any material respect on the ability of
Delta to perform its obligations under this Agreement or any Ancillary Document to which it is or
will be a party.
“Delta Offer” has the meaning set forth in Section 7.23.
“Delta Port Authority Documents” means, collectively, the US Airways LaGuardia Leases,
the Existing GSE Facilities Permit, the US Airways LaGuardia Parking Permits and the Port Approval
Bond Documents.
“Delta Proration Payment” has the meaning set forth in Section 3.07(b)(i).
“Delta Purchase Right” has the meaning set forth in Section 7.23.
“Delta Recall Slots” has the meaning set forth in Section 7.15.
“Delta Reconciliation Notice” has the meaning set forth in Section 3.07.
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“Delta Required Consents” means those certain consents, approvals and waivers that
Delta is required to secure in connection with the transactions contemplated herein, all as set
forth on Schedule 6.04 attached hereto.
“Delta Subsequent Purchase Price” has the meaning set forth in Section 3.05.
“Delta Transferred Assets” means the DCA Slots, Delta Brazilian Route Authorities and
the GRU Slots.
“DOJ” means the United States Department of Justice.
“DOT” means the United States Department of Transportation.
“East End Terminal” means the premises, facilities, improvements and fixtures,
including the East End Terminal Leased Real Property, which are the subject of the East End
Terminal Lease.
“East End Terminal Lease” means that certain Agreement of Lease, by and between US
Airways, as successor-in-interest to Continental Airlines, Inc., for itself and as successor in
interest to Eastern Air Lines, Inc., and the Port Authority, dated as of June 2, 1989, identified
as AGA-#126, whereby the Port Authority leases the East End Terminal to US Airways, together with
all amendments, modifications, and supplements thereto, as more fully described on Schedule
1.01-E attached hereto.
“East End Terminal Leased Real Property” means the Leased Real Property that is the
subject of the East End Terminal Lease.
“Eastern Shuttle Documents” means the Contracts set forth on Schedule 1.01-O
attached hereto.
“End Date” has the meaning set forth in Section 10.01.
“Excluded Delta Assets” has the meaning set forth in Section 2.02.
“Excluded Delta Liabilities” has the meaning set forth in Section 2.04.
“Excluded Transfer” means (i) any intra-LaGuardia trade of a [*] Slot in the ordinary
course of US Airways’ business; or (ii) a bona fide pledge of a [*] Slot to one or more lenders to
secure indebtedness of US Airways (or its successor) or an Affiliate of US Airways (or its
successor) and applicable to US Airways or the foreclosure by one or more such lenders upon a [*]
Slot that is subject to any such bona fide pledge; or (iii) a US Airways Change of Control; or
(iv) Transfers between or among US Airways Parent (or its successor) or US Airways (or its
successor) or their respective Subsidiaries whether pursuant to a corporate reorganization or
otherwise; provided if such Subsidiary transferee ceases to be a Subsidiary of US Airways (or
successor) or US Airways Parent (or successor), then US Airways Parent shall cause the [*] Slots to
be transferred back to US Airways Parent (or successor thereto), US Airways (or its successor) or
their respective Subsidiaries immediately prior to such Subsidiary transferee ceasing to be a
Subsidiary; provided further that, at the time of any such Transfer, US Airways Parent (or its
successor) holds, directly or indirectly, 100% of the Capital Stock of US Airways (or its
successor) or the Subsidiary, as applicable; or (v) the arrangement existing on the date of this
Agreement (or uninterrupted renewals thereof) [*].
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“Excluded US Airways Assets” has the meaning set forth in Section 3.02.
“Excluded US Airways Liabilities” has the meaning set forth in Section 3.04.
“Exercise Notice” has the meaning set forth in Section 7.23.
“Existing GSE Facilities” means the premises, facilities, improvements and fixtures,
including the Existing GSE Facilities Real Property, which are the subject of the Existing GSE
Facilities Permit.
“Existing GSE Facilities Permit” means that certain Space Permit, US Airways, as
successor-in-interest to USAir, Inc., as successor-in-interest to Continental Airlines, Inc., for
itself and as successor-in-interest to Eastern Air Lines, Inc., identified as AGA-804 (formerly
known as AGA-141), whereby the Port Authority grants permission to US Airways to use and occupy the
Existing GSE Facilities, together with all amendments, modifications, and supplements thereto, as
more fully described on Schedule 1.01-F attached hereto.
“Existing GSE Facilities Real Property” means the real property that is the subject of
the Existing GSE Facilities Permit, including any improvements, structures, buildings, fixtures,
and mechanical and utility systems related to such Existing GSE Facilities Permit.
“Existing US Airways Documents” means collectively, the US Airways LaGuardia Leases,
the Existing GSE Facilities Permit, the US Airways LaGuardia Parking Permits and the Port Approval
Bond Documents.
“FAA” means the Federal Aviation Administration.
“FAA/DOT Order” has the meaning set forth in Section 10.01.
“Fair Market Value” means, with respect to the [*] Slots, the Delta Recall Slots, the
US Airways Recall Slots or the [*] Slots, the price that could be obtained for such asset by a
seller in an arm’s-length transaction between an informed and willing seller under no compulsion to
sell and an informed and willing buyer, and taking into account all available information including
without limitation recent sales of similar Slots.
“GAAP” means U.S. generally accepted accounting principles.
“Governmental Approval” has the meaning set forth in Section 5.04.
“Governmental Authority” means any federal, state, local or foreign governmental,
legislative, judicial, arbitral, administrative or regulatory authority, agency, airport authority,
commission, body, court, association or entity, including without limitation the Port Authority.
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“GRU” means Sao Paulo Guarulhos International Airport.
“GRU Slot Transfer” has the meaning set forth in Section 7.24.
“GRU Slots” means the authorization granted by the National Civil Aviation Agency of
the Federative Republic of Brazil to Delta in accordance with applicable Law to use the airport
infrastructure at GRU for the purpose of landing or take-off of one (1) daily arrival and one (1)
daily departure to and from GRU during both IATA winter and summer season, which authorizations
shall be at the time periods designated by Delta in its sole discretion within the following time
periods: 0815 — 0910 or 1050 — 1140 (Arrival) and 2235 — 2325 or 0025 — 0055 (Departure) for the
winter season and 0640 — 0720 or 0815 — 0950 (Arrival) and 2045 —2130, or 2225 — 2300
(Departure) for the summer season, provided that such time periods are in local times and will vary
by one hour during Daylight Savings Time.
“HSR Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended.
“IATA” means the International Air Transport Association.
“IATA Season” has the meaning set forth in Section 7.03.
“Indemnification Claim Notice” has the meaning set forth in Section 9.04.
“Indemnified Party” has the meaning set forth in Section 9.04.
“Indemnifying Party” has the meaning set forth in Section 9.04.
“Independent Accountant” means a nationally recognized accounting firm, mutually
acceptable to Delta and US Airways.
“Individual Threshold” has the meaning set forth in Section 9.02.
“Initial Closing” has the meaning set forth in Section 4.01.
“Initial Closing Date” has the meaning set forth in Section 4.01.
“Initial Transaction” means the purchase and sale of the DCA Initial Slots and the US
Airways Initial Transferred Assets.
“XX Xxxxxx Credit Agreement” means the Credit and Guaranty Agreement among Delta Air
Lines, Inc., as borrower, the direct and indirect domestic subsidiaries of Delta party thereto,
JPMorgan Chase Bank, N.A., as administrative agent for the several banks and other financial
institutions party thereto (the “Lenders”), the Lenders and the other agents and arrangers
party thereto, together with the applicable Collateral Documents (as defined therein), each dated
as of April 20, 2011, as each such agreement may be amended, modified, supplemented or replaced
from time to time.
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“Knowledge” of any Person that is not an individual means, with respect to any matter
in question, the actual knowledge of any of such Person’s executive officers having primary
responsibility for such matter, after due inquiry with individuals at the director level or above
directly or indirectly reporting to such officer.
“
LaGuardia” means LaGuardia Airport located in the Borough of Queens,
New York City,
New York.
“[*]” has the meaning set forth in Section 10.02.
“LaGuardia Initial Slot Lease” means that certain Slot Lease, dated as of the Initial
Closing Date, by and between US Airways and Delta substantially in the form attached hereto as
Exhibit J-1.
“LaGuardia Initial Slots” means the two hundred twelve (212) Slots at LaGuardia to be
transferred from US Airways to Delta at the Initial Closing pursuant to the terms and conditions of
this Agreement, as more fully described on Exhibit K attached hereto.
“LaGuardia Slots” means the LaGuardia Initial Slots and the LaGuardia Subsequent
Slots.
“LaGuardia Subsequent Slot Lease” means that certain Slot Lease, dated as of the
Subsequent Closing Date, by and between US Airways and Delta substantially in the form attached
hereto as Exhibit J-2.
“LaGuardia Subsequent Slots” means the fifty-three (53) Slots at LaGuardia to be
transferred from US Airways to Delta at the Subsequent Closing pursuant to the terms and conditions
of this Agreement, as more fully described on Exhibit K attached hereto.
“Large Certificated Air Carrier” means United Air Lines, Inc., American Airlines, Inc.
or Continental Airlines, Inc.
“Law” means any federal, state, local or foreign law, statute or ordinance, or any
rule, regulation, judgment, order, writ, injunction, ruling, decree or agency requirement or policy
of any Governmental Authority, or any provisions or interpretations of the foregoing, including
general principles of common and civil law and equity, binding on or affecting the Person referred
to in the context in which such word is used.
“Leased Real Property” means the real property that is the subject of the US Airways
LaGuardia Leases, including any leasehold improvements, structures, buildings, fixtures, and
mechanical and utility systems related to such US Airways LaGuardia Leases.
“Legal Expenses” means reasonable fees, costs and expenses incurred by any Person
indemnified under this Agreement and its counsel in investigating, preparing for, defending against
or providing evidence, producing documents or taking other action with respect to any threatened or
asserted claim entitled to indemnification hereunder. Without limitation of the foregoing, Legal
Expenses includes all such fees, costs and expenses incurred
by any Person indemnified under the Agreement and its counsel in enforcing its rights under
Section 9.02 or Section 9.03 of this Agreement, as applicable.
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“Legal Restraints” has the meaning set forth in Section 8.01.
“[*]” has the meaning set forth in Section 10.02.
“Liabilities” means any and all debts, liabilities, commitments and obligations of any
kind, whether fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated,
accrued or not accrued, asserted or not asserted, known or unknown, determined, determinable or
otherwise, whenever or however arising (including, whether arising out of any contract or tort
based on negligence or strict liability).
“Liens” means any lien, mortgage, pledge, assignment for security, security interest,
charge, hypothecation, lease or encumbrance of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any lease in the nature thereof, any easement,
right of way or other encumbrance on title to real property and any agreement to give any security
interest).
“Losses” mean demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs and expenses, including interest, fines, penalties, fees, disbursements
and amounts paid in settlement (including Legal Expenses).
“Materials of Environmental Concern” means all substances defined as Hazardous
Substances, Oils, Pollutants or Contaminants in the National Oil and Hazardous Substances Pollution
Contingency Plan, 40 C.F.R. 300.5 or otherwise defined or regulated as “hazardous”, “toxic”, a
“contaminant”, a “pollutant” or words of similar import under any applicable Environmental Law, or
any mold that could be harmful to human health or the environment.
“MWAA” means the Metropolitan Washington Airports Authority.
“
New York Transfer Tax Returns” means all documents necessary in connection with the
payment of any Transfer Taxes to the
New York Department of Taxation and Revenue, the
New York City
Department of Finance, and any other applicable taxing authority that are due and payable in
connection with the transfer of any of the Transferred Assets or the Assumed Liabilities.
“Non-Disclosure Agreement” means that certain Non-Disclosure Agreement, dated February
27, 2009, by and between Delta and US Airways.
“Non-Terminating Party” has the meaning set forth in Section 10.01.
“Offer” has the meaning set forth in Section 7.23.
“Offer Notice” has the meaning set forth in Section 7.23.
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“Parking Permit #886” means that certain LaGuardia Airport Privilege Permit, dated as
of February 1, 1992 and identified as Permit AGA-886, by and between US Airways, as permittee, and
the Port Authority, as permittor, together with all amendments, modifications, and supplements
thereto, as more fully described on Schedule 1.01-J attached hereto.
“Parking Permit #561” means that certain LaGuardia Airport Privilege Permit, dated as
of September 4, 2000 and identified as Permit AGA-561, by and between US Airways, as permittee, and
the Port Authority, as permittor, together with all amendments, modifications, and supplements
thereto, as more fully described on Schedule 1.01-K attached hereto.
“Party” has the meaning set forth in the Recitals.
“Permits” means all franchises, grants, authorizations, licenses, permits, waivers,
exemptions, transfers, variances, exceptions, consents, certificates, approvals, clearances and
orders of any Governmental Authority which are necessary for a Party to own, lease and operate the
Transferred Assets to be transferred by such Party hereunder as such assets are now being operated.
“Permitted Liens” means the following Liens (other than any such Lien imposed pursuant
to Section 401(a)(29) or 412(n) of the Code or by the Employee Retirement Income Security Act of
1974, as amended): (a) Liens for taxes, assessments or other governmental charges or claims the
payment of which is either not yet delinquent or that are being contested in good faith by
appropriate proceedings during which collection or enforcement is stayed and which may thereafter
be paid without penalty; (b) statutory Liens of landlords and Liens of carriers, vendors,
warehousemen, repairmen, mechanics, and materialmen and other Liens imposed by Law and incurred in
the ordinary course of business for amounts either not yet delinquent or being contested in good
faith by appropriate proceedings; (c) with respect to any Party’s Leased Real Property, easements,
rights-of-way, restrictions, defects, encroachments or irregularities in title and other similar
charges or encumbrances not interfering in any material respect with the value, use or utility of
such Party’s Leased Real Property as such real property is currently operated; (d) Liens created by
or on behalf of the fee owners of such real property or the Port Authority that are not the result
of any act or omission of such Party or related to the use of any property leased to such Party by
the Port Authority or other fee owner or the operation of such Party’s business; (e) the Contracts
or Permits affecting any Leased Real Property that have been disclosed on Schedule 1.01-R
or Schedule 1.01-S; or (f) with respect to the East End Terminal or the Bond Accounts, the
Bonds, Bond Documents, and any Liens of the Trustee, any holders of the Bonds, and/or the Port
Authority; provided, however, at the applicable Closing, “Permitted Liens” shall be
defined to exclude clause (a) and (b) for purposes of Section 3.01 and any Liability for Liens
covered by clause (a) or (b) with respect to an Excluded US Airways Liability or an Excluded Delta
Liability shall remain subject to the applicable indemnity obligations set forth in Article IX
hereof.
“Person” means any natural person, firm, corporation, partnership, company, limited
liability company, trust, joint venture, association, Governmental Authority or other entity.
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“Personal Property Security Interest” means that certain Personal Property Security
Interest, dated as of January 15, 1992, by and between US Airways, as grantor, and the Port
Authority, as the secured party.
“Phase One” has the meaning ascribed to such term in the Transition Plan;
provided however, the timing outlined therein shall be subject to revisions based
on Section 7.08(c)(ii)(1).
“Phase Two” has the meaning ascribed to such term in the Transition Plan;
provided however, the timing outlined therein shall be subject to revisions based
on Section 7.08(c)(ii)(1).
“Phase Three” has the meaning ascribed to such term in the Transition Plan;
provided however, the timing outlined therein shall be subject to revisions based
on Section 7.08(c)(ii)(1).
“
Port Approval Bond Documents” means, collectively, (a) that certain Leasehold
Mortgage, dated as of June 1, 1990, by and between Continental Airlines, Inc. and Eastern Air
Lines, Inc. and The Bank of
New York, (b) that certain Trust Administration Agreement, dated as of
June 1, 1990, by and between Continental Airlines, Inc. and Eastern Air Lines, Inc. and The Bank of
New York, and (c) any other Assumed Bond Document that the Port Authority elects to include in the
Assignment and Assumption Agreement.
“
Port Authority” means The Port Authority of
New York and New Jersey.
“Port Authority Documents” means, collectively, the Delta Port Authority Documents and
the US Airways Port Authority Documents.
“[*]” has the meaning set forth in Section 10.02.
“Purchase Price Allocation” means the purchase price allocation among the respective
Transferred Assets and Assumed Liabilities for Transfer Tax purposes attached hereto as Exhibit H.
“Ramp” means the ramp pavement surfaces and subsurfaces of a Leased Real Property.
“Reconciliation Date” has the meaning set forth in Section 3.07.
“Reconciliation Period” has the meaning set forth in Section 3.07.
“Regulatory Actions” has the meaning set forth in Section 7.08.
“Related Real Estate Documents” means with respect to any Leased Real Property, any
and all (i) surveys, maps, plats, aerial photographs, or similar documents setting forth a physical
depiction of such Leased Real Property, (ii) manuals, plans, diagrams, drawings, renderings,
summaries, or similar materials related to the engineering, mechanicals, systems, improvements, or
other property, plant, and equipment located at or on such Leased Real
Property, (iii) Phase I report, Phase II report, file review(s), environmental disclosure
documents, and/or related or similar report(s) with respect to such Leased Real Property, and (iv)
similar documents, materials, or other items, in each case to the extent the same is in the
possession or control of the Party with a leasehold interest in such Leased Real Property.
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“Rents” means any and all rent, tax charges, escalation, additional rent, insurance,
utilities, common area maintenance charges, or other amounts required to be paid pursuant to the US
Airways LaGuardia Leases or any Permit or Contract.
“Representatives” means the directors, officers, employees, advisers, agents,
appraisers, contractors, attorneys, consultants, accountants, investment bankers or other
representatives of any Party.
“Requested Slot Times” means departure or arrival times within the one-half hour
periods set forth on Schedule 1.01-U attached hereto, or such other periods as the Parties
shall mutually agree.
“Right of First Refusal” has the meaning set forth in Section 10.02.
“[*]” has the meaning set forth in Section 7.23.
“[*]” has the meaning set forth in Section 7.23.
“[*]” has the meaning set forth in Section 7.23.
“ROFR Election Notice” has the meaning set forth in Section 10.02.
“Roof” means the roof membrane, flashing, windows and seals of a Leased Real Property.
“Second Transition Date” has the meaning ascribed to such term in the Transition Plan.
“Shuttle Terminal” means the premises, facilities and fixtures, including the Shuttle
Terminal Leased Real Property, which are the subject of the Shuttle Terminal Lease.
“Shuttle Terminal Lease” means that certain Agreement of Lease, by and between US
Airways, as successor-in-interest to Shuttle, Inc., as successor-in-interest to Xxxxx Shuttle Inc.,
as successor-in-interest to Eastern Air Lines, Inc., and the Port Authority, dated as of March 17,
1977, identified as AGA-#751, whereby the Port Authority leases the Shuttle Terminal to US Airways,
together with all amendments, modifications, and supplements thereto, as more fully described on
Schedule 1.01-Q attached hereto.
“Shuttle Terminal Leased Real Property” means the Leased Real Property that is the
subject of the Shuttle Terminal Lease.
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“Slot Trade” means a single Delta takeoff or landing Slot being traded for a single US
Airways takeoff or landing Slot. Each Slot will allow for up to seven (7) operations per week.
“
Slot” means (i) “slot” as defined in 14 CFR § 93.213(a)(2), as that section may be
amended or re-codified from time to time, or (ii) “operating authorization” for one landing or
takeoff at LaGuardia during a specific time period, subject to a scheduling order issued by the FAA
at LaGuardia, as defined in the Final Order, Operating Limitations at
New York LaGuardia Airport,
Docket No. FAA 2006-25755 issued December 13, 2006, published in the Federal Register at 71 Fed.
Reg. 77854 (Dec. 27, 2006), as such order may be amended or re-codified from time to time, and in
any subsequent scheduling order issued by the FAA, as such order may be amended or re-codified from
time to time, or (iii) authorization granted by the FAA, DOT or other Governmental Authority to
conduct one landing or takeoff during a specific time period at LaGuardia or DCA, or (iv) slot
exemption pursuant to 49 U.S.C. §§ 41716 and 41718, as such statute may be amended or re-codified
from time to time, including but not limited to slot exemptions at LaGuardia and DCA now held or
hereafter acquired.
“Specified Sections” means Sections 5.01 and 6.01 (in each case, first sentence only)
(Organization; Standing and Power), 5.02 and 6.02 (Authority, Execution and Delivery;
Enforceability), 5.08 and 6.08 (in each case, last sentence only) (Title to Assets) and 5.16 and
6.16 (Taxes).
“Subsequent Closing” has the meaning set forth in Section 4.01.
“Subsequent Closing Date” has the meaning set forth in Section 4.01.
“Subsequent Transaction” means the purchase and sale of the DCA Subsequent Slots and
the LaGuardia Subsequent Slots.
“Subsidiary” of any Person means any corporation, association, partnership, joint
venture, limited liability company or other business entity of which more than 40% of the total
Voting Power thereof or the Capital Stock thereof is at the time owned or controlled, directly or
indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries of such Person, or (3)
one or more Subsidiaries of such Person.
“Tax Benefit” has the meaning set forth in Section 9.07.
“Tax Return” means all returns, declarations, reports, election estimates, and
information statements and returns required or permitted to be filed with a Governmental Authority
relating to Taxes, including, but not limited to, original returns and filings, amended returns,
claims for refunds, information returns, ruling requests, administrative or judicial filings,
accounting method change requests, responses to revenue agents’ reports (federal, state, foreign,
municipal or local) and settlement documents, and any schedules attached to any of the foregoing.
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“Taxes” means: (a) all taxes (whether federal, state, county or local), fees,
levies, customs duties, assessments or charges of any kind whatsoever, including gross income, net
income, gross receipts, profits, windfall profits, sales, use, occupation, value-added, ad valorem,
transfer, license, franchise, withholding, payroll, employment, excise, estimated, stamp,
premium, capital stock, production, net worth, alternative or add-on minimum, environmental,
business and occupation, disability, severance, or real or personal property taxes or liabilities
for unclaimed property, in each case imposed by any Governmental Authority together with any
interest, penalties, or additions to tax imposed with respect thereto; and (b) any obligations
under any tax sharing, tax allocation, or tax indemnity agreements or arrangements with respect to
any Taxes described in clause (a) above.
“Terminating Party” has the meaning set forth in Section 10.01.
“Termination Fee” has the meaning set forth in Section 10.02.
“Third Party” means any Person other than US Airways Indemnified Persons or Delta
Indemnified Persons, as applicable.
“Third Party Claim” has the meaning set forth in Section 9.04.
“Third Party Indemnification Claim Notice” has the meaning set forth in Section 9.04.
“Transaction” means the purchase and sale of the Delta Transferred Assets and the
purchase and sale of the US Airways Transferred Assets.
“Transfer” has the meaning set forth in Section 7.23.
“Transfer Date” has the meaning set forth in Section 7.03.
“Transfer Taxes” means, collectively, all excise, sales, stamp, use, value added,
award, transfer (including real property transfer or gains), documentary, commercial activity, or
any other similar taxes, if any (and any interest, additions, or penalties imposed with respect to
such taxes), that are payable, imposed, assessed, or determined to be due or arise as a result of
the transactions contemplated by this Agreement.
“Transferred Assets” means the assets of either Party to be transferred pursuant to
the terms hereof.
“Transition Plan” means the Transition Plan attached hereto as Exhibit F.
“US Airways” has the meaning set forth in the Recitals.
“[*] Slots” has the meaning set forth in Section 7.03.
“[*] Transfer” has the meaning set forth in Section 7.03.
“US Airways Bond Escrow Funds” has the meaning set forth in Section 7.18.
“US Airways Brazil Transfer” has the meaning set forth in Section 7.24.
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“US Airways Brazilian Route Authorities” means the seven (7) weekly U.S.-Brazil
frequencies allocated to US Airways by DOT Final Order 2009-4-6.
“US Airways Bylaws” means the Amended and Restated Bylaws of US Airways, Inc., as
amended.
“US Airways Cap Amount” has the meaning set forth in Section 9.03. .
“US Airways Change of Control” means:
(i) a merger, reorganization, consolidation, business combination, recapitalization or similar
transaction involving US Airways or US Airways Parent as a result of which the stockholders of US
Airways (or successor) or US Airways Parent (or successor), respectively, immediately prior to such
transaction, in the aggregate, cease to have Beneficial Ownership of, directly and indirectly,
immediately following such transaction, more than [*] of the Capital Stock or Voting Power of the
surviving Person;
(ii) the sale, transfer or other disposition of all or substantially all of the assets of US
Airways (or its successor) or US Airways Parent (or its successor) directly or indirectly to a
Person other than US Airways Parent or any Affiliate thereof, whether in a single transaction or a
series of related transactions; or
(iii) the direct or indirect acquisition by a Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder
as in effect on the date hereof) other than US Airways Parent or any Affiliate thereof of the
Capital Stock or Voting Power of US Airways (or successor) or US Airways Parent (or successor) as a
result of which the stockholders of US Airways (or successor) or US Airways Parent (or successor),
respectively, immediately prior to such transaction, in the aggregate, cease to have Beneficial
Ownership of, directly and indirectly, immediately following such transaction, more than [*] of the
Capital Stock or Voting Power of US Airways (or successor) or US Airways Parent (or successor),
respectively.
“US Airways Charter” means the Amended and Restated Certificate of Incorporation of US
Airways, as amended.
“US Airways Disclosure Schedule” has the meaning set forth in the introductory
paragraph of Article V.
“US Airways Environmental Claim” has the meaning set forth in Section 5.15.
“US Airways Environmental Laws” has the meaning set forth in Section 5.15.
“US Airways Indemnified Persons” has the meaning set forth in Section 9.02.
“US Airways Initial Purchase Price” has the meaning set forth in Section 2.05.
“US Airways Initial Transferred Assets” has the meaning set forth in Section 3.01.
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“US Airways LaGuardia Call Notice” has the meaning set forth in Section 7.14.
“US Airways LaGuardia Call Period” has the meaning set forth in Section 7.14.
“US Airways LaGuardia Call Right” has the meaning set forth in Section 7.14.
“US Airways LaGuardia Contracts” means, collectively, the Contracts set forth on
Schedule 1.01-R attached hereto and related to the US Airways LaGuardia Properties,
including contracts entered into after the date hereof in accordance with Section 7.01 and
excluding contracts terminated after the date hereof in accordance with Section 7.01.
“US Airways LaGuardia Facilities License” means that certain License Agreement
(Terminal C), dated as of the Initial Closing Date, by and between US Airways and Delta,
substantially in the form attached hereto as Exhibit V.
“US Airways LaGuardia Facilities Sublease” means that certain Sublease Agreement,
dated as of the Initial Closing Date, by and between US Airways and Delta, substantially in the
form attached hereto as Exhibit X.
“US Airways LaGuardia GSE Permit” means that certain Permit dated as of the Initial
Closing Date, by and between US Airways and Delta, substantially in the form attached hereto as
Exhibit Y.
“US Airways LaGuardia Leased Real Property” shall mean, collectively, East End
Terminal Leased Real Property and the Shuttle Terminal Leased Real Property.
“US Airways LaGuardia Leases” means the East End Terminal Lease and the Shuttle
Terminal Lease.
“US Airways LaGuardia Parking Permits” means Parking Permit #886 and Parking Permit
#561.
“US Airways LaGuardia Permits” means, collectively, the Permits related to operations
of US Airways at the US Airways LaGuardia Leased Real Property, as set forth on Schedule
1.01-S attached hereto.
“US Airways LaGuardia Properties” means the East End Terminal, Shuttle Terminal, the
Existing GSE Facilities, the property covered by the US Airways LaGuardia Parking Permits, the US
Airways LaGuardia Tangible Personal Property, and any other property of US Airways related to any
of the foregoing that is a US Airways Transferred Asset.
“US Airways LaGuardia Properties Taxes and Assessments” shall have the meaning set
forth in Section 3.07.
“US Airways LaGuardia Receivables” shall have meaning set forth in Section 3.07.
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“US Airways LaGuardia Shuttle Slots” means, as of the Business Day preceding (x) the
date of execution by all parties thereto of a definitive agreement for the Transfer by US Airways
of either or both of the assets described in clause (i) and/or (ii) below or (y) any other date of
determination hereunder, (provided that, if such Business Day is a day in which there is a FAA Slot
operation waiver or slot holiday in effect, such day instead shall be the first Business Day
preceding such date in which no waiver or slot holiday is in effect), (i) all but not less than all
of the Slots at LaGuardia held by US Airways and used by US Airways for scheduled service on any
day of the week (as indicated by US Airways’ published schedules in effect on such date) between
LaGuardia and Boston Xxxxx International Airport (BOS) and/or (ii) all but not less than all of the
Slots at LaGuardia held by US Airways and used by US Airways for scheduled service on any day of
the week (as indicated by US Airways’ published schedules in effect on such date) between LaGuardia
and Xxxxxx Xxxxxx Washington National Airport (DCA); provided, however, in each
such case, such Slots shall be no more than 16 Slot pairs in any one day Monday through Sunday and
shall be allocated such that there is (A) no more than 1 arrival in any 30 minute slot window and
no more than 2 arrivals in any hour slot window and (B) no more than 1 departure in any 30 minute
slot window and no more than 2 departures in any hour slot window.
“US Airways LaGuardia Tangible Personal Property” means the items set forth on
Schedule 1.01-T attached hereto.
“US Airways Material Adverse Effect” means any state of facts, change, event, action,
omission, loss or damage that individually or in the aggregate, has resulted in or would reasonably
be expected to result in (a) a material adverse effect on (i) the condition or the ability to
operate or use the US Airways Transferred Assets, in the aggregate or (ii) the amount of Liability
associated with the Assumed US Airways Liabilities, in the aggregate; except in (i) or (ii) above,
any adverse effect arising out of, resulting from or attributable to (1) changes or conditions
generally affecting the airline industry, other than changes or conditions related to regulations
and legislation applicable to Slots, (2) general economic or political conditions or securities,
credit, financial or other capital markets conditions, in each case in the United States or any
foreign jurisdiction (including increases in the price of fuel), (3) the execution and delivery of
this Agreement or the public announcement or pendency of the Transaction or any of the other
transactions contemplated by this Agreement, with respect to the impact thereof on the
relationships, contractual or otherwise, of US Airways or any of its Affiliates with employees,
labor unions, customers, suppliers or partners, and including any lawsuit, action or other
proceeding with respect to the Transaction or any of the other transactions contemplated by this
Agreement, other than any impact with respect to regulations and legislation applicable to Slots,
(4) any change, in and of itself, in the market price, credit rating or trading volume of US
Airways’ securities, (5) any change in GAAP (or authoritative interpretation thereof) and (6)
geopolitical conditions, the outbreak or escalation of hostilities, any acts of war, sabotage or
terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism threatened
or underway as of the date of this Agreement; or (b) an impairment in any material respect on the
ability of US Airways to perform its obligations under this Agreement or any Ancillary Document to
which it is or will be a party.
“US Airways Parent” has the meaning set forth in the Recitals.
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“US Airways Port Authority Documents” means, collectively, the US Airways LaGuardia
Facilities Sublease, the US Airways LaGuardia Facilities License and the US Airways LaGuardia GSE
Permit.
“US Airways Proportionate Share” has the meaning set forth in Section 7.18.
“US Airways Proration Payment” has the meaning set forth in Section 3.07(b)(i).
“US Airways Prorations” has the meaning set forth in Section 3.07.
“US Airways Recall Slots” has the meaning set forth in Section 7.14.
“US Airways Reconciliation Notice” has the meaning set forth in Section 3.07.
“US Airways Required Consents” means those certain consents, approvals and waivers
that US Airways is required to secure in connection with the transactions contemplated herein, all
as set forth on Schedule 5.04 attached hereto.
“US Airways Retained Bond Obligations” shall have the meaning set forth in Section
3.04.
“US Airways Subsequent Purchase Price” has the meaning set forth in Section 2.05.
“US Airways Terminal C/D Space” has the meaning set forth in Section 7.23.
“[*]” has the meaning set forth in Section 10.01.
“[*]” has the meaning set forth in Section 10.01.
“US Airways Transferred Assets” means the US Airways Initial Transferred Assets, the
LaGuardia Subsequent Slots and the US Airways Brazilian Route Authorities.
“Voting Power” means, as of the date of determination, the voting power in the general
election of directors, managers or trustees, as applicable.
Section 1.02 Interpretation. When a reference is made in this Agreement to an Article or
Section, such reference shall be to an Article or Section of this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any
capitalized term used in any Exhibit but not otherwise defined therein shall have the meaning
assigned to such term in this Agreement. Whenever the words “include”, “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.
The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any particular provision
of this Agreement. The term “or” is not exclusive. The word “extent” in the phrase “to the
extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not
mean simply “if”. The definitions
contained in this Agreement are applicable to the singular as well as the plural forms of such
terms. Any Law defined or referred to herein means such Law as from time to time amended, modified
or supplemented, unless otherwise specifically indicated. References to a person are also to its
permitted successors and assigns. Unless otherwise specifically indicated, all references to
“dollars” and “$” will be deemed references to the lawful money of the United States of America.
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ARTICLE II
PURCHASE AND SALE OF THE DCA SLOTS
Section 2.01 Purchase and Sale of the DCA Slots.
(a) On the terms and subject to the conditions set forth in this Agreement, at the Initial
Closing, Delta shall sell, convey, assign, transfer and deliver to US Airways and/or its
Affiliates, and US Airways shall purchase, assume, acquire and accept transfer and assignment of,
the DCA Initial Slots, free and clear of all Liens.
(b) On the terms and subject to the conditions set forth in this Agreement, at the Subsequent
Closing, Delta shall sell, convey, assign, transfer and deliver to US Airways and/or its
Affiliates, and US Airways shall purchase, assume, acquire and accept transfer and assignment of,
the DCA Subsequent Slots (and together with the DCA Initial Slots, the “DCA Slots”), free
and clear of all Liens.
Section 2.02 Excluded Delta Assets. Notwithstanding anything herein to the contrary, from
and after the applicable Closing, Delta shall retain all of its existing right, title and interest
in and to, and Delta shall exclude from the sale, conveyance, assignment or transfer to US Airways
hereunder, and the Delta Transferred Assets transferred at such Closing shall not include, Delta’s
right, title, interest to, the following assets (collectively, the “Excluded Delta
Assets”):
(a) all rights of Delta under this Agreement, any Ancillary Documents to which Delta is a
party, and any claims in respect thereof;
(b) Tax refunds for any period prior to the applicable Closing Date with respect to any Delta
Transferred Assets transferred at such Closing and related rights and claims; and
(c) any insurance claims with respect to any event, claim or loss with respect to any Delta
Transferred Assets occurring prior to consummation of the applicable Closing.
Section 2.03 Reserved.
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Section 2.04 Excluded Delta Liabilities. US Airways shall not assume or be liable for, and
Delta shall retain, any liability, obligation or commitment of Delta (whether asserted against or
imposed upon US Airways as a successor or transferee of Delta, or
as an acquirer of the Delta Transferred Assets or otherwise as a matter of Law), of any kind or
nature, whether or not arising out of or relating to the Delta Transferred Assets, whether direct
or indirect, fixed or contingent, known or unknown, due or to become due, and whether or not an
action has been initiated with respect to such liabilities, obligations and commitments prior to,
on or after the applicable Closing Date (collectively, the “Excluded Delta Liabilities”).
Without limiting the generality of the preceding sentence, the Excluded Delta Liabilities shall
include:
(a) all Liabilities associated with any of the Delta Transferred Assets, accrued, incurred or
arising out of events, any act done or omitted, or any state of facts existing on or prior to the
applicable Closing Date, whether or not such Liabilities were known as of the date hereof or at
such Closing,
(b) all Liabilities based upon, arising under or with respect to the Excluded Delta Assets or
the ownership, operation or use of any of the businesses or assets of Delta or any of its
Affiliates, prior to the consummation of the applicable Closing;
(c) all indebtedness and other similar obligations of Delta, obligations with respect to
letters of credit and similar instruments, and other debt and all interest, penalties, fees and
other amounts payable with respect thereto;
(d) all Liabilities arising out of or relating to any employees or former employees of Delta
or any of its Affiliates;
(e) all Liabilities, direct or indirect, fixed or contingent, for Taxes including Liabilities
of Delta or any member of any affiliated group or any combined or consolidated group for federal,
state or other tax purpose of which Delta is or has been a member, whenever incurred;
(f) except as provided in Section 7.10, any Liability for expenses incurred by Delta in
connection with the sale of the Delta Transferred Assets pursuant to this Agreement or other
transactions contemplated hereby;
(g) Liabilities in respect of all litigation matters, arbitration proceedings, and all
claims, actions, suits, proceedings or investigations pending or threatened against Delta or any
of its Affiliates relating to the Delta Transferred Assets or to any event occurring on or prior
to the applicable Closing Date; and
(h) Liabilities arising by operation of law under any common law or statutory doctrine
(including successor liability or de facto merger) and any other obligation or liability
arising out of or relating to events or conditions occurring at or prior to the consummation of
the applicable Closing.
Section 2.05 US Airways Purchase Price.
(a) On the terms and subject to the conditions set forth herein, in reliance on the
representations, warranties, covenants and agreements contained herein and in consideration of the
sale, conveyance, assignment, transfer and delivery of the DCA Initial Slots and Delta’s other
obligations set forth herein, at the Initial Closing, US Airways shall pay
to Delta an amount in cash equal to $[*] (the “US Airways Initial Purchase Price”).
The cash portion of the US Airways Initial Purchase Price shall be made by wire transfer of
immediately available funds in accordance with the written payment instructions furnished by Delta
at least one Business Day prior to the Initial Closing.
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(b) On the terms and subject to the conditions set forth herein, in reliance on the
representations, warranties, covenants and agreements contained herein and in consideration of the
sale, conveyance, assignment, transfer and delivery of the DCA Subsequent Slots and Delta’s other
obligations set forth herein, at the Subsequent Closing, US Airways shall pay to Delta an amount
in cash equal to $[*] (the “US Airways Subsequent Purchase Price”). The cash portion of
the US Airways Subsequent Purchase Price shall be made by wire transfer of immediately available
funds in accordance with the written payment instructions furnished by Delta at least one Business
Day prior to the Subsequent Closing.
ARTICLE III
PURCHASE AND SALE OF THE US AIRWAYS TRANSFERRED ASSETS
Section 3.01 Purchase and Sale of the US Airways Transferred Assets.
(a) On the terms and subject to the conditions set forth in this Agreement, at the Initial
Closing, US Airways shall sell, convey, assign, transfer and deliver to Delta and/or its
Affiliates, and Delta shall purchase, assume, acquire and accept transfer and assignment of, the
following rights, interests, assets and property, real and personal, tangible and intangible, free
and clear of all Liens other than Permitted Liens (the “US Airways Initial Transferred
Assets”):
(i) the LaGuardia Initial Slots;
(ii) the US Airways LaGuardia Tangible Personal Property;
(iii) the US Airways LaGuardia Contracts;
(iv) the US Airways LaGuardia Parking Permits;
(v) the US Airways LaGuardia Permits;
(vi) the East End Terminal Lease;
(vii) the Shuttle Terminal Lease;
(viii) the Existing GSE Facilities Permit;
(ix) any right, title and interest of US Airways in the Bond Accounts (subject
to the rights of US Airways as set forth in Section 7.18); and
(x) security deposits referenced in Section 3.07(b)(ii)(A).
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(b) On the terms and subject to the conditions set forth in this Agreement, at the Subsequent
Closing, US Airways shall sell, convey, assign, transfer and deliver to Delta and/or its
Affiliates, and Delta shall purchase, assume, acquire and accept transfer and assignment of, the
LaGuardia Subsequent Slots, free and clear of all Liens.
Section 3.02 Excluded US Airways Assets. Notwithstanding anything herein to the contrary,
from and after the applicable Closing, US Airways shall retain all of its existing right, title and
interest in and to, and US Airways shall exclude from the sale, conveyance, assignment or transfer
to Delta hereunder, and the US Airways Transferred Assets transferred at such Closing shall not
include, US Airways’ right, title, interest to, the following assets (collectively, the
“Excluded US Airways Assets”):
(a) all rights of US Airways under this Agreement, any Ancillary Documents to which US
Airways is a party, and any claims in respect thereof;
(b) subject to the provisions of Section 7.18 below, all receivables, credits and other
claims accruing under the US Airways LaGuardia Leases, the US Airways LaGuardia Contracts and the
US Airways LaGuardia Permits prior to consummation of the Initial Closing;
(c) Tax refunds for any period prior to the applicable Closing Date with respect to any US
Airways Transferred Asset transferred at such Closing and related rights and claims;
(d) any insurance claims with respect to any event, claim or loss with respect to any US
Airways Transferred Assets occurring prior to consummation of the applicable Closing subject to
any obligations of US Airways to replace or restore damage or destruction to the US Airways
LaGuardia Properties pursuant to Section 7.01(c); and
(e) security deposits referenced in Section 3.07(b)(ii)(B).
Section 3.03
Assumed US Airways Liabilities. On the terms and subject to the conditions
set forth in this Agreement, at the Initial Closing, Delta shall assume only the following
liabilities and obligations of US Airways (collectively the “
Assumed US Airways
Liabilities”) and no other liabilities or obligations:
(a) the obligations and liabilities of US Airways under the US Airways LaGuardia Leases, the
Existing GSE Facilities Permit, the US Airways LaGuardia Contracts, the US Airways LaGuardia
Permits, and the US Airways LaGuardia Parking Permits arising exclusively from, and accruing
exclusively with respect to, the period after the consummation of the Initial Closing; and
(b) the obligations and liabilities of US Airways under the Assumed Bond Documents arising
exclusively from, and accruing exclusively with respect to, the period after the consummation of
the Initial Closing other than the US Airways Retained Bond Obligations.
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Section 3.04
Excluded US Airways Liabilities. Except as expressly provided in Section
3.03, the Assumed US Airways Liabilities will not include, Delta shall not assume or be liable for,
and US Airways shall retain any other liability, obligation or commitment of US Airways (or which
may be asserted against or imposed upon Delta as a successor or transferee of US Airways or as an
acquirer of the US Airways Transferred Assets or otherwise as a matter of Law) of any kind or
nature, whether or not arising out of or relating to the US Airways Transferred Assets, whether
direct or indirect, fixed or contingent, known or unknown, due or to become due, and whether or not
an action has been initiated with respect to such liabilities, obligations and commitments prior
to, on or after the applicable Closing Date (collectively, the “
Excluded US Airways
Liabilities”). Without limiting the generality of the preceding sentence, the Excluded US
Airways Liabilities shall include:
(a) all Liabilities associated with any of the US Airways Transferred Assets, accrued,
incurred or arising out of events, any act done or omitted, or any state of facts existing on or
prior to the applicable Closing Date, whether or not such Liabilities were known as of the date
hereof or at such Closing,
(b) all Liabilities based upon, arising under or with respect to the Excluded US Airways
Assets or the ownership, operation or use of any of the businesses or assets of US Airways or any
of its Affiliates, prior to the consummation of the applicable Closing;
(c) any Liability based upon, arising under or with respect to the US Airways LaGuardia
Leases, any US Airways LaGuardia Contracts, any US Airways LaGuardia Permits or any Assumed Bond
Documents that (x) subject to Section 3.06, was not capable of being assigned to Delta as of the
Initial Closing until such time as any such US Airways LaGuardia Contract or US Airways LaGuardia
Permit has effectively been assigned, or the benefits thereof made available, to Delta, (y) is
required by the terms thereof to be discharged on or prior to the consummation of the Initial
Closing, or (z) relates to or arises out of a breach or default by US Airways prior to the
consummation of the Initial Closing (including any event occurring at or prior to the consummation
of the Initial Closing that with the lapse of time or the giving of notice, or both, would become
a breach or default) under the US Airways LaGuardia Leases, any US Airways LaGuardia Contracts or
any US Airways LaGuardia Permits;
(d) notwithstanding anything to the contrary in the Assignment and Assumption Agreement with
respect to the Port Authority Documents, (w) any Liability with respect to the Bond Obligations to
the extent accruing with respect to the period prior to the Initial Closing, (x) any Liability
with respect to the Bond Obligations arising out of, whether accruing with respect to the period
prior to or after the Initial Closing, a Bankruptcy Event involving US Airways or any of its
successors or assigns, (y) any Liability arising out of any failure by US Airways to pay any taxes
or other amounts, the failure of which results in a lien on the facilities leased pursuant to the
East End Terminal Lease that is senior in priority to the liens created in connection with the
Bond Obligations, or (z) any Liability related to the Eastern Shuttle Documents (the “US
Airways Retained Bond Obligations”);
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(e) all indebtedness and other similar obligations of US Airways, obligations with respect to
letters of credit and similar instruments, and other debt and all interest, penalties, fees and
other amounts payable with respect thereto;
(f) all Liabilities arising under Environmental Laws and relating to the US Airways
Transferred Assets prior to the Initial Closing Date (or after the Initial Closing Date during the
term of the US Airways LaGuardia Facilities License [*]), including without limitation, any fines,
penalties, required capital expenditures or other costs incurred after such date to the extent
arising out of or related to violations of Environmental Law or the presence of Materials of
Environmental Concern, or associated with any condition, or based on any fact or circumstance that
occurred or existed on or prior to, and including, the Initial Closing Date (or after the Initial
Closing Date during the term of the US Airways LaGuardia Facilities License [*]), whether or not
such Liabilities were known on the date hereof or at such date;
(g) all Liabilities arising out of or relating to any employees or former employees of US
Airways or any of its Affiliates;
(h) all Liabilities, direct or indirect, fixed or contingent, for Taxes including Liabilities
of US Airways or any member of any affiliated group or any combined or consolidated group for
federal, state or other tax purpose of which US Airways is or has been a member, whenever
incurred;
(i) except as provided in Section 7.10, any Liability for expenses incurred by US Airways in
connection with the sale of the US Airways Transferred Assets pursuant to this Agreement or other
transactions contemplated hereby;
(j) Liabilities in respect of all litigation matters, arbitration proceedings, and all
claims, actions, suits, proceedings or investigations pending or threatened against US Airways or
any of its Affiliates relating to the US Airways Transferred Assets or to any event occurring on
or prior to the applicable Closing Date; and
(k) Liabilities arising by operation of law under any common law or statutory doctrine
(including successor liability or de facto merger) and any other obligation or liability arising
out of or relating to events or conditions occurring at or prior to the consummation of the
applicable Closing.
(a) On the terms and subject to the conditions set forth herein, in reliance on the
representations, warranties, covenants and agreements contained herein and in consideration of the
sale, conveyance, assignment, transfer and delivery of the US Airways Initial Transferred Assets
and US Airways’ other obligations set forth herein, at the Initial Closing, in addition to the
assumption of the Assumed US Airways Liabilities, Delta shall pay to US Airways an amount in cash
equal to $[*] (the “Delta Initial Purchase Price”). The cash portion of the Delta Initial
Purchase Price shall be made by wire transfer of immediately available funds in accordance with
the written payment instructions furnished by US Airways at least one Business Day prior to the
Initial Closing.
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(b) On the terms and subject to the conditions set forth herein, in reliance on the
representations, warranties, covenants and agreements contained herein and in consideration of the
sale, conveyance, assignment, transfer and delivery of the LaGuardia Subsequent Slots and US
Airways’ other obligations set forth herein, at the Subsequent Closing, Delta shall pay to US
Airways an amount in cash equal to $[*] (the “Delta Subsequent Purchase Price”). The cash
portion of the Delta Subsequent Purchase Price shall be made by wire transfer of immediately
available funds in accordance with the written payment instructions furnished by US Airways at
least one Business Day prior to the Subsequent Closing.
Section 3.06
Consent of Third Parties. Notwithstanding anything in this Agreement to the
contrary, this Agreement will not constitute an agreement to assign any US Airways LaGuardia
Contract or US Airways LaGuardia Permit set forth on
Schedule 3.06 or any claim or right or
any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without
the consent of a Third Party, would constitute a breach or other contravention thereof or in any
way adversely affect the rights of Delta thereunder after the Initial Closing. US Airways will use
its reasonable best efforts to obtain the consent of any such Third Party for the assignment to
Delta of any such US Airways LaGuardia Contract or US Airways LaGuardia Permit. If such consent is
not obtained prior to the consummation of the Initial Closing, or if an attempted assignment
thereof would be ineffective or would adversely affect the rights of US Airways thereunder so that
Delta would not in fact receive all such rights, US Airways shall use its reasonable best efforts
to provide Delta the benefits thereunder from and after the Initial Closing Date and Delta shall
pay and perform the corresponding Assumed US Airways Liabilities thereunder to the extent Delta
shall have received the benefits thereof. US Airways shall pay promptly to Delta when received all
monies received by US Airways after the Initial Closing Date under any such US Airways LaGuardia
Contracts or US Airways LaGuardia Permits or any claim or right or any benefit arising thereunder
to the extent that Delta would be entitled thereto pursuant hereto. The provisions of this Section
3.06 shall in no way limit the conditions precedent set forth in Article VIII or the obligation of
US Airways to seek consents prior to the Initial Closing, and the waiver by Delta of any such
conditions precedent at the Initial Closing shall in no way limit the obligations of US Airways
contained in this Section 3.06. If and when any such consents shall be obtained, US Airways shall
promptly assign its rights under the applicable US Airways LaGuardia Contract or US Airways
LaGuardia Permit to Delta without payment of consideration and Delta shall, without payment of any
consideration therefor, assume from and after the date of such assignment the obligations
thereunder (but only to the extent that such obligations would have constituted Assumed US Airways
Liabilities if such assignment had occurred on the Initial Closing Date).
(a) Prorations shall be made with respect to the US Airways Initial Transferred Assets
pursuant to this Section 3.07, with US Airways to bear that portion of such charges and expenses
to the extent attributable to the US Airways Initial Transferred Assets accruing prior to the
Initial Closing Date and to the extent the same are Excluded US Airways Liabilities, and Delta to
bear that portion of such charges and expenses to the extent attributable to the US Airways
Initial Transferred Assets accruing on and after the Initial Closing Date and to the extent the
same are Assumed US Airways Liabilities. The following shall be
apportioned with respect to the US Airways Initial Transferred Assets as of 12:01 a.m. on the
Initial Closing Date as if Delta was vested with title to such US Airways Initial Transferred
Assets during the entire Initial Closing Date (the “US Airways Prorations”):
(i) Rents, fees, charges, and other amounts payable under the US Airways
LaGuardia Leases, the US Airways LaGuardia Contracts and the US Airways LaGuardia
Permits;
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(ii) taxes and assessments (including, without limitation, personal property
taxes on the US Airways Tangible Personal Property) levied against the US Airways
Initial Transferred Assets (the “US Airways LaGuardia Properties Taxes and
Assessments”);
(iii) gas, electricity and other utility charges to be apportioned at the
Initial Closing on the basis of the most recent meter reading occurring prior to the
Initial Closing (dated not more than fifteen (15) days prior to the Initial Closing
Date) or, if unmetered, on the basis of a current xxxx for each such utility;
(iv) all Rents, fees, charges, and other amounts payable to US Airways, if any,
pursuant to each of the US Airways Assumed Contracts (the “US Airways LaGuardia
Receivables”); and
(v) any maintenance and operating expenses pertaining to the US Airways Initial
Transferred Assets, or any other items pertaining to the US Airways Initial
Transferred Assets which are customarily prorated between a purchaser and a seller
of similar assets in New York City.
(b) Notwithstanding anything to the contrary in the foregoing subsection, at the Initial
Closing:
(i) US Airways shall pay to Delta an amount in cash equal to the sum that is
owed to Delta as of the Initial Closing Date pursuant to this Section 3.07 (the
“US Airways Proration Payment”); provided, however, that to
the extent the US Airways Proration Payment is negative (such amount, the “Delta
Proration Payment”), Delta shall make such payment to US Airways in accordance
with this Section 3.07(b)(i). US Airways shall pay the US Airways Proration Payment
by wire transfer of immediately available funds in accordance with the written
payment instructions furnished by Delta to US Airways at least one Business Day
prior to the Initial Closing. Delta shall pay the Delta Proration Payment, if any,
by wire transfer of immediately available funds in accordance with the written
payment instructions furnished by US Airways to Delta at least one Business Day
prior to the Initial Closing;
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(ii) (A) US Airways shall deliver to Delta the amount of any security deposits
actually held, or required to be held by US Airways pursuant to any of the US
Airways LaGuardia Contracts (to the extent such security
deposits have not been applied against delinquent rents or otherwise as
provided in the applicable US Airways LaGuardia Contract) as part of the US Airways
Proration Payment and (B) subject to the provisions of Section 7.18 below, Delta
shall deliver to US Airways the amount of all cash deposits and cash, and shall
replace all other deposits, in each case that have been posted by or on behalf of US
Airways with respect to the US Airways Initial Transferred Assets; and
(iii) In the event current bills are not available or amounts subject to
proration are not otherwise immediately ascertainable at the Initial Closing
(including, without limitation, any US Airways Properties Taxes and Assessments), US
Airways shall (A) estimate such amount based on the most recently ascertainable xxxx
for purposes of calculating the US Airways Proration Payment and (B) reconcile such
estimate upon receipt of the final and actual xxxx in accordance with subsection (c)
below.
(c) Notwithstanding anything to the contrary in this Section 3.07, within ten (10) days of
each of the dates that is one-hundred eighty-five (185) days, three hundred sixty-five (365) days,
and seven hundred thirty (730) days after the Initial Closing Date (each, a “Reconciliation
Date”), the Parties shall undertake the following with respect to the period between the
Initial Closing Date and the first Reconciliation Date thereafter and each Reconciliation Date and
the next Reconciliation Date thereafter, as applicable (each, a “Reconciliation Period”):
(i) With respect to any amounts included in the US Airways Prorations for which
current bills were not available or amounts subject to proration were not otherwise
immediately ascertainable as of the Initial Closing Date and were therefore
estimated for purposes of determining the US Airways Proration Payment at the
Initial Closing, and which amounts have not already been reconciled and finalized on
a prior Reconciliation Date, Delta shall provide a copy of the final xxxx or the
final determination setting out the actual amounts due and reprorate such actual
amounts between the Parties as of the Initial Closing Date;
(ii) With respect to any unpaid and delinquent US Airways LaGuardia Receivables
collected after the Initial Closing Date and received during an applicable
Reconciliation Period, (a) if US Airways collects any such unpaid or delinquent US
Airways LaGuardia Receivables which Delta is entitled to hereunder, US Airways
shall, within fifteen (15) days after the receipt thereof, deliver to Delta any such
US Airways Receivables and include such amounts in the reconciliation calculations
for the applicable Reconciliation Period as an amount paid to Delta, and (b) if
Delta collects any unpaid or delinquent US Airways LaGuardia Receivables which US
Airways is entitled to hereunder, Delta shall, within fifteen (15) days after the
receipt thereof, deliver to US Airways and such US Airways Receivables and include
such amounts in the reconciliation calculations for the applicable Reconciliation
Period as an amount paid to US Airways. US Airways and Delta agree that all US
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Airways LaGuardia Receivables received by US Airways or Delta after the Initial
Closing Date shall
be applied first to current US Airways LaGuardia Receivables and then to
delinquent US Airways LaGuardia Receivables, if any, in inverse order of maturity.
In the event that there shall be any US Airways LaGuardia Receivables which,
although relating to a period prior to the Initial Closing, do not become due and
payable until after the Initial Closing (such as year-end common area expense
reimbursements, insurance, operating expenses, taxes, and the like), then any such
US Airways LaGuardia Receivables received by Delta subsequent to the Initial Closing
shall, to the extent applicable to a period extending through the Closing Date, be
prorated between the Parties as of the Initial Closing Date and Delta shall include
such amounts in the reconciliation calculation as an amount payable to US Airways;
(iii) With respect to each Reconciliation Period, Delta shall promptly remit to
US Airways any amount that is owed to US Airways pursuant to the reconciliations for
such Reconciliation Period; provided, however, that if it is
determined that US Airways owes any amount to Delta pursuant to such reconciliation,
Delta shall provide notice of such amount to US Airways, together with reasonable
back-up information and calculations evidencing such amounts, and US Airways shall,
upon receipt of such notice, promptly remit such amount to Delta; and
(iv) Notwithstanding anything to the contrary contained herein, with respect to
any amounts to be prorated hereunder that are customarily calculated based upon
total enplaned passengers, number of flights or other activity-based measure, the
Parties shall prorate such amounts based upon their respective enplanements, number
of flights or other activity-based measure, during the period each Party had
possession of the applicable facilities, and each Party shall share all necessary
information with the other Party, upon reasonable request, for the purposes of
making such calculations.
(d) With respect to any unpaid and delinquent US Airways Receivables collected after the
final Reconciliation Date, (i) if US Airways collects any unpaid or delinquent US Airways
Receivables which Delta is entitled to hereunder relating to the Initial Closing Date and any
period thereafter, US Airways shall promptly pay such amounts to Delta after receipt, and (ii) if
Delta collects any unpaid or delinquent US Airways Receivables which US Airways is entitled to
hereunder relating to the period prior to the Initial Closing Date, Delta shall promptly pay such
amounts to US Airways after receipt.
(e) To the extent US Airways in good faith disagrees with the amount of any demand for, or
notice of, proration payments described in this Section 3.07, within sixty (60) days following
receipt of such demand or notice, US Airways shall provide written notice to Delta of such
disagreement (a “US Airways Reconciliation Notice”), which US Airways Reconciliation
Notice shall contain specific items of disagreement and reasons therefor, and US Airways shall
thereafter have the right to audit Delta’s books and records related to such prorations (within
the time periods set forth in this subsection and upon reasonable prior notice). In connection
with any resolution of a dispute, Delta shall use its reasonable best efforts to (i) provide to US
Airways all information, books and
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records reasonably requested by US Airways in connection with the preparation of such prorations and
(ii) make available to US Airways and its representatives the appropriate personnel of Delta
involved in the preparation of the prorations or who have information relating to the amounts
prorated, during normal business hours and without unreasonable disruption of such personnel’s
normal business activities. The failure of US Airways to object by written notice within such
sixty (60) day period will constitute US Airways’ acceptance of the amount of each demand for, or
notice of, the proration payments required to be made pursuant to this Section 3.07 as of such
Reconciliation Date; provided that, notwithstanding anything in this Agreement to the contrary,
the Parties expressly agree that (A) nothing contained herein shall be construed as a transfer or
assignment to Delta by US Airways of US Airways’ right, title or interest in and to any asset,
payment or amount to the extent such asset, payment or amount does not constitute a US Airways
Transferred Asset, and (B) nothing contained herein shall be construed as an assumption by Delta
of any Liability to the extent such Liability is not an Assumed US Airways Liability. If US
Airways elects to conduct an audit, such audit shall be diligently pursued and completed within
forty-five (45) days of delivery of the applicable US Airways Reconciliation Notice and receipt of
all information reasonably requested by Delta to conduct such audit in accordance with the terms
hereof. If such audit shows a shortfall in the proration payments due and payable to US Airways,
subject to dispute as set forth below, Delta shall pay to US Airways, within ten (10) days after
written demand therefore, the amount of such shortfall. If Delta disputes such audit findings or
US Airways and Delta are unable to resolve any disagreement within 20 Business Days of the
completion of the audit, the items in dispute shall be resolved by the Independent Accountant.
Promptly, but not later than thirty (30) days after its acceptance of appointment hereunder, the
Independent Accountant will determine (based solely upon representations of Delta and US Airways
and copies of documentation produced by Delta or US Airways pursuant to this Section 3.07, and not
otherwise by independent review) only those matters in dispute, and will render a written report
as to the disputed matters and the resulting amount of such disputed proration payments, which
report shall be conclusive and binding upon the Parties. The fees, expenses and costs of the
Independent Accountant shall be borne by the Party against which a decision shall be rendered.
(f) To the extent Delta in good faith disagrees with the amount of any demand for, or notice
of, proration payments described in this Section 3.07, within sixty (60) days following receipt of
such demand or notice, Delta shall provide written notice to US Airways of such disagreement (a
“Delta Reconciliation Notice”), which Delta Reconciliation Notice shall contain specific
items of disagreement and reasons therefor, and Delta shall thereafter have the right to audit US
Airways’ books and records related to such prorations (within the time periods set forth in this
subsection and upon reasonable prior notice). In connection with any resolution of a dispute, US
Airways shall use its reasonable best efforts to (i) provide to Delta all information, books and
records reasonably requested by Delta in connection with the preparation of such prorations and
(ii) make available to Delta and its representatives the appropriate personnel of US Airways
involved in the preparation of the prorations or who have information relating to the amounts
prorated, during normal business hours and without unreasonable disruption of such personnel’s
normal business activities. The failure of Delta to object by written notice within such sixty
(60) day period will constitute Delta’s acceptance of the amount of each demand for, or notice of,
the proration payments required to be made pursuant to this Section 3.07 as of such Reconciliation
Date; provided
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that, notwithstanding anything in this Agreement to the contrary, the Parties
expressly agree that (A) nothing contained herein shall be construed as a transfer or assignment to US Airways by
Delta of Delta’s right, title or interest in and to any asset, payment or amount to the extent
such asset, payment or amount does not constitute a Delta Transferred Asset, and (B) nothing
contained herein shall be construed as an assumption by US Airways of any Liability. If Delta
elects to conduct an audit, such audit shall be diligently pursued and completed within forty-five
(45) days of delivery of the applicable Delta Reconciliation Notice and receipt of all information
reasonably requested by Delta to conduct such audit in accordance with the terms hereof. If such
audit shows a shortfall in the proration payments due and payable to Delta, subject to dispute as
set forth below, US Airways shall pay to Delta, within ten (10) days after written demand
therefore, the amount of such shortfall. If US Airways disputes such audit findings or Delta and
US Airways are unable to resolve any disagreement within twenty (20) Business Days of the
completion of the audit, the items in dispute shall be resolved by the Independent Accountant.
Promptly, but not later than thirty (30) days after its acceptance of appointment hereunder, the
Independent Accountant will determine (based solely upon representations of Delta and US Airways
and copies of documentation produced by Delta or US Airways pursuant to this Section 3.07, and not
otherwise by independent review) only those matters in dispute, and will render a written report
as to the disputed matters and the resulting amount of such disputed proration payments, which
report shall be conclusive and binding upon the Parties. The fees, expenses and costs of the
Independent Accountant shall be borne by the Party against which a decision shall be rendered.
(g) All prorations made under this Section 3.07 shall be based on the number of days US
Airways owns or leases the applicable US Airways LaGuardia Property in the month or year, as
applicable, in which the Initial Closing occurs.
(h) The provisions of this Section 3.07 shall survive the Initial Closing until the final
Reconciliation Date (except with respect to Section 3.07(d), which shall survive indefinitely and
Section 3.07(e) and (f), which shall survive to the resolution of any objections made with respect
to the final Reconciliation Period), subject to the resolution (or deemed resolution) of any
objection or dispute with respect to any reconciliations in accordance with the terms of
subsection (e) and (f) of this Section 3.07.
ARTICLE IV
Section 4.01 Closings.
(a) The consummation of the purchase, assignment and transfer of all right, title and
interest in and to the DCA Initial Slots and the US Airways Initial Transferred Assets
contemplated hereby (the “Initial Closing”), shall take place on the fifth Business Day
after all the conditions set forth in Section 8.01, Section 8.02 and Section 8.03 have been
satisfied or waived (other than those conditions that by their nature are to be satisfied at the
Initial Closing, but subject to the satisfaction or waiver of those conditions at the Initial
Closing), or on such other date as US Airways and Delta may agree in writing. The Initial Closing
shall be held no later than 10:00 a.m., Chicago time, at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, 000 X. Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, 00000, or such other
time or place as US Airways and Delta may agree in writing (the date on which the Initial
Closing takes place being the “Initial Closing Date”).
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(b) After the Initial Closing Date the consummation of the purchase, assignment and transfer
of all right, title and interest in and to the DCA Subsequent Slots and the LaGuardia Subsequent
Slots contemplated hereby (the “Subsequent Closing,” and each of the Initial Closing and
the Subsequent Closing, a “Closing”), shall take place on the earlier of (i) the tenth
Business Day of the next calendar year following the Initial Closing Date, (ii) the fifteenth
(15th) Business Day after written notice by US Airways to Delta that US Airways has
determined to close in compliance with the terms and conditions of the Citi Loan Agreement or
(iii) on such other date as US Airways and Delta may agree in writing, in each case subject to the
satisfaction or waiver of all the conditions set forth in Section 8.04 (other than those
conditions that by their nature are to be satisfied at the Subsequent Closing, but subject to the
satisfaction or waiver of those conditions at the Subsequent Closing). The Subsequent Closing
shall be held no later than 10:00 a.m., Chicago time, at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, 000 X. Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, 00000, or such other time or place as
US Airways and Delta may agree in writing (the date on which the Subsequent Closing takes place
being the “Subsequent Closing Date,” and each of the Initial Closing Date and the
Subsequent Closing Date, a “Closing Date”).
Section 4.02 Deliveries by Delta. Delta shall deliver to US Airways the items described in
this Section 4.02:
(a) Deliveries by Delta with respect to the sale of the DCA Initial Slots:
(i) a copy of each of the Delta Required Consents (duly executed by Delta, if
applicable);
(ii) instruments of conveyance or consents to assignment for the transfer of
the DCA Initial Slots, in form and substance reasonably satisfactory to US Airways,
duly executed by Delta;
(iii) release of security interests in any DCA Initial Slots by Delta’s lenders
and applicable UCC termination statements, in each case, in form and substance
reasonably satisfactory to US Airways;
(iv) the certification referred to in Section 6.16(a); and
(v) all other agreements, documents, certificates, instruments or writings
contemplated or described herein or as reasonably requested by US Airways in
connection herewith.
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(b) Deliveries by Delta with respect to the sale of the DCA Subsequent Slots:
(i) instruments of conveyance or consents to assignment for the transfer of the
DCA Subsequent Slots, in form and substance reasonably satisfactory to US Airways,
duly executed by Delta; and
(ii) all other agreements, documents, certificates, instruments or writings
contemplated or described herein or as reasonably requested by US Airways in
connection herewith.
(c) Deliveries by Delta with respect to the purchase of the US Airways Initial Transferred
Assets:
(i) a duly executed counterpart of each of the Assignment and Assumption
Agreements assigning from US Airways to Delta the US Airways LaGuardia Leases, the
Existing GSE Facilities Permit, the US Airways LaGuardia Parking Permits and the
Port Approval Bond Documents;
(ii) a duly executed counterpart of the Assignment and Assumption Agreement(s)
with respect to any Assumed Bond Documents that are not Port Approval Bond
Documents;
(iii) a duly executed counterpart of the Assignment and Assumption Agreement
assigning from US Airways to Delta each of the US Airways LaGuardia Contracts and
the US Airways LaGuardia Permits;
(iv) a duly executed notice and acknowledgement to be delivered pursuant to
Section 7.18; and
(v) all other agreements, documents, certificates, instruments or writings
contemplated or described herein or as reasonably requested by US Airways in
connection herewith.
(d) Deliveries by Delta with respect to post-Initial Closing agreements:
(i) a duly executed counterpart of the US Airways LaGuardia Facilities License;
(ii) a duly executed counterpart of the US Airways LaGuardia Facilities Permit;
(iii) a duly executed counterpart of the US Airways LaGuardia GSE Sublease;
(iv) a duly executed counterpart of the DCA Initial Slot Lease; and
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(v) a duly executed counterpart of the LaGuardia Initial Slot Lease.
(e) Deliveries by Delta with respect to post-Subsequent Closing agreements:
(i) a duly executed counterpart of the DCA Subsequent Slot Lease; and
(ii) a duly executed counterpart of the LaGuardia Subsequent Slot Lease.
Section 4.03 Deliveries by US Airways. US Airways shall deliver to Delta the items
described in this Section 4.03:
(a) Deliveries by US Airways with respect to the sale of the US Airways Initial Transferred
Assets:
(i) a duly executed counterpart of each of the Assignment and Assumption
Agreements assigning from US Airways to Delta the US Airways LaGuardia Leases, the
Existing GSE Facilities Permit, the US Airways LaGuardia Parking Permits and the
Port Approval Bond Documents;
(ii) a duly executed counterpart of the Assignment and Assumption Agreement(s)
with respect to any Assumed Bond Documents that are not Port Approval Bond
Documents;
(iii) a duly executed counterpart of the Assignment and Assumption Agreement
assigning from Delta to US Airways each of the US Airways LaGuardia Contracts and
the US Airways LaGuardia Permits;
(iv) a duly executed Xxxx of Sale by US Airways to Delta with respect to the US
Airways LaGuardia Tangible Personal Property;
(v) the Related Real Estate Documents of US Airways applicable to the US
Airways Initial Transferred Assets;
(vi) a copy of each of the US Airways Required Consents (duly executed by US
Airways, if applicable);
(vii) instruments of conveyance or consents to assignment for the transfer of
the LaGuardia Initial Slots, in form and substance reasonably satisfactory to Delta,
duly executed by US Airways;
(viii) release of security interest in any US Airways Initial Transferred
Assets by US Airways’ lenders and applicable UCC-3 termination statements, in each
case, in form and substance reasonably satisfactory to Delta;
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(ix) the certification referred to in Section 5.16(a);
(x) a duly executed notice and acknowledgement to be delivered pursuant to
Section 7.18; and
(xi) all other agreements, documents, certificates, instruments or writings
contemplated or described herein or as reasonably requested by Delta in connection
herewith.
(b) Deliveries by US Airways with respect to the sale of the LaGuardia Subsequent Slots:
(i) instruments of conveyance or consents to assignment for the transfer of the
LaGuardia Subsequent Slots, in form and substance reasonably satisfactory to Delta,
duly executed by US Airways; and
(ii) all other agreements, documents, certificates, instruments or writings
contemplated or described herein or as reasonably requested by Delta in connection
herewith.
(c) Deliveries by US Airways with respect to the purchase of the DCA Initial Slots:
(i) all agreements, documents, certificates, instruments or writings
contemplated or described herein or as reasonably requested by US Airways in
connection herewith.
(d) Deliveries by US Airways with respect to post-Initial Closing agreements:
(i) a duly executed counterpart of the US Airways LaGuardia Facilities License;
(ii) a duly executed counterpart of the US Airways LaGuardia Facilities
Sublease;
(iii) a duly executed counterpart of the US Airways LaGuardia GSE Permit;
(iv) a duly executed counterpart of the DCA Initial Slot Lease; and
(v) a duly executed counterpart of the LaGuardia Initial Slot Lease.
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(e) Deliveries by US Airways with respect to post-Subsequent Closing agreements:
(i) a duly executed counterpart of the DCA Subsequent Slot Lease; and
(ii) a duly executed counterpart of the LaGuardia Subsequent Slot Lease.
Section 4.04 Contemporaneous Effectiveness. All acts and deliveries prescribed by this
Article IV with respect to the Initial Closing and the payment of the US Airways Initial Purchase
Price and the Delta Initial Purchase Price, regardless of chronological sequence, will be deemed to
occur contemporaneously and simultaneously on the occurrence of the last act or delivery, and none
of such acts or deliveries will be effective until the last of the same has occurred. All acts and
deliveries prescribed by this Article IV with respect to the Subsequent Closing and the payment of
the US Airways Subsequent Purchase Price and the Delta Subsequent Purchase Price, regardless of
chronological sequence, will be deemed to occur contemporaneously and simultaneously on the
occurrence of the last act or delivery, and none of such acts or deliveries will be effective until
the last of the same has occurred.
ARTICLE V
US Airways represents and warrants to Delta that the statements contained in this Article V
are true and correct as of the date hereof and as of the applicable Closing Date (except to the
extent expressly relating to a specific date, in which event it shall be true and correct as of the
such date), except as set forth in the disclosure schedule delivered by US Airways to Delta at or
before the execution and delivery by US Airways of this Agreement (the “US Airways Disclosure
Schedule”), which US Airways Disclosure Schedule refers to the specific section of the
representations and warranties that is qualified by such disclosure and qualifies such other
section or subsection of the US Airways Disclosure Schedule to which the relevance of such item is
readily apparent on the face of such disclosure.
Section 5.01 Organization, Standing and Power. US Airways is a corporation duly organized
and validly existing under the laws of its jurisdiction of organization and has the requisite
corporate or other organizational power and authority to own, lease or otherwise hold the US
Airways Transferred Assets and operate such assets as presently operated. US Airways is qualified
or licensed to do business as a foreign corporation and is in good standing in each jurisdiction
listed on Schedule 5.01, which are the only jurisdictions where US Airways’ ownership or
use of the US Airways Transferred Assets requires it to be so qualified or licensed, with such
exceptions as do not and would not reasonably be expected, individually or in the aggregate, to
have a US Airways Material Adverse Effect.
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Section 5.02 Authority; Execution and Delivery; Enforceability. US Airways has all
requisite corporate power and authority to execute and deliver this Agreement and all agreements
and instruments that are contemplated hereby (the “Ancillary Documents”) to
be executed by US Airways, to perform its obligations hereunder and thereunder and to consummate
the transactions contemplated hereby or thereby. The execution, delivery and performance by US
Airways of this Agreement and each of the Ancillary Documents to be executed by US Airways has been
duly authorized by all necessary action on the part of US Airways, and no other corporate action on
the part of US Airways or its shareholders is necessary to authorize the execution, delivery and
performance of this Agreement or any of the Ancillary Documents to be executed by US Airways or the
consummation by US Airways of the transactions contemplated hereby or thereby. This Agreement has
been, and the Ancillary Documents to be executed by US Airways will, at the applicable Closing,
have been, duly executed and delivered by US Airways, and, assuming the due authorization,
execution and delivery by the other Parties, constitutes (or will constitute at the applicable
Closing, as applicable) the legal, valid and binding obligations of US Airways enforceable against
it in accordance with their respective terms.
Section 5.03 No Conflicts. Except as set forth on Schedule 5.03, the execution and
delivery by US Airways of this Agreement and the Ancillary Documents to be executed by US Airways
do not, and the performance by it of its obligations hereunder and thereunder and the consummation
by US Airways of the transactions contemplated hereby and thereby do not and will not conflict
with, or result in any violation of or default (with or without notice or lapse of time, or both)
under, require any consent, waiver or approval under, give rise to a right of termination,
cancellation or acceleration of any right or obligation or loss of a benefit under, or result in
the creation of any Lien upon any of the US Airways Transferred Assets or give any others any
interests or rights therein, under any provision of (i) the US Airways Charter or the US Airways
Bylaws, (ii) any Contract or Permit to which US Airways is a party or by which any of the US
Airways Transferred Assets is bound or (iii) subject to making the government filings and obtaining
the consents and approvals referred to in Section 5.04, any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to US Airways or any of the US Airways Transferred Assets
or by which US Airways or any of the US Airways Transferred Assets is or may be bound other than in
the case of clauses (ii) and (iii) above, any such conflicts, violations, defaults, rights, losses,
Liens, restrictions or failure to obtain consents, waivers or approvals which do not, and would not
be reasonably expected, individually or in the aggregate, to have a US Airways Material Adverse
Effect.
Section 5.04 Consents. Except as set forth on Schedule 5.04, the execution,
delivery and performance by US Airways of this Agreement and the Ancillary Documents to be executed
by US Airways do not, and the consummation by US Airways of the transactions contemplated hereby
and thereby do not and will not, require any consent, approval, license, permit, order,
qualification, waiver or authorization of, or registration with or other action by, or any filing
with or notification to, any Governmental Authority (each, a “Governmental Approval”) to be
obtained or made by US Airways or its Affiliates (the “US Airways Required Consents”).
Section 5.05 Litigation. Except as set forth on Schedule 5.05(a), there is no
Action pending or, to US Airways’ Knowledge, threatened (a) as of the date of this Agreement,
seeking to restrain or prohibit the consummation of the transactions contemplated by this Agreement
or the Ancillary Documents, (b) as of the date of this Agreement, seeking to prohibit or limit the
ownership or operation by US Airways of the US Airways Transferred
Assets or any portion thereof, or (c) which otherwise has or reasonably would be expected,
individually or in the aggregate, to have a US Airways Material Adverse Effect. Except for
applicable DOT and FAA statutes and 14 CFR § 93 and as set forth on Schedule 5.05(b), there
are no judgments, orders or decrees of any arbitrator or any other Governmental Authority binding
on US Airways that relate to the US Airways Transferred Assets or otherwise affect the US Airways
Transferred Assets.
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Section 5.06 Compliance with Applicable Laws. Except as set forth on Schedule
5.06, the use and operation by US Airways of the US Airways Transferred Assets and the conduct
of its business as it relates to the US Airways Transferred Assets comply with all Laws, including
without limitation all applicable operating certificates and authorities, and all other rules,
regulations, directives and policies (which for the purposes of this Section 5.06 would not include
any terms and conditions of any US Airways LaGuardia Leases, the Existing GSE Facilities Permit, or
US Airways LaGuardia Parking Permits) of the FAA, DOT, the MWAA, the Port Authority and all other
Governmental Authorities having jurisdiction over the US Airways Transferred Assets except for such
non-compliance as do not and would not reasonably be expected, individually or in the aggregate, to
have a US Airways Material Adverse Effect.
Section 5.07 Undisclosed Liabilities. Except for obligations arising after the
consummation of the Initial Closing under Assumed US Airways Contracts and as set forth on
Schedule 5.07, US Airways does not have any obligations, liabilities or commitments of any
nature (whether direct or indirect, fixed or contingent, known or unknown, due or to become due,
accrued or otherwise, and whether or not determined or determinable), and to the Knowledge of US
Airways, there is no existing condition, situation or set of circumstances which would be expected
to result in such an obligation, liability or commitment that, in any such case, would constitute
an Assumed US Airways Liability.
Section 5.08
Title to Assets. Except as set forth on
Schedule 5.08, US Airways has
good and valid title to, or holds by valid and existing leases or licenses for, all of the US
Airways Transferred Assets (excluding the US Airways LaGuardia Leases, the Existing GSE Facilities
Permit and the US Airways LaGuardia Parking Permits, which are addressed in Section 5.13), free and
clear of all Liens other than Permitted Liens. Neither US Airways nor any of its Affiliates has
signed any financing statement under the UCC or any security agreement authorizing any secured
party thereunder to file any such financing statement with respect to any of the US Airways
Transferred Assets (excluding the real property assets which are addressed in Section 5.13) except
with respect to Liens that will be released at or prior to the applicable Closing. At the
applicable Closing, US Airways will convey to Delta good and valid title to all of the US Airways
Transferred Assets (excluding the US Airways LaGuardia Leases which are addressed in Section 5.13),
free and clear of all Liens other than Permitted Liens.
Section 5.09
Condition of Assets. Except as set forth on
Schedule 5.09, all
equipment included in the US Airways Transferred Assets is in operating condition (taking into
account the age of such assets), ordinary wear and tear excepted.
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Section 5.10
Assumed US Airways Contracts.
Schedule 5.10 lists each Assumed US
Airways Contract in effect on the date hereof. Each Assumed US Airways Contract (excluding for
purposes of this sentence only the US Airways LaGuardia Leases, Existing GSE Facilities Permit, and
US Airways LaGuardia Parking Permits which are addressed in Section 5.13) is a legal, valid and
binding obligation of US Airways and, to the Knowledge of US Airways, each other party to such
Assumed US Airways Contract. Each Assumed US Airways Contract is enforceable against US Airways
and, to the Knowledge of US Airways, each other party to such Assumed US Airways Contract in
accordance with its terms (subject in each case to the effect of any applicable bankruptcy,
reorganization, insolvency, moratorium, rehabilitation, liquidation, fraudulent conveyance,
preferential transfer or similar Laws now or hereafter in effect relating to or affecting
creditors’ rights and remedies generally and subject, as to enforceability, to the effect of
general equitable principles (regardless of whether enforcement is sought in a proceeding in equity
or at law)). Except as set forth on
Schedule 5.10, none of US Airways or, to the Knowledge
of US Airways, any other party to an Assumed US Airways Contract, is in breach of, or default
under, any Assumed US Airways Contract, US Airways has not waived in writing any right under any
Assumed US Airways Contract, there are no unresolved material disputes under any of the Assumed US
Airways Contracts, and, to the Knowledge of US Airways, there does not exist any event, condition
or omission, whether after notice or lapse of time or both, that would constitute a material breach
or material violation of, or material default by, US Airways or, to the Knowledge of US Airways,
any other party under, any Assumed US Airways Contract. US Airways has not given to or received
from any other Person, at any time since January 1, 2008, any written communication regarding any
actual, alleged, possible or potential violation or breach of, or default under, any Assumed US
Airways Contracts. Copies of all written, and a description of all oral, Assumed US Airways
Contracts, together with all modifications, amendments and supplements thereto, have been provided
to Delta prior to the date of this Agreement.
Section 5.11
Slots.
Schedule 5.11 sets forth a true, correct and complete list of
the LaGuardia Slots, including identification of all such LaGuardia Slots, and each LaGuardia Slot
is eligible for use by an air carrier. US Airways is in compliance in all material respects with
the requirements of the regulations and orders issued by FAA and DOT and any other Laws and
requirements with respect to such LaGuardia Slots. Other than Order 0000-00000-00, as of the date
hereof, US Airways has not received, within the last three (3) years, any notice, and has no
Knowledge, of any proposed withdrawal of, or contemplated restriction with respect to any of the
LaGuardia Slots by the FAA, the DOT or any other Governmental Authority. The LaGuardia Slots have
not been designated for the provision of essential air services in accordance with the regulations
issued under the Federal Aviation Act, were not acquired pursuant to 14 C.F.R. § 93.219 and have
not been designated for international operations, as more fully detailed in 14 C.F.R. § 93.217.
During the period two months prior to the date hereof and the applicable Closing Date, US Airways
has used or caused the use of each LaGuardia Slot in compliance with FAA’s Order, Operating
Limitations at New York LaGuardia Airport, Docket No. FAA 0000-00000-00 dated December 13, 2006,
published in the Federal Register at 71 Fed. Reg. 77854 (Dec. 27, 2006)), as such order may be
amended or re-codified from time to time, as may have been required to protect such LaGuardia
Slot’s authorization from termination or withdrawal under regulations established by any
Governmental Authority or airport authority. All reports required by the FAA or any Governmental
Authority relating to the LaGuardia Slots during the past three years have been filed in a timely
manner.
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Section 5.12
Insurance. US Airways has in place insurance policies with respect to the US
Airways LaGuardia Properties, in amounts and types that are customary in the industry for similar
assets, and all such policies are in full force and effect.
(a) Except as set forth on Schedule 5.13(a), US Airways has a legal, valid, and
binding leasehold interest in each of the US Airways LaGuardia Leases and a legal, valid and
binding interest in the Existing GSE Facilities Permit and each of the US Airways LaGuardia
Parking Permits, in each case free and clear of all Liens, except Permitted Liens.
(b) There are no pending, or to the Knowledge of US Airways, threatened, appropriation,
condemnation, eminent domain or like proceedings relating to the US Airways LaGuardia Leased Real
Property.
(c) There are no outstanding options, rights of first offer or refusal, rights of
termination, or other pre-emptive rights or purchase rights with respect to the interest of US
Airways in all or any portion of the US Airways LaGuardia Leased Real Property, except as may be
set forth in the applicable US Airways LaGuardia Lease, Existing GSE Facilities Permit, or US
Airways LaGuardia Parking Permit or in connection with the Bonds and/or any of the Bond Documents.
The Port Authority has not delivered any written or oral notice to US Airways pursuant to which
it has exercised any option to purchase, terminate, or reduce US Airways’ interest in all or any
portion of the US Airways LaGuardia Leases, Existing GSE Facilities Permit, US Airways LaGuardia
Parking Permits, and/or any portions of the US Airways LaGuardia Leased Real Property.
(d) US Airways has not received any written notice from any insurance company or board of
fire underwriters of any defects or inadequacies in or with respect to the US Airways LaGuardia
Leased Real Property or any part or component thereof that would materially and adversely affect
the insurability of such property or cause any material increase in the premiums for insurance for
such property that have not been cured or repaired.
(e) Except as set forth on Schedule 5.13(e) and for contracts entered into after the
date hereof in accordance with Section 7.01, US Airways does not lease, sublease, license or
otherwise permit the occupancy of any portion of the US Airways LaGuardia Leased Real Property to
or by any other Person and there is no Person in possession of the US Airways LaGuardia Leased
Real Property without any such permission.
(a) Schedule 5.14(a) sets forth the remaining debt service payments with respect to
the outstanding Bonds as of the date hereof, including the amount of and date on which principal
and interest payments are payable, as well as a listing of the balance as of April 30, 2011 of
each of the Bond Accounts. All right, title and interest of US Airways with respect to the Bond
Accounts is assignable in connection with the assignment of the Assumed Bond
Documents. The Eastern Shuttle Documents are no longer of any force or effect nor have any
effect on the transactions contemplated by this Agreement.
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(b) Schedule 5.14(b) sets forth a list of all of the property which is pledged to the
Port Authority as of the date hereof pursuant to the Personal Property Security Interest.
(a) Except as set forth on Schedule 5.15, the use and operation of the US Airways
Transferred Assets is and has been during the last four years in full compliance with all
applicable US Airways Environmental Laws, and consistent with Delta’s ability to own, use or
operate the US Airways Transferred Assets in substantially the same manner as the US Airways
Transferred Assets are presently owned, used or operated by US Airways. Except as set forth on
Schedule 5.15(a)-1 or has been fully resolved in writing, US Airways has not received any
written communication from any Person that alleges that US Airways is not in such full compliance,
and, to US Airways’ Knowledge, there are no circumstances (other than changes in existing, or
future requirements of, Environmental Laws) that could reasonably be expected to prevent or
interfere with such full compliance in the future. Schedule 5.15(a)-2 sets forth a true,
correct and complete list of all orders, decrees or other agreements relating to the US Airways
Transferred Assets issued pursuant to or entered into under any US Airways Environmental Law.
(b) Except as set forth on Schedule 5.15(b), there is no US Airways Environmental
Claim relating to the ownership or use of the US Airways Transferred Assets pending or to US
Airways’ Knowledge, threatened against US Airways or against any Person whose liability for such
US Airways Environmental Claim US Airways has retained or assumed either contractually or by
operation of law.
(c) Except as set forth on Schedule 5.15(c), there are no past or present actions,
activities, circumstances, conditions, events or incidents, including, without limitation, the
release, emission, discharge or disposal of any Material of Environmental Concern relating to the
ownership or use of the US Airways Transferred Assets that could be reasonably expected to give
rise to a US Airways Environmental Claim against or involving the US Airways Transferred Assets,
US Airways or any Person whose liability for such US Airways Environmental Claim US Airways has
retained or assumed either contractually or by operation of law.
(d) Without in any way limiting the generality of the foregoing, to US Airways’ Knowledge,
(i) all onsite locations where any US Airways or its Affiliates or any other occupant has stored,
disposed or arranged for the disposal of Materials of Environmental Concern from 2005 to the
Initial Closing Date relating to the US Airways Transferred Assets are identified on Schedule
5.15(d), (ii) all underground storage tanks, and the capacity and contents of such tanks,
included in the US Airways Transferred Assets (if any) are identified on Schedule 5.15(d),
(iii) except as set forth on Schedule 5.15(d), there is no damaged and friable asbestos or
lead-based paint coatings in poor condition contained in or forming part of the US Airways
LaGuardia Leased Real Property and (iv) except as set forth on Schedule 5.15(d), no
polychlorinated biphenyls (PCB’s) are used at the US Airways LaGuardia Leased Real Property
in violation of US Airways Environmental Laws.
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(e) US Airways has delivered or otherwise made available for inspection to Delta true,
complete and correct copies and results of any reports, studies, analyses, tests or monitoring
possessed or initiated by US Airways or its Affiliates pertaining to Materials of Environmental
Concern in, on, beneath or adjacent to the US Airways Transferred Assets or any other site where
the Materials of Environmental Concern generated at or by the US Airways Transferred Assets were
released or disposed of, or regarding the US Airways Transferred Assets’ compliance with
applicable US Airways Environmental Laws.
(f) For purposes of this Agreement but only as it relates to the US Airways Transferred
Assets, the following terms shall have the following meanings:
(i) “US Airways Environmental Claim” means any written notice by any
Governmental Authority or Person alleging potential liability (including, without
limitation, potential liability for investigatory costs, cleanup costs, governmental
response costs, natural resources damages, property damages, personal injuries or
penalties) (A) which has or reasonably would be expected, individually or in the
aggregate, to have a US Airways Material Adverse Effect, and (B) arising out of,
based on or resulting from (x) the presence, or release into the environment, of any
Material of Environmental Concern at any location, whether or not owned by US
Airways or (y) any violation, or alleged violation, of any US Airways Environmental
Law.
(ii) “US Airways Environmental Laws” means all Laws applicable to the
respective US Airways Transferred Assets or the Assumed US Airways Liabilities and
relating to pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, ground water, land surface or
subsurface strata), including, without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of Materials of Environmental
Concern, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Materials of Environmental
Concern.
(a) US Airways is not a foreign person subject to withholding under Section 1445 of the Code
and the regulations promulgated thereunder, and US Airways will provide certification to that
effect to Delta at the Initial Closing.
(b) There are no Actions now pending, nor, to the Knowledge of US Airways are there any
Actions or claims pending or proposed against US Airways, nor are there any pending audits,
investigations or examinations by the IRS or other Governmental Authority relating to any Taxes or
assessments, or any claims or deficiencies asserted with respect thereto, that would reasonably be
expected to result in a Lien on the US Airways Transferred Assets.
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Section 5.17
Brazilian Route Authorities.
Schedule 5.17 sets forth a true, correct
and complete list of all US Airways Brazilian Route Authorities. Except as set forth on
Schedule 5.17, no US Airways Brazilian Route Authority has been or, to US Airways’
Knowledge, is threatened to be subject to any forfeiture, expiration without renewal, termination
or other loss thereof.
Section 5.18
Brokers or Finders. US Airways has not entered into any agreement,
arrangement or understanding nor has it dealt with any Person which could result in the obligation
of US Airways or Delta to pay any finder’s fee, brokerage commission, advisory fee or similar
payment in connection with this Agreement or the transactions contemplated hereby.
ARTICLE VI
Delta represents and warrants to US Airways that the statements contained in this Article VI
are true and correct as of the date hereof and as of the applicable Closing Date (except to the
extent expressly relating to a specific date, in which event it shall be true and correct as of the
such date), except as set forth in the disclosure schedule delivered by Delta to US Airways at or
before the execution and delivery by Delta of this Agreement (the “Delta Disclosure
Schedule”), which Delta Disclosure Schedule refers to the specific section of the
representations and warranties that is qualified by such disclosure and qualifies such other
section or subsection of the Delta Disclosure Schedule to which the relevance of such item is
readily apparent on the face of such disclosure.
Section 6.01
Organization, Standing and Power. Delta is a corporation duly organized and
validly existing under the laws of its jurisdiction of organization and has the requisite corporate
or other organizational power and authority to own, lease or otherwise hold the Delta Transferred
Assets and operate such assets as presently operated. Delta is qualified or licensed to do business
as a foreign corporation and is in good standing in each jurisdiction listed on
Schedule
6.01, which are the only jurisdictions where Delta’s ownership or use of the Delta Transferred
Assets requires it to be so qualified or licensed, with such exceptions as do not and would not
reasonably be expected, individually or in the aggregate, to have a Delta Material Adverse Effect.
Section 6.02
Authority; Execution and Delivery; Enforceability. Delta has all requisite
corporate power and authority to execute and deliver this Agreement and the Ancillary Documents to
be executed by Delta, to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby or thereby. The execution, delivery and performance by Delta of
this Agreement and each of the Ancillary Documents to be executed by Delta has been duly authorized
by all necessary action on the part of Delta, and no other corporate action on the part of Delta or
its shareholders is necessary to authorize the execution, delivery and performance of this
Agreement or any of the Ancillary Documents to be executed by Delta or the consummation by Delta of
the transactions contemplated hereby or thereby. This Agreement has been, and the Ancillary
Documents to be executed by Delta will, at the applicable Closing, have been, duly executed and
delivered by Delta, and, assuming the due
authorization, execution and delivery by the other Party, constitutes (or will constitute at the
applicable Closing, as applicable) the legal, valid and binding obligations of Delta, enforceable
against it in accordance with their respective terms.
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Section 6.03
No Conflicts. Except as set forth on
Schedule 6.03, the execution and
delivery by Delta of this Agreement and the Ancillary Documents to be executed by Delta do not, and
the performance by it of its obligations hereunder and thereunder and the consummation by Delta of
the transactions contemplated hereby and thereby do not and will not conflict with, or result in
any violation of or default (with or without notice or lapse of time, or both) under, require any
consent, waiver or approval under, give rise to a right of termination, cancellation or
acceleration of any right or obligation or loss of a benefit under, or result in the creation of
any Lien upon any of the Delta Transferred Assets or give any others any interests or rights
therein, under any provision of (i) the Delta Charter or the Delta Bylaws, (ii) any Contract or
Permit to which Delta is a party or by which any of the Delta Transferred Assets is bound, or (iii)
subject to making the government filings and obtaining the consents and approvals referred to in
Section 6.04, any judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Delta or any of the Delta Transferred Assets or by which Delta or any of the Delta Transferred
Assets is or may be bound other than in the case of clauses (ii) and (iii) above, any such
conflicts, violations, defaults, rights, losses, Liens, restrictions or failure to obtain consents,
waivers or approvals which do not, and would not be reasonably expected, individually or in the
aggregate, to have a Delta Material Adverse Effect.
Section 6.04
Consents. Except as set forth on
Schedule 6.04, the execution,
delivery and performance by Delta of this Agreement and the Ancillary Documents to be executed by
Delta do not, and the consummation by Delta of the transactions contemplated hereby and thereby do
not and will not, require any Governmental Approval to be obtained or made by Delta or its
Affiliates (the “
Delta Required Consents”).
Section 6.05
Litigation. Except as set forth on
Schedule 6.05(a), there is no
Action pending or, to Delta’s Knowledge, threatened (a) as of the date of this Agreement, seeking
to restrain or prohibit the consummation of the transactions contemplated by this Agreement or the
Ancillary Documents, (b) as of the date of this Agreement, seeking to prohibit or limit the
ownership or operation by Delta of the Delta Transferred Assets or any portion thereof, or (c)
which otherwise has or reasonably would be expected, individually or in the aggregate, to have a
Delta Material Adverse Effect. Except for applicable DOT and FAA statutes and 14 CFR § 93 and as
set forth on
Schedule 6.05(b), there are no judgments, orders or decrees of any arbitrator
or any other Governmental Authority binding on Delta that relate to the Delta Transferred Assets or
otherwise affect the Delta Transferred Assets.
Section 6.06
Compliance with Applicable Laws. Except as set forth on
Schedule
6.06, the use and operation by Delta of the Delta Transferred Assets and the conduct of its
business as it relates to the Delta Transferred Assets comply with all Laws, including without
limitation all applicable operating certificates and authorities, and all other rules, regulations,
directives and policies of the FAA, DOT, the MWAA, the Port Authority and all other Governmental
Authorities having jurisdiction over the Delta Transferred Assets except for such non-compliance as
do not and would not reasonably be expected, individually or in the aggregate, to have a Delta
Material Adverse Effect.
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Section 6.07
Undisclosed Liabilities. Except as set forth on
Schedule 6.07, Delta
does not have any obligations, liabilities or commitments of any nature (whether direct or
indirect, fixed or contingent, known or unknown, due or to become due, accrued or otherwise, and
whether or not determined or determinable), and to the Knowledge of Delta, there is no existing
condition, situation or set of circumstances which would be expected to result in such an
obligation, liability or commitment that, in any such case, would not constitute an Excluded Delta
Liability.
Section 6.08
Title to Assets. Except as set forth on
Schedule 6.08, Delta has good
and valid title to, or holds by valid and existing leases or licenses for, all of the Delta
Transferred Assets, free and clear of all Liens other than clause (a) of Permitted Liens. Neither
Delta nor any of its Affiliates has signed any financing statement under the UCC or any security
agreement authorizing any secured party thereunder to file any such financing statement with
respect to any of the Delta Transferred Assets except with respect to Liens that will be released
at or prior to the applicable Closing. At the applicable Closing, Delta will convey to US Airways
good and valid title to all of the Delta Transferred Assets, free and clear of all Liens.
Section 6.11
DCA Slots.
Schedule 6.11 sets forth a true, correct and complete list
of the DCA Slots, including identification of all such DCA Slots, and each DCA Slot is designated
as an air carrier Slot. Delta is in compliance in all material respects with the requirements of
the regulations and orders issued by FAA and DOT and any other Laws and requirements with respect
to such DCA Slots. As of the date hereof, Delta has not received, within the last three (3) years,
any notice, and has no Knowledge, of any proposed withdrawal of, or contemplated restriction with
respect to any of the DCA Slots by the FAA, the DOT or any other Governmental Authority. The DCA
Slots have not been designated for the provision of essential air services in accordance with the
regulations issued under the Federal Aviation Act, were not acquired pursuant to 14 C.F.R. § 93.219
and have not been designated for international operations, as more fully detailed in 14 C.F.R. §
93.217. During the period two months prior to the date hereof and the applicable Closing Date,
Delta has used or caused the use of each DCA Slot in compliance with 14 C.F.R. § 93.227(i), as
amended from time to time, as may have been required to protect such DCA Slot’s authorization from
termination or withdrawal under regulations established by any Governmental Authority or airport
authority. All reports required by the FAA or any Governmental Authority relating to the DCA Slots
during the past three years have been filed in a timely manner.
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(a) Delta is not a foreign person subject to withholding under Section 1445 of the Code and
the regulations promulgated thereunder, and Delta will provide certification to that effect to US
Airways at the Initial Closing.
(b) There are no Actions now pending, nor, to the Knowledge of Delta, are there any Actions
or claims pending or proposed against Delta, nor are there any pending audits, investigations or
examinations by the IRS or other Governmental Authority relating to any Taxes or assessments, or
any claims or deficiencies asserted with respect thereto, that would reasonably be expected to
result in a Lien on the DCA Slots.
(a) Schedule 6.17(a) sets forth a true, correct and complete list of all Delta
Brazilian Route Authorities. Except as set forth on Schedule 6.17(a), no Delta Brazilian
Route Authority has been or, to Delta’s Knowledge, is threatened to be subject to any forfeiture,
expiration without renewal, termination or other loss thereof.
(b) Delta is in compliance in all material respects with the requirements of the Government
of the Federative Republic of Brazil and any other applicable Laws with respect to the GRU Slots.
As of the date hereof, except as set forth on Schedule 6.17(b), Delta has not received,
within the last three (3) years, any written notice, and has no Knowledge, of any proposed
withdrawal of, or contemplated restriction with respect to, the GRU Slots by any applicable
Governmental Authority including without limitation the Brazil Slot Coordinator. During the most
recent IATA scheduling season prior to the date hereof and the Initial Closing Date, Delta has
used or caused the use of each GRU Slot in compliance with the Brazil Use Provisions, as may have
been required to protect such GRU Slots’ authorization from termination or withdrawal under
applicable Law.
Section 6.18
Brokers or Finders. Delta has not entered into any agreement, arrangement or
understanding nor has it dealt with any Person which could result in the obligation of Delta or US
Airways to pay any finder’s fee, brokerage commission, advisory fee or similar payment in
connection with this Agreement or the transactions contemplated hereby.
ARTICLE VII
Section 7.01
Operation of the US Airways Transferred Assets Prior to Closing. Except for
matters set forth on
Schedule 7.01 or otherwise expressly permitted by this Agreement or
with the prior written consent of Delta (which will not be unreasonably withheld, conditioned or
delayed), during the period from the date of this Agreement and continuing until (i) the Initial
Closing with respect to the US Airways Initial Transferred Assets and (ii) the Subsequent Closing
with respect to the LaGuardia Subsequent Slots, US Airways shall:
(a) except as may be required by Law, operate the US Airways Transferred Assets in the usual,
regular and ordinary course as presently conducted and consistent with past practice;
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(b) not take or omit to take any action as a result of which any representation or warranty
of US Airways made in Article V would be rendered untrue or incorrect if such representation or
warranty were made immediately following the taking or failure to take such action (provided that
US Airways shall have the right to lease, sublease, license and/or grant use or other occupancy
rights with respect to portions of its facilities to third parties in the ordinary course of
business but only to the extent any such arrangement shall be terminated prior to the Initial
Closing Date, shall not give rise to any Assumed US Airways Liability and shall be subject to the
indemnity obligations of US Airways pursuant to Section 9.03(a)(iv));
(c) maintain all of the US Airways LaGuardia Properties in their current condition and state
of repair, ordinary wear and tear excepted and, in the event of material damage to or destruction
of all or any portion of the US Airways LaGuardia Properties prior to the Initial Closing, whether
insured or not, US Airways will promptly commence and diligently pursue the restoration or
replacement of such US Airways LaGuardia Properties to the condition existing immediately prior to
such damage or destruction, subject to (i) the terms and conditions of any US Airways LaGuardia
Lease affecting such US Airways LaGuardia Properties and the rights and obligations thereunder,
(ii) consultation with and agreement in writing of Delta relating to alternative modifications to
the facilities consistent with the terms of this Agreement and (iii) the agreement of the Parties
with respect to the US Airways maintenance projects that are the subject of Section 7.20;
(d) except for mortgages or pledges pursuant to the Citi Loan Agreement, the Bond Documents,
or any existing provisions of the US Airways LaGuardia Leases, not mortgage, pledge, sell or
dispose of any US Airways Transferred Assets (other than obsolete equipment or personal property
in the ordinary course and other than pursuant to any lease, sublease, license or use or other
occupancy agreement entered into with respect to portions of its facilities to third parties in
the ordinary course of business, but only to the extent any such agreement shall be terminated
prior to the Initial Closing Date, shall not give rise to any Assumed US Airways Liability and
shall be subject to the indemnity obligations of US Airways pursuant to Section 9.03(a)(iv)), and
not waive, release, grant, transfer or permit to lapse any rights of material value with respect
to any US Airways Transferred Assets, including without limitation any LaGuardia Slots;
(e) not enter into or agree to any amendment, modification, assignment, termination or
waiver, settle any claim or Action or waive or release any rights or claims, in each case with
respect to any US Airways Transferred Asset or Assumed US Airways Liability; provided,
however, that notwithstanding Section 7.01(b) and/or (d), US Airways shall be permitted to
enter into, subject to receipt of Delta’s prior written consent, concession agreements together
with any amendments, modifications or terminations to existing concession agreements in the
ordinary course of business consistent with past practices;
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(f) comply in all material respects with all provisions of any Assumed US Airways Contract;
(g) continue to use and operate the LaGuardia Slots and all other US Airways Transferred
Assets in the usual, regular and ordinary course as presently conducted, in a manner consistent
with prior practice, applicable agreements and in accordance with all applicable Laws, and shall
not enter into any Contract nor otherwise act, consent to any other Person to act, to restrict,
interfere with or prevent the use of such LaGuardia Slots and the other US Airways Transferred
Assets;
(h) not use the LaGuardia Slots for the provision of essential air service;
(i) promptly make all required filings with the FAA, with respect to the LaGuardia Slots;
(j) except for short-term trades or slides in the ordinary course of business that will
terminate prior to the applicable Closing, not return to the FAA or any applicable Governmental
Authority any LaGuardia Slots or trade, rent, lease, sell, encumber in any manner (other than
Permitted Liens or Liens under the Citi Loan Agreement which will be released at or prior to the
applicable Closing) or otherwise transfer any LaGuardia Slots; and
(k) authorize or enter into any agreement or otherwise make any commitment (in writing or
otherwise) to do any of the foregoing.
Section 7.02
Operation of the DCA Slots Prior to Closing. Except for matters set forth on
Schedule 7.02 or otherwise expressly permitted by this Agreement or with the prior written
consent of US Airways (which will not be unreasonably withheld, conditioned or delayed), during the
period from the date of this Agreement and continuing until (i) the Initial Closing with respect to
the DCA Initial Slots and (ii) the Subsequent Closing with respect to the DCA Subsequent Slots,
Delta shall:
(a) except as may be required by Law, operate the DCA Slots in the usual, regular and
ordinary course as presently conducted and consistent with past practice;
(b) not take or omit to take any action as a result of which any representation or warranty
of Delta made in Article VI would be rendered untrue or incorrect if such representation or
warranty were made immediately following the taking or failure to take such action;
(c) except for mortgages or pledges pursuant to the XX Xxxxxx Credit Agreement, not mortgage,
pledge, sell or dispose of any of the DCA Slots, and not waive, release, grant, transfer or permit
to lapse any rights of material value with respect to any DCA Slots;
(d) not enter into or agree to any amendment, modification, assignment, termination or
waiver, settle any claim or Action or waive or release any rights or claims, in each case with
respect to any DCA Slots;
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(e) continue to use and operate the DCA Slots in the usual, regular and ordinary course as
presently conducted, in a manner consistent with prior practice, applicable agreements and in
accordance with all applicable Laws, and shall not enter into any Contract nor otherwise act, nor
consent to any other Person to act, to restrict, interfere with or prevent the use of the DCA
Slots;
(f) not use the DCA Slots for the provision of essential air service;
(g) promptly make all required filings with the FAA with respect to the DCA Slots;
(h) except for short-term trades or slides in the ordinary course of business that will
terminate prior to the Closing, not return to the FAA or any applicable Governmental Authority any
DCA Slots or trade, rent, lease, sell, encumber in any manner (other than Permitted Liens or Liens
under the XX Xxxxxx Credit Agreement which will be released at or prior to the applicable Closing)
or otherwise transfer any DCA Slots; and
(i) authorize or enter into any agreement or otherwise make any commitment (in writing or
otherwise) to do any of the foregoing.
(a) The Parties hereto acknowledge and agree that from time to time, in connection with the
operation of their respective flight schedules at [*], it may be necessary for both Parties to
execute Slot trades with other carriers, and in particular [*] (an “IATA Season”). From
and after the Second Transition Date until the later of (x) the end of the IATA summer season in
[*], the Parties agree to cooperate in good faith in accordance with industry practice with
respect to trading Slots. In furtherance of the foregoing, except as may be prohibited by
applicable Law or if any Slots in the Requested Slot Times are withdrawn or otherwise terminated
due to regulatory action, Delta agrees that from and after the Closing until the later of (x) the
end of the IATA summer season in [*], Delta will not offer to trade Slots at [*] in the Requested
Slot Times to [*] other than any Affiliate of Delta or any Delta Connection Carrier without having
previously offered to trade such Slots in the Requested Slot Times with US Airways with respect to
each IATA Season, provided that (i) the foregoing restriction shall not apply with respect to any
IATA Season during such period unless US Airways notifies Delta in writing [*] during such period
that US Airways desires to trade such Slots in the Requested Slot Times with Delta and (ii) in the
event Delta offers and US Airways agree to trade any such Slots, unless otherwise agreed by the
Parties, Delta will trade to US Airways and US Airways will trade to Delta all but not less than
all of the Slots with the Slot times set forth on Schedule 1.01-U hereof held by each such
Party, respectively, or such other Slot times as the Parties shall mutually agree. Each Party
shall have the option in its sole discretion to provide the use of such Slots consistent with
customary industry practices and transfer of operator status only, and no additional consideration
shall be payable by either Party with respect to any such Slot trade. Each Party’s interest in
the Slots provided to it by the other Party pursuant to any such trades between US Airways and
Delta will include the right to operate, or to allow an Affiliate of the Party or any regional
carrier or codeshare partner of such Party operating
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scheduled flights under the flight designator
code of such Party or its Affiliates to operate, the applicable Slots at the specified time and for a departure or arrival only
during the applicable IATA Season and no additional rights with respect to such Slots shall be
transferred or inferred. At the end of the applicable IATA Season, the right to use and operate
such Slots will revert to the original holder of such Slots. Each of Delta and US Airways agrees
that, in connection with any Slot trade or other transaction pursuant to this Section 7.03, the
Party operating the Slots shall use such Slots in compliance with FAA’s Order, [*], as such order
may be amended or re-codified from time to time to protect such Slots’ authorization from
termination or withdrawal under regulations established by any Governmental Authority or airport
authority. Except for the third sentence above in this Section 7.03(a), neither Delta nor US
Airways shall be restricted in their ability to enter into, from time to time, with each other or
other carriers, additional Slot trades at [*].
(b) At US Airway’s option, so long as US Airways has provided prior written notice to Delta
[*] IATA summer season electing the transfers contemplated hereby to occur, effective as of the
commencement of the [*] IATA summer season (the “Transfer Date”) and subject to (i)
receipt of all consents, approvals or waivers of any Governmental Authorities including without
limitation the DOT approval required to be obtained for such transfers and (ii) the release of any
restrictions under the Bond Documents to the transfer contemplated by clause (ii) below:
(i) Subject to consummation of the [*] Transfer, Delta shall convey, assign,
transfer and deliver to US Airways and/or its Affiliates, and US Airways shall
assume, acquire and accept transfer and assignment of all but not less than all of
the Slots at [*] in the times set forth on Schedule 1.01-V (the “[*]
Slots”), free and clear of any Liens (the “[*] Transfer”). With
respect to the [*], Delta shall deliver to US Airways instruments of conveyance or
consents to assignment for the transfer of the [*] Slots, in form and substance
reasonably satisfactory to US Airways, duly executed by Delta; and
(ii) Subject to consummation of the [*] Transfer, US Airways shall convey,
assign, transfer and deliver to Delta and/or its Affiliates, and Delta shall assume,
acquire and accept transfer and assignment of all but not less than all of the Slots
at [*] in the times set forth on Schedule 1.01-W (the “[*] Slots”),
free and clear of any Liens (the “[*] Transfer”). With respect to the [*]
Transfer, US Airways shall deliver to Delta instruments of conveyance or consents to
assignment for the transfer of the [*] Slots, in form and substance reasonably
satisfactory to Delta, duly executed by US Airways.
(c) Delta agrees that it shall pay to US Airways the Fair Market Value of the [*] Slots as
agreed upon by the Parties or, in the event the Parties cannot agree, as determined by [*] (the
“[*]”), for all but not less than all of the [*] Slots and US Airways shall pay to Delta the
amount of the [*] for all but not less than all of the [*] Slots. Each Party shall (i) pay such
amounts in cash by wire transfer of immediately available funds in accordance with the written
payment instructions furnished by the other Party at least one Business Day prior to closing,
payable upon consummation of the transfers contemplated in this Section 7.03(b) and (ii) use best
efforts to effectuate the [*] Transfer and the [*] Transfer on the Transfer Date.
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(d) Each Party agrees to use best efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, and to assist and cooperate with the other Party in doing, all things
necessary, proper or advisable under applicable Laws, including the obtaining of all necessary
consents, approvals or waivers of any Governmental Authority, to effectuate the [*] Transfer and
the [*] Transfer in accordance with the terms and conditions of this Agreement.
(e) At the closing of the purchase of the [*] Slots, Delta shall make representations and
warranties relating to authorization, consents, title, use and the other representations and
warranties contained herein applicable to the LaGuardia Slots and shall execute and deliver such
other documents and instruments as US Airways may reasonably request to effectuate the transfer.
(f) At the closing of the purchase of the [*] Slots, US Airways shall make representations
and warranties relating to authorization, consents, title, use and the other representations and
warranties contained herein applicable to the LaGuardia Slots and shall execute and deliver such
other documents and instruments as US Airways may reasonably request to effectuate the transfer.
(g) If US Airways does not provide written notice in accordance with Section 7.03(b) above,
the obligations of the parties pursuant to Sections 7.03(b)-(f) shall terminate.
(a) In addition to any other covenants of access set forth in this Agreement, subject to
applicable Laws and regulations, US Airways shall use reasonable efforts to cooperate with and
provide Delta, or any of its respective Representative(s), with reasonable access to its US
Airways LaGuardia Properties upon reasonable prior notice by Delta to US Airways, during normal
business hours, solely for the purpose of collecting information and preparing and applying for
consents and permitting in anticipation of post-Initial Closing work with respect to such US
Airways LaGuardia Properties and conducting and undertaking, or causing to be conducted or
undertaken, at its sole cost and expense, non-invasive examinations, inspections, surveys, and
similar physical investigations of the engineering, mechanicals, systems, improvements, or other
property, plant, and equipment located at or on the US Airways LaGuardia Leased Real Properties,
including, without limitation, a review of any and all of the Related Real Estate Documents of US
Airways (each, a “Delta Investigation”) and will cause to be made available all documents,
records and information (and copies thereof) in its possession pertaining to the US Airways
Transferred Assets or Assumed US Airways Liabilities as Delta may reasonably request; provided
that US Airways shall have the right to have a Representative on its behalf accompany Delta and
its Representatives during any Delta Investigation and no investigation or receipt of information
by Delta pursuant to, or in connection with, the investigation contemplated by this Section 7.04
or otherwise will diminish or obviate any of the representations, warranties, covenants or
agreements of US Airways under this Agreement or the conditions to the obligations of Delta under
this Agreement; and
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(b) Delta shall, and shall cause its Representatives to use reasonable best efforts not to
interfere with the operations of US Airways at its US Airways LaGuardia Leased Real Properties at
any time while undertaking any Delta Investigation and under no circumstances undertake any action
that could reasonably be expected to violate the terms of the US Airways LaGuardia Leases,
Existing GSE Facilities Permit, US Airways LaGuardia Parking Permits or US Airways LaGuardia
Permit, in each case to the extent copies of such documents have been provided to Delta.
Section 7.07
Notification. During the period prior to the Subsequent Closing; provided,
that the provisions of this Section 7.07 shall only apply after the Initial Closing as related to
the assets to be transferred at the Subsequent Closing:
(a) US Airways shall notify Delta in writing, and Delta shall notify US Airways in writing,
of any Action commenced or, to its Knowledge, threatened against US Airways or Delta, as the case
may be, which challenges or would adversely affect the ability of either Party to perform its
obligations under this Agreement or the Ancillary Documents to which it is a party or to
consummate the transactions contemplated hereby or thereby.
(b) US Airways shall give prompt notice to Delta, and Delta shall give prompt notice to US
Airways, of (i) any representation or warranty made by it contained in this Agreement that is
qualified as to materiality becoming untrue or inaccurate in any respect or any such
representation or warranty that is not so qualified becoming untrue or inaccurate in any material
respect or (ii) the failure by it to comply with or satisfy in any material respect any covenant,
condition or agreement to be complied with or satisfied by it under this Agreement;
provided, however, that no such notification shall affect the representations,
warranties, covenants or agreements of the Parties or the conditions to the obligations of the
Parties under this Agreement.
(c) US Airways shall, within fifteen (15) days after the end of each bimonthly period prior
to the Subsequent Closing, provide Delta with copies of all reports submitted to the FAA regarding
US Airways’ scheduled operations of its LaGuardia Slots for the prior two months and a report of
any variances between US Airways’ actual operations of its LaGuardia Slots and such scheduled
operations during such period;
(d) US Airways shall notify Delta in writing of any incidents or accidents occurring on or
after the date hereof involving any US Airways Transferred Assets that resulted or could
reasonably be expected to result in damages or losses in excess of $100,000;
(e) US Airways shall notify Delta in writing if it receives any notice or otherwise becomes
aware that the FAA or DOT or any other Governmental Authority is proposing to withdraw or is
considering withdrawal of, any of the LaGuardia Slots;
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(f) US Airways shall notify Delta in writing of (i) the commencement of any Action against US
Airways that could impair US Airways’ ability to perform its obligations under this Agreement or
the Ancillary Documents to which it is or will be a party, (ii) the commencement of any Action
relating to or involving the US Airways Transferred Assets or the Assumed US Airways Liabilities,
or (iii) the existence of (Y) any adverse business conditions arising on or after the date hereof
threatening the ownership, operation or use of the US Airways Transferred Assets, or (Z) any
agreement, consent or order of the FAA, DOT or the Port Authority involving any of the US Airways
Transferred Assets or the Assumed US Airways Liabilities.
(g) Delta shall, within fifteen (15) days after the end of each bimonthly period prior to the
Subsequent Closing, provide US Airways with copies of all reports submitted to the FAA regarding
Delta’s scheduled operations of its DCA Slots for the prior two months and a report of any
variances between Delta’s actual operations of its DCA Slots and such scheduled operations during
such period;
(i) Delta shall notify US Airways in writing if it receives any notice or otherwise becomes
aware that the FAA or DOT or any other Governmental Authority is proposing to withdraw or is
considering withdrawal of, any of the DCA Slots; and
(j) Delta shall notify US Airways in writing of (i) the commencement of any Action against
Delta that could impair Delta’s ability to perform its obligations under this Agreement or the
Ancillary Documents to which it is or will be a party, (ii) the commencement of any Action
relating to or involving the DCA Slots, or (iii) the existence of (Y) any adverse business
conditions arising on or after the date hereof threatening the ownership, operation or use of the
DCA Slots, or (Z) any agreement, consent or order of the FAA, DOT or the Port Authority involving
any of the DCA Slots.
(a) Upon the terms and subject to the conditions and limitations set forth in this Agreement
(including those set forth in Section 7.08(c)), each Party agrees to use its reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with the other Party in doing, all things necessary, proper or advisable under
applicable Laws to consummate and make effective, as promptly as practicable, the transactions
contemplated by this Agreement, including (i) the obtaining of all necessary actions or
non-actions, waivers, consents and approvals from Governmental Authorities and the making of all
necessary registrations and filings and the taking of all steps as may be necessary to obtain an
approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority, (ii)
the obtaining of all necessary consents, approvals or waivers of any Governmental Authority, (iii)
obtain all necessary third party consents, including the release of all security interests in the
Transferred Assets and applicable UCC-3 termination statements, (iv) seeking from the Port
Authority, for delivery at or prior to the Initial Closing Date, each of those items set forth on
Schedule 7.08(a)(iv), (v) seeking from the Port Authority the preferred form of
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Assignment and
Assumption Agreement (or the preferred form of any other agreement or instrument that may include terms and conditions that are closing conditions pursuant to
Section 8.02(e)(ii)) as chosen by the Party that is assuming the applicable Port Authority
Document or has the benefit of the applicable closing condition, and (vi) the execution and
delivery of any additional instruments necessary to consummate the transactions contemplated by,
and to fully carry out the purposes of, this Agreement; provided, however, that nothing in the
foregoing or this Agreement shall require the Parties to (w) seek amendment or waiver of any
financing or bank agreement, (x) bring any action against its agent, lenders or bond holders, (y)
pay any fees to such agent, lenders or bond holders in connection herewith (other than any
payments that may be required by the current terms of any financing or bank agreement with respect
to a sale of assets required by Section 7.08(c)) or (z) except as expressly set forth in Section
7.08(c) sell, lease, hold separate or otherwise dispose of any Slots, facilities or any other
assets of the Parties. Notwithstanding any other provision of this Agreement to the contrary, the
Parties agree that (A) each Party shall (1) file the Notification and Report Forms required under
the HSR Act with the Federal Trade Commission and the United States Department of Justice no later
than two (2) Business Days after the execution of this Agreement, (2) with respect to any “second
request” for information issued by the United States Department of Justice pursuant to the HSR
Act, certify such Party’s substantial compliance with such request no later than sixty (60) days
after the date of such request, (3) execute and file with the DC Circuit Court of Appeals a
voluntary dismissal in the pending matter captioned, “Delta Air Lines, Inc. and US Airways, Inc.
vs. FAA and US Department of Transportation, Case No. 1153 pending with the DC Circuit Court of
Appeals no later than two (2) Business Days after the execution of this Agreement, and (4) file
with the FAA no later than (2) Business Days after the date of this Agreement a waiver request
seeking the issuance of the FAA/DOT Order (as defined herein), and (B) the respective obligations
of a Party pursuant to this Agreement to take the actions set forth in the foregoing clauses (1)
through (4) shall be deemed satisfied if such Party takes such actions within the respective time
periods set forth in clauses (1) through (4).
(b) Each of Delta and US Airways shall cooperate regarding, and keep the other reasonably
apprised of the status of, matters relating to the completion of the transactions contemplated
hereby and work cooperatively in connection (i) with obtaining all required approvals or consents
of any Governmental Authority and (ii) all other communications with any Governmental Authority
(which for purposes of this Section 7.08 includes staff of any such Governmental Authority and any
elected or appointed member of a Governmental Authority) with respect to the transactions
contemplated by this Agreement. In that regard, unless and to the extent prohibited by Law, each
Party shall without limitation: (A) promptly notify the other of, and, if in writing, furnish the
other with copies of (or, in the case of substantive oral communications, advise the other orally
of), any communications from or with any Governmental Authority with respect to the transactions
contemplated by this Agreement as they relate to the Transferred Assets, (B) permit the other to
review and discuss in advance, and consider in good faith the views of the other in connection
with, any proposed written (or any proposed oral) substantive communication with any such
Governmental Authority with respect to the transactions contemplated by this Agreement, (C) not
participate in any meeting or oral substantive communication with any such Governmental Authority,
with respect to the transactions contemplated by this Agreement, unless it (1) consults with the
other in advance and (2) if requested by the other Party, includes such other Party in the
applicable meeting or oral substantive communication,
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(D) furnish the other with copies of all
substantive correspondence, filings and communications, and memoranda setting forth the substance of any
meetings or communications the other is not permitted to participate in pursuant to clause (C)
above) between it and any such Governmental Authority with respect to the transactions
contemplated by this Agreement, (E) furnish the other with such necessary information and
reasonable assistance as the other may reasonably request in connection with its preparation of
necessary filings or submissions of information to any each Governmental Authority and (F) in
respect of inquiries received from a Governmental Authority for additional information or
documentation in connection with antitrust matters, respond as promptly as practicable to any such
inquiries (it being understood that, with respect to any “second request” for information by the
United States Department of Justice pursuant to the HSR Act, such Party’s obligation pursuant to
this clause (F) to respond to any such “second request” as promptly as practicable shall be deemed
satisfied if such Party certifies its substantial compliance with such request no later than (60)
days after the date of any such request).
(c) Without limiting the foregoing, each of Delta and US Airways agrees to take any action,
or commit to take any action, required to consummate the Transaction, or agree to any condition or
restriction of any Governmental Authority (collectively, the “Regulatory Actions”), required or
necessary to obtain any of the forgoing permits, consents, approvals, expiration or termination of
waiting periods, and authorizations of Government Authorities, provided that, notwithstanding any
other provision of this Agreement to the contrary, (i) no Party shall be obligated to sell, lease,
hold separate or otherwise dispose of any Slots, facilities or any other assets of the Parties
[*], (ii) no Party shall be obligated to agree to, accept or otherwise be bound by any FAA/DOT
Order which (1) would prevent the use by US Airways of the Slots transferred to it hereunder in
substantially the same manner as they were used by Delta prior to the Closing, (2) would prevent
the use by Delta of the Slots transferred to it hereunder in substantially the same manner as they
were used by US Airways prior to the Closing or (3) would provide rights to US Airways or Delta in
the conduct of their respective operations at DCA or LaGuardia that are any less favorable than,
with respect to operations at DCA, the rights provided under Title 14 of the Code of Federal
Regulation, Part 93 (Subparts K and S), and, with respect to operations at LaGuardia, the rights
provided under the LaGuardia Interim Order, published in the Federal Register at 71 Fed. Reg.
77854 (December 27, 2006), (iii) in no event shall the aggregate purchase price of the Delta
Transferred Assets or the US Airways Transferred Assets transferred in any calendar year under
this Agreement exceed $[*], (iv) neither Party shall be required to take any actions with respect
to obtaining any consent of the Port Authority with respect to the transactions contemplated by
this Agreement except to the extent required in Section 7.08(a) hereof, and (v) no Party shall be
required to agree to, and neither shall be obligated to take any Regulatory Action inconsistent
with this Section 7.08 or which, individually or in the aggregate, would reasonably be expected to
have a material adverse effect on (1) the condition or the ability to operate or use the
Transferred Assets to be acquired by such Party pursuant to this Agreement or the ownership,
control, management or operations thereof by such Party, or (2) the business or operations of such
Party in the relevant geographic market (the actions a Party is not required to agree to, accept
or otherwise be bound by pursuant to clause (i) through (v) of this Section 7.08(c), a
“Burdensome Restriction”).
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(d) If the actions taken by Delta and US Airways pursuant to Section 7.08(c) do not result in
the conditions set forth in Sections 8.01(a) and (b) being satisfied, then
each of Delta and US Airways shall jointly (to the extent practicable) initiate and/or
participate in any proceedings, whether judicial or administrative, in order to: (i) oppose or
defend against any action by any Governmental Authority or private litigant to prevent or enjoin
consummation of this Agreement (and the transaction contemplated herein), and/or (ii) take such
action as necessary to overturn any regulatory action by any Governmental Authority or private
litigant to block consummation of this Agreement (and the transaction contemplated herein),
including by defending any suit, action or other legal proceeding brought by any Governmental
Authority or private litigant in order to avoid the entry of, or to have vacated, overturned or
terminated, including by appeal if necessary, any Legal Restraint resulting from any suit, action
or other legal proceeding that would cause any condition set forth in Sections 8.01(a) and (b) not
to be satisfied, provided that Delta and US Airways shall cooperate with one another in connection
with, and shall jointly control, all proceedings related to the foregoing.
(a) Except as set forth in this Section 7.10, all fees and expenses incurred in connection
with the transactions contemplated by this Agreement shall be paid by the Party incurring such
fees or expenses, whether or not such transactions are consummated including without limitation
all relocation costs and expenses incurred by the Parties in connection with any relocation of the
Parties at LaGuardia, except that each of Delta and US Airways shall bear and pay one-half of (i)
the filing fees pursuant to the HSR Act and any applicable antitrust, competition or similar
filing fees of any foreign jurisdiction, and (ii) any other fees or expenses that both Parties
agree to in writing.
(b) Each of Delta and US Airways shall split equally any Transfer Taxes due and payable in
connection with the transactions contemplated by this Agreement. Each Party agrees to report the
federal, state and local income and other Tax consequences of the transactions contemplated by
this Agreement in a manner consistent with the Purchase Price Allocation and will cooperate in the
preparation of any Tax Returns required to be filed by either Party with respect to such Transfer
Taxes, including the New York Transfer Tax Returns, and both Parties shall execute and make
arrangements to file such Tax Returns within twenty (20) days of the applicable Closing.
Section 7.11
Publicity. Prior to the Subsequent Closing and in connection with the
consummation of each Closing, the Parties hereto shall consult with each other and shall mutually
agree (the agreement of each Party not to be unreasonably withheld or delayed) upon the content and
timing of any press release or other public statements with respect to the transactions
contemplated by this Agreement and, prior to each Closing, shall not issue any such press release
or make any such public statement prior to such consultation and agreement, except as may be
required by applicable Law or by obligations pursuant to any listing agreement with any securities
exchange or any stock exchange regulations as advised by counsel;
provided,
however, that each Party shall give prior notice to the other Party of the content and
timing of any such press release or other public statement required by applicable Law or by
obligations pursuant to any listing agreement with any securities exchange or any stock exchange
regulations. [*].
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Section 7.12
Further Assurances. After the applicable Closing, each Party shall, from time
to time, at the reasonable request of the other Party, execute and deliver such other instruments
of conveyance, assignment and transfer as the other Party may reasonably request, in order to more
effectively consummate the transactions contemplated hereby and to vest in the Party good and valid
title to the Transferred Assets (or in the case of Leased Real Property, valid leasehold interests)
and to confirm assumption of the Assumed US Airways Liabilities.
Section 7.13
Tax Cooperation. As soon as practicable, but in any event within twenty (20)
days after the other Party’s request, each Party shall deliver to the other party such information
and other data that is within its control relating to Tax Returns and Taxes due in connection with
the applicable Transferred Assets, and shall (at the expense of the requesting Party) provide such
other assistance as may be reasonably requested, to allow the requesting Party to complete and file
all Tax Returns, respond to any audit, litigation or other proceeding by any taxing authority with
respect to any Tax Returns or taxable period, or otherwise enable the requesting Party to satisfy
its accounting or Tax requirements.
Section 7.14
LaGuardia Call Right. In the event that prior to [*] the “Perimeter Rule” at
LaGuardia is lifted or modified in such a way to permit flights beyond the perimeter, US Airways or
any Affiliate of US Airways shall have the right (the “
US Airways LaGuardia Call Right”),
pursuant to the terms and procedures set forth below, to purchase from Delta one pair of LaGuardia
Slots in the [*] hours (the “
US Airways Recall Slots”). The US Airways LaGuardia Call
Right shall be exercisable as follows:
(a) Beginning the next calendar year after the Initial Closing Date and ending on [*] (the
“US Airways LaGuardia Call Period”), US Airways may, at its option, purchase the US
Airways Recall Slots at a purchase price equal to the Fair Market Value at the time of exercise of
the US Airways LaGuardia Call Right. The Fair Market Value shall be agreed upon by the Parties
and, in the event the Parties cannot agree, shall be determined by [*].
(b) US Airways or its Affiliate may elect to exercise the US Airways LaGuardia Call Right
with respect to the LaGuardia Slots, by delivery of written notice (the “US Airways LaGuardia
Call Notice”) to Delta within the US Airways LaGuardia Call Period.
(c) Subject to the receipt of any necessary consents, approvals or waivers from Governmental
Authorities, the closing of the purchase pursuant to the exercise of the US Airways LaGuardia Call
Right shall take place at a place and on a date mutually agreed upon by the Parties, which date
shall not be less than three (3) nor more than six (6) months after the delivery of the US Airways
LaGuardia Call Notice; provided that (i) in the event all necessary consents, approvals or waivers
of any Governmental Authority required to effectuate the purchase pursuant to this Section 7.14
have not been obtained within such six (6) month period, US Airways shall have the right [*] until
such time as such approvals can be obtained, [*] and (ii) notwithstanding any such [*], Delta
agrees that, from and after the date US Airways exercises the US Airways LaGuardia Call Right and
continuing until the closing of US Airways’ purchase of the US Airways Recall Slots in accordance
with this Section 7.14, [*].
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(d) Upon exercise of the US Airways LaGuardia Call Right, each Party agrees to use its
reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other Party in doing, all things necessary, proper or
advisable under applicable Laws to consummate and make effective, as promptly as possible, the US
Airways LaGuardia Call Right, including the obtaining of all necessary consents, approvals or
waivers of any Governmental Authority.
(e) At the closing of the purchase of the US Airways Recall Slots, Delta shall make
representations and warranties relating to authorization, consents, title, use and the other
representations and warranties contained herein applicable to the LaGuardia Slots and shall
execute and deliver such other documents and instruments as US Airways may reasonably request to
effectuate the transfer. The purchase price for the US Airways Recall Slots to be purchased
pursuant to the US Airways LaGuardia Call Right shall be paid by wire transfer of immediately
available funds in accordance with the written payment instructions furnished by Delta at least
one Business Day prior to closing.
(f) All transfers pursuant to this Section 7.14 shall be free and clear of any Lien.
Section 7.15
DCA Call Right. In the event that prior to [*] (i) the “Perimeter Rule” at
DCA is lifted or modified in such a way to permit flights beyond the perimeter and (ii) US Airways
is awarded or eligible to operate by the applicable Governmental Authority six (6) additional
round-trip flights beyond the perimeter restriction in effect on the date of this Agreement, Delta
or any Affiliate of Delta shall have the right (the “
Delta DCA Call Right”), pursuant to
the terms and procedures set forth below, to purchase from US Airways one pair of DCA Slots in the
[*] hours (the “
Delta Recall Slots”). The Delta DCA Call Right shall be exercisable as
follows:
(a) Beginning the next calendar year after the Initial Closing Date and ending on [*] (the
“Delta DCA Call Period”), Delta may, at its option, purchase the Delta Recall Slots at a
purchase price equal to the Fair Market Value at the time of exercise of the Delta DCA Call Right.
The Fair Market Value shall be agreed upon by the Parties and, in the event the Parties cannot
agree, shall be determined by [*].
(b) Delta or its Affiliate may elect to exercise the Delta DCA Call Right with respect to the
DCA Slots, by delivery of written notice (the “Delta DCA Call Notice”) to US Airways
within the Delta DCA Call Period.
(c) Subject to the receipt of any necessary consents, approvals or waivers from Governmental
Authorities, the closing of the purchase pursuant to the exercise of the Delta DCA Call Right
shall take place at a place and on a date mutually agreed upon by the Parties, which date shall
not be less than three (3) nor more than six (6) months after the delivery of the Delta DCA Call
Notice; provided that if the Delta DCA Call right is exercised during the calendar year of the
Initial Closing, the closing of the purchase shall not occur until the tenth (10th)
Business Day of the next calendar year following the Initial Closing Date.
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(d) Upon exercise of the Delta DCA Call Right, each Party agrees to use its reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with the other Party in doing, all things necessary, proper or advisable under
applicable Laws to consummate and make effective, as promptly as possible, the Delta DCA Call
Right, including the obtaining of all necessary consents, approvals or waivers of any Governmental
Authority.
(e) At the closing of the purchase of the Delta Recall Slots, US Airways shall make
representations and warranties relating to authorization, consents, title, use and the other
representations and warranties contained herein applicable to the DCA Slots and shall execute and
deliver such other documents and instruments as Delta may reasonably request to effectuate the
transfer. The purchase price for the Delta Recall Slots to be purchased pursuant to the Delta DCA
Call Right shall be paid by wire transfer of immediately available funds in accordance with the
written payment instructions furnished by US Airways at least one Business Day prior to closing.
(f) All transfers pursuant to this Section 7.15 shall be free and clear of any Lien.
(g) Notwithstanding anything in this Agreement to the contrary, in the event any purchase of
any Delta Recall Slot does not occur prior to the later of (i) [*] or (ii) six (6) months after
the delivery of the Delta DCA Call Notice, all obligations set forth in this Section 7.15 shall
terminate with respect to each Party; provided that the obligations of a Party shall not terminate
if the failure of such purchase to occur within such period is the result of a breach of this
Section 7.15 by such Party or a failure of any representation or warranty of such Party contained
in Section 7.15(e) to be true and correct.
Section 7.16
Preservation of Books and Records. For a period of seven (7) years after the
Initial Closing Date, each of Delta and US Airways shall preserve and retain all corporate,
accounting, Tax, legal (including any documents relating to any governmental or nongovernmental
actions, suits, proceedings or investigations), auditing or other Books and Records in its
possession relating to the Delta Transferred Assets or the US Airways Transferred Assets, as
applicable, prior to the applicable Closing Date.
(a) After the earlier of (i) the date the Bonds are repaid in full or otherwise defeased and
(ii) December 1, 2015 (the “Bond Repayment Date”), Delta shall pay to US Airways, an
amount in cash, as the same may be adjusted pursuant to the provisions hereof, equal to the sum of
(x) the US Airways Proportionate Share (defined below) multiplied by the aggregate amount in the
Bond Accounts which is returned by the Bond Trustee to Delta (or any successor to Delta), as
lessee under the East End Terminal Lease, pursuant to the Bond Documents (such returned funds, the
“Aggregate Bond Escrow Funds”) (such amount, the “US Airways Proportionate
Amount”), plus (y) the Additional Allocated Amount (defined below) (such sum, the “US
Airways Bond Escrow
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Funds”). “US Airways Proportionate Share”, as used herein, shall mean the ratio computed as follows: (A) the number of months (plus any
fraction thereof) from the commencement of the tenancy by US Airways at the East End Terminal
pursuant to the terms of the East End Terminal Lease until the Initial Closing Date, divided by
(B) the number of months (plus any fraction thereof) from the commencement of the tenancy by US
Airways at the East End Terminal pursuant to the terms of the East End Terminal Lease until the
Bond Repayment Date. “Additional Allocated Amount”, as used herein, shall mean the amount
equal to the product of (X) the difference between the Aggregate Bond Escrow Funds and the US
Airways Proportionate Amount, multiplied by (Y) a percentage, the numerator of which is the
aggregate amount of principal and interest on the Bonds paid by US Airways as a part of Rent (as
defined in the US Airways LaGuardia Facilities Sublease) pursuant to the terms of the US Airways
LaGuardia Facilities Sublease from the Initial Closing Date until the Bond Repayment Date, and the
denominator of which is the aggregate amount of principal and interest on the Bonds paid by Delta
pursuant to the terms of the East End Terminal Lease during the same period. Delta shall pay the
US Airways Bond Escrow Funds to US Airways within fifteen (15) Business Days after Delta’s receipt
of the Aggregate Bond Escrow Funds.
(b) Notwithstanding the foregoing, if the Aggregate Bond Escrow Funds are less than $[*] (the
“Bond Fund Closing Balance”), the aggregate balance of the Bond Accounts as of April 30,
2011, and if (i) such reduction in the aggregate balance of the Bond Accounts is neither the fault
of Delta nor the fault of US Airways, then the US Airways Bond Escrow Funds shall be computed in
accordance with Section 7.18(a) based upon the actual amount of the Aggregate Bond Escrow Funds;
(ii) such reduction in the aggregate balance of the Bond Accounts is attributable to the fault of
Delta, then the US Airways Bond Escrow Funds shall be computed in accordance with Section 7.18(a)
based on the Bond Fund Closing Balance, and (iii) such reduction in the aggregate balance of the
Bond Accounts is attributable to the fault of US Airways, then the US Airways Bond Escrow Funds
shall be reduced by an amount equal to the reduction in the Aggregate Bond Escrow Funds which is
the fault of US Airways. Further, the US Airways Bond Escrow Funds shall be reduced by any amount
required to be paid by Delta to the Port Authority or the Bond Trustee as a result of any transfer
from the Debt Service Fund to the Bond Fund due to inadequate funds in the Bond Fund prior to the
Initial Closing (to the extent such amount is not reimbursed by US Airways to Delta) and by any
amount applied to US Airways’ rental or debt service obligations or transferred to US Airways
prior to the Initial Closing that reduces the balance in the Debt Service Fund below the Bond Fund
Closing Balance. The US Airways Bond Escrow Funds shall be increased by any amount required to be
paid by US Airways to the Port Authority or the Bond Trustee as a result of any transfer from the
Debt Service Fund to the Bond Fund due to inadequate funds in the Bond Fund on or after the
Initial Closing (and to the extent (x) attributable to any failure of Delta to pay rents due under
the East End Terminal Lease on or after the Initial Closing and (y) not attributable to any
failure by US Airways to pay Rents under the US Airways LaGuardia Facilities Sublease).
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(c) The failure of Delta to perform its obligations with respect to the Assumed Bond
Documents and/or Delta’s (or any Delta successor’s) approval of any amendment, modification or
waiver with respect to any Bond Document(s) affecting, in a manner adverse to the lessee under the
East End Terminal Lease, the Bond Trustee’s obligation to return any amounts or balances of the
Bond Accounts to the lessee under the East End
Terminal Lease shall, in each instance, constitute “fault” by Delta for the purposes of this
Section 7.18. The failure of US Airways to perform its obligations with respect to the US Airways
Retained Bond Obligations and/or US Airways’ approval of any amendment, modification or waiver
with respect to any Bond Document(s) affecting, in a manner adverse to the lessee under the East
End Terminal Lease, the Bond Trustee’s obligation to return any amounts or balances of the Bond
Accounts to the lessee under the East End Terminal Lease shall, in each instance, constitute
“fault” by US Airways for the purposes of this Section 7.18. Application of the amounts in the
Bond Accounts as contemplated by Section 82(a)(3) of the East End Terminal Lease shall not be
deemed to be a reduction that is the fault of Delta or US Airways and there shall be no payment
(or adjustment) from Delta to US Airways, or from US Airways to Delta, in such circumstance.
(d) The US Airways Bond Escrow Funds shall be reduced proportionately by its share (based
upon a percentage, the numerator of which is the aggregate amount of principal and interest on the
Bonds paid by US Airways, with respect to the period on or prior to the Initial Closing Date,
pursuant to the terms of the East End Terminal Lease and, with respect to the period after the
Initial Closing Date, as part of Rent pursuant to the terms of the US Airways LaGuardia Facilities
Sublease, from the commencement of the tenancy by US Airways at the East End Terminal until the
Bond Repayment Date, and the denominator of which is the aggregate amount of principal and
interest on the Bonds paid by the lessee pursuant to the terms of the East End Terminal Lease
during the same period) of any fees, charges or other payments required to be paid by Delta to the
Trustee or the Port Authority with respect to the Aggregate Bond Escrow Funds or the transfer
thereof, provided such payment is not attributable to the fault of Delta.
(e) Delta’s covenant to pay to US Airways the US Airways Bond Escrow Funds shall be absolute
and unconditional and shall survive the Initial Closing.
(a) During the period from the date of this Agreement and continuing until the Initial
Closing, US Airways shall perform, or cause to be performed, maintenance and operability testing
as set forth on Exhibit R hereto with respect to all jet bridges and associated jet bridge
equipment at the US Airways LaGuardia Leased Real Property to demonstrate safe operability of all
such bridges and equipment as of the Initial Closing. In addition, during the period from the
date of this Agreement and continuing until the Initial Closing, US Airways shall use reasonable
efforts to demonstrate compliance with all Original Equipment Manufacturer safety service
bulletins and otherwise shall notify Delta of all such safety service bulletins that US Airways
has not complied with or for which it has no knowledge of compliance.
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(b) During the period from the date of this Agreement and continuing until the Initial
Closing, US Airways shall maintain the Roof of each US Airways LaGuardia Leased Real Property with
materials and workmanship as currently in place as of the date of execution of this Agreement and
shall be done so from day to day to maintain the Roof in
working condition, including the repair and replacement of broken or damaged components and
reasonable diligence with respect to the prevention of leaks. Notwithstanding anything to the
contrary, during the period from the date of this Agreement and continuing until the Initial
Closing, should a leak or leaks appear from time to time, US Airways shall promptly seek to
identify the point of water penetration and then diligently repair the damaged components. In
addition, during the period from the date of this Agreement and continuing until the Initial
Closing, US Airways shall repair any portion of the US Airways LaGuardia Leased Real Property that
is damaged by any such leak(s) to a condition reasonably similar to the condition as of the date
of execution of this Agreement, reasonable wear and tear accepted.
(c) During the period from the date of this Agreement and continuing until the Initial
Closing, US Airways shall maintain the Ramp included in the US Airways LaGuardia Leased Real
Property with materials and workmanship as currently in place as of the date of execution of this
Agreement and from day to day so as to repair and replace any post-execution Ramp spalling and/or
Ramp failure.
Section 7.22
In-Line Screening System. During the period from the date of this Agreement
and continuing until the Initial Closing, US Airways and Delta shall use reasonable efforts to work
cooperatively with each other, the Port Authority, and the Transportation Security Administration
to define a fully inline baggage screening solution at the East End Terminal, the Shuttle Terminal,
and Terminal D at LaGuardia that meets the operational needs of the airline users of the respective
facility and maximizes eligibility of available grant funding for inline screening projects.
During the period from the date of this Agreement and continuing until the Initial Closing, US
Airways and Delta shall each and collectively use reasonable efforts to develop and promote the
development of design and construction documents.
Section 7.23 [*]. [*]:
(a) [*].
(b) [*].
(c) [*].
(d) [*].
(e) [*].
(f) [*].
(g) [*].
(h) Any notice given under this Section 7.23 must be in writing and delivered in accordance
with Section 11.03.
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(i) [*].
(a) Effective as of [*] (the “Brazil Transfer Date”) and subject in the case of the
Delta Brazil Transfer, to the consummation of the US Airways Brazil Transfer and, in the case of
the US Airways Brazil Transfer, to the consummation of the Delta Brazil Transfer;
provided, however, that if, despite the best efforts of Delta and US Airways to
obtain the approval of the DOT with respect to the Delta Brazil Transfer and the US Airways Brazil
Transfer, the DOT issues a final order approving the Delta Brazil Transfer but disallowing the US
Airways Brazil Transfer on the basis that at the time of such transfer US Airways retains no
residual rights under the US Airways Brazilian Route Authorities, then the Delta Brazil Transfer
shall not be subject to the consummation of the US Airways Brazil Transfer:
(i) If a frequency allocation is required to serve Sao Paulo as of the Brazil
Transfer Date, Delta shall convey, assign, transfer and deliver to US Airways and/or
its Affiliates, and US Airways shall assume, acquire and accept transfer and
assignment of the Delta Brazilian Route Authorities, free and clear of any Liens
other than Liens created or imposed by the Federative Republic of Brazil or other
applicable Governmental Authorities (the “Delta Brazil Transfer”). With
respect to the Delta Brazil Transfer, (A) Delta shall make representations and
warranties relating to authorization, consents, title, use and the other
representations and warranties contained herein applicable to the Delta Brazilian
Route Authorities and (B) Delta shall deliver to US Airways instruments of
conveyance or consents to assignment for the transfer of the Delta Brazilian Route
Authorities, in form and substance reasonably satisfactory to US Airways, duly
executed by Delta; and
(ii) If a frequency allocation is required to serve Rio de Janeiro or Sao Paulo
as of the Brazil Transfer Date, US Airways shall convey, assign, transfer and
deliver to Delta and/or its Affiliates, and Delta shall assume, acquire and accept
transfer and assignment of the US Airways Brazilian Route Authorities, free and
clear of any Liens other than Liens created or imposed by the Federative Republic of
Brazil or other applicable Governmental Authorities (the “US Airways Brazil
Transfer”). With respect to the US Airways Brazil Transfer, (A) US Airways
shall make representations and warranties relating to authorization, consents,
title, use and the other representations and warranties contained herein applicable
to the US Airways Brazilian Route Authorities and (B) US Airways shall deliver to
Delta instruments of conveyance or consents to assignment for the transfer of the US
Airways Brazilian Route Authorities, in form and substance reasonably satisfactory
to Delta, duly executed by US Airways.
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(b) Effective as of [*] (the “GRU Slots Transfer Date”) and subject to receipt of all
approvals of any Governmental Authorities including without limitation the GRU Slot Coordinator
required to be obtained for such transfer, Delta shall use best efforts to
convey, assign, transfer and deliver to US Airways and/or its Affiliates, and US Airways
shall assume, acquire and accept transfer and assignment of all of Delta’s right, title and
interest in and to the GRU Slots, free and clear of any Liens other than Liens created or imposed
by the Federative Republic of Brazil or other applicable Governmental Authorities,
provided that, notwithstanding anything herein to the contrary, any GRU Slot transferred
hereunder shall be subject to all restrictions, limitations or conditions applicable to the GRU
Slots under all applicable Laws in effect on the GRU Slots Transfer Date (the “GRU Slot
Transfer”). For the avoidance of doubt, the implementation of an Open Skies Agreement between
the United States and Federal Republic of Brazil shall not alter the obligation to transfer the
GRU Slots in accordance with this Agreement. With respect to the GRU Slot Transfer, (A) Delta
shall make representations and warranties relating to authorization, consents, title, use and the
other representations and warranties contained herein applicable to the GRU Slots and (B) Delta
shall deliver to US Airways instruments of conveyance or consents to assignment for the transfer
of the GRU Slots, in form and substance reasonably satisfactory to US Airways, duly executed by
Delta.
(c) Each Party agrees (i) that no additional consideration is due upon the transfers
contemplated in this Section 7.24 and (ii) to use best efforts to effectuate the GRU Slot Transfer
on the dates set forth above].
(d) Each Party agrees to use its best efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things
necessary, proper or advisable under applicable Laws, to effectuate the GRU Slot Transfer in
accordance with the terms and conditions of this Agreement including the obtaining of all
necessary consents, approvals or waivers of any Governmental Authority, to effectuate such
transfers; provided, however, that each Party shall be responsible for making all
filings and taking all actions necessary to obtain all licenses, permits and authorities required
for its own operations at GRU.
(e) Each Party agrees to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other Party in doing, all things necessary, proper or
advisable under applicable Laws, to effectuate the Delta Brazil Transfer and the US Airways Brazil
Transfer in accordance with the terms and conditions of this Agreement including the obtaining of
all necessary consents, approvals or waivers of any Governmental Authority, to effectuate such
transfers; provided, however, that each Party shall be responsible for making all
filings and taking all actions necessary to obtain all licenses, permits and authorities required
for its own operations in Brazil.
(f) Notwithstanding anything in this Agreement to the contrary, in the event the GRU Slot
Transfer does not occur prior to [*], all obligations set forth in this Section 7.24 with respect
to the GRU Slots shall terminate with respect to each Party; provided that the obligations of a
Party shall not terminate if the failure of such transfer to occur is the result of a breach of
this Section 7.24 by such Party or a failure of any representation or warranty of such Party
contained in this Section 7.24 to be true and correct.
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(g) Except as expressly permitted by this Agreement or with the prior written consent of US
Airways (which will not be unreasonably withheld, conditioned or
delayed, except such consent shall be in the sole discretion of US Airways if the requested
action would interfere with the ability to complete the conveyance of the Delta Brazil Transfer or
the GRU Slot Transfer), during the period from the date of this Agreement and continuing until (A)
with respect to the Delta Brazilian Route Authorities, the earlier of (x) the date as of which no
frequency allocation is required to serve Sao Paulo and (y) the completion of the Delta Brazil
Transfer and (B) with respect to the GRU Slots, the completion of the GRU Slot Transfer, Delta
shall:
(i) not waive, release, grant, transfer or permit to lapse any rights of Delta
of material value with respect to the Delta Brazilian Route Authorities or GRU Slots
except for (A) arrangements entered into by Delta in the ordinary course of business
that will terminate at or before the Delta Brazil Transfer or the GRU Slot Transfer,
as applicable, or (B) any mortgages or pledges pursuant to an agreement with any
lender (but only to the extent such mortgages or pledges will be released at or
prior to the Delta Brazil Transfer or the GRU Slot Transfer, as applicable);
(ii) use the Delta Brazilian Route Authorities and GRU Slots in accordance with
all applicable Laws, including with respect to the GRU Slots, the Brazil Slot
Regulations and the Brazil Use Provisions; and shall not enter into any Contract nor
otherwise act, nor consent to any other Person to act, to restrict, interfere with
or prevent such use of such Delta Brazilian Route Authorities or GRU Slots;
(iii) promptly make all required filings with the applicable Governmental
Authority with respect to the Delta Brazilian Route Authorities and the GRU Slots;
and
(iv) except for short-term trades, slides or other arrangements entered into by
Delta in the ordinary course of business that will terminate prior to the Delta
Brazil Transfer or the GRU Slot Transfer, as applicable, and except for any
mortgages or pledges pursuant to an agreement with any lender (but only to the
extent such mortgages or pledges will be released at or prior to the Delta Brazil
Transfer or the GRU Slot Transfer, as applicable), not return to any applicable
Governmental Authority any GRU Slots or any Delta Brazilian Route Authorities, or
trade, rent, lease, sell, encumber in any manner or otherwise transfer any GRU Slots
or any Delta Brazilian Route Authorities.
(h) Except as expressly permitted by this Agreement or with the prior written consent of
Delta (which will not be unreasonably withheld, conditioned or delayed except such consent shall
be in the sole discretion of Delta if the requested action would interfere with the ability to
complete the conveyance of the US Airways Brazil Transfer), during the period from the date of
this Agreement and continuing until the earlier of (i) the date as of which no frequency
allocation is required to serve Rio de Janeiro or Sao Paulo and (ii) the completion of the US
Airways Brazil Transfer, US Airways shall:
(i) not waive, release, grant, transfer or permit to lapse any rights of US
Airways of material value with respect to the US Airways Brazilian Route Authorities
except for (A) arrangements entered into by US Airways in the ordinary course of
business that will terminate at or before the US Airways Brazil Transfer, or (B) any
mortgages or pledges pursuant to an agreement with any lender (but only to the
extent such mortgages or pledges will be released at or prior to the US Airways
Brazil Transfer);
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(ii) use the US Airways Brazilian Route Authorities in accordance with all
applicable Laws and shall not enter into any Contract nor otherwise act, nor consent
to any other Person to act, to restrict, interfere with or prevent such use of such
US Airways Brazilian Route Authorities;
(iii) promptly make all required filings with the applicable Governmental
Authority with respect to the US Airways Brazilian Route Authorities; and
(iv) except for short-term trades, slides or other arrangements entered into by
US Airways in the ordinary course of business that will terminate prior to the US
Airways Brazil Transfer, and except for any mortgages or pledges pursuant to an
agreement with any lender (but only to the extent such mortgages or pledges will be
released at or prior to the US Airways Brazil Transfer), not return to any
applicable Governmental Authority any US Airways Brazilian Route Authorities, or
trade, rent, lease, sell, encumber in any manner or otherwise transfer any US
Airways Brazilian Route Authorities.
(i) During the period from the date of this Agreement and continuing until (i) with respect
to the Delta Brazilian Route Authorities and the Delta Brazil Transfer, the earlier of the date as
of which no frequency allocation is required to serve Sao Paulo and the completion of the Delta
Brazil Transfer, or (ii) with respect to the GRU Slots and the GRU Slot Transfer, the completion
of the GRU Slot Transfer:
(i) Delta shall notify US Airways in writing if it receives any written notice
that any Governmental Authority is proposing to withdraw or is considering
withdrawal of, any of the GRU Slots or the Delta Brazilian Route Authorities; and
(ii) Delta shall notify US Airways in writing of (A) the commencement of any
Action against Delta that could impair Delta’s ability to effectuate the Delta
Brazil Transfer or the GRU Slot Transfer on or prior to the Brazil Transfer Date or
the GRU Slots Transfer Date (as applicable), or (B) the commencement of any Action
relating to or involving the GRU Slots or the Delta Brazilian Route Authorities.
(j) During the period from the date of this Agreement and continuing until the earlier of (i)
the date as of which no frequency allocation is required to serve Rio de
Janeiro or Sao Paulo and (ii) the completion of the US Airways Brazil Transfer, US Airways
shall:
(i) notify Delta in writing if it receives any written notice that any
Governmental Authority is proposing to withdraw or is considering withdrawal of, any
of the US Airways Brazilian Route Authorities; and
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(ii) notify Delta in writing of (A) the commencement of any Action against US
Airways that could impair US Airways’ ability to effectuate the US Airways Brazil
Transfer on or prior to the Brazil Transfer Date, or (B) the commencement of any
Action relating to or involving the US Airways Brazilian Route Authorities.
(a) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, US AIRWAYS TRANSFERS AND DELTA TAKES THE
US AIRWAYS TRANSFERRED ASSETS, INCLUDING US AIRWAYS LAGUARDIA TANGIBLE PERSONAL PROPERTY “AS-IS,”
“WHERE-IS.” EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN ARTICLE V OR IN
THE ANCILLARY DOCUMENTS, US AIRWAYS DOES NOT MAKE, HAS NOT MADE AND SHALL NOT BE DEEMED TO HAVE
MADE, AND HEREBY EXPRESSLY DISCLAIMS AND WILL BE DEEMED TO HAVE EXPRESSLY DISCLAIMED, ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, WORKMANSHIP, CONDITION, DESIGN,
OPERATION, MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OF THE US AIRWAYS
TRANSFERRED ASSETS, INCLUDING US AIRWAYS LAGUARDIA TANGIBLE PERSONAL PROPERTY, AS TO THE ABSENCE
OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF
ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN
TORT, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE
US AIRWAYS TRANSFERRED ASSETS OR OTHERWISE.
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, DELTA TRANSFERS AND US AIRWAYS TAKES THE
DELTA TRANSFERRED ASSETS “AS-IS,” “WHERE-IS.” EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
EXPRESSLY PROVIDED IN ARTICLE VI OR IN THE ANCILLARY DOCUMENTS, DELTA DOES NOT MAKE, HAS NOT MADE
AND SHALL NOT BE DEEMED TO HAVE MADE, AND HEREBY EXPRESSLY DISCLAIMS AND WILL BE DEEMED TO HAVE
EXPRESSLY DISCLAIMED, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
WORKMANSHIP, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR
PURPOSE OF THE DELTA TRANSFERRED ASSETS AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR
NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS
TO THE ABSENCE OF OBLIGATIONS
BASED ON STRICT LIABILITY IN TORT, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE DELTA TRANSFERRED ASSETS OR OTHERWISE.
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ARTICLE VIII
Section 8.01 Conditions to Each Party’s Obligation to Effect the Initial Transaction. The
respective obligation of each Party to consummate the Initial Transaction is subject to the
satisfaction or waiver on or prior to the Initial Closing Date of the following conditions:
(a) Governmental Approvals. The Governmental Approvals as set forth on Schedule
5.04 and Schedule 6.04 relating to the Initial Closing shall have been obtained and
any conditions to such approvals shall have been satisfied.
(b) No Legal Restraints. No judgment, order, injunction (whether temporary,
preliminary or permanent), decree, statute, law, ordinance, rule or regulation, or other legal
restraint or prohibition, entered, enacted, promulgated, enforced or issued by any court,
arbitrator or other Governmental Authority of competent jurisdiction (collectively, the “Legal
Restraints”) shall be in effect that makes illegal or prohibits the consummation of the
transactions contemplated by this Agreement or the Ancillary Documents.
Section 8.02 Conditions to Obligations of Delta to Effect the Initial Transaction. The
obligations of Delta to consummate the Initial Transaction are further subject to the following
conditions:
(a) Representations and Warranties. The representations and warranties of US Airways
contained in this Agreement, or in any exhibit, schedule or document delivered pursuant hereto
(disregarding any limitation as to “materiality,” “US Airways Material Adverse Effect” or similar
qualifiers set forth therein), shall be true and correct in all respects as of the Initial Closing
Date as if made at and as of such time (except for any representation or warranty that is made
only as of a specified date, which need only to be true as of such specified date), except where
the failure to be so true and correct has not had and would not reasonably be expected to have,
either individually or in the aggregate, a US Airways Material Adverse Effect.
(b) Performance of Obligations of US Airways. US Airways shall have performed in all
material respects all covenants and agreements required to be performed by it under this Agreement
at or prior to the Initial Closing Date.
(c) Officer’s Certificate. Delta shall have received a certificate, dated as of the
Initial Closing Date, executed on behalf of US Airways by an authorized officer thereof,
certifying that the conditions specified in Section 8.02(a) and 8.02(b) have been fulfilled.
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(d) Closing Deliveries. US Airways shall have delivered to Delta all documents
required to be delivered by US Airways pursuant to Sections 4.03(a), (b), (c) and (d).
(e) Port Authority.
(i) The Port Authority shall have provided written consent to the transfers and
assignments of each of the Delta Port Authority Documents to Delta and to the
assumption by Delta of the obligations thereunder;
(ii) Taking into consideration (x) the Assignment and Assumption Agreements for
the Existing US Airways Documents, (y) any new agreement between Delta and the Port
Authority relative to the same matters as are covered under the Additional US
Airways Agreements and (z) the terms and conditions of such Port Authority consents
relating to the foregoing agreements and the transactions contemplated hereunder,
taken as a whole, the Existing US Airways Documents shall have been assigned and
transferred to Delta on terms and conditions that would not, or would not reasonably
be expected to, in the aggregate, result in (A) a material reduction or impairment
of the rights that US Airways enjoyed under the Existing US Airways Documents and
the Additional US Airways Agreements immediately prior to the date of this
Agreement; (B) a material increase in the Liabilities or obligations to which US
Airways was subject under the Existing US Airways Documents and the Additional US
Airways Agreements immediately prior to the date of this Agreement; or (C) a
material adverse effect on the ability of Delta to operate or use the facilities
subject to the Existing US Airways Documents and the Additional US Airways
Agreements in the same manner as operated and used by US Airways immediately prior
to the date of this Agreement;
(iii) the Port Authority shall have agreed and acknowledged in writing that:
(A) notwithstanding anything to the contrary contained in Section 82(e) of the East
End Terminal Lease (originally Section 82(f) and redesignated as Section 82(e)
pursuant to Supplement No. 1 (as defined in Schedule 1.01(E) hereto)), the
terms and conditions of Section 82 of the East End Terminal Lease shall continue in
full force and effect as between the Port Authority and Delta after the execution of
the Assignment and Assumption Agreement for the East End Terminal Lease; and (B) the
East End Terminal Lease shall not be cross-defaulted with any act or omission by US
Airways, Eastern Air Lines, Inc. and/or Continental Airlines, Inc. with respect to
the East End Terminal Lease or any other contract by and between the Port Authority
and any of US Airways, Eastern Air Lines, Inc. and/or Continental Airlines, Inc.;
and
(iv) the conditions set forth in Section 8.03(e)(i) shall have been satisfied.
(f) FAA Approvals. All consents, approvals, licenses, orders, exemptions, waivers or
authorizations of or from the FAA required to be obtained shall have been obtained for (i) the
transfer of the LaGuardia Slots including without limitation, the
waiver of US Airways’ reversionary interest under the LaGuardia Order and (ii) the lease of
Slots contemplated by the LaGuardia Initial Slot Lease and the LaGuardia Subsequent Slot Lease.
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(g) Burdensome Restrictions. No Governmental Approval shall impose a Burdensome
Restriction on Delta.
(h) Bankruptcy Event. No Bankruptcy Event has occurred with respect to US Airways.
(i) UCC Releases. The release of all security interests in the US Airways
Transferred Assets by US Airways’ lenders and applicable UCC-3 termination statements, in each
case, in form and substance reasonably satisfactory to Delta.
(j) Slots. As of the Initial Closing Date, there has not been a withdrawal of or any
proposed withdrawal of, or any restriction imposed or proposed with respect to the LaGuardia Slots
by the FAA, the DOT or any other Governmental Authority, which has or reasonably would be expected
to have, individually or in the aggregate, a US Airways Material Adverse Effect.
Section 8.03 Conditions to Obligation of US Airways to Effect the Initial Transaction. The
obligation of US Airways to consummate the Initial Transaction is further subject to the following
conditions:
(a) Representations and Warranties. The representations and warranties of Delta
contained in this Agreement, or in any exhibit, schedule or document delivered pursuant hereto
(disregarding any limitation as to “materiality,” “Delta Material Adverse Effect” or similar
qualifiers set forth therein), shall be true and correct in all respects, as of the Initial
Closing Date as if made at and as of such time (except for any representation or warranty that is
made only as of a specified date, which need only to be true as of such specified date), except
where the failure to be so true and correct has not had and would not reasonably be expected to
have, either individually or in the aggregate, a Delta Material Adverse Effect.
(b) Performance of Obligations of Delta. Delta shall have performed in all material
respects all covenants and agreements required to be performed by it under this Agreement at or
prior to the Initial Closing Date.
(c) Officer’s Certificate. US Airways shall have received a certificate, dated as of
the Initial Closing Date, executed on behalf of Delta by an authorized officer thereof, certifying
that the conditions specified in Section 8.03(a) and 8.03(b) have been fulfilled.
(d) Closing Deliveries. Delta shall have delivered to US Airways all documents
required to be delivered by Delta pursuant to Section 4.02(a), (b), (c) and (d).
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(e) Port Authority.
(i) The Port Authority shall have provided written consent to each of the US
Airways Port Authority Documents; and
(ii) the conditions set forth in Section 8.02(e)(i) shall have been satisfied.
(f) FAA Approvals. All consents, approvals, licenses, orders, exemptions, waivers or
authorizations of or from the FAA required to be obtained shall have been obtained for (i) the
transfer of the DCA Slots and (ii) the lease of Slots contemplated by the DCA Initial Slot Lease
and the DCA Subsequent Slot Lease.
(g) Burdensome Restrictions. No Governmental Approval shall impose a Burdensome
Restriction on US Airways.
(h) Bankruptcy Event. No Bankruptcy Event has occurred with respect to Delta.
(i) UCC Releases. The release of all security interests in the DCA Slots by Delta’s
lenders and applicable UCC-3 termination statements, in each case, in form and substance
reasonably satisfactory to US Airways.
(j) Slots. As of the Initial Closing Date, there has not been a withdrawal of or any
proposed withdrawal of, or any restriction imposed or proposed with respect to the DCA Slots by
the FAA, the DOT or any other Governmental Authority, which has or reasonably would be expected to
have, individually or in the aggregate, a Delta Airways Material Adverse Effect.
Section 8.04 Conditions to Closing Subsequent Transaction.
(a) Conditions to Each Party’s Obligation to Effect the Subsequent Transaction. The
respective obligation of each Party to consummate the Subsequent Transaction is subject to the
satisfaction or waiver on or prior to the Subsequent Closing Date of the following conditions:
(i) Governmental Approvals. The Governmental Approvals as set forth on
Schedule 5.04 and Schedule 6.04 relating to the Subsequent Closing
shall have been obtained and any conditions to such approvals shall have been
satisfied.
(b) Conditions to Obligations of Delta to Effect the Subsequent Transaction. The
obligations of Delta to consummate the Subsequent Transaction are subject to the following
conditions:
(i) Representations and Warranties. The representations and warranties
of US Airways contained in Section 5.01, Section 5.02, Section 5.03, Section 5.04
and Section 5.11 of this Agreement as they relate to the
LaGuardia Subsequent Slots (disregarding any limitation as to “materiality,”
“US Airways Material Adverse Effect” or similar qualifiers set forth therein), shall
be true and correct in all respects as of the Subsequent Closing Date as if made at
and as of such time (except for any representation or warranty that is made only as
of a specified date, which need only to be true as of such specified date), except
where the failure to be so true and correct has not had and would not reasonably be
expected to have, either individually or in the aggregate, a US Airways Material
Adverse Effect.
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(ii) Performance of Obligations of US Airways. US Airways shall have
performed in all material respects all covenants and agreements required to be
performed by it under this Agreement at or prior to the Subsequent Closing Date with
respect to the LaGuardia Subsequent Slots.
(iii) Officer’s Certificate. Delta shall have received a certificate,
dated as of the Subsequent Closing Date, executed on behalf of US Airways by an
authorized officer thereof, certifying that the conditions specified in Section
8.04(a)(i) and 8.04(a)(ii) have been fulfilled.
(iv) Closing Deliveries. US Airways shall have delivered to Delta all
documents required to be delivered by US Airways pursuant to Sections 4.03(e).
(i)
Representations and Warranties. The representations and warranties
of Delta contained in Section 6.01, Section 6.02, Section 6.03, Section 6.04 and
Section 6.11 of this Agreement as they relate to the DCA Subsequent Slots
(disregarding any limitation as to “materiality,” “Delta Material Adverse Effect” or
similar qualifiers set forth therein), shall be true and correct in all respects as
of the Subsequent Closing Date as if made at and as of such time (except for any
representation or warranty that is made only as of a specified date, which need only
to be true as of such specified date), except where the failure to be so true and
correct has not had and would not reasonably be expected to have, either
individually or in the aggregate, a Delta Material Adverse Effect.
(ii)
Performance of Obligations of Delta. Delta shall have performed
in all material respects all covenants and agreements required to be performed by it
under this Agreement at or prior to the Subsequent Closing Date with respect to the
DCA Subsequent Slots.
(iii)
Officer’s Certificate. US Airways shall have received a
certificate, dated as of the Subsequent Closing Date, executed on behalf of Delta by
an authorized officer thereof, certifying that the conditions specified in Section
8.04(b)(i) and 8.04(b)(ii) have been fulfilled.
(iv)
Closing Deliveries. Delta shall have delivered to US Airways all
documents required to be delivered by US Airways pursuant to Sections 4.02(e).
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ARTICLE IX
Section 9.01
Survival. All of the representations, warranties, covenants and agreements of
the Parties contained in this Agreement, any exhibit to this Agreement, all certificates delivered
by Delta and US Airways to each other pursuant to this Agreement or in any Ancillary Document shall
survive indefinitely unless otherwise expressly provided below (and not be affected in any respect
by) the Initial Closing or the Subsequent Closing, as applicable, and any investigation conducted
by any Party hereto and any information or knowledge which any Party may have or receive.
Notwithstanding the foregoing, other than for fraud or intentional misrepresentation, (1) the
representations and warranties contained in or made pursuant to this Agreement, any exhibit to this
Agreement, all certificates delivered by Delta and US Airways to each other pursuant to this
Agreement or in any Ancillary Document and the indemnity obligations for the inaccuracy or breach
of such representations and warranties contained in Sections 9.02(a)(i) and 9.03(a)(i) shall
terminate on, and no claim or Action with respect thereto may be brought, after the date that is
eighteen (18) months immediately following the Initial Closing Date;
provided,
however, that the representations and warranties contained in Sections 5.01 and 6.01 (in
each case, first sentence only) (Organization; Standing and Power), 5.02 and 6.02 (Authority
Execution and Delivery; Enforceability), Section 5.08 (last sentence only) (Title to Assets),
Section 5.15 (Environmental Matters) and Sections 5.16 and 6.16 (Taxes) and the indemnity
obligations for the inaccuracy or breach of such representations and warranties contained in
Section 9.02(a)(i) or 9.03(a)(i) shall survive until five (5) years after the Initial Closing Date;
provided further,
however, that the representations and warranties
contained in Section 5.14 shall survive until the earlier of the payment in full of the Bond
Obligations and December 1, 2015;
provided further,
however, that any
representations and warranties given pursuant to Section 7.03(e), 7.03(f), 7.14(e), 7.15(e), 7.23
or 7.24 shall survive for eighteen (18) months after such representations and warranties are made
and the indemnity obligations for the inaccuracy or breach of such representations and warranties
contained in Section 9.02(a)(i) or 9.03(a)(i) shall survive for eighteen (18) months after each
such representation and warranty is made; (2) the covenants and agreements contained in Section
7.01, 7.02, 7.04, 7.07, 7.08, and 7.11 and the indemnity obligations for a breach of such covenants
and agreements contained in Section 9.02(a)(ii) or 9.03(a)(ii) shall terminate on, and no claim or
Action with respect thereto may be brought, after the date that is eighteen (18) months immediately
following the Initial Closing, and (3) the indemnity obligations contained in Section 9.02(a)(iv)
or 9.03(a)(iv) shall terminate on, and no claim or Action with respect thereto may be brought,
after the date that is six (6) years immediately following the Initial Closing. Notwithstanding
anything in this Section 9.01 to the contrary, the representations, warranties, covenants and
agreements and the applicable indemnity obligations for breach or inaccuracy thereof that terminate
pursuant to this Section 9.01, and the liability of any Party with respect thereto pursuant to this
Article IX, shall not terminate with respect to any claim, whether or not fixed as to liability or
liquidated as to amount, with respect to which the Indemnifying Party has been given written notice
from the
Indemnified Party in accordance with this Agreement setting forth the facts upon which the claim
for indemnification is based prior to the expiration of the applicable survival period.
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(a) From and after the Initial Closing and subject to this Article IX, Delta hereby agrees to
indemnify, reimburse, defend and hold harmless US Airways and its Affiliates and their
Representatives (collectively, the “US Airways Indemnified Persons”) for, from, and
against all Losses based upon, arising out of, asserted against, resulting from, imposed on, in
connection with, or otherwise in respect of:
(i) the inaccuracy or breach as of the applicable Closing Date (or at the
closing of any of the transactions pursuant to Section 7.03, 7.14, 7.15, 7.23 or
7.24) of any representation or warranty of Delta contained in or made pursuant to
this Agreement, or in any certificate or instrument delivered by Delta at the
applicable Closing (or at the closing of any of the transactions pursuant to Section
7.03, 7.14, 7.15, 7.23 or 7.24) in connection therewith (for purposes of determining
if there is any such inaccuracy or breach and for purposes of calculating any Losses
arising from such inaccuracy or breach, such representation and warranty shall be
read as if it were not qualified by the term “material,” “materiality” or “Delta
Material Adverse Effect” or a similar materiality term qualification);
(ii) the breach by Delta of, or the failure by Delta to perform, any of its
covenants or other agreements contained in this Agreement;
(iii) the Assumed US Airways Liabilities;
(iv) Third Party claims against US Airways Indemnified Persons for an Excluded
Delta Liability;
(v) with respect to the sale of the Delta Transferred Assets only, the failure
to comply with any provision of applicable bulk sales or similar Laws in connection
with the transactions contemplated hereby; and
(vi) Delta’s failure to perform its obligations with respect to the Bond
Obligations solely to the extent such obligations constitute Assumed US Airways
Liabilities, whether or not such obligations are set forth in (A) the Assignment and
Assumption Agreement of the East End Terminal Lease and Port Approval Bond
Documents, (B) the Assignment and Assumption Agreement of the Other Assumed Bond
Documents, (C) the East End Terminal Lease and/or the Assumed Bond Documents,
provided that, notwithstanding anything herein to the contrary, Delta shall have no
obligation or Liability with respect to the US Airways Retained Bond Obligations.
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(b) Notwithstanding anything to the contrary contained herein, except with respect to the
inaccuracy or breach of the representations and warranties contained in the Specified Sections, or
for fraud or intentional misrepresentation: (i) Delta shall not be
required, pursuant to Section 9.02(a)(i), 9.02(a)(ii) (only with respect to claims relating
to Section 7.02) or 9.02(a)(iv) to indemnify, defend or hold harmless unless the amount of any
Loss related to an individual claim under Section 9.02(a)(i), 9.02(a)(ii) (only with respect to
claims relating to Section 7.02) or 9.02(a)(iv) is greater than $[*] (the “Individual
Threshold”), and Delta will be obligated to indemnify for all of the US Airways Indemnified
Person’s Losses with respect to any such claim; and (ii) the cumulative aggregate indemnity
obligations of Delta under Section 9.02(a) (other than with respect to Sections 9.02(a)(iii),
9.02(a)(v) and 9.02(a)(vi)) shall in no event exceed $[*] (the “Delta Cap Amount”).
(a) From and after the Initial Closing and subject to this Article IX, US Airways hereby
agrees to indemnify, reimburse, defend and hold harmless Delta and its Affiliates and their
Representatives (collectively, the “Delta Indemnified Persons”) for, from, and against all
Losses based upon, arising out of, asserted against, resulting from, imposed on, in connection
with, or otherwise in respect of:
(i) the inaccuracy or breach as of the applicable Closing Date (or at the
closing of any of the transactions pursuant to Section 7.03, 7.14, 7.15, 7.23 or
7.24) of any representation or warranty of US Airways contained in or made pursuant
to this Agreement, or in any certificate or instrument delivered by US Airways at
the applicable Closing (or at the closing of any of the transactions pursuant to
Section 7.03, 7.14, 7.15, 7.23 or 7.24) in connection therewith (for purposes of
determining if there is any such inaccuracy or breach and for purposes of
calculating any Losses arising from such inaccuracy or breach, such representation
and warranty shall be read as if it were not qualified by the term “material,”
“materiality” or “US Airways Material Adverse Effect” or a similar materiality term
qualification);
(ii) the breach by US Airways of, or the failure by US Airways to perform, any
of its covenants or other agreements contained in this Agreement;
(iii) Reserved;
(iv) Third Party claims against Delta Indemnified Persons for an Excluded US
Airways Liability;
(v) with respect to the sale of the US Airways Transferred Assets only, the
failure to comply with any provision of applicable bulk sales or similar Laws in
connection with the transactions contemplated hereby; and
(vi) US Airways’ failure to perform any of its obligations with respect to the
US Airways Retained Bond Obligations.
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(b) Notwithstanding anything to the contrary contained herein, except with respect to the
inaccuracy or breach of the representations and warranties contained
in the Specified Sections, or for fraud or intentional misrepresentation: (i) US Airways
shall not be required, pursuant to Sections 9.03(a)(i), 9.03(a)(ii) (only with respect to claims
relating to Section 7.01) or 9.03(a)(iv) to indemnify, defend, or hold harmless unless the amount
of any Loss related to an individual claim under Sections 9.03(a)(i), 9.03(a)(ii) (only with
respect to claims relating to Section 7.01) or 9.03(a)(iv) is greater than the Individual
Threshold, and US Airways will be obligated to indemnify for all of the Delta Indemnified Person’s
Losses with respect to any such claim; and (ii) the cumulative aggregate indemnity obligations of
US Airways under Section 9.03(a) (other than with respect to Sections 9.03(a)(v) and 9.03(a)(vi))
shall in no event exceed $[*] (the “US Airways Cap Amount”).
(a) If any US Airways Indemnified Person, on the one hand, or any Delta Indemnified Person,
on the other hand (the “Indemnified Party”), has a claim that would reasonably give rise
to an obligation on the part of Delta or US Airways, other than a Third Party Claim, to provide
indemnification (the “Indemnifying Party”) pursuant to this Article IX, the Indemnified
Party shall promptly give the Indemnifying Party written notice thereof (the “Indemnification
Claim Notice”); provided, however, that the failure to give such prompt notice
shall not prevent any Indemnified Party from being indemnified hereunder for any Losses, except to
the extent that the failure to so promptly notify the Indemnifying Party materially damages or
materially prejudices the Indemnifying Party’s ability to defend against such claim. Any
Indemnification Claim Notice shall set forth the amount, if known, or, if not known, an estimate
of the foreseeable maximum amount of claimed Losses, a description in reasonable detail of the
basis for such claim and the Sections of the Agreement allegedly breached which are the basis of
the claim.
(b) Upon receipt by an Indemnified Party of notice of a claim, or the commencement of any
Action, by a Third Party that would reasonably give rise to an obligation to provide
indemnification pursuant to this Article IX (a “Third Party Claim”), the Indemnified Party
will give the Indemnifying Party prompt written notice thereof (the “Third Party
Indemnification Claim Notice”); provided, however, that the failure of the
Indemnified Party to so promptly provide written notice to the Indemnifying Party shall not
prevent any Indemnified Party from being indemnified for any Losses, except to the extent that the
failure to so promptly notify the Indemnifying Party materially damages or materially prejudices
the Indemnifying Party’s ability to defend against such claim. Any Third Party Indemnification
Claim Notice shall set forth the amount, if known, or, if not known, an estimate of the
foreseeable maximum amount of claimed Losses, a description in reasonable detail of the basis for
such claim and the Sections of the Agreement allegedly breached which are the basis of the claim.
The Indemnified Party shall enclose with the Third Party Indemnification Claim Notice a copy of
all papers served with respect to such Third Party Claim, if any, and any other documents
reasonably evidencing such Third Party Claim.
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(c) In the event the Indemnifying Party receives a Third Party Indemnification Claim Notice
pursuant to Section 9.04(b), the Indemnifying Party shall notify the Indemnified Party within
fifteen (15) Business Days following its receipt of such notice whether the Indemnifying Party
disputes its liability to the Indemnified Party under this Article IX. If the Indemnifying Party
confirms in writing to the Indemnified Party within 15 Business
Days after receipt of the Third Party Indemnification Claim Notice the Indemnifying Party’s
responsibility to indemnify, defend and hold harmless the Indemnified Party therefor and within
such 15 Business Day period demonstrates to the Indemnified Party’s good faith reasonable
satisfaction that the Indemnifying Party has or can be reasonably expected to have sufficient
financial resources in order to indemnify for the full amount of any quantifiable Losses that are
reasonably likely to be incurred in connection with such claim, the Indemnifying Party may elect
to assume control over the compromise or defense of such Third Party Claim at such Indemnifying
Party’s own expense and by such Indemnifying Party’s own counsel, which counsel will be reasonably
satisfactory to the Indemnified Party. If the Indemnifying Party so elects to assume control over
the compromise and defense of such Third Party Claim, the Indemnifying Party shall within such 15
Business Days (or sooner, if the nature of the asserted Third Party Claim so requires) notify the
Indemnified Party of such Indemnifying Party’s intent to do so, and the Indemnified Party shall
and shall cause each of its Affiliates and Representatives to cooperate, at the expense of the
Indemnifying Party, in the compromise of, or defense against, such Third Party Claim;
provided, however, that: (i) the Indemnified Party may, if such Indemnified Party
so desires, employ counsel at such Indemnified Party’s own expense to assist and participate in
the handling (but not control the defense) of any Third Party Claim; (ii) the Indemnifying Party
shall keep the Indemnified Party advised of all material events with respect to any Third Party
Claim; and (iii) no Indemnifying Party will, without the prior written consent of each Indemnified
Party (which consent shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment in any pending or threatened Action in respect of which indemnification may
be sought hereunder (whether or not any such Indemnified Party is a party to such Action), (A)
unless such settlement, compromise or consent by its terms obligates the Indemnifying Party to pay
the full amount of the liability in connection with such Third Party Claim and includes a complete
and unconditional release of all such Indemnified Parties from all liability arising out of such
claim or Action as well as no admission of wrongdoing on behalf of the Indemnified Parties, and
(B) to the extent such judgment, compromise, consent or settlement provides for equitable relief
which adversely effects the Indemnified Party.
(d) Notwithstanding anything contained herein to the contrary, the Indemnifying Party shall
not be entitled to have, subject to this Article IX, control over (and if it so desires, the
Indemnified Party shall have, subject to this Article IX, control over) the defense, settlement,
adjustment or compromise of (but, subject to this Article IX, the Indemnifying Party shall
nevertheless be required to pay all Losses incurred by the Indemnified Party in connection with
such defense, settlement or compromise if and to the extent liable under the terms of this Article
IX): (i) any Third Party Claim that seeks an order, injunction or other equitable relief against
any Indemnified Party or any of its Affiliates; (ii) any Third Party Claim in which both the
Indemnifying Party and the Indemnified Party are named as parties and either the Indemnifying
Party or the Indemnified Party determines in its reasonable judgment with advice of counsel that
there may be one or more legal defenses available to it that are different from or additional to
those available to the other party or that an actual or potential conflict of interest between
such parties may exist in respect of such Action; or (iii) any Third Party Claim in which the
Indemnifying Party does not elect or is otherwise not permitted to assume control or, after
assuming such control, fails to diligently defend against such claim in good faith (it being
agreed that settlement of such claim
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in accordance with this Section 9.04 does not constitute such
a failure to defend); provided, however, that no Indemnified Party will, without ten (10) Business Days prior written notice to the
Indemnifying Party, settle or compromise or consent to the entry of any judgment in any pending or
threatened action in respect of which indemnification may be sought hereunder (whether or not any
such Indemnifying Party is a party to such action). In the event that an Indemnifying Party is
prevented from assuming the defense due to clauses (i) or (ii) of preceding sentence, the
following shall apply (i) the Indemnifying Party may, if such Indemnifying Party so desires,
employ counsel at such Indemnifying Party’s own expense to assist and participate in the handling
(but not control the defense) of any Third Party Claim; (ii) the Indemnified Party shall keep the
Indemnifying Party advised of all material events with respect to any Third Party Claim; and (iii)
the Indemnified Party shall diligently defend in good faith (it being agreed that settlement of
such Third Party Claim does not constitute a failure to defend) such Third Party Claim. In the
event that the Indemnifying Party did not elect to assume the defense, or is otherwise prohibited
from assuming the defense, of such Third Party Claim in accordance with clause (c) of this Section
9.04 and subsequent to the time periods set forth in clause (c) of this Section 9.04, the
Indemnifying Party (A) confirms in writing to the Indemnified Party the Indemnifying Party’s
responsibility to indemnify, defend and hold harmless the Indemnified Party therefore, (B)
reimburses the Indemnified Party for all out-of-pocket Losses (including without limitation all
Legal Expenses) theretofore incurred by such Indemnified Party with respect to such Third Party
Claim, and (C) demonstrates to the Indemnified Party’s good faith reasonable satisfaction that the
Indemnifying Party has or can be reasonably expected to have sufficient financial resources in
order to indemnify for the full amount of any quantifiable Losses that are reasonably likely to be
incurred in connection with such claim, then the Indemnifying Party shall be entitled to assume
control over the compromise or defense of such Third Party Claim at such Indemnifying Party’s own
expense and by such Indemnifying Party’s own counsel, which counsel will be reasonably
satisfactory to the Indemnified Party. If the Indemnifying Party so elects to assume control over
the compromise and defense of such Third Party Claim, the Indemnifying Party shall provide the
Indemnified Party written notice of such Indemnifying Party’s intent to do so, and the Indemnified
Party shall and shall cause each of its Affiliates and Representatives to cooperate, at the
expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party
Claim; provided, however, that: (i) the Indemnified Party may, if such
Indemnified Party so desires, employ counsel at such Indemnified Party’s own expense to assist and
participate in the handling (but not control the defense) of any Third Party Claim; (ii) the
Indemnifying Party shall keep the Indemnified Party advised of all material events with respect to
any Third Party Claim; and (iii) no Indemnifying Party will, without the prior written consent of
each Indemnified Party (which consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment in any pending or threatened Action in respect of which
indemnification may be sought hereunder (whether or not any such Indemnified Party is a party to
such Action), (A) unless such settlement, compromise or consent by its terms obligates the
Indemnifying Party to pay the full amount of the liability in connection with such Third Party
Claim and includes a complete and unconditional release of all such Indemnified Parties from all
liability arising out of such claim or Action as well as no admission of wrongdoing on behalf of
the Indemnified Parties, and (B) to the extent such judgment, compromise, consent or settlement
provides for equitable relief which adversely effects the Indemnified Party.
(e) In connection with any defense of a Third Party Claim (whether by the Indemnifying
Parties or the Indemnified Parties), all of the parties hereto shall, and shall
cause their respective Affiliates and Representatives to, cooperate in the defense or
prosecution thereof and to in good faith retain and furnish such records, information and
testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as
may be reasonably requested by a Party in connection therewith.
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(a) If any Indemnified Party becomes entitled to indemnification from an Indemnifying Party
pursuant to this Agreement, such indemnification payment will be made in cash upon demand.
(b) Delta or US Airways, as the case may be, may, at its option (at any time and from time to
time), reduce after determination by a final nonappealable judgment that amounts are owed
hereunder any amount owed by Delta or US Airways, as the case may be, to US Airways or Delta, as
the case may be, under this Agreement (pursuant to this Article IX) or any other Ancillary
Document by all or part of any amount owed by US Airways to Delta, as the case may be, under this
Agreement (pursuant to this Article IX), any other Ancillary Document or any other agreements
between Delta, on the one hand, and US Airways on the other hand; provided,
however, that no reduction or set off shall be permitted with respect to the US Airways
Initial Purchase Price, US Airways Subsequent Purchase Price, the Delta Initial Purchase Price,
the Delta Subsequent Purchase Price, the Delta Bond Escrow Funds, the US Airways Bond Escrow
Funds, the US Airways LaGuardia Call Right, the Delta DCA Call Right or with respect to the
indemnity for the Bond Obligations in Section 9.02.
(a) To the extent provided herein, the amount of any Loss shall be (without duplication) (i)
increased by any Taxes incurred by such Indemnified Party solely as a result of the receipt of the
indemnity payment, and (ii) reduced by any decrease in Taxes as a result of a Tax deduction or
credit (a “Tax Benefit”) actually realized by such Indemnified Party as a result of such
Loss during the taxable year in which such Loss was incurred. A Tax Benefit that results from an
event giving rise to the indemnity payment shall be considered actually realized by such
Indemnified Party only to the extent that, but for such Tax Benefit, such Indemnified Party’s Tax
liability would be higher than it is with such Tax Benefit (e.g., deductions, credits or losses of
such Indemnified Party that do not result from the event giving rise to the indemnity payment
shall be deemed to be used prior to the use of any deduction, credit or loss that does result from
the event giving rise to the indemnity payment). The amount of any increase, reduction or payment
hereunder shall be adjusted to reflect any final determination with respect to such Indemnified
Party’s liability for Taxes, and if necessary, payments shall be made between the parties to this
Agreement to reflect such adjustment.
(b) For all applicable Tax purposes, any indemnification payments pursuant to this Article IX
shall be deemed to be adjustments to the purchase price hereunder.
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Section 9.08
Sole and Exclusive Remedy. Each Party acknowledges and agrees that, after the
Initial Closing Date, notwithstanding anything to the contrary contained in this Agreement, except
with respect to fraud or intentional misrepresentation, other than as set forth in Section 11.09
(Specific Performance) (i) the indemnification provisions in this Article IX shall be the sole and
exclusive remedies of the Parties hereto for any breach of the representations or warranties
contained in this Agreement; (ii) no breach of any representation, warranty, covenant or agreement
contained herein shall give rise to any right on the part of any Party hereto to rescind this
Agreement or any of the transactions contemplated by this Agreement; and (iii) the indemnification
provisions of this Article IX shall be the sole and exclusive monetary remedies of the Parties for
any breach of the covenants contained in this Agreement, other than the payment of the US Airways
Subsequent Purchase Price and the Delta Subsequent Purchase Price. Other than as set forth in
Section 11.09 (Specific Performance), in the case of fraud or intentional misrepresentation, with
respect to any obligation to pay the US Airways Subsequent Purchase Price or the Delta Subsequent
Purchase Price, or as expressly permitted under this Agreement, each Party expressly waives any and
all other remedies, rights or causes of action it or its Affiliates may have against the other
Party or their respective Affiliates now or in the future under any Law with respect to the subject
matter hereof.
ARTICLE X
(a) by mutual written consent of Delta and US Airways;
(b) by written notice of either Delta or US Airways:
(i) if the Initial Closing has not occurred by the close of business on October
16, 2011 (the “End Date”); provided, that on or after such End Date
a Party (a “Terminating Party”) may terminate this Agreement five (5)
Business Days after delivering written notice thereof to the other Party (a
“Non-Terminating Party”), except that if during such five (5) Business Day
period the Non-Terminating Party provides written notice to the Terminating Party of
its election to extend the End Date to December 16, 2011; provided that the
Non-Terminating Party may so extend the End Date only if at the time of the delivery
of such extension notice:
(A) the FAA or the DOT shall have issued a final order allowing
the transfer of the LaGuardia Slots as contemplated by this
Agreement and which shall not contain a Burdensome Restriction (the
“FAA/DOT Order”) (it being understood that any required
conditions or actions contained in the FAA/DOT Order need not have
been satisfied, e.g., required auctions need not have been
conducted); and
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(B) in the case of (i) [*], the conditions to the Initial
Closing in Sections 8.01 and 8.03 (other than conditions related to
(v) Section 8.03(a) in that for purposes of determining whether such
condition is satisfied for purposes of the extension only, with
respect to the representation and warranty set forth in Section
6.05(c), any pending litigation involving a Third Party related to
the FAA/DOT Order shall not be considered (whether or not such
litigation constitutes a Legal Restraint); (w) FAA approval of the
transfer of the DCA Slots and the lease of Slots contemplated by the
DCA Initial Slot Lease and the DCA Subsequent Slot Lease; (x) the
absence of (1) Governmental Approvals, Legal Restraints or pending
litigation involving the DOJ or (2) Legal Restraints obtained by a
Third Party related to the FAA/DOT Order; (y) approval by the Port
Authority as contemplated by Section 8.03(e); or (z) those
obligations which by their terms require the delivery of any
documents or the taking of other action at the Initial Closing) have
been satisfied and (ii) in the case of [*], the conditions to the
Initial Closing in Sections 8.01 and 8.02 (other than conditions
related to (v) Section 8.02(a) in that for purposes of determining
whether such condition is satisfied for purposes of the extension
only, with respect to the representation and warranty set forth in
Section 5.05(c), any pending litigation involving a Third Party
related to the FAA/DOT Order shall not be considered (whether or not
such litigation constitutes a Legal Restraint); (w) the FAA/DOT
Order, which shall be as set forth in Section 10.01(b)(i)(A), and
FAA approval of the lease of Slots contemplated by the LaGuardia
Initial Slot Lease and the LaGuardia Subsequent Slot Lease; (x) the
absence of (1) Governmental Approvals, Legal Restraints or pending
litigation involving the DOJ or (2) Legal Restraints obtained by a
Third Party related to the FAA/DOT Order; (y) approval by the Port
Authority as contemplated by Section 8.02(e); or (z) those
obligations which by their terms require the delivery of any
documents or the taking of other action at the Initial Closing) have
been satisfied; provided that the right of a Party to assert that
such a condition has not been satisfied shall not be available if
the failure of such condition to be satisfied is the result of a
breach of this Agreement by such Party or the failure of any
representation or warranty of such Party contained in this Agreement
to be true and correct; or
(ii) if the End Date has been extended to December 16, 2011 pursuant to the
terms of Section 10.01(b)(1) and the Initial Closing shall not have occurred by
December 16, 2011; provided, that on or after December 16, 2011 a Terminating Party
may terminate this Agreement five (5) Business Days after delivering written notice
thereof to the Non-Terminating Party, except if during such five (5) Business Day
period the Non-Terminating Party provides
written notice to the Terminating Party of its election to further extend the
End Date to March 17, 2012; provided, that the Non-Terminating Party may further
extend the End Date only if at the time of the delivery of such extension notice;
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(A) the DOJ has commenced litigation against US Airways or
Delta relating to the transactions contemplated by this Agreement
and such litigation has not resulted in a final, nonappealable order
preventing consummation of the Agreement; and
(B) in the case of (i) [*], the conditions to the Initial
Closing in Sections 8.01 and 8.03 (other than conditions related to
(v) Section 8.03(a) in that for purposes of determining whether such
condition is satisfied for purposes of the extension only, with
respect to the representation and warranty set forth in Section
6.05(c), any pending litigation involving a Third Party related to
the FAA/DOT Order shall not be considered (whether or not such
litigation constitutes a Legal Restraint); (w) FAA approval for the
transfer of the DCA Slots and the lease of Slots contemplated by the
DCA Initial Slot Lease and the DCA Subsequent Slot Lease, (x) the
absence of (1) Governmental Approvals, Legal Restraints or pending
litigation involving the DOJ or (2) Legal Restraints obtained by a
Third Party related to the FAA/DOT Order, (y) approval by the Port
Authority as contemplated by Section 8.03(e) or (z) those
obligations which by their terms require the delivery of any
documents or the taking of other action at the Initial Closing) have
been satisfied and (ii) in the case of [*], the conditions to the
Initial Closing in Sections 8.01 and 8.02 (other than conditions
related to (v) Section 8.02(a) in that for purposes of determining
whether such condition is satisfied for purposes of the extension
only, with respect to the representation and warranty set forth in
Section 5.05(c), any pending litigation involving a Third Party
related to the FAA/DOT Order shall not be considered (whether or not
such litigation constitutes a Legal Restraint); (w) the FAA/DOT
Order, which shall be as set forth in Section 10.01(b)(i)(A), and
FAA approval of the lease of Slots contemplated by the LaGuardia
Initial Slot Lease and the LaGuardia Subsequent Slot Lease, (x) the
absence of (1) Governmental Approvals, Legal Restraints or pending
litigation involving the DOJ or (2) Legal Restraints obtained by a
Third Party related to the FAA/DOT Order, (y) approval by the Port
Authority as contemplated by Section 8.02(e) or (z) those
obligations which by their terms require the delivery of any
documents or the taking of other action at the Initial Closing have
been satisfied; provided that the right of a Party to assert that
such a condition has not been satisfied shall not be available if
the failure of such condition to be satisfied is the result of a
breach of
this Agreement by such Party or the failure of any
representation or warranty of such Party contained in this Agreement
to be true and correct;
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provided, however, that the right to terminate this Agreement under
this Section 10.01(b)(i) or Section 10.01(b)(ii) shall not be available to any Party
if such failure of the Closing to occur on or before the End Date is the result of a
breach of this Agreement by such Party or the failure of any representation or
warranty of such Party contained in this Agreement to be true and correct; or
(iii) if the condition set forth in Section 8.01(b) [Legal Restraints] is not
satisfied and the Legal Restraint giving rise to such non-satisfaction shall have
become final and non-appealable.
(c) [*].
(a) In the event of termination of this Agreement by either US Airways or Delta as provided
in Section 10.01(a), (b) or (c), this Agreement shall forthwith become void and have no effect,
without any liability or obligation on the part of Delta or US Airways, other than Section 7.10
[Fees and Expenses], Section 10.02 and Article XI [General], which provisions shall survive such
termination, and except for any intentional and material breach by a Party of any representation
or warranty of such Party set forth in this Agreement and except for any intentional breach by a
Party of any covenant or agreement of such Party set forth in this Agreement.
(b) In the event of termination of this Agreement [*], (i) the Parties will suspend all
regulatory filings and (ii) [*]: (A) [*] (the “Termination Fee”) in accordance with
Section 10.02(c) below, (B) [*] in accordance with Section 10.02(d) below (the “[*]”), or (C) the
Right of First Refusal in accordance with Sections 10.02(e) below. [*] (together with wire
instructions, if the Termination Fee is elected) and any election shall be irrevocable.
(c) If [*] pursuant to Section 10.02(b)(ii)(A):
(i) [*]; and
(ii) Upon payment of the Termination Fee, the Parties agree that the Agreement
is terminated and there shall be no additional liability to any Party;
provided, however, that in the event that [*].
(d) If [*] pursuant to this Section 10.02(b)(ii)(B):
(i) the Agreement will be deemed amended as follows: (A) [*]; (B) [*]; and (C)
[*] on the terms and conditions of the Agreement (as amended by the amendments).
(e) If [*] (the “[*]”), in accordance with Section 10.02(b)(ii)(C):
(i) The term of the [*] shall be [*] in accordance with Section 10.02(b) [*].
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(ii) Pursuant to the Right of First Refusal, [*]. For the avoidance of doubt,
[*].
(iii) The Right of First Refusal shall operate as follows:
(1) Prior to agreeing to the [*].
(2) [*] on the terms and conditions set forth in 10.02(e)(iii)(3) below
(“ROFR Election Notice”). The ROFR Election Notice shall be irrevocable.
In order for [*] which is nonrefundable, except in the single circumstance described
in Section 10.02(e)(iv).
(3) Following
delivery of the [*]: (A) [*]; (B) [*]; (C) [*]; (D) [*]; and (E)
[*] in accordance with this Section 10.02(e).
(4) The Right of First Refusal may only be exercised in respect of the [*].
(iv) At the closing of the sale in connection with the Right of First Refusal,
the purchase price shall be offset by the [*]. If no closing occurs due solely to
the failure to obtain the Governmental Approvals necessary to satisfy the closing
condition in Section 8.01(a) with respect to Schedule 6.04 (Item 2) for such
transaction, [*].
ARTICLE XI
Section 11.01 Amendment. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the Parties.
Section 11.02 Extension; Waiver. At any time, the parties may (a) extend the time for the
performance of any of the obligations or other acts of the other Parties, (b) waive any
inaccuracies in the representations and warranties contained in this Agreement or in any document
delivered pursuant to this Agreement, (c) waive compliance with any covenants and agreements
contained in this Agreement or (d) waive the satisfaction of any of the conditions contained in
this Agreement. Any agreement on the part of a Party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such Party. The failure of
any Party to this Agreement to assert any of its rights under this Agreement or otherwise shall not
constitute a waiver of such rights.
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Section 11.03 Notices. All notices and other communications hereunder will be in writing
and given by certified or registered mail, return receipt requested, nationally recognized
overnight delivery service, such as Federal Express, facsimile or e-mail (or
like transmission) with confirmation of transmission by the transmitting equipment or personal
delivery against receipt to the Party to whom it is given, in each case, at such Party’s address,
facsimile number or e-mail address set forth below or such other address, facsimile number or
e-mail address as such Party may hereafter specify by notice to the other Party given in accordance
herewith. Any such notice or other communication shall be deemed to have been given as of the date
so personally delivered or transmitted by facsimile or e-mail or like transmission, on the next
Business Day when sent by overnight delivery services or five days after the date so mailed if by
certified or registered mail.
(a) if to Delta, to
Delta Air Lines, Inc.
Dept. 941
0000 Xxxxx Xxxx.
Xxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Executive V.P. — Network Planning & Revenue
Management
with a copy to:
Delta Air Lines, Inc.
Dept. 877
0000 Xxxxx Xxxx.
Xxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Senior Vice President — Corporate Strategy and
Real Estate
and
Delta Air Lines, Inc.
Dept. 981
0000 Xxxxx Xxxx.
Xxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Senior Vice President and General Counsel
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(b) if to US Airways, to
US Airways, Inc.
000 X. Xxx Xxxxxx Xxxxxxx
Xxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Legal Department
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 X. Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Xxxxxxxx X. xxXxxxx, Esq.
Section 11.04 Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule or law, or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and effect so long as
either the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any Party or such Party waives its rights under this Section 11.04
with respect thereto. Upon such determination that any term or other provision is invalid, illegal
or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the Parties as closely as possible in an acceptable manner
to the end that transactions contemplated hereby are fulfilled to the extent possible.
Section 11.05 Counterparts. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the other Party.
Section 11.06 Entire Agreement. This Agreement, taken together with the Ancillary
Documents and the exhibits and schedules hereto and thereto, and the Non-Disclosure Agreement,
constitutes the entire agreement, and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the transactions contemplated by this
Agreement. After the consummation of the applicable Closing, to the extent the Evaluation Material
(as defined in the Non-Disclosure Agreement) provided to a Receiving Party (as defined in the
Non-Disclosure Agreement) constitutes the applicable Transferred Assets purchased by the Receiving
Party pursuant to this Agreement, the confidentiality obligations of the Receiving Party with
respect to such Evaluation Material shall no longer apply. This Agreement is not intended to
confer upon any Person not a Party hereto (or their successors and permitted assigns), other than
the Delta Indemnified Parties and the US Airways Indemnified Parties under Article IX, any rights
or remedies hereunder.
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Section 11.07 Governing Law; Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER ANY APPLICABLE
PRINCIPLES OF CONFLICTS OF LAWS OF THE STATE OF NEW YORK.
(b) Each of the Parties irrevocably consents to the exclusive jurisdiction and venue of the
United States District Court for the Southern District of New York or any New York State court
located in New York County, State of New York, in connection with any matter based upon or arising
out of this Agreement or the matters contemplated herein, agrees that process may be served upon
them in any manner authorized by the laws of the State of New York for such Persons and waives and
covenants not to assert or plead any objection that they might otherwise have to such
jurisdiction, venue and process.
Section 11.08 Assignment. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by either of the Parties
without the prior written consent of the other Party; provided, however, that
without any consent hereunder to the extent required under either Party’s credit agreement, this
Agreement may be pledged or otherwise assigned to secure the obligations hereunder. Any purported
assignment without such consent shall be null and void. Subject to the preceding sentences, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
Section 11.09 Specific Enforcement. The Parties acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached, and that monetary damages, even if
available, would not be an adequate remedy therefor. It is accordingly agreed that, prior to the
termination of this Agreement pursuant to Article X, the Parties shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of
terms and provisions of this Agreement, without proof of actual damages (and each Party hereby
waives any requirement for the securing or posting of any bond in connection with such remedy) this
being in addition to any other remedy to which they are entitled at law or in equity. The Parties
further agree not to assert that a remedy of specific enforcement is unenforceable, invalid,
contrary to law or inequitable for any reason, nor to assert that a remedy of monetary damages
would provide an adequate remedy for any such breach.
Section 11.10 Waiver of Jury Trial. Each Party hereby waives, to the fullest extent
permitted by applicable Law, any right it may have to a trial by jury in respect of any suit,
action or other proceeding arising out of this Agreement or any of the other transactions
contemplated by this Agreement. Each Party (a) certifies that no representative, agent or attorney
of any other Party has represented, expressly or otherwise, that such Party would not, in the event
of any action, suit or proceeding, seek to enforce the foregoing waiver and (b) acknowledges that
it and the other Party have been induced to enter into this Agreement, by, among other things, the
mutual waiver and certifications in this Section 11.10.
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Section 11.11 Bulk Transfer. The parties hereto hereby waive compliance with the
provisions of any applicable bulk sales Law of any jurisdiction in connection with the transactions
contemplated hereby and no representation, warranty or covenant contained in this Agreement shall
be deemed to have been breached as a result of such non-compliance, provided that the indemnities
contained in Sections 9.02(a)(v) and 9.03(a)(v) shall remain in full force and effect.
ARTICLE XII
Section 12.01 US Airways Parent Guaranty. US Airways Parent, as primary obligor and
not merely as surety, hereby unconditionally and irrevocably guarantees the full and timely payment
by US Airways of the amounts due under this Agreement as amended or modified from time to time.
This is a guarantee of payment and not of collection, and US Airways Parent acknowledges and agrees
that this guarantee is full, unconditional and continuing and independent of the payment
obligations of US Airways; provided Delta may not require payment by US Airways Parent under this
Article XII unless and until there has been a failure to pay by US Airways with respect to such
payment obligation with respect to this Agreement after demand therefor in accordance this
Agreement. Notwithstanding anything in this Agreement to the contrary, in the event Delta makes a
demand upon US Airways Parent pursuant to the terms hereof, US Airways Parent shall be entitled to
assert against Delta all defenses available to US Airways to enforcement of US Airways’ underlying
payment obligations under this Agreement including all defenses personal to US Airways.
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DELTA AIR LINES, INC.
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By: |
/s/ Xxxxxxx X. Xxxxxxxx
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Name: |
Xxxxxxx X. Xxxxxxxx |
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Title: |
Chief Executive Officer |
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US AIRWAYS, INC.
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By: |
/s/ W. Xxxxxxx Xxxxxx
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Name: |
W. Xxxxxxx Xxxxxx |
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Title: |
Chairman and Chief Executive
Officer |
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AND SOLELY WITH RESPECT TO ARTICLE XII HEREOF
US AIRWAYS GROUP, INC.
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By: |
/s/ W. Xxxxxxx Xxxxxx
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Name: |
W. Xxxxxxx Xxxxxx |
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Title: |
Chairman and Chief Executive
Officer |
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