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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark one)
     
þ   Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
For the quarterly period ended September 30, 2009
or
     
o   Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
For the transition period from                      to                     
US Airways Group, Inc.
(Exact name of registrant as specified in its charter)
(Commission File No. 1-8444)
54-1194634 (IRS Employer Identification No.)
111 West Rio Salado Parkway, Tempe, Arizona 85281
(Address of principal executive offices, including zip code)
US Airways, Inc.
(Exact name of registrant as specified in its charter)
(Commission File No. 1-8442)
53-0218143 (IRS Employer Identification No.)
111 West Rio Salado Parkway, Tempe, Arizona 85281
(Address of principal executive offices, including zip code)
(480) 693-0800
(Registrants’ telephone number, including area code)
Delaware
(State of Incorporation of all Registrants)
Indicate by check mark whether each registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether each registrant has submitted electronically and posted on its corporate website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes o No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
                 
US Airways Group, Inc.
  Large accelerated filer o   Accelerated filer þ   Non-accelerated filer o   Smaller reporting company o
US Airways, Inc.
  Large accelerated filer o   Accelerated filer o   Non-accelerated filer þ   Smaller reporting company o
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
                 
US Airways Group, Inc.
  Yes   o   No   þ
US Airways, Inc.
  Yes   o   No   þ
Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court.
                 
US Airways Group, Inc.
  Yes   þ   No   o
US Airways, Inc.
  Yes   þ   No   o
As of October 16, 2009, there were approximately 161,102,717 shares of US Airways Group, Inc. common stock outstanding.
As of October 16, 2009, US Airways, Inc. had 1,000 shares of common stock outstanding, all of which were held by US Airways Group, Inc.
 
 

 

 


 

US Airways Group, Inc.
US Airways, Inc.
Form 10-Q
Quarterly Period Ended September 30, 2009
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  Exhibit 2.1
  Exhibit 3.1
  Exhibit 10.1
  Exhibit 10.2
  Exhibit 10.3
  Exhibit 10.4
  Exhibit 10.5
  Exhibit 31.1
  Exhibit 31.2
  Exhibit 31.3
  Exhibit 31.4
  Exhibit 32.1
  Exhibit 32.2

 

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This combined Quarterly Report on Form 10-Q is filed by US Airways Group, Inc. (“US Airways Group”) and its wholly owned subsidiary US Airways, Inc. (“US Airways”). References in this Form 10-Q to “we,” “us,” “our” and the “Company” refer to US Airways Group and its consolidated subsidiaries.
Note Concerning Forward-Looking Statements
Certain of the statements contained in this report should be considered “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements may be identified by words such as “may,” “will,” “expect,” “intend,” “anticipate,” “believe,” “estimate,” “plan,” “project,” “could,” “should,” and “continue” and similar terms used in connection with statements regarding, among others, our outlook, expected fuel costs, the revenue environment, and our expected financial performance. These statements include, but are not limited to, statements about the benefits of the business combination transaction involving America West Holdings Corporation (“America West Holdings”) and US Airways Group, including future financial and operating results, our plans, objectives, expectations and intentions and other statements that are not historical facts. These statements are based upon the current beliefs and expectations of management and are subject to significant risks and uncertainties that could cause our actual results and financial position to differ materially from these statements. These risks and uncertainties include, but are not limited to, those described below under Part II, Item 1A “Risk Factors,” and the following:
   
the impact of future significant operating losses;
   
economic conditions and their impact on passenger demand and related revenues;
   
a reduction in the availability of financing and changes in prevailing interest rates that result in increased costs of financing;
   
our high level of fixed obligations and our ability to obtain and maintain financing for operations and other purposes and operate pursuant to the terms of our financing facilities (particularly the financial covenants);
   
the impact of fuel price volatility, significant disruptions in the supply of aircraft fuel and further significant increases to fuel prices;
   
our ability to maintain adequate liquidity;
   
labor costs and relations with unionized employees generally and the impact and outcome of labor negotiations, including our ability to complete the integration of the labor groups of US Airways Group and America West Holdings;
   
our reliance on vendors and service providers and our ability to obtain and maintain commercially reasonable terms with those vendors and service providers;
   
our reliance on automated systems and the impact of any failure or disruption of these systems;
   
the impact of the integration of our business units;
   
the impact of changes in our business model;
   
competitive practices in the industry, including significant fare restructuring activities, capacity reductions and in court or out of court restructuring by major airlines;
   
the impact of industry consolidation;
   
our ability to attract and retain qualified personnel;
   
the impact of global instability, including the current instability in the Middle East, the continuing impact of the military presence in Iraq and Afghanistan and the terrorist attacks of September 11, 2001 and the potential impact of future hostilities, terrorist attacks, infectious disease outbreaks or other global events that affect travel behavior;
   
changes in government legislation and regulation;
   
our ability to obtain and maintain adequate facilities and infrastructure to operate and grow our route network;
   
the impact of environmental laws and regulations;

 

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costs of ongoing data security compliance requirements and the impact of any data security breach;
   
interruptions or disruptions in service at one or more of our hub airports;
   
the impact of any accident involving our aircraft;
   
delays in scheduled aircraft deliveries or other loss of anticipated fleet capacity;
   
the impact of weather conditions and seasonality of airline travel;
   
the cyclical nature of the airline industry;
   
the impact of possible future increases in insurance costs and disruptions to insurance markets;
   
the impact of foreign currency exchange rate fluctuations;
   
our ability to use NOLs and certain other tax attributes;
   
our ability to maintain contracts that are critical to our operations;
   
our ability to attract and retain customers; and
   
other risks and uncertainties listed from time to time in our reports to and filings with the Securities and Exchange Commission.
All of the forward-looking statements are qualified in their entirety by reference to the factors discussed in Part II, Item 1A “Risk Factors” and elsewhere in this Form 10-Q. There may be other factors of which we are not currently aware that may affect matters discussed in the forward-looking statements and may also cause actual results to differ materially from those discussed. We assume no obligation to publicly update or supplement any forward-looking statement to reflect actual results, changes in assumptions or changes in other factors affecting these estimates other than as required by law. Any forward-looking statements speak only as of the date of this Form 10-Q or as of the dates indicated in the statements.
Part I. Financial Information
This combined Form 10-Q is filed by US Airways Group and US Airways and includes the financial statements of each company in Item 1A and Item 1B, respectively.

 

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Item 1A.  
Condensed Consolidated Financial Statements of US Airways Group, Inc.
US Airways Group, Inc.
Condensed Consolidated Statements of Operations
(In millions, except share and per share amounts)
(Unaudited)
                                 
    Three Months     Nine Months  
    Ended September 30,     Ended September 30,  
    2009     2008     2009     2008  
Operating revenues:
                               
Mainline passenger
  $ 1,757     $ 2,197     $ 5,092     $ 6,364  
Express passenger
    662       771       1,856       2,230  
Cargo
    23       37       67       111  
Other
    277       256       817       652  
 
                       
Total operating revenues
    2,719       3,261       7,832       9,357  
Operating expenses:
                               
Aircraft fuel and related taxes
    534       1,110       1,353       3,018  
Loss (gain) on fuel hedging instruments, net
    2       420       7       (80 )
Salaries and related costs
    553       567       1,653       1,701  
Express expenses
    654       844       1,882       2,400  
Aircraft rent
    171       183       523       544  
Aircraft maintenance
    174       188       532       601  
Other rent and landing fees
    148       137       422       424  
Selling expenses
    99       120       291       340  
Special items, net
    15       8       22       67  
Depreciation and amortization
    63       52       185       159  
Goodwill impairment
                      622  
Other
    300       321       859       982  
 
                       
Total operating expenses
    2,713       3,950       7,729       10,778  
 
                       
Operating income (loss)
    6       (689 )     103       (1,421 )
Nonoperating income (expense):
                               
Interest income
    5       19       17       69  
Interest expense, net
    (81 )     (58 )     (229 )     (176 )
Other, net
    (10 )     (135 )     (16 )     (140 )
 
                       
Total nonoperating expense, net
    (86 )     (174 )     (228 )     (247 )
 
                       
Loss before income taxes
    (80 )     (863 )     (125 )     (1,668 )
Income tax provision
          3             3  
 
                       
Net loss
  $ (80 )   $ (866 )   $ (125 )   $ (1,671 )
 
                       
Loss per common share:
                               
Basic loss per common share
  $ (0.60 )   $ (8.46 )   $ (1.01 )   $ (17.50 )
Diluted loss per common share
  $ (0.60 )   $ (8.46 )   $ (1.01 )   $ (17.50 )
Shares used for computation (in thousands):
                               
Basic
    132,985       102,406       123,632       95,522  
Diluted
    132,985       102,406       123,632       95,522  
See accompanying notes to the condensed consolidated financial statements.

 

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US Airways Group, Inc.
Condensed Consolidated Balance Sheets
(In millions, except share and per share amounts)
(Unaudited)
                 
    September 30,     December 31,  
    2009     2008  
ASSETS
               
Current assets
               
Cash and cash equivalents
  $ 1,242     $ 1,034  
Investments in marketable securities
          20  
Restricted cash
          186  
Accounts receivable, net
    341       293  
Materials and supplies, net
    237       201  
Prepaid expenses and other
    485       684  
 
           
Total current assets
    2,305       2,418  
Property and equipment
               
Flight equipment
    3,820       3,157  
Ground property and equipment
    887       816  
Less accumulated depreciation and amortization
    (1,109 )     (954 )
 
           
 
    3,598       3,019  
Equipment purchase deposits
    322       267  
 
           
Total property and equipment
    3,920       3,286  
Other assets
               
Other intangibles, net of accumulated amortization of $107 million and $87 million, respectively
    525       545  
Restricted cash
    530       540  
Investments in marketable securities
    228       187  
Other assets
    236       238  
 
           
Total other assets
    1,519       1,510  
 
           
Total assets
  $ 7,744     $ 7,214  
 
           
 
               
LIABILITIES AND STOCKHOLDERS’ DEFICIT
               
Current liabilities
               
Current maturities of debt and capital leases
  $ 491     $ 362  
Accounts payable
    347       797  
Air traffic liability
    852       698  
Accrued compensation and vacation
    193       158  
Accrued taxes
    138       142  
Other accrued expenses
    836       887  
 
           
Total current liabilities
    2,857       3,044  
Noncurrent liabilities and deferred credits
               
Long-term debt and capital leases, net of current maturities
    4,135       3,623  
Deferred gains and credits, net
    360       383  
Postretirement benefits other than pensions
    103       108  
Employee benefit liabilities and other
    549       550  
 
           
Total noncurrent liabilities and deferred credits
    5,147       4,664  
Commitments and contingencies
               
Stockholders’ deficit
               
Common stock, $0.01 par value; 400,000,000 shares authorized, 161,518,096 and 161,102,048 shares issued and outstanding at September 30, 2009; 114,527,377 and 114,113,384 shares issued and outstanding at December 31, 2008
    2       1  
Additional paid-in capital
    2,103       1,789  
Accumulated other comprehensive income
    109       65  
Accumulated deficit
    (2,461 )     (2,336 )
Treasury stock, common stock, 416,048 and 413,993 shares at September 30, 2009 and December 31, 2008
    (13 )     (13 )
 
           
Total stockholders’ deficit
    (260 )     (494 )
 
           
Total liabilities and stockholders’ deficit
  $ 7,744     $ 7,214  
 
           
See accompanying notes to the condensed consolidated financial statements.

 

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US Airways Group, Inc.
Condensed Consolidated Statements of Cash Flows
(In millions)
(Unaudited)
                 
    Nine Months Ended September 30,  
    2009     2008  
Net cash provided by (used in) operating activities
  $ 130     $ (583 )
Cash flows from investing activities:
               
Purchases of property and equipment
    (676 )     (755 )
Purchases of marketable securities
          (299 )
Sales of marketable securities
    20       416  
Proceeds from sale of other investments
          3  
Decrease (increase) in long-term restricted cash
    10       (117 )
Proceeds from dispositions of property and equipment
    55       17  
Increase in equipment purchase deposits
    (55 )     (97 )
 
           
Net cash used in investing activities
    (646 )     (832 )
Cash flows from financing activities:
               
Repayments of debt and capital lease obligations
    (271 )     (205 )
Proceeds from issuance of debt
    803       669  
Deferred financing costs
    (11 )     (8 )
Proceeds from issuance of common stock, net
    203       179  
 
           
Net cash provided by financing activities
    724       635  
 
           
Net increase (decrease) in cash and cash equivalents
    208       (780 )
Cash and cash equivalents at beginning of period
    1,034       1,948  
 
           
Cash and cash equivalents at end of period
  $ 1,242     $ 1,168  
 
           
Non-cash investing and financing activities:
               
Note payables issued for aircraft purchases
  $ 136     $  
Interest payable converted to debt
    29        
Maintenance payable converted to debt
    13        
Net unrealized gain on available for sale securities
    (51 )      
Supplemental information:
               
Interest paid
  $ 165     $ 173  
Income taxes paid
           
See accompanying notes to the condensed consolidated financial statements.

 

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US Airways Group, Inc.
Notes to Condensed Consolidated Financial Statements
(Unaudited)
1. Basis of Presentation
The accompanying unaudited condensed consolidated financial statements of US Airways Group, Inc. (“US Airways Group” or the “Company”) should be read in conjunction with the financial statements contained in US Airways Group’s Annual Report on Form 10-K for the year ended December 31, 2008. The accompanying unaudited condensed consolidated financial statements include the accounts of US Airways Group and its wholly owned subsidiaries. Wholly owned subsidiaries include US Airways, Inc. (“US Airways”), Piedmont Airlines, Inc. (“Piedmont”), PSA Airlines, Inc. (“PSA”), Material Services Company, Inc. (“MSC”) and Airways Assurance Limited, LLC (“AAL”). All significant intercompany accounts and transactions have been eliminated.
Management believes that all adjustments necessary for the fair presentation of results, consisting of normally recurring items, have been included in the unaudited condensed consolidated financial statements for the interim periods presented. Certain prior year amounts have been reclassified to conform with the 2009 presentation. The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. The principal areas of judgment relate to passenger revenue recognition, impairment of long-lived and intangible assets, valuation of investments in marketable securities, the frequent traveler program and the deferred tax valuation allowance.
Recent Accounting Pronouncements
In June 2009, the Financial Accounting Standards Board (“FASB”) issued Statement of Financial Accounting Standards (“SFAS”) No. 168, “The FASB Accounting Standards Codification™ and the Hierarchy of Generally Accepted Accounting Principles — A Replacement of FASB Statement No. 162.” SFAS No. 168 establishes the FASB Accounting Standards Codification™ (the “Codification”) as the single source of authoritative U.S. GAAP recognized by the FASB to be applied by nongovernmental entities. Rules and interpretive releases of the SEC under authority of federal securities laws are also sources of authoritative U.S. GAAP for SEC registrants. Effective July 1, 2009, the Codification superseded all existing non-SEC accounting and reporting standards.
In May 2008, the FASB issued FASB Staff Position (“FSP”) Accounting Principles Board (“APB”) 14-1, “Accounting for Convertible Debt Instruments That May Be Settled in Cash upon Conversion (Including Partial Cash Settlement),” as adopted by the Codification on July 1, 2009. FSP APB 14-1 applies to convertible debt instruments that, by their stated terms, may be settled in cash (or other assets) upon conversion, including partial cash settlement of the conversion option. FSP APB 14-1 requires bifurcation of the instrument into a debt component that is initially recorded at fair value and an equity component. The difference between the fair value of the debt component and the initial proceeds from issuance of the instrument is recorded as a component of equity. The liability component of the debt instrument is accreted to par using the effective yield method; accretion is reported as a component of interest expense. The equity component is not subsequently re-valued as long as it continues to qualify for equity treatment. FSP APB 14-1 must be applied retrospectively to previously issued cash-settleable convertible instruments as well as prospectively to newly issued instruments. FSP APB 14-1 is effective for fiscal years beginning after December 15, 2008, and interim periods within those fiscal years.
In September 2005, the Company issued a total of $144 million principal amount of 7% Senior Convertible Notes due 2020 (the “7% notes”). As of September 30, 2009, $74 million of principal amount remained outstanding under the 7% notes. The holders of these notes may convert, at any time prior to the earlier of the business day prior to the redemption date and the second business day preceding the maturity date, any outstanding notes (or portions thereof) into shares of the Company’s common stock, at an initial conversion rate of 41.4508 shares of common stock per $1,000 principal amount of notes (equivalent to an initial conversion price of approximately $24.12 per share). In lieu of delivery of shares of common stock upon conversion of all or any portion of the 7% notes, the Company may elect to pay cash or a combination of shares and cash to holders surrendering notes for conversion. The 7% notes are subject to the provisions of FSP APB 14-1 since the 7% notes can be settled in cash upon conversion.

 

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The Company adopted FSP APB 14-1 on January 1, 2009. The Company concluded that the fair value of the equity component of the 7% notes at the time of issuance in 2005 was $47 million. Upon retrospective application, the adoption resulted in a $29 million increase in accumulated deficit at December 31, 2008, comprised of non-cash interest expense of $17 million for the years 2005-2008 and non-cash losses on debt extinguishment of $12 million related to the partial conversion of certain of the 7% notes to common stock in 2006. As of September 30, 2009 and December 31, 2008, the carrying value of the equity component was $40 million. The principal amount of the outstanding notes, the unamortized discount and the net carrying value at September 30, 2009 was $74 million, $7 million and $67 million, respectively, and at December 31, 2008 was $74 million, $11 million and $63 million, respectively. The remaining period over which the unamortized discount will be recognized is one year. The Company recognized $1 million and $4 million in non-cash interest expense in the three and nine months ended September 30, 2009, respectively, and $1 million and $3 million in the three and nine months ended September 30, 2008, respectively, related to the adoption of FSP APB 14-1. In addition, the Company recognized $2 million and $4 million in cash interest expense in the three and nine months ended September 30, 2009, respectively, and $2 million and $4 million in cash interest expense in the three and nine months ended September 30, 2008, respectively. The following table presents the December 31, 2008 balance sheet line items affected as adjusted and as originally reported (in millions).
                 
    December 31, 2008  
    As Adjusted     As Reported  
Long-term debt and capital leases, net of current maturities
  $ 3,623     $ 3,634  
Additional paid-in capital
    1,789       1,749  
Accumulated deficit
    (2,336 )     (2,307 )
In April 2009, the FASB issued FSP Financial Accounting Standards (“FAS”) 115-2 and FAS 124-2, “Recognition and Presentation of Other-Than-Temporary Impairments,” as adopted by the Codification on July 1, 2009. This FSP changes existing guidance for determining whether an impairment of debt securities is other-than-temporary. The FSP requires other-than-temporary impairments to be separated into the amount representing the decrease in cash flows expected to be collected from a security (referred to as credit losses) which is recognized in earnings and the amount related to other factors (referred to as noncredit losses) which is recognized in other comprehensive income. This noncredit loss component of the impairment may only be classified in other comprehensive income if both of the following conditions are met (a) the holder of the security concludes that it does not intend to sell the security and (b) the holder concludes that it is more likely than not that the holder will not be required to sell the security before the security recovers its value. If these conditions are not met, the noncredit loss must also be recognized in earnings. When adopting the FSP, an entity is required to record a cumulative effect adjustment as of the beginning of the period of adoption to reclassify the noncredit component of a previously recognized other-than-temporary impairment from retained earnings to accumulated other comprehensive income. FSP FAS 115-2 and FAS 124-2 is effective for interim and annual periods ending after June 15, 2009. The Company adopted FSP FAS 115-2 and FAS 124-2 as of April 1, 2009. The Company does not meet the conditions necessary to recognize the noncredit loss component of its auction rate securities in other comprehensive income. Accordingly, the Company did not reclassify any previously recognized other-than-temporary impairment losses from retained earnings to accumulated other comprehensive income and the adoption of FSP FAS 115-2 and FAS 124-2 had no material impact on the Company’s condensed consolidated financial statements. Refer to Note 8 for further discussion of the Company’s investments in marketable securities.
In April 2009, the FASB issued FSP FAS 157-4, “Determining Fair Value When the Volume and Level of Activity for the Asset or Liability Have Significantly Decreased and Identifying Transactions That Are Not Orderly,” as adopted by the Codification on July 1, 2009. This FSP provides additional guidance on estimating fair value when the volume and level of activity for an asset or liability have significantly decreased in relation to normal market activity for the asset or liability. The FSP also provides additional guidance on circumstances that may indicate that a transaction is not orderly. FSP FAS 157-4 is effective for interim and annual periods ending after June 15, 2009. The Company adopted FSP FAS 157-4 during the second quarter of 2009, and its application had no impact on the Company’s condensed consolidated financial statements.
In May 2009, the FASB issued SFAS No. 165, “Subsequent Events,” as adopted by the Codification on July 1, 2009, which establishes general standards of accounting for and disclosure of events that occur after the balance sheet date but before the financial statements are issued or are available to be issued. SFAS No. 165 provides guidance on the period after the balance sheet date during which management of a reporting entity should evaluate events or transactions that may occur for potential recognition or disclosure in the financial statements, the circumstances under which an entity should recognize events or transactions occurring after the balance sheet date in its financial statements and the disclosures that an entity should make about events or transactions that occurred after the balance sheet date. The Company adopted SFAS No. 165 during the second quarter of 2009, and its application had no impact on the Company’s condensed consolidated financial statements. The Company evaluated subsequent events through the date the accompanying financial statements were issued, which was October 21, 2009.
In June 2009, the FASB issued SFAS No. 167, “Amendments to FASB Interpretation (“FIN”) No. 46(R),” which changes how a reporting entity determines when an entity that is insufficiently capitalized or is not controlled through voting (or similar rights) should be consolidated. The determination of whether a reporting entity is required to consolidate another entity is based on, among other things, the other entity’s purpose and design and the reporting entity’s ability to direct the activities of the other entity that most significantly impact the other entity’s economic performance. SFAS No. 167 will require a reporting entity to provide additional disclosures about its involvement with variable interest entities and any significant changes in risk exposure due to that involvement. A reporting entity will be required to disclose how its involvement with a variable interest entity affects the reporting entity’s financial statements. SFAS No. 167 is effective for fiscal years beginning after November 15, 2009, and interim periods within those fiscal years. Management is currently evaluating the requirements of SFAS No. 167 and has not yet determined the impact on the Company’s condensed consolidated financial statements.

 

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In October 2009, the FASB issued Accounting Standards Update (“ASU”) No. 2009-13, “Revenue Recognition (Topic 605) — Multiple-Deliverable Revenue Arrangements.” ASU No. 2009-13 addresses the accounting for multiple-deliverable arrangements to enable vendors to account for products or services (deliverables) separately rather than as a combined unit. This guidance establishes a selling price hierarchy for determining the selling price of a deliverable, which is based on: (a) vendor-specific objective evidence; (b) third-party evidence; or (c) estimates. This guidance also eliminates the residual method of allocation and requires that arrangement consideration be allocated at the inception of the arrangement to all deliverables using the relative selling price method. In addition, this guidance significantly expands required disclosures related to a vendor’s multiple-deliverable revenue arrangements. ASU No. 2009-13 is effective prospectively for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010 and early adoption is permitted. A company may elect, but will not be required, to adopt the amendments in ASU No. 2009-13 retrospectively for all prior periods. Management is currently evaluating the requirements of ASU No. 2009-13 and has not yet determined the impact on the Company’s condensed consolidated financial statements.
2. Special Items, Net
Special items, net as shown on the condensed consolidated statements of operations included the following charges for the three and nine months ended September 30, 2009 and 2008 (in millions):
                                 
    Three Months     Nine Months  
    Ended September 30,     Ended September 30,  
    2009     2008     2009     2008  
Aircraft costs (a)
  $ 10     $     $ 16     $ 6  
Severance and other charges (b)
    5       8       6       8  
Merger related transition expenses (c)
                      35  
Asset impairment charges (d)
                      18  
 
                       
Special items, net
  $ 15     $ 8     $ 22     $ 67  
 
                       
 
     
(a)  
In connection with previously announced capacity reductions, the Company recorded $10 million and $16 million in the three and nine months ended September 30, 2009, respectively, in charges for aircraft costs. The Company also recognized $6 million in aircraft costs in the nine months ended September 30, 2008.
 
(b)  
The Company recorded $5 million and $6 million in severance and other charges in the three and nine months ended September 30, 2009, respectively. The Company also recognized $8 million in severance charges related to capacity reductions in the third quarter of 2008.
 
(c)  
In connection with the effort to consolidate functions and integrate organizations, procedures and operations, the Company incurred $35 million of merger related transition expenses in the first nine months of 2008. These expenses included $12 million in uniform costs to transition employees to the new US Airways uniforms; $5 million in applicable employment tax expenses related to contractual benefits granted to certain current and former employees as a result of the merger; $6 million in compensation expenses for equity awards granted in connection with the merger to retain key employees through the integration period; $5 million of aircraft livery costs; $4 million in professional and technical fees related to the integration of airline operations systems; and $3 million in other expenses.
 
(d)  
In the nine months ended September 30, 2008, the Company recorded $18 million in non-cash impairment charges related to the decline in the fair value of certain spare parts associated with the Company’s Boeing 737 aircraft fleet.

 

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3. Loss Per Common Share
Basic earnings (loss) per common share (“EPS”) is computed on the basis of the weighted average number of shares of common stock outstanding during the period. Diluted EPS is computed on the basis of the weighted average number of shares of common stock plus the effect of potentially dilutive shares of common stock outstanding during the period using the treasury stock method. Potentially dilutive shares include outstanding employee stock options, employee stock appreciation rights, employee restricted stock units and convertible debt. The following table presents the computation of basic and diluted EPS (in millions, except share and per share amounts):
                                 
    Three Months Ended     Nine Months Ended  
    September 30,     September 30,     September 30,     September 30,  
    2009     2008     2009     2008  
Basic and diluted loss per share:
                               
Net loss
  $ (80 )   $ (866 )   $ (125 )   $ (1,671 )
 
                       
Weighted average common shares outstanding
(in thousands)
    132,985       102,406       123,632       95,522  
 
                       
Basic and diluted loss per share
  $ (0.60 )   $ (8.46 )   $ (1.01 )   $ (17.50 )
 
                       
For the three and nine months ended September 30, 2009, 12,128,427 and 11,288,952 shares, respectively, underlying stock options, stock appreciation rights and restricted stock units were not included in the computation of diluted EPS because inclusion of such shares would be antidilutive or because the exercise prices were greater than the average market price of common stock for the period. In addition, for the three and nine months ended September 30, 2009, 3,048,914 incremental shares from the assumed conversion of the 7% notes were excluded from the computation of diluted EPS due to their antidilutive effect. For the three and nine months ended September 30, 2009, 37,746,174 and 19,357,012 incremental shares, respectively, from the assumed conversion of the 7.25% convertible senior notes were excluded from the computation of diluted EPS due to their antidilutive effect.
For the three and nine months ended September 30, 2008, 9,256,697 and 7,602,552 shares, respectively, underlying stock options, stock appreciation rights and restricted stock units were not included in the computation of diluted EPS because inclusion of such shares would be antidilutive or because the exercise prices were greater than the average market price of common stock for the period. For the three and nine months ended September 30, 2008, 3,048,914 incremental shares from assumed conversion of the 7% notes were excluded from the computation of diluted EPS due to their antidilutive effect.

 

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4. Debt
The following table details the Company’s debt (in millions). Variable interest rates listed are the rates as of September 30, 2009.
                 
    September 30,     December 31,  
    2009     2008  
Secured
               
Citicorp North America loan, variable interest rate of 2.75%, installments due through 2014
  $ 1,168     $ 1,184  
Equipment loans, aircraft pre-delivery payment financings and other notes payable, fixed and variable interest rates ranging from 1.64% to 10.51%, averaging 4.32%, maturing from 2010 to 2021
    2,226       1,674  
Aircraft enhanced equipment trust certificates (“EETCs”), fixed interest rates ranging from 7.08% to 9.01%, averaging 7.79%, maturing from 2015 to 2022
    505       540  
Slot financing, fixed interest rate of 8.08%, interest only payments until due in 2015
    47       47  
Capital lease obligations, interest rate of 8%, installments due through 2021
    37       39  
Senior secured discount notes, variable interest rate of 5.39%, due in 2009
    32       32  
 
           
 
    4,015       3,516  
Unsecured
               
Barclays prepaid miles, variable interest rate of 5%, interest only payments
    200       200  
Airbus advance, repayments beginning in 2010 through 2018
    237       207  
7% senior convertible notes, interest only payments until due in 2020
    74       74  
7.25% convertible senior notes, interest only payments until due in 2014
    172        
Engine maintenance notes
    54       72  
Industrial development bonds, fixed interest rate of 6.3%, interest only payments until due in 2023
    29       29  
Note payable to Pension Benefit Guaranty Corporation, fixed interest rate of 6%, interest only payments until due in 2012
    10       10  
Other notes payable, due in 2009 to 2011
    70       45  
 
           
 
    846       637  
 
           
Total long-term debt and capital lease obligations
    4,861       4,153  
Less: Total unamortized discount on debt
    (235 )     (168 )
Current maturities, less $1 million and $10 million of unamortized discount on debt at September 30, 2009 and December 31, 2008, respectively
    (491 )     (362 )
 
           
Long-term debt and capital lease obligations, net of current maturities
  $ 4,135     $ 3,623  
 
           
The Company was in compliance with the covenants in its debt agreements at September 30, 2009.
7.25% Convertible Senior Notes
In May 2009, US Airways Group issued $172 million aggregate principal amount of 7.25% Convertible Senior Notes due 2014 (the “7.25% notes”) for proceeds, net of expenses, of approximately $168 million. The 7.25% notes bear interest at a rate of 7.25% per annum, which shall be payable semi-annually in arrears on each May 15 and November 15, beginning November 15, 2009. The 7.25% notes mature on May 15, 2014.
Holders may convert their 7.25% notes at their option at any time prior to the close of business on the second scheduled trading day immediately preceding the maturity date for the 7.25% notes. Upon conversion, the Company will pay or deliver, as the case may be, cash, shares of US Airways Group’s common stock or a combination thereof at the Company’s election. The initial conversion rate for the 7.25% notes is 218.8184 shares of US Airways Group’s common stock per $1,000 principal amount of notes (equivalent to an initial conversion price of approximately $4.57 per share). Such conversion rate is subject to adjustment in certain events.
If the Company undergoes a fundamental change, holders may require the Company to purchase all or a portion of their 7.25% notes for cash at a price equal to 100% of the principal amount of the 7.25% notes to be purchased plus any accrued and unpaid interest to, but excluding, the purchase date. A fundamental change includes a person or group (other than the Company or its subsidiaries) becoming the beneficial owner of more than 50% of the voting power of the Company’s capital stock, certain merger or combination transactions, a substantial turnover of the Company’s directors, stockholder approval of the liquidation or dissolution of the Company and the Company’s common stock ceasing to be listed on at least one national securities exchange.
The 7.25% notes rank equal in right of payment to all of the Company’s other existing and future unsecured senior debt and senior in right of payment to the Company’s debt that is expressly subordinated to the 7.25% notes, if any. The 7.25% notes impose no limit on the amount of debt the Company or its subsidiaries may incur. The 7.25% notes are structurally subordinated to all debt and other liabilities and commitments (including trade payables) of the Company’s subsidiaries. The 7.25% notes are also effectively junior to the Company’s secured debt, if any, to the extent of the value of the assets securing such debt.

 

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As the 7.25% notes can be settled in cash upon conversion, for accounting purposes, the 7.25% notes were bifurcated into a debt component that is initially recorded at fair value and an equity component. The Company concluded that the fair value of the equity component of its 7.25% notes is $98 million. The unamortized debt discount at September 30, 2009 is $95 million and the carrying value of the notes is $77 million. The remaining period over which the unamortized debt discount will be recognized as non-cash interest expense is 4.7 years as follows: $3 million in 2009, $12 million in 2010, $16 million in 2011, $22 million in 2012, $29 million in 2013 and $13 million in 2014. The Company recognized $2 million and $3 million in non-cash interest expense in the three and nine months ended September 30, 2009, respectively, related to the amortization of the debt discount.
Other 2009 Financing Transactions
On January 16, 2009, US Airways exercised its right to obtain new loan commitments and incur additional loans under a spare parts loan agreement. In connection with the exercise of that right, Airbus Financial Services funded $50 million in satisfaction of a previous commitment. This loan will mature on October 20, 2014, bears interest at a rate of LIBOR plus a margin and is secured by the collateral securing loans under the spare parts loan agreement.
On March 31, 2009, US Airways again exercised its right to obtain new loan commitments and incur additional loans under the spare parts loan agreement and borrowed $50 million. This loan will mature on October 20, 2014, bears interest at a rate of LIBOR plus a margin and is secured by the collateral securing loans under the spare parts loan agreement. US Airways used a portion of the proceeds to purchase an A321 aircraft previously leased to US Airways by an affiliate of the debt holder. As a result, this aircraft became unencumbered.
In June 2009, US Airways entered into loan agreements totaling $132 million to finance the acquisition of certain A330-200 aircraft. The loans bear interest at a rate of LIBOR plus an applicable margin, contain default provisions and other covenants that are typical in the industry for similar financings and are amortized over seven years with balloon payments at maturity.
In the third quarter of 2009, US Airways utilized backstop financing through the manufacturer totaling $104 million to finance the acquisition of certain A320 family aircraft. The financing bears interest at a rate of LIBOR plus an applicable margin, contains default provisions and other covenants that are typical in the industry for similar financings and is amortized over twelve years.
US Airways Group had previously entered into a co-branded credit card agreement with Barclays Bank Delaware. The agreement provides for, among other things, the pre-purchase of frequent flyer miles in the aggregate amount of $200 million. Barclays has agreed that it will pre-purchase additional miles on a monthly basis in an amount equal to the difference between $200 million and the amount of unused miles then outstanding, which purchases average approximately $17 million per month. Among the conditions to this monthly purchase of miles is a requirement that US Airways Group maintain an unrestricted cash balance of at least $1.5 billion. In September 2009, Barclays agreed to temporarily reduce this requirement to $1.35 billion for the months of August through October 2009.
Fair Value of Debt
The fair value of the Company’s long-term debt was approximately $3.54 billion and $3.31 billion at September 30, 2009 and December 31, 2008, respectively. The fair values were estimated using quoted market prices where available. For long-term debt not actively traded, fair values were estimated using a discounted cash flow analysis, based on the Company’s current incremental borrowing rates for similar types of borrowing arrangements.
5. Income Taxes
As of December 31, 2008, the Company had approximately $1.4 billion of gross net operating loss carryforwards (“NOL”) to reduce future federal taxable income, substantially all of which is available to reduce federal taxable income in the calendar year 2009. The NOL expires during the years 2022 through 2028. The Company’s deferred tax asset, which included $1.3 billion of the NOL discussed above, has been subject to a full valuation allowance. The Company also had approximately $77 million of tax-effected state NOL at December 31, 2008.
In assessing the realizability of the deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will be realized. The Company has recorded a valuation allowance against its net deferred tax asset. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income (including reversals of deferred tax liabilities) during the periods in which those temporary differences will become deductible.
The Company reported a loss in the nine months ended September 30, 2009 and did not record a tax provision in any 2009 period.
The Company recorded income tax expense of $3 million in the three and nine month periods ended September 30, 2008 related to a reconciliation of the 2007 tax provision to the tax return as filed in the third quarter of 2008.

 

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6. Express Expenses
Expenses associated with the Company’s wholly owned regional airlines and affiliate regional airlines operating as US Airways Express are classified as Express expenses on the condensed consolidated statements of operations. Express expenses consist of the following (in millions):
                                 
    Three Months Ended     Nine Months Ended  
    September 30,     September 30,  
    2009     2008     2009     2008  
Aircraft fuel and related taxes
  $ 171     $ 349     $ 438     $ 938  
Salaries and related costs
    63       62       187       189  
Capacity purchases
    271       269       802       798  
Aircraft rent
    13       13       39       38  
Aircraft maintenance
    19       20       62       59  
Other rent and landing fees
    30       35       91       89  
Selling expenses
    41       45       115       127  
Depreciation and amortization
    6       6       18       18  
Other expenses
    40       45       130       144  
 
                       
Express expenses
  $ 654     $ 844     $ 1,882     $ 2,400  
 
                       
7. Derivative Instruments
To manage the risk of changes in aviation fuel prices, the Company periodically enters into derivative contracts comprised of heating oil-based derivative instruments to hedge a portion of its projected jet fuel requirements. Since the third quarter of 2008, the Company has not entered into any new transactions as part of its fuel hedging program and as of September 30, 2009, there were no remaining outstanding fuel hedging contracts.
The Company’s fuel hedging instruments did not qualify for hedge accounting. Accordingly, the derivative hedging instruments were recorded as an asset or liability on the balance sheet at fair value and any changes in fair value were recorded in the period of change as gains or losses on fuel hedging instruments, net in operating expenses in the accompanying condensed consolidated statements of operations. The following table details the Company’s loss (gain) on fuel hedging instruments, net (in millions):
                                 
    Three Months     Nine Months  
    Ended September 30,     Ended September 30,  
    2009     2008     2009     2008  
Realized loss (gain)
  $ 50     $ (68 )   $ 382     $ (342 )
Unrealized loss (gain)
    (48 )     488       (375 )     262  
 
                       
Loss (gain) on fuel hedging instruments, net
  $ 2     $ 420     $ 7     $ (80 )
 
                       
The unrealized gains in the 2009 periods were related to the reversal of prior period unrealized losses due to contracts settling in the three and nine months ended September 30, 2009.
8. Investments in Marketable Securities (Noncurrent)
As of September 30, 2009, the Company held auction rate securities totaling $411 million at par value, which are classified as available for sale securities and noncurrent assets on the Company’s condensed consolidated balance sheets. Contractual maturities for these auction rate securities range from seven to 43 years, with 62% of the Company’s portfolio maturing within the next 10 years (2016 — 2017), 10% maturing within the next 20 years (2025), 16% maturing within the next 30 years (2033 — 2036) and 12% maturing thereafter (2039 — 2052). With the liquidity issues experienced in the global credit and capital markets, all of the Company’s auction rate securities have experienced failed auctions since August 2007. The estimated fair value of these auction rate securities no longer approximates par value. At September 30, 2009, the fair value of the Company’s auction rate securities was $228 million, a net increase of $14 million from June 30, 2009 and $41 million from December 31, 2008. Refer to Note 9 for discussion on how the Company determines the fair value of its investments in auction rate securities.
In the three and nine months ended September 30, 2009, the Company recorded unrealized gains of $17 million and $51 million, respectively, in other comprehensive income related to the increase in fair value of certain of the Company’s investments in auction rate securities. These unrealized gains were offset by other-than-temporary impairment charges of $3 million and $10 million, respectively, in the three and nine months ended September 30, 2009. These other-than-temporary impairment charges are recorded in other nonoperating expense, net and relate to the decline in fair value of certain of the Company’s investments in auction rate securities.

 

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In the three and nine months ended September 30, 2008, the Company recorded $127 million and $140 million, respectively, of other-than-temporary impairment charges in other nonoperating expense, net. These charges in the three and nine months ended September 30, 2008, included $103 million and $48 million, respectively, of previously recorded unrealized losses in other comprehensive income.
The Company continues to monitor the market for auction rate securities and consider its impact (if any) on the fair value of its investments. If the current market conditions deteriorate, the Company may be required to record additional impairment charges in other nonoperating expense, net in future periods.
9. Fair Value Measurements
Assets measured at fair value on a recurring basis are as follows (in millions):
                                         
            Quoted Prices in     Significant Other     Significant        
            Active Markets for     Observable     Unobservable        
            Identical Assets     Inputs     Inputs     Valuation  
    Fair Value     (Level 1)     (Level 2)     (Level 3)     Technique  
At September 30, 2009
                                       
Investments in marketable securities (noncurrent)
  $ 228     $     $     $ 228       (1 )
At December 31, 2008
                                       
Investments in marketable securities (noncurrent)
  $ 187     $     $     $ 187       (1 )
Fuel hedging derivatives
    (375 )           (375 )           (2 )
     
(1)  
The Company estimated the fair value of its auction rate securities based on the following: (i) the underlying structure of each security; (ii) the present value of future principal and interest payments discounted at rates considered to reflect current market conditions; (iii) consideration of the probabilities of default, passing a future auction, or repurchase at par for each period; and (iv) estimates of the recovery rates in the event of default for each security. These estimated fair values could change significantly based on future market conditions. Refer to Note 8 for further discussion of the Company’s investments in marketable securities.
 
(2)  
As the Company’s fuel hedging derivative instruments were not traded on a market exchange, the fair values were determined using valuation models which included assumptions about commodity prices based on those observed in the underlying markets. The fair value of fuel hedging derivatives is recorded in accounts payable on the consolidated balance sheets. Refer to Note 7 for further discussion of the Company’s fuel hedging derivatives.
Assets measured at fair value on a recurring basis using significant unobservable inputs (Level 3) are as follows (in millions):
         
    Investments in  
    Marketable  
    Securities  
    (Noncurrent)  
Balance at December 31, 2008
  $ 187  
Unrealized gains recorded to other comprehensive income
    51  
Impairment losses included in other nonoperating expense, net
    (10 )
 
     
Balance at September 30, 2009
  $ 228  
 
     
10. Other Comprehensive Income (Loss)
The Company’s other comprehensive loss consists of the following (in millions):
                                 
    Three Months Ended     Nine Months Ended  
    September 30,     September 30,  
    2009     2008     2009     2008  
Net loss
  $ (80 )   $ (866 )   $ (125 )   $ (1,671 )
Unrealized gains on available for sale securities
    17             51        
Recognition of previous unrealized losses now deemed other-than-temporary
          103             48  
Pension and other postretirement benefits
    (2 )           (7 )     (3 )
 
                       
Total comprehensive loss
  $ (65 )   $ (763 )   $ (81 )   $ (1,626 )
 
                       

 

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The components of accumulated other comprehensive income were as follows (in millions):
                 
    September 30,     December 31,  
    2009     2008  
Pension and other postretirement benefits
  $ 58     $ 65  
Accumulated net unrealized gains on available for sale securities
    51        
 
           
Accumulated other comprehensive income
  $ 109     $ 65  
 
           
11. Flight 1549
On January 15, 2009, US Airways flight 1549 was involved in an accident in New York that resulted in the aircraft ditching in the Hudson River. The Airbus A320 aircraft was en route to Charlotte from LaGuardia with 150 passengers and a crew of five onboard. All aboard survived and there were no serious injuries. US Airways has insurance coverage for both the aircraft (which is a total loss) as well as costs resulting from the accident, and there are no applicable deductibles.
The aircraft involved in the flight 1549 accident was leased by US Airways. In the first quarter of 2009, US Airways exercised its aircraft substitution right under the lease agreement and transferred title of an owned Airbus A320 to the lessor in substitution for the Airbus A320 aircraft that was involved in the accident. This transferred aircraft will continue to be leased to US Airways under the same terms and conditions of the lease agreement. In connection with this transaction, US Airways extinguished $22 million of debt associated with the previously owned aircraft that was transferred to the lessor.
12. Stockholders’ Equity
In May 2009, the Company completed an underwritten public offering of 15.2 million shares of common stock, as well as the full exercise of 2.28 million shares of common stock included in an overallotment option, at an offering price of $3.97 per share. Net proceeds from the offering, after underwriting discounts and commissions, were $66 million.
In September 2009, the Company completed an underwritten public offering of 26.3 million shares of common stock, as well as the exercise of 2.7 million shares of common stock included in an overallotment option, at a price of $4.75 per share. Net proceeds from the offering, after offering costs, were $137 million.
13. Slot Exchange
In August 2009, the Company and US Airways entered into a mutual asset purchase and sale agreement with Delta Air Lines, Inc. (“Delta”). Pursuant to the agreement, US Airways will transfer to Delta certain assets related to flight operations at LaGuardia Airport in New York, including 125 pairs of slots currently used to provide US Airways Express service at LaGuardia. Delta will transfer to US Airways certain assets related to flight operations at Reagan National Airport in Washington, D.C., including 42 pairs of slots, and the authority to serve Sao Paulo, Brazil and Tokyo, Japan. One slot equals one take-off or landing, and each pair of slots equals one roundtrip flight. The agreement is structured as two simultaneous asset sales and is expected to be cash neutral to US Airways. The closing of the transactions under the agreement is subject to certain closing conditions, including approvals from a number of government agencies including the U.S. Department of Justice, the U.S. Department of Transportation, the Federal Aviation Administration and The Port Authority of New York and New Jersey.
14. Subsequent Event
US Airways entered into a term sheet to sell 10 of its Embraer 190 aircraft to Republic Airline Inc. (“Republic”). Through October 21, 2009, five of the 10 aircraft sales have been completed and the remaining five are expected to close in the fourth quarter of 2009. US Airways will lease back eight of the 10 aircraft from Republic for periods ranging from one to seven months. Debt outstanding on the 10 Embraer aircraft was $217 million at September 30, 2009. In connection with this transaction, Republic has agreed to assume the full amount of this debt and release US Airways from its obligations associated with the principal due under the debt. Additionally, at September 30, 2009, US Airways had $35 million outstanding under a loan from Republic (the “Republic loan”). The Republic loan was scheduled to be repaid starting in January 2010 and fully repaid in October 2011. In accordance with the term sheet, the full amount outstanding under the Republic loan will be applied to the purchase price of the 10 aircraft. US Airways expects to incur an aggregate loss of approximately $47 million from the sale of the 10 aircraft and write-off of debt discount associated with the Republic loan in the fourth quarter of 2009.

 

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Item 1B.  
Condensed Consolidated Financial Statements of US Airways, Inc.
US Airways, Inc.
Condensed Consolidated Statements of Operations
(In millions)
(Unaudited)
                                 
    Three Months     Nine Months  
    Ended September 30,     Ended September 30,  
    2009     2008     2009     2008  
Operating revenues:
                               
Mainline passenger
  $ 1,757     $ 2,197     $ 5,092     $ 6,364  
Express passenger
    662       771       1,856       2,230  
Cargo
    23       37       67       111  
Other
    316       288       930       742  
 
                       
Total operating revenues
    2,758       3,293       7,945       9,447  
Operating expenses:
                               
Aircraft fuel and related taxes
    534       1,110       1,353       3,018  
Loss (gain) on fuel hedging instruments, net
    2       420       7       (80 )
Salaries and related costs
    553       567       1,653       1,701  
Express expenses
    689       872       1,975       2,485  
Aircraft rent
    171       183       523       544  
Aircraft maintenance
    174       188       532       601  
Other rent and landing fees
    148       137       422       424  
Selling expenses
    99       120       291       340  
Special items, net
    15       8       22       67  
Depreciation and amortization
    65       55       192       166  
Goodwill impairment
                      622  
Other
    307       321       879       977  
 
                       
Total operating expenses
    2,757       3,981       7,849       10,865  
 
                       
Operating income (loss)
    1       (688 )     96       (1,418 )
Nonoperating income (expense):
                               
Interest income
    5       19       17       68  
Interest expense, net
    (64 )     (48 )     (189 )     (146 )
Other, net
    (10 )     (135 )     (18 )     (140 )
 
                       
Total nonoperating expense, net
    (69 )     (164 )     (190 )     (218 )
 
                       
Loss before income taxes
    (68 )     (852 )     (94 )     (1,636 )
Income tax provision
          3             3  
 
                       
Net loss
  $ (68 )   $ (855 )   $ (94 )   $ (1,639 )
 
                       
See accompanying notes to the condensed consolidated financial statements.

 

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US Airways, Inc.
Condensed Consolidated Balance Sheets
(In millions, except share and per share amounts)
(Unaudited)
                 
    September 30,     December 31,  
    2009     2008  
ASSETS
               
Current assets
               
Cash and cash equivalents
  $ 965     $ 1,026  
Investments in marketable securities
          20  
Restricted cash
          186  
Accounts receivable, net
    338       291  
Materials and supplies, net
    199       163  
Prepaid expenses and other
    473       673  
 
           
Total current assets
    1,975       2,359  
Property and equipment
               
Flight equipment
    3,679       3,017  
Ground property and equipment
    860       791  
Less accumulated depreciation and amortization
    (1,059 )     (914 )
 
           
 
    3,480       2,894  
Equipment purchase deposits
    322       267  
 
           
Total property and equipment
    3,802       3,161  
Other assets
               
Other intangibles, net of accumulated amortization of $100 million and $81 million, respectively
    489       508  
Restricted cash
    530       540  
Investments in marketable securities
    228       187  
Other assets
    199       199  
 
           
Total other assets
    1,446       1,434  
 
           
Total assets
  $ 7,223     $ 6,954  
 
           
 
               
LIABILITIES AND STOCKHOLDER’S EQUITY (DEFICIT)
               
Current liabilities
               
Current maturities of debt and capital leases
  $ 475     $ 346  
Accounts payable
    329       781  
Payables to related parties, net
    478       985  
Air traffic liability
    852       698  
Accrued compensation and vacation
    184       147  
Accrued taxes
    139       142  
Other accrued expenses
    807       867  
 
           
Total current liabilities
    3,264       3,966  
Noncurrent liabilities and deferred credits
               
Long-term debt and capital leases, net of current maturities
    2,673       2,236  
Deferred gains and credits, net
    334       342  
Postretirement benefits other than pensions
    102       107  
Employee benefit liabilities and other
    521       524  
 
           
Total noncurrent liabilities and deferred credits
    3,630       3,209  
Commitments and contingencies
               
Stockholder’s equity (deficit)
               
Common stock, $1 par value, 1,000 shares issued and outstanding
           
Additional paid-in capital
    2,445       1,845  
Accumulated other comprehensive income
    122       78  
Accumulated deficit
    (2,238 )     (2,144 )
 
           
Total stockholder’s equity (deficit)
    329       (221 )
 
           
Total liabilities and stockholder’s equity (deficit)
  $ 7,223     $ 6,954  
 
           
See accompanying notes to the condensed consolidated financial statements.

 

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US Airways, Inc.
Condensed Consolidated Statements of Cash Flows
(In millions)
(Unaudited)
                 
    Nine Months Ended September 30,  
    2009     2008  
Net cash provided by (used in) operating activities
  $ 211     $ (438 )
Cash flows from investing activities:
               
Purchases of property and equipment
    (672 )     (734 )
Purchases of marketable securities
          (299 )
Sales of marketable securities
    20       416  
Proceeds from sale of other investments
          3  
Decrease (increase) in long-term restricted cash
    10       (117 )
Proceeds from dispositions of property and equipment
    55       17  
Increase in equipment purchase deposits
    (55 )     (97 )
 
           
Net cash used in investing activities
    (642 )     (811 )
Cash flows from financing activities:
               
Repayments of debt and capital lease obligations
    (255 )     (189 )
Proceeds from issuance of debt
    631       669  
Deferred financing costs
    (6 )     (8 )
 
           
Net cash provided by financing activities
    370       472  
 
           
Net decrease in cash and cash equivalents
    (61 )     (777 )
Cash and cash equivalents at beginning of period
    1,026       1,940  
 
           
Cash and cash equivalents at end of period
  $ 965     $ 1,163  
 
           
Non-cash investing and financing activities:
               
Forgiveness of intercompany payable to US Airways Group
  $ 600     $  
Note payables issued for aircraft purchases
    136        
Interest payable converted to debt
    29        
Maintenance payable converted to debt
    13        
Net unrealized gain on available for sale securities
    (51 )      
Supplemental information:
               
Interest paid
  $ 126     $ 101  
Income taxes paid
           
See accompanying notes to the condensed consolidated financial statements.

 

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US Airways, Inc.
Notes to Condensed Consolidated Financial Statements
(Unaudited)
1. Basis of Presentation
The accompanying unaudited condensed consolidated financial statements of US Airways, Inc. (“US Airways”) should be read in conjunction with the financial statements contained in US Airways’ Annual Report on Form 10-K for the year ended December 31, 2008. US Airways is a wholly owned subsidiary of US Airways Group, Inc. (“US Airways Group”). The accompanying unaudited condensed consolidated financial statements include the accounts of US Airways and its wholly owned subsidiary, America West Holdings, LLC (“America West Holdings”). America West Airlines, LLC (“AWA”) and its wholly owned subsidiary, FTCHP, LLC, are wholly owned subsidiaries of America West Holdings. All significant intercompany accounts and transactions between US Airways and its wholly owned subsidiaries have been eliminated.
Management believes that all adjustments necessary for the fair presentation of results, consisting of normally recurring items, have been included in the unaudited condensed consolidated financial statements for the interim periods presented. Certain prior year amounts have been reclassified to conform with the 2009 presentation. The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. The principal areas of judgment relate to passenger revenue recognition, impairment of long-lived and intangible assets, valuation of investments in marketable securities, the frequent traveler program and the deferred tax valuation allowance.
Recent Accounting Pronouncements
In June 2009, the Financial Accounting Standards Board (“FASB”) issued Statement of Financial Accounting Standards (“SFAS”) No. 168, “The FASB Accounting Standards Codification™ and the Hierarchy of Generally Accepted Accounting Principles — A Replacement of FASB Statement No. 162.” SFAS No. 168 establishes the FASB Accounting Standards Codification™ (the “Codification”) as the single source of authoritative U.S. GAAP recognized by the FASB to be applied by nongovernmental entities. Rules and interpretive releases of the SEC under authority of federal securities laws are also sources of authoritative U.S. GAAP for SEC registrants. Effective July 1, 2009, the Codification superseded all existing non-SEC accounting and reporting standards.
In April 2009, the FASB issued FASB Staff Position (“FSP”) Financial Accounting Standards (“FAS”) 115-2 and FAS 124-2, “Recognition and Presentation of Other-Than-Temporary Impairments,” as adopted by the Codification on July 1, 2009. This FSP changes existing guidance for determining whether an impairment of debt securities is other-than-temporary. The FSP requires other-than-temporary impairments to be separated into the amount representing the decrease in cash flows expected to be collected from a security (referred to as credit losses) which is recognized in earnings and the amount related to other factors (referred to as noncredit losses) which is recognized in other comprehensive income. This noncredit loss component of the impairment may only be classified in other comprehensive income if both of the following conditions are met (a) the holder of the security concludes that it does not intend to sell the security and (b) the holder concludes that it is more likely than not that the holder will not be required to sell the security before the security recovers its value. If these conditions are not met, the noncredit loss must also be recognized in earnings. When adopting the FSP, an entity is required to record a cumulative effect adjustment as of the beginning of the period of adoption to reclassify the noncredit component of a previously recognized other-than-temporary impairment from retained earnings to accumulated other comprehensive income. FSP FAS 115-2 and FAS 124-2 is effective for interim and annual periods ending after June 15, 2009. US Airways adopted FSP FAS 115-2 and FAS 124-2 as of April 1, 2009. US Airways does not meet the conditions necessary to recognize the noncredit loss component of its auction rate securities in other comprehensive income. Accordingly, US Airways did not reclassify any previously recognized other-than-temporary impairment losses from retained earnings to accumulated other comprehensive income and the adoption of FSP FAS 115-2 and FAS 124-2 had no material impact on US Airways’ condensed consolidated financial statements. Refer to Note 8 for further discussion of US Airways’ investments in marketable securities.
In April 2009, the FASB issued FSP FAS 157-4, “Determining Fair Value When the Volume and Level of Activity for the Asset or Liability Have Significantly Decreased and Identifying Transactions That Are Not Orderly,” as adopted by the Codification on July 1, 2009. This FSP provides additional guidance on estimating fair value when the volume and level of activity for an asset or liability have significantly decreased in relation to normal market activity for the asset or liability. The FSP also provides additional guidance on circumstances that may indicate that a transaction is not orderly. FSP FAS 157-4 is effective for interim and annual periods ending after June 15, 2009. US Airways adopted FSP FAS 157-4 during the second quarter of 2009, and its application had no impact on US Airways’ condensed consolidated financial statements.

 

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In May 2009, the FASB issued SFAS No. 165, “Subsequent Events,” as adopted by the Codification on July 1, 2009, which establishes general standards of accounting for and disclosure of events that occur after the balance sheet date but before the financial statements are issued or are available to be issued. SFAS No. 165 provides guidance on the period after the balance sheet date during which management of a reporting entity should evaluate events or transactions that may occur for potential recognition or disclosure in the financial statements, the circumstances under which an entity should recognize events or transactions occurring after the balance sheet date in its financial statements and the disclosures that an entity should make about events or transactions that occurred after the balance sheet date. US Airways adopted SFAS No. 165 during the second quarter of 2009, and its application had no impact on US Airways’ condensed consolidated financial statements. US Airways evaluated subsequent events through the date the accompanying financial statements were issued, which was October 21, 2009.
In June 2009, the FASB issued SFAS No. 167, “Amendments to FASB Interpretation (“FIN”) No. 46(R),” which changes how a reporting entity determines when an entity that is insufficiently capitalized or is not controlled through voting (or similar rights) should be consolidated. The determination of whether a reporting entity is required to consolidate another entity is based on, among other things, the other entity’s purpose and design and the reporting entity’s ability to direct the activities of the other entity that most significantly impact the other entity’s economic performance. SFAS No. 167 will require a reporting entity to provide additional disclosures about its involvement with variable interest entities and any significant changes in risk exposure due to that involvement. A reporting entity will be required to disclose how its involvement with a variable interest entity affects the reporting entity’s financial statements. SFAS No. 167 is effective for fiscal years beginning after November 15, 2009, and interim periods within those fiscal years. Management is currently evaluating the requirements of SFAS No. 167 and has not yet determined the impact on US Airways’ condensed consolidated financial statements.
In October 2009, the FASB issued Accounting Standards Update (“ASU”) No. 2009-13, “Revenue Recognition (Topic 605) — Multiple-Deliverable Revenue Arrangements.” ASU No. 2009-13 addresses the accounting for multiple-deliverable arrangements to enable vendors to account for products or services (deliverables) separately rather than as a combined unit. This guidance establishes a selling price hierarchy for determining the selling price of a deliverable, which is based on: (a) vendor-specific objective evidence; (b) third-party evidence; or (c) estimates. This guidance also eliminates the residual method of allocation and requires that arrangement consideration be allocated at the inception of the arrangement to all deliverables using the relative selling price method. In addition, this guidance significantly expands required disclosures related to a vendor’s multiple-deliverable revenue arrangements. ASU No. 2009-13 is effective prospectively for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010 and early adoption is permitted. A company may elect, but will not be required, to adopt the amendments in ASU No. 2009-13 retrospectively for all prior periods. Management is currently evaluating the requirements of ASU No. 2009-13 and has not yet determined the impact on US Airways’ condensed consolidated financial statements.

 

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2. Special Items, Net
Special items, net as shown on the condensed consolidated statements of operations included the following charges for the three and nine months ended September 30, 2009 and 2008 (in millions):
                                 
    Three Months     Nine Months  
    Ended September 30,     Ended September 30,  
    2009     2008     2009     2008  
Aircraft costs (a)
  $ 10     $     $ 16     $ 6  
Severance and other charges (b)
    5       8       6       8  
Merger related transition expenses (c)
                      35  
Asset impairment charges (d)
                      18  
 
                       
Special items, net
  $ 15     $ 8     $ 22     $ 67  
 
                       
 
     
(a)  
In connection with previously announced capacity reductions, US Airways recorded $10 million and $16 million in the three and nine months ended September 30, 2009, respectively, in charges for aircraft costs. US Airways also recognized $6 million in aircraft costs in the nine months ended September 30, 2008.
 
(b)  
US Airways recorded $5 million and $6 million in severance and other charges in the three and nine months ended September 30, 2009, respectively. US Airways also recognized $8 million in severance charges related to capacity reductions in the third quarter of 2008.
 
(c)  
In connection with the effort to consolidate functions and integrate organizations, procedures and operations, US Airways incurred $35 million of merger related transition expenses in the first nine months of 2008. These expenses included $12 million in uniform costs to transition employees to the new US Airways uniforms; $5 million in applicable employment tax expenses related to contractual benefits granted to certain current and former employees as a result of the merger; $6 million in compensation expenses for equity awards granted in connection with the merger to retain key employees through the integration period; $5 million of aircraft livery costs; $4 million in professional and technical fees related to the integration of airline operations systems; and $3 million in other expenses.
 
(d)  
In the nine months ended September 30, 2008, US Airways recorded $18 million in non-cash impairment charges related to the decline in the fair value of certain spare parts associated with its Boeing 737 aircraft fleet.

 

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3. Debt
The following table details US Airways’ debt (in millions). Variable interest rates listed are the rates as of September 30, 2009.
                 
    September 30,     December 31,  
    2009     2008  
Secured
               
Equipment loans, aircraft pre-delivery payment financings and other notes payable, fixed and variable interest rates ranging from 1.64% to 10.51%, averaging 4.32%, maturing from 2010 to 2021
  $ 2,226     $ 1,674  
Aircraft enhanced equipment trust certificates (“EETCs”), fixed interest rates ranging from 7.08% to 9.01%, averaging 7.79%, maturing from 2015 to 2022
    505       540  
Slot financing, fixed interest rate of 8.08%, interest only payments until due in 2015
    47       47  
Capital lease obligations, interest rate of 8%, installments due through 2021
    37       39  
Senior secured discount notes, variable interest rate of 5.39%, due in 2009
    32       32  
 
           
 
    2,847       2,332  
Unsecured
               
Airbus advance, repayments beginning in 2010 through 2018
    237       207  
Engine maintenance notes
    54       72  
Industrial development bonds, fixed interest rate of 6.3%, interest only payments until due in 2023
    29       29  
Note payable to Pension Benefit Guaranty Corporation, fixed interest rate of 6%, interest only payments until due in 2012
    10       10  
Other notes payable, due in 2009 to 2011
    70       45  
 
           
 
    400       363  
 
           
Total long-term debt and capital lease obligations
    3,247       2,695  
Less: Total unamortized discount on debt
    (99 )     (113 )
Current maturities, less $1 million and $10 million of unamortized discount on debt at September 30, 2009 and December 31, 2008, respectively
    (475 )     (346 )
 
           
Long-term debt and capital lease obligations, net of current maturities
  $ 2,673     $ 2,236  
 
           
US Airways was in compliance with the covenants in its debt agreements at September 30, 2009.
2009 Financing Transactions
On January 16, 2009, US Airways exercised its right to obtain new loan commitments and incur additional loans under a spare parts loan agreement. In connection with the exercise of that right, Airbus Financial Services funded $50 million in satisfaction of a previous commitment. This loan will mature on October 20, 2014, bears interest at a rate of LIBOR plus a margin and is secured by the collateral securing loans under the spare parts loan agreement.
On March 31, 2009, US Airways again exercised its right to obtain new loan commitments and incur additional loans under the spare parts loan agreement and borrowed $50 million. This loan will mature on October 20, 2014, bears interest at a rate of LIBOR plus a margin and is secured by the collateral securing loans under the spare parts loan agreement. US Airways used a portion of the proceeds to purchase an A321 aircraft previously leased to US Airways by an affiliate of the debt holder. As a result, this aircraft became unencumbered.
In June 2009, US Airways entered into loan agreements totaling $132 million to finance the acquisition of certain A330-200 aircraft. The loans bear interest at a rate of LIBOR plus an applicable margin, contain default provisions and other covenants that are typical in the industry for similar financings and are amortized over seven years with balloon payments at maturity.
In the third quarter of 2009, US Airways utilized backstop financing through the manufacturer totaling $104 million to finance the acquisition of certain A320 family aircraft. The financing bears interest at a rate of LIBOR plus an applicable margin, contains default provisions and other covenants that are typical in the industry for similar financings and is amortized over twelve years.
Fair Value of Debt
The fair value of US Airways’ long-term debt was approximately $2.61 billion and $2.28 billion at September 30, 2009 and December 31, 2008, respectively. The fair values were estimated using quoted market prices where available. For long-term debt not actively traded, fair values were estimated using a discounted cash flow analysis, based on US Airways’ current incremental borrowing rates for similar types of borrowing arrangements.

 

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4. Related Party Transactions
The following represents the net payable balances to related parties (in millions):
                 
    September 30, 2009     December 31, 2008  
US Airways Group
  $ 439     $ 949  
US Airways Group’s wholly owned subsidiaries
    39       36  
 
           
 
  $ 478     $ 985  
 
           
US Airways Group has the ability to move funds freely between operating subsidiaries to support operations. These transfers are recognized as intercompany transactions. In September 2009, US Airways Group contributed $600 million in net intercompany receivables due from US Airways to the capital of US Airways.
The net payable to US Airways Group’s wholly owned subsidiaries consists of amounts due under regional capacity agreements with the other airline subsidiaries and fuel purchase arrangements with a non-airline subsidiary.
5. Income Taxes
US Airways and its wholly owned subsidiaries are part of the US Airways Group consolidated income tax return.
As of December 31, 2008, US Airways had approximately $1.3 billion of gross net operating loss carryforwards (“NOL”) to reduce future federal taxable income, substantially all of which is available to reduce federal taxable income in the calendar year 2009. The NOL expires during the years 2022 through 2028. US Airways’ deferred tax asset, which included $1.2 billion of the NOL discussed above, has been subject to a full valuation allowance. US Airways also had approximately $72 million of tax-effected state NOL at December 31, 2008.
In assessing the realizability of the deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will be realized. US Airways has recorded a valuation allowance against its net deferred tax asset. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income (including reversals of deferred tax liabilities) during the periods in which those temporary differences will become deductible.
US Airways reported a loss in the nine months ended September 30, 2009 and did not record a tax provision in any 2009 period.
US Airways recorded income tax expense of $3 million in the three and nine month periods ended September 30, 2008 related to a reconciliation of the 2007 tax provision to the tax return as filed in the third quarter of 2008.
6. Express Expenses
Expenses associated with affiliate regional airlines operating as US Airways Express are classified as Express expenses on the condensed consolidated statements of operations. Express expenses consist of the following (in millions):
                                 
    Three Months Ended     Nine Months Ended  
    September 30,     September 30,  
    2009     2008     2009     2008  
Aircraft fuel and related taxes
  $ 171     $ 349     $ 438     $ 938  
Salaries and related costs
    6       5       18       16  
Capacity purchases
    425       419       1,261       1,255  
Other rent and landing fees
    24       30       75       74  
Selling expenses
    41       45       115       127  
Other expenses
    22       24       68       75  
 
                       
Express expenses
  $ 689     $ 872     $ 1,975     $ 2,485  
 
                       

 

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7. Derivative Instruments
To manage the risk of changes in aviation fuel prices, US Airways periodically enters into derivative contracts comprised of heating oil-based derivative instruments to hedge a portion of its projected jet fuel requirements. Since the third quarter of 2008, US Airways has not entered into any new transactions as part of its fuel hedging program and as of September 30, 2009, there were no remaining outstanding fuel hedging contracts.
US Airways’ fuel hedging instruments did not qualify for hedge accounting. Accordingly, the derivative hedging instruments were recorded as an asset or liability on the balance sheet at fair value and any changes in fair value were recorded in the period of change as gains or losses on fuel hedging instruments, net in operating expenses in the accompanying condensed consolidated statements of operations. The following table details US Airways’ loss (gain) on fuel hedging instruments, net (in millions):
                                 
    Three Months     Nine Months  
    Ended September 30,     Ended September 30,  
    2009     2008     2009     2008  
Realized loss (gain)
  $ 50     $ (68 )   $ 382     $ (342 )
Unrealized loss (gain)
    (48 )     488       (375 )     262  
 
                       
Loss (gain) on fuel hedging instruments, net
  $ 2     $ 420     $ 7     $ (80 )
 
                       
The unrealized gains in the 2009 periods were related to the reversal of prior period unrealized losses due to contracts settling in the three and nine months ended September 30, 2009.
8. Investments in Marketable Securities (Noncurrent)
As of September 30, 2009, US Airways held auction rate securities totaling $411 million at par value, which are classified as available for sale securities and noncurrent assets on US Airways’ condensed consolidated balance sheets. Contractual maturities for these auction rate securities range from seven to 43 years, with 62% of US Airways’ portfolio maturing within the next 10 years (2016 — 2017), 10% maturing within the next 20 years (2025), 16% maturing within the next 30 years (2033 — 2036) and 12% maturing thereafter (2039 — 2052). With the liquidity issues experienced in the global credit and capital markets, all of US Airways’ auction rate securities have experienced failed auctions since August 2007. The estimated fair value of these auction rate securities no longer approximates par value. At September 30, 2009, the fair value of US Airways’ auction rate securities was $228 million, a net increase of $14 million from June 30, 2009 and $41 million from December 31, 2008. Refer to Note 9 for discussion on how US Airways determines the fair value of its investments in auction rate securities.
In the three and nine months ended September 30, 2009, US Airways recorded unrealized gains of $17 million and $51 million, respectively, in other comprehensive income related to the increase in fair value of certain of US Airways’ investments in auction rate securities. These unrealized gains were offset by other-than-temporary impairment charges of $3 million and $10 million, respectively, in the three and nine months ended September 30, 2009. These other-than-temporary impairment charges are recorded in other nonoperating expense, net and relate to the decline in fair value of certain of US Airways’ investments in auction rate securities.
In the three and nine months ended September 30, 2008, US Airways recorded $127 million and $140 million, respectively, of other-than-temporary impairment charges in other nonoperating expense, net. These charges in the three and nine months ended September 30, 2008, included $103 million and $48 million, respectively, of previously recorded unrealized losses in other comprehensive income.
US Airways continues to monitor the market for auction rate securities and consider its impact (if any) on the fair value of its investments. If the current market conditions deteriorate, US Airways may be required to record additional impairment charges in other nonoperating expense, net in future periods.

 

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9. Fair Value Measurements
Assets measured at fair value on a recurring basis are as follows (in millions):
                                         
            Quoted Prices in     Significant Other     Significant        
            Active Markets for     Observable     Unobservable        
            Identical Assets     Inputs     Inputs     Valuation  
    Fair Value     (Level 1)     (Level 2)     (Level 3)     Technique  
At September 30, 2009
                                       
Investments in marketable securities (noncurrent)
  $ 228     $     $     $ 228       (1 )
At December 31, 2008
                                       
Investments in marketable securities (noncurrent)
  $ 187     $     $     $ 187       (1 )
Fuel hedging derivatives
    (375 )           (375 )           (2 )
     
(1)  
US Airways estimated the fair value of its auction rate securities based on the following: (i) the underlying structure of each security; (ii) the present value of future principal and interest payments discounted at rates considered to reflect current market conditions; (iii) consideration of the probabilities of default, passing a future auction, or repurchase at par for each period; and (iv) estimates of the recovery rates in the event of default for each security. These estimated fair values could change significantly based on future market conditions. Refer to Note 8 for further discussion of US Airways’ investments in marketable securities.
 
(2)  
As US Airways’ fuel hedging derivative instruments were not traded on a market exchange, the fair values were determined using valuation models which included assumptions about commodity prices based on those observed in the underlying markets. The fair value of fuel hedging derivatives is recorded in accounts payable on the consolidated balance sheets. Refer to Note 7 for further discussion of US Airways’ fuel hedging derivatives.
Assets measured at fair value on a recurring basis using significant unobservable inputs (Level 3) are as follows (in millions):
         
    Investments in  
    Marketable  
    Securities  
    (Noncurrent)  
Balance at December 31, 2008
  $ 187  
Unrealized gains recorded to other comprehensive income
    51  
Impairment losses included in other nonoperating expense, net
    (10 )
 
     
Balance at September 30, 2009
  $ 228  
 
     
10. Other Comprehensive Income (Loss)
US Airways’ other comprehensive loss consists of the following (in millions):
                                 
    Three Months Ended     Nine Months Ended  
    September 30,     September 30,  
    2009     2008     2009     2008  
Net loss
  $ (68 )   $ (855 )   $ (94 )   $ (1,639 )
Unrealized gains on available for sale securities
    17             51        
Recognition of previous unrealized losses now deemed other-than-temporary
          103             48  
Other postretirement benefits
    (2 )           (7 )     (2 )
 
                       
Total comprehensive loss
  $ (53 )   $ (752 )   $ (50 )   $ (1,593 )
 
                       
The components of accumulated other comprehensive income were as follows (in millions):
                 
    September 30,     December 31,  
    2009     2008  
Other postretirement benefits
  $ 71     $ 78  
Accumulated net unrealized gains on available for sale securities
    51        
 
           
Accumulated other comprehensive income
  $ 122     $ 78  
 
           

 

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11. Flight 1549
On January 15, 2009, US Airways flight 1549 was involved in an accident in New York that resulted in the aircraft ditching in the Hudson River. The Airbus A320 aircraft was en route to Charlotte from LaGuardia with 150 passengers and a crew of five onboard. All aboard survived and there were no serious injuries. US Airways has insurance coverage for both the aircraft (which is a total loss) as well as costs resulting from the accident, and there are no applicable deductibles.
The aircraft involved in the flight 1549 accident was leased by US Airways. In the first quarter of 2009, US Airways exercised its aircraft substitution right under the lease agreement and transferred title of an owned Airbus A320 to the lessor in substitution for the Airbus A320 aircraft that was involved in the accident. This transferred aircraft will continue to be leased to US Airways under the same terms and conditions of the lease agreement. In connection with this transaction, US Airways extinguished $22 million of debt associated with the previously owned aircraft that was transferred to the lessor.
12. Slot Exchange
In August 2009, US Airways Group and US Airways entered into a mutual asset purchase and sale agreement with Delta Air Lines, Inc. (“Delta”). Pursuant to the agreement, US Airways will transfer to Delta certain assets related to flight operations at LaGuardia Airport in New York, including 125 pairs of slots currently used to provide US Airways Express service at LaGuardia. Delta will transfer to US Airways certain assets related to flight operations at Reagan National Airport in Washington, D.C., including 42 pairs of slots, and the authority to serve Sao Paulo, Brazil and Tokyo, Japan. One slot equals one take-off or landing, and each pair of slots equals one roundtrip flight. The agreement is structured as two simultaneous asset sales and is expected to be cash neutral to US Airways. The closing of the transactions under the agreement is subject to certain closing conditions, including approvals from a number of government agencies including the U.S. Department of Justice, the U.S. Department of Transportation, the Federal Aviation Administration and The Port Authority of New York and New Jersey.
13. Subsequent Event
US Airways entered into a term sheet to sell 10 of its Embraer 190 aircraft to Republic Airline Inc. (“Republic”). Through October 21, 2009, five of the 10 aircraft sales have been completed and the remaining five are expected to close in the fourth quarter of 2009. US Airways will lease back eight of the 10 aircraft from Republic for periods ranging from one to seven months. Debt outstanding on the 10 Embraer aircraft was $217 million at September 30, 2009. In connection with this transaction, Republic has agreed to assume the full amount of this debt and release US Airways from its obligations associated with the principal due under the debt. Additionally, at September 30, 2009, US Airways had $35 million outstanding under a loan from Republic (the “Republic loan”). The Republic loan was scheduled to be repaid starting in January 2010 and fully repaid in October 2011. In accordance with the term sheet, the full amount outstanding under the Republic loan will be applied to the purchase price of the 10 aircraft. US Airways expects to incur an aggregate loss of approximately $47 million from the sale of the 10 aircraft and write-off of debt discount associated with the Republic loan in the fourth quarter of 2009.

 

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Item 2.  
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Part I, Item 2 of this report should be read in conjunction with Part II, Item 7 of US Airways Group, Inc.’s and US Airways, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2008 (the “2008 Form 10-K”). The information contained herein is not a comprehensive discussion and analysis of the financial condition and results of operations of the Company, but rather updates disclosures made in the 2008 Form 10-K.
Background
US Airways Group, a Delaware corporation, is a holding company whose primary business activity is the operation of a major network air carrier through its wholly owned subsidiaries US Airways, Piedmont Airlines, Inc. (“Piedmont”), PSA Airlines, Inc. (“PSA”), Material Services Company, Inc. (“MSC”) and Airways Assurance Limited.
We operate the fifth largest airline in the United States as measured by domestic revenue passenger miles (“RPMs”) and available seat miles (“ASMs”). We have primary hubs in Charlotte, Philadelphia and Phoenix, and focus cities in New York, Washington, D.C., Boston and Las Vegas. We offer scheduled passenger service on more than 3,000 flights daily to more than 200 communities in the United States, Canada, Europe, the Middle East, the Caribbean and Latin America. We also have an established East Coast route network, including the US Airways Shuttle service, with substantial presence at capacity constrained airports including New York’s LaGuardia Airport and the Washington, D.C. area’s Ronald Reagan Washington National Airport. For the nine months ended September 30, 2009, we had approximately 39 million passengers boarding our mainline flights. As of September 30, 2009, we operated 348 mainline jets and are supported by our regional airline subsidiaries and affiliates operating as US Airways Express either under capacity purchase or prorate agreements, which operate approximately 236 regional jets and 65 turboprops.
U.S. Airline Industry Environment
The airline industry in the United States has been severely impacted in 2009 by the global economic recession. Passenger demand, as reported by the Air Transport Association of America (“ATA”), continued to be down throughout the third quarter of 2009 as compared to the same period in 2008. ATA reported U.S. airline passenger revenues were down 21% for the first nine months of 2009 and September 2009 marked the eleventh consecutive month in which industry revenues have fallen.
Business bookings continue to be down sharply as, in response to the economic recession, companies have cut costs by reducing their travel budgets. For those companies whose employees continue to travel for business, airlines are experiencing lower yields as travelers are purchasing the tickets carrying fewer restrictions at lower fares. The contraction of business spending has also significantly impacted cargo demand. ATA reported that cargo, as measured by revenue ton miles, declined 18% year-over-year in the first eight months of 2009. August 2009 marked the thirteenth consecutive month of declining cargo traffic. Leisure travel has held up relatively well, although yields have significantly declined.
Many U.S. airlines continue to report strong load factors through the third quarter of 2009 as capacity cuts have helped offset the decline in demand for air travel. However industry revenues have been adversely affected by severe fare discounting by carriers to stimulate demand. Passenger revenue per available seat mile (“PRASM”) is down significantly in the third quarter of 2009 with substantially greater declines experienced in international markets. International markets continue to be more severely impacted by the economic slowdown than domestic markets. This is a result of capacity expansion overseas during the past several years, which the U.S. industry only intends to reduce by 6% in 2009 as compared to domestic capacity reductions of 8%. Additionally, international traffic has greater reliance on premium business and first class seating and cargo to drive profitability.
U.S. airlines, like other airlines worldwide, remain highly vulnerable to increases in fuel costs. The price of crude oil is down substantially from its record high of $147 per barrel in July 2008, which offsets some of the effects of declining passenger demand resulting from the economic recession. Typically, falling fuel prices would be a natural hedge during times of weak travel demand. However, during the first nine months of 2009, the price of crude oil on a per barrel basis was volatile, ranging from a high of $73.68 to a low of $34.03, and closing at $70.46 on September 30, 2009. This volatility in oil prices has made use of hedging positions by airlines to contain fuel costs either expensive (call options) or risky due to counterparty cash collateral requirements (collars and swaps).
There are some signs that improvement may be on the horizon. For example, monthly year-over-year declines in yield for U.S. airlines, as reported by ATA, reached a high of 21% in June 2009. ATA has since reported improvements in the third quarter, with September 2009 monthly year-over-year declines in yield reported at 18%. However, heading into fall and winter, the seasonally weakest periods of the year for the airline industry, it is difficult to predict the ongoing effects of the global economic recession. Accordingly, the industry is focused on conserving and building cash and matching capacity to demand. During the third quarter of 2009, credit markets were increasingly open to airlines and several U.S. airlines raised cash to enhance liquidity through a number of initiatives such as traditional public stock and debt issuances, asset sales, asset sale and leasebacks, and transactions with affinity credit card issuers.

 

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US Airways
Relative to other U.S. legacy or big six hub and spoke carriers, our larger domestic presence means our revenues are less adversely affected by the global economic downturn. The industry has taken much more aggressive corrective capacity reductions domestically and we are less exposed to the sharp declines in passenger and cargo demand in international markets. Our international transatlantic traffic represents approximately 22% of our total ASMs. As a result, our total revenue passenger miles (“RPMs”) for the nine months ended September 30, 2009 decreased 4.8% on 5.3% lower capacity as compared to the same period in 2008, whereas overall U.S. industry declines in demand in this same period averaged 6% on 6% lower capacity. Cargo represents approximately 1% of our operating revenues.
We have also benefited from our new revenue initiatives implemented in 2008, which have generated $305 million in ancillary revenues for the nine months ended September 30, 2009 and are expected to generate in excess of $400 million for fiscal year 2009. Given our shorter length of haul and domestic focus, we believe these initiatives will benefit us more than our competitors. Ancillary revenues include a first and second checked bag service fee, processing fees for travel awards issued through our Dividend Miles frequent traveler program, our new Choice Seats program, increases to the cost of call center/airport ticketing fees and increases to certain preexisting service fees. As a result of these new ancillary revenues, while our mainline and Express PRASM was 10.75 cents in the third quarter of 2009, a 15.4% decline as compared to 12.71 cents in the third quarter of 2008, our total revenue per available seat mile (“RASM”) declined by a lower amount. RASM was 12.08 cents in the third quarter of 2009, as compared to 13.97 cents in the third quarter of 2008, representing only a 13.5% decline. Our ancillary revenues were strengthened in the third quarter of 2009, as we implemented increases to our first and second checked bag fees and added a second checked bag fee on our trans-Atlantic European flights.
During the first nine months of 2009, we continued our capacity reduction, cost control and cash conservation initiatives to further improve our liquidity position.
Capacity and Fleet Reductions
We are continuing to execute our plan of reducing our 2009 total mainline capacity by 4% to 6% and our Express capacity by 4% to 6% from 2008 levels. During the first nine months of 2009, we reduced our mainline and Express capacity by 5.5% and 4.5%, respectively, over the 2008 period. We are achieving our 2009 capacity reductions through the return of aircraft to lessors and reductions in aircraft utilization.
We are also executing strategic transactions to better match capacity to demand. In August 2009, US Airways Group and US Airways entered into a mutual asset purchase and sale agreement with Delta Air Lines, Inc. (“Delta”). Pursuant to the agreement, US Airways will transfer to Delta certain assets related to flight operations at LaGuardia Airport in New York, including 125 pairs of slots currently used to provide US Airways Express service at LaGuardia. Delta will transfer to US Airways certain assets related to flight operations at Reagan National Airport in Washington, D.C., including 42 pairs of slots, and the authority to serve Sao Paulo, Brazil and Tokyo, Japan. One slot equals one take-off or landing, and each pair of slots equals one roundtrip flight. The agreement is structured as two simultaneous asset sales and is expected to be cash neutral to US Airways. The closing of the transactions under the agreement is subject to certain closing conditions, including approvals from a number of government agencies including the U.S. Department of Justice, the U.S. Department of Transportation, the Federal Aviation Administration and The Port Authority of New York and New Jersey. If approved, this transaction will significantly increase our capacity in the Washington, D.C. market.
Cost Control
We remain committed to maintaining a low cost structure, which we believe is necessary in an industry whose economic prospects are heavily dependent upon two variables we cannot control: the health of the economy and the price of fuel. As a result of reduced flying discussed above, we have reduced non-essential headcount through voluntary and involuntary furlough programs as well as attrition. In connection with our capacity reductions described above, we have eliminated approximately 3,200 positions across the system including 300 pilots, 800 flight attendants, 1,400 airport employees and 700 non-union administrative management and staff since the third quarter of 2008. Most importantly, we control costs by continuing to run a good operation. See the “Customer Service” section below for further discussion. Additionally, in the current industry environment, our cost focus has been extended to cash conservation, and we intend to minimize or defer discretionary expenditures.

 

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Liquidity
As of September 30, 2009, our cash, cash equivalents, investments in marketable securities and restricted cash were $2 billion, of which $530 million was restricted. Our investments in marketable securities included $228 million of auction rate securities that are classified as noncurrent assets on our condensed consolidated balance sheets. See “Liquidity and Capital Resources” for further discussion of our investments in auction rate securities.
                 
    September 30,     December 31,  
    2009     2008  
    (In millions)  
Cash, cash equivalents and short-term investments in marketable securities
  $ 1,242     $ 1,054  
Short and long-term restricted cash
    530       726  
Long-term investments in marketable securities
    228       187  
 
           
Total cash, cash equivalents, investments in marketable securities and restricted cash
  $ 2,000     $ 1,967  
 
           
We have taken several actions in 2009 to strengthen our liquidity position. In the third quarter of 2009, we completed an underwritten public offering of common stock which generated net proceeds of $137 million. During the first half of 2009, we completed a series of financing transactions generating approximately $350 million in net proceeds, including common stock and convertible note offerings, which generated net proceeds of $234 million, an additional loan under a spare parts loan agreement, a loan secured by certain airport landing slots and an unsecured financing with one of our third party Express carriers.
All of our remaining A320 family aircraft scheduled for delivery in 2009 have backstop financing available through the manufacturer and we have secured financing for the remaining two A330-200 deliveries scheduled for delivery in 2009. Due to the uncertainty of the ongoing effects of the economic recession, we are pursuing additional sources of liquidity as well as strategies to preserve liquidity to strengthen our position.
Current Financial Results and Outlook
US Airways Group’s net loss for the third quarter of 2009 was $80 million, or a loss of $0.60 per share, as compared to a net loss of $866 million, or $8.46 per share, in the third quarter of 2008.
The average mainline and Express price per gallon of fuel decreased 49.3% to $1.90 in the third quarter of 2009 from $3.75 in the third quarter of 2008. As a result, our mainline and Express fuel expense for the third quarter of 2009 was $754 million or 51.7% lower than the 2008 period on 3.6% lower capacity. Since the third quarter of 2008, we have not entered into any new transactions as part of our fuel hedging program and as of September 30, 2009, there were no remaining outstanding fuel hedging contracts. Net losses associated with fuel hedging transactions were $2 million in the third quarter of 2009, a decline of $418 million from the 2008 period. The third quarter of 2009 included $50 million of net realized losses, offset by $48 million of net unrealized gains. In mark-to-market accounting, the unrealized losses recognized in prior periods are reversed as hedge transactions are settled in the current period.
While fuel costs decreased significantly, the weak demand environment caused by the global economic recession resulted in a $549 million or 18.5% decrease in mainline and Express passenger revenues in the third quarter of 2009 on lower capacity as compared to the 2008 period. Our mainline and Express PRASM was 10.75 cents in the third quarter of 2009, a 15.4% decline as compared to 12.71 cents in the third quarter of 2008. Mainline and Express yield was 13.01 cents in the third quarter of 2009 as compared to 15.45 cents in the third quarter of 2008, a 15.8% decline. As discussed above, our new ancillary revenues introduced during 2008 mitigated some of the impact of declining demand. While PRASM declined 15.4% as compared to the third quarter of 2008, our total RASM decline was only 13.5%, decreasing from 13.97 cents in the third quarter of 2008 to 12.08 cents in the third quarter of 2009.
While the magnitude of the ongoing impact of the weakened economic environment remains uncertain, we believe that our greater presence in U.S. domestic markets as well as our actions to increase revenue, reduce costs and strengthen and preserve liquidity have better positioned us relative to other U.S. legacy or big six hub and spoke carriers for the difficult global economy.

 

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Customer Service
We are committed to running a successful airline. One of the important ways we do this is by taking care of our customers. We believe that our focus on excellent customer service in every aspect of our operations, including personnel, flight equipment, in-flight and ancillary amenities, on-time performance, flight completion ratios and baggage handling, will strengthen customer loyalty and attract new customers.
Through August 2009, we ranked first in on-time performance among the big six hub and spoke carriers as measured by the Department of Transportation’s (“DOT”) Air Travel Consumer Report. This follows our first place ranking for the full year 2008 among these same carriers. Our mishandled baggage ratio as reported by the DOT has significantly improved each month during the first nine months of 2009 as compared to the same period in 2008. For the months of July and August of 2009, our ratio of mishandled bags ranked second and third, respectively, as measured against the 10 largest airlines according to the DOT monthly Air Travel Consumer Report. Additionally, our mishandled baggage rate of 2.14 per 1,000 passengers reported in September 2009 is our lowest ratio since January 2002. The combination of continued strong on-time performance and fewer mishandled bags contributed to 49.8% fewer reported customer complaints to the DOT in the third quarter of 2009 as compared to the same period in 2008.
We reported the following combined operating statistics to the DOT for mainline operations for the third quarter of 2009 and 2008:
                                                                         
    2009     2008     Percent Change 2009-2008  
    July     August     September (e)     July     August     September     July     August     September  
On-time performance (a)
    80.6       81.4       87.9       78.3       80.8       84.1       2.9       0.7       4.5  
Completion factor (b)
    98.9       99.0       99.5       98.3       98.2       98.8       0.6       0.8       0.7  
Mishandled baggage (c)
    2.75       2.90       2.14       4.22       4.09       3.09       (34.8 )     (29.1 )     (30.7 )
Customer complaints (d)
    1.18       1.10       0.99       2.16       2.45       1.90       (45.4 )     (55.1 )     (47.9 )
 
     
(a)  
Percentage of reported flight operations arriving on time as defined by the DOT.
 
(b)  
Percentage of scheduled flight operations completed.
 
(c)  
Rate of mishandled baggage reports per 1,000 passengers.
 
(d)  
Rate of customer complaints filed with the DOT per 100,000 passengers.
 
(e)  
September 2009 operating statistics are preliminary as the DOT has not issued its September 2009 Air Travel Consumer Report as of the date of this filing.

 

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US Airways Group’s Results of Operations
In the three months ended September 30, 2009, we realized operating income of $6 million and a loss before income taxes of $80 million. The weak demand environment caused by the global economic recession drove a $542 million or 16.6% decrease in total revenues on 3.6% lower capacity as compared to the 2008 period. The declines in revenues were offset by lower fuel expense as our mainline and Express fuel expense for the third quarter of 2009 was $754 million or 51.7% lower than the 2008 period on 3.6% lower capacity. The average mainline and Express price per gallon of fuel decreased 49.3% to $1.90 in the third quarter of 2009 from $3.75 in the third quarter of 2008. Our third quarter 2009 results were also impacted by recognition of the following items:
   
$50 million of net realized losses on settled fuel hedging instruments, offset by $48 million of net unrealized gains resulting from the application of mark-to-market accounting for changes in the fair value of fuel hedging instruments. In mark-to-market accounting, the unrealized losses recognized in prior periods are reversed as hedge transactions are settled in the current period. We were required to use mark-to-market accounting as our fuel hedging instruments did not meet the requirements for hedge accounting. If these instruments had qualified for hedge accounting treatment, any unrealized gains or losses would have been recorded in other comprehensive income, a component of stockholders’ equity;
   
$15 million of net special charges consisting of $10 million in aircraft costs as a result of our previously announced capacity reductions and $5 million in severance and other charges; and
   
$3 million in other-than-temporary non-cash impairment charges included in nonoperating expense, net for our investments in auction rate securities.
In the three months ended September 30, 2008, we realized an operating loss of $689 million and a loss before income taxes of $863 million. The third quarter of 2008 loss was driven by an average price per gallon of fuel of $3.75 for mainline and Express operations. Our third quarter 2008 results were also impacted by recognition of the following items:
   
$488 million of net unrealized losses resulting from the application of mark-to-market accounting for changes in the fair value of fuel hedging instruments, offset by $68 million of net realized gains on settled fuel hedging instruments;
   
$8 million of net special charges for severance costs as a result of our capacity reductions; and
   
$127 million in other-than-temporary non-cash impairment charges included in nonoperating expense, net for our investments in auction rate securities.
In the first nine months of 2009, we realized operating income of $103 million and a loss before income taxes of $125 million. The weak demand environment caused by the global economic recession drove a $1.53 billion or 16.3% decrease in total revenues on 5.3% lower capacity as compared to the 2008 period. The declines in revenues were offset by lower fuel expense as our mainline and Express fuel expense for the first nine months of 2009 was $2.17 billion or 54.7% lower than the 2008 period on 5.3% lower capacity. The average mainline and Express price per gallon of fuel decreased 51.5% to $1.67 in the first nine months of 2009 from $3.44 in the 2008 period. Our results for the first nine months of 2009 were also impacted by recognition of the following items:
   
$382 million of net realized losses on settled fuel hedging instruments, offset by $375 million of net unrealized gains resulting from the application of mark-to-market accounting for changes in the fair value of fuel hedging instruments;
   
$22 million of net special charges consisting of $16 million in aircraft costs as a result of our previously announced capacity reductions and $6 million in severance and other charges; and
   
$10 million in other-than-temporary non-cash impairment charges for our investments in auction rate securities as well as a $2 million non-cash asset impairment charge, all included in nonoperating expense, net.
In the first nine months of 2008, we realized an operating loss of $1.42 billion and a loss before income taxes of $1.67 billion. The loss in the first nine months of 2008 was driven by an average price per gallon of fuel of $3.44 for mainline and Express operations as well as a $622 million non-cash charge to write off all the goodwill created by the merger of US Airways Group and America West Holdings in September 2005. Our results for the first nine months of 2008 were also impacted by recognition of the following items:
   
$342 million of net realized gains on settled fuel hedging instruments, offset by $262 million of net unrealized losses resulting from the application of mark-to-market accounting for changes in the fair value of fuel hedging instruments;

 

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$67 million of net special charges consisting of $35 million of merger related transition expenses, $18 million in non-cash charges related to the decline in the fair value of certain spare parts associated with our Boeing 737 aircraft fleet, and as a result of our capacity reductions, $8 million in severance charges and $6 million in aircraft costs; and
   
$140 million in other-than-temporary non-cash impairment charges for our investments in auction rate securities, a $2 million write off of debt discount and debt issuance costs in connection with the refinancing of certain aircraft equipment notes, offset by $8 million in gains on forgiveness of debt, all included in nonoperating expense, net.
At December 31, 2008, we had approximately $1.4 billion of gross net operating loss carryforwards (“NOL”) to reduce future federal taxable income, substantially all of which is available to reduce federal taxable income in the calendar year 2009. The NOL expires during the years 2022 through 2028. Our deferred tax asset, which included $1.3 billion of the NOL discussed above, has been subject to a full valuation allowance. We also had approximately $77 million of tax-effected state NOL at December 31, 2008.
We reported a loss in the nine months ended September 30, 2009 and did not record a tax provision in any 2009 period.
We recorded income tax expense of $3 million in the three and nine month periods ended September 30, 2008 related to a reconciliation of the 2007 tax provision to the tax return as filed in the third quarter of 2008.

 

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The table below sets forth our selected mainline and Express operating data:
                                                 
    Three Months Ended     Percent     Nine Months Ended     Percent  
    September 30,     Change     September 30,     Change  
    2009     2008     2009-2008     2009     2008     2009-2008  
Mainline
                                               
Revenue passenger miles (millions) (a)
    15,719       16,270       (3.4 )     44,553       46,952       (5.1 )
Available seat miles (millions) (b)
    18,718       19,402       (3.5 )     54,007       57,124       (5.5 )
Passenger load factor (percent) (c)
    84.0       83.9       0.1  pts     82.5       82.2       0.3  pts
Yield (cents) (d)
    11.18       13.50       (17.2 )     11.43       13.56       (15.7 )
Passenger revenue per available seat mile (cents) (e)
    9.39       11.32       (17.1 )     9.43       11.14       (15.4 )
Operating cost per available seat mile (cents) (f)
    11.00       16.01       (31.3 )     10.82       14.67       (26.2 )
Passenger enplanements (thousands) (g)
    13,049       14,068       (7.2 )     38,899       42,014       (7.4 )
Departures (thousands)
    115       125       (7.5 )     350       378       (7.2 )
Aircraft at end of period
    348       358       (2.8 )     348       358       (2.8 )
Block hours (thousands) (h)
    313       332       (5.6 )     934       996       (6.2 )
Average stage length (miles) (i)
    1,013       986       2.7       977       965       1.3  
Average passenger journey (miles) (j)
    1,766       1,645       7.4       1,650       1,583       4.3  
Fuel consumption (gallons in millions)
    282       297       (5.0 )     818       882       (7.2 )
Average aircraft fuel price including related taxes (dollars per gallon)
    1.89       3.73       (49.4 )     1.65       3.42       (51.7 )
Full time equivalent employees at end of period
    31,592       32,779       (3.6 )     31,592       32,779       (3.6 )
Express (k)
                                               
Revenue passenger miles (millions) (a)
    2,873       2,942       (2.4 )     8,055       8,333       (3.3 )
Available seat miles (millions) (b)
    3,785       3,943       (4.0 )     10,917       11,434       (4.5 )
Passenger load factor (percent) (c)
    75.9       74.6       1.3  pts     73.8       72.9       0.9  pts
Yield (cents) (d)
    23.06       26.20       (12.0 )     23.04       26.76       (13.9 )
Passenger revenue per available seat mile (cents) (e)
    17.50       19.55       (10.5 )     17.00       19.50       (12.8 )
Operating cost per available seat mile (cents) (f)
    17.27       21.40       (19.3 )     17.24       20.98       (17.8 )
Passenger enplanements (thousands) (g)
    7,235       7,117       1.7       20,264       20,382       (0.6 )
Aircraft at end of period
    288       296       (2.7 )     288       296       (2.7 )
Fuel consumption (gallons in millions)
    89       92       (3.6 )     256       269       (4.7 )
Average aircraft fuel price including related taxes (dollars per gallon)
    1.93       3.80       (49.3 )     1.71       3.49       (51.0 )
Total Mainline and Express
                                               
Revenue passenger miles (millions) (a)
    18,592       19,212       (3.2 )     52,608       55,285       (4.8 )
Available seat miles (millions) (b)
    22,503       23,345       (3.6 )     64,924       68,558       (5.3 )
Passenger load factor (percent) (c)
    82.6       82.3       0.3  pts     81.0       80.6       0.4  pts
Yield (cents) (d)
    13.01       15.45       (15.8 )     13.21       15.55       (15.0 )
Passenger revenue per available seat mile (cents) (e)
    10.75       12.71       (15.4 )     10.70       12.54       (14.6 )
Total revenue per available seat mile (cents) (l)
    12.08       13.97       (13.5 )     12.06       13.65       (11.6 )
Passenger enplanements (thousands) (g)
    20,284       21,185       (4.2 )     59,163       62,396       (5.2 )
Aircraft at end of period
    636       654       (2.8 )     636       654       (2.8 )
Fuel consumption (gallons in millions)
    371       389       (4.7 )     1,074       1,151       (6.6 )
Average aircraft fuel price including related taxes (dollars per gallon)
    1.90       3.75       (49.3 )     1.67       3.44       (51.5 )
 
     
(a)  
Revenue passenger mile (“RPM”) — A basic measure of sales volume. A RPM represents one passenger flown one mile.
 
(b)  
Available seat mile (“ASM”) — A basic measure of production. An ASM represents one seat flown one mile.
 
(c)  
Passenger load factor — The percentage of available seats that are filled with revenue passengers.
 
(d)  
Yield — A measure of airline revenue derived by dividing passenger revenue by revenue passenger miles and expressed in cents per mile.
 
(e)  
Passenger revenue per available seat mile (“PRASM”) — Passenger revenues divided by available seat miles.
 
(f)  
Operating cost per available seat mile (“CASM”) — Operating expenses divided by available seat miles.
 
(g)  
Passenger enplanements — The number of passengers on board an aircraft including local, connecting and through passengers.

 

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(h)  
Block hours — The hours measured from the moment an aircraft first moves under its own power, including taxi time, for the purposes of flight until the aircraft is docked at the next point of landing and its power is shut down.
 
(i)  
Average stage length — The average of the distances flown on each segment of every route.
 
(j)  
Average passenger journey — The average one-way trip measured in miles for one passenger origination.
 
(k)  
Express statistics include Piedmont and PSA, as well as operating and financial results from capacity purchase agreements with Air Wisconsin Airlines Corporation, Republic Airways, Mesa Airlines, Inc. and Chautauqua Airlines, Inc.
 
(l)  
Total revenue per available seat mile (“RASM”) — Total revenues divided by total mainline and Express available seat miles.
Three Months Ended September 30, 2009
Compared with the
Three Months Ended September 30, 2008
Operating Revenues:
                         
                    Percent  
    2009     2008     Change  
    (In millions)        
Operating revenues:
                       
Mainline passenger
  $ 1,757     $ 2,197       (20.0 )
Express passenger
    662       771       (14.1 )
Cargo
    23       37       (36.5 )
Other
    277       256       8.0  
 
                   
Total operating revenues
  $ 2,719     $ 3,261       (16.6 )
 
                   
Total operating revenues in the third quarter of 2009 were $2.72 billion as compared to $3.26 billion in the 2008 period, a decline of $542 million or 16.6%. The weak demand environment in 2009 drove a $549 million or 18.5% decrease in mainline and Express passenger revenues on 3.6% lower capacity as compared to the 2008 period. The increase in ancillary revenues resulting from our new revenue initiatives implemented in the latter part of 2008 offset a portion of this decline. As a result, on a period over period basis, total RASM decreased by only 13.5% as compared to mainline and Express PRASM, which decreased by 15.4%. Significant changes in the components of operating revenues are as follows:
   
Mainline passenger revenues were $1.76 billion in the third quarter of 2009 as compared to $2.2 billion for the 2008 period. Mainline RPMs decreased 3.4% as mainline capacity, as measured by ASMs, decreased 3.5%, resulting in a 0.1 point increase in load factor to 84%. Mainline passenger yield decreased 17.2% to 11.18 cents in the third quarter of 2009 from 13.5 cents in the 2008 period. Mainline PRASM decreased 17.1% to 9.39 cents in the third quarter of 2009 from 11.32 cents in the 2008 period. Mainline yield and PRASM decreased in the third quarter of 2009 due principally to the decline in passenger demand and weak pricing environment driven by the global economic recession.
   
Express passenger revenues were $662 million in the third quarter of 2009, a decrease of $109 million from the 2008 period. Express RPMs decreased by 2.4% as Express capacity, as measured by ASMs, decreased 4%, resulting in a 1.3 point increase in load factor to 75.9%. Express passenger yield decreased by 12% to 23.06 cents in the third quarter of 2009 from 26.2 cents in the 2008 period. Express PRASM decreased 10.5% to 17.5 cents in the third quarter of 2009 from 19.55 cents in the 2008 period. The decreases in Express yield and PRASM were the result of the same passenger demand declines and weak pricing environment discussed in mainline passenger revenues above.
   
Cargo revenues were $23 million in the third quarter of 2009, a decrease of $14 million or 36.5% from the 2008 period. The decrease in cargo revenues was driven by declines in freight volumes as a result of the contraction of business spending in the current economic environment as well as a decrease in fuel surcharges in 2009 as compared to the 2008 period.
   
Other revenues were $277 million in the third quarter of 2009, an increase of $21 million or 8% from the 2008 period primarily due to an increase of $46 million generated by our first checked bag fees, which were implemented in the third quarter of 2008. This increase was offset in part by declines in fuel sales to our pro-rate carriers through our MSC subsidiary driven by lower fuel prices in the 2009 period. A decline in the volume of passenger ticketing change fees also contributed to this decrease.

 

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Operating Expenses:
                         
                    Percent  
    2009     2008     Change  
    (In millions)        
Operating expenses:
                       
Aircraft fuel and related taxes
  $ 534     $ 1,110       (51.9 )
Loss (gain) on fuel hedging instruments, net:
                       
Realized
    50       (68 )   nm  
Unrealized
    (48 )     488     nm  
Salaries and related costs
    553       567       (2.5 )
Aircraft rent
    171       183       (6.4 )
Aircraft maintenance
    174       188       (7.5 )
Other rent and landing fees
    148       137       8.2  
Selling expenses
    99       120       (17.3 )
Special items, net
    15       8       81.6  
Depreciation and amortization
    63       52       20.2  
Other
    300       321       (6.4 )
 
                   
Total mainline operating expenses
    2,059       3,106       (33.7 )
Express expenses:
                       
Fuel
    171       349       (51.1 )
Other
    483       495       (2.3 )
 
                   
Total Express expenses
    654       844       (22.5 )
 
                   
Total operating expenses
  $ 2,713     $ 3,950       (31.3 )
 
                   
Total operating expenses were $2.71 billion in the third quarter of 2009, a decrease of $1.24 billion or 31.3% compared to the 2008 period. Mainline operating expenses were $2.06 billion in the third quarter of 2009, a decrease of $1.05 billion or 33.7% from the 2008 period, while ASMs decreased 3.5%.
Mainline CASM decreased 31.3% to 11 cents in the third quarter of 2009 from 16.01 cents in the 2008 period. The period over period decrease in mainline CASM was driven principally by decreases in fuel costs ($576 million or 2.87 cents per ASM) as well as a decrease in the net losses on fuel hedging instruments ($418 million or 2.16 cents per ASM) in the 2009 period compared to the 2008 period.
The 2009 period included $15 million of net special charges consisting of $10 million in aircraft costs as a result of our previously announced capacity reductions and $5 million in severance and other charges. This compares to net special charges of $8 million in the 2008 period for severance costs as a result of our capacity reductions.
The table below sets forth the major components of our mainline CASM for the three months ended September 30, 2009 and 2008:
                         
                    Percent  
    2009     2008     Change  
    (In cents)        
Mainline CASM:
                       
Aircraft fuel and related taxes
    2.85       5.72       (50.2 )
Loss on fuel hedging instruments, net
    0.01       2.17       (99.5 )
Salaries and related costs
    2.96       2.92       1.1  
Aircraft rent
    0.91       0.94       (2.9 )
Aircraft maintenance
    0.93       0.97       (4.1 )
Other rent and landing fees
    0.79       0.71       12.1  
Selling expenses
    0.53       0.62       (14.2 )
Special items, net
    0.08       0.04       88.2  
Depreciation and amortization
    0.34       0.27       24.6  
Other
    1.60       1.65       (3.0 )
 
                   
Total mainline CASM
    11.00       16.01       (31.3 )
 
                   

 

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Significant changes in the components of mainline operating expense per ASM are as follows:
   
Aircraft fuel and related taxes per ASM decreased 50.2% primarily due to a 49.4% decrease in the average price per gallon of fuel to $1.89 in the third quarter of 2009 from $3.73 in the 2008 period. A 5% decrease in gallons of fuel consumed in the 2009 period on 3.5% lower capacity also contributed to the decrease.
   
Loss on fuel hedging instruments, net per ASM was a loss of 0.01 cent in the third quarter of 2009 as compared to a loss of 2.17 cents in the third quarter of 2008. Since the third quarter of 2008, we have not entered into any new transactions as part of our fuel hedging program and as of September 30, 2009, there were no remaining outstanding fuel hedging contracts. The net loss in the 2009 period included realized losses of $50 million on settled fuel hedging instruments, offset by net unrealized gains of $48 million. The unrealized gains are the result of the application of mark-to-market accounting in which unrealized losses recognized in prior periods are reversed as hedge transactions are settled in the current period. We recognized net losses from our fuel hedging program in the third quarter of 2008 due to the significant decline in the price of oil in September 2008, which generated unrealized losses on certain open fuel hedging instruments as the price of heating oil fell below the lower limit of those collar transactions.
   
Other rent and landing fees per ASM increased 12.1% despite a decrease in ASMs of 3.5% over the 2008 period due to rate increases in landing fees and space rent at certain airport locations as well as the fixed nature of space rent.
   
Selling expenses per ASM decreased 14.2% due to lower credit card fees, booking fees and commissions paid as a result of a decline in the number and value of tickets sold resulting from the weakened demand and pricing caused by the economic recession.
   
Depreciation and amortization expense per ASM increased 24.6% due to an increase in the average number of owned aircraft to 75 in the 2009 period from 57 in the 2008 period, which increased depreciation expense. The increase in the average number of owned aircraft included 13 Airbus 320 family, three Embraer 190 and two Airbus 330 aircraft.
Total Express expenses decreased $190 million or 22.5% in the third quarter of 2009 to $654 million from $844 million in the 2008 period. The period over period decrease was primarily driven by decreases in fuel costs. Express fuel costs decreased $178 million as the average fuel price per gallon decreased 49.3% from $3.80 in the 2008 period to $1.93 in the 2009 period. In addition, gallons of fuel consumed in 2009 decreased 3.6% on 4% lower capacity. Other Express expenses decreased $12 million or 2.3% despite a 4% decrease in Express ASMs due to certain fixed costs associated with our capacity purchase agreements as well as certain contractual rate increases with these carriers.
Nonoperating Income (Expense):
                         
                    Percent  
    2009     2008     Change  
    (In millions)        
Nonoperating income (expense):
                       
Interest income
  $ 5     $ 19       (75.1 )
Interest expense, net
    (81 )     (58 )     40.3  
Other, net
    (10 )     (135 )     (93.0 )
 
                   
Total nonoperating expense, net
  $ (86 )   $ (174 )     (50.5 )
 
                   
Net nonoperating expense was $86 million in the third quarter of 2009 as compared to $174 million in the 2008 period. Interest income decreased $14 million in the 2009 period due to lower average investment balances and lower rates of return. Interest expense, net increased $23 million due to an increase in the average debt balance outstanding primarily as a result of financing transactions completed in the fourth quarter of 2008 and first nine months of 2009, partially offset by reductions in average interest rates associated with variable rate debt as compared to the 2008 period.
Other nonoperating expense, net in the 2009 period included a $6 million loss on the sale of certain aircraft equipment and $3 million in other-than-temporary non-cash impairment charges for our investments in auction rate securities. Other nonoperating expense, net in the 2008 period included $127 million in other-than-temporary non-cash impairment charges for our investments in auction rate securities as well as $8 million in foreign currency losses. The impairment charges on auction rate securities are discussed in more detail under “Liquidity and Capital Resources.”

 

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Nine Months Ended September 30, 2009
Compared with the
Nine Months Ended September 30, 2008
Operating Revenues:
                         
                    Percent  
    2009     2008     Change  
    (In millions)        
Operating revenues:
                       
Mainline passenger
  $ 5,092     $ 6,364       (20.0 )
Express passenger
    1,856       2,230       (16.8 )
Cargo
    67       111       (39.3 )
Other
    817       652       25.3  
 
                   
Total operating revenues
  $ 7,832     $ 9,357       (16.3 )
 
                   
Total operating revenues for the nine months ended September 30, 2009 were $7.83 billion as compared to $9.36 billion in the 2008 period, a decline of $1.53 billion or 16.3%. The weak demand environment in 2009 drove a $1.65 billion or 19.2% decrease in mainline and Express passenger revenues on 5.3% lower capacity as compared to the 2008 period. The increase in ancillary revenues resulting from our new revenue initiatives implemented in the latter part of 2008 offset a portion of this decline. As a result, on a period over period basis, total RASM decreased only 11.6% as compared to mainline and Express PRASM, which decreased by 14.6%. Significant changes in the components of operating revenues are as follows:
   
Mainline passenger revenues were $5.09 billion for the nine months ended September 30, 2009 as compared to $6.36 billion for the 2008 period. Mainline RPMs decreased 5.1% as mainline capacity, as measured by ASMs, decreased 5.5%, resulting in a 0.3 point increase in load factor to 82.5%. Mainline passenger yield decreased 15.7% to 11.43 cents in the first nine months of 2009 from 13.56 cents in the 2008 period. Mainline PRASM decreased 15.4% to 9.43 cents in the first nine months of 2009 from 11.14 cents in the 2008 period. Mainline yield and PRASM decreased in the first nine months of 2009 due principally to the decline in passenger demand and weak pricing environment driven by the global economic recession.
   
Express passenger revenues were $1.86 billion for the nine months ended September 30, 2009, a decrease of $374 million from the 2008 period. Express RPMs decreased by 3.3% as Express capacity, as measured by ASMs, decreased 4.5%, resulting in a 0.9 point increase in load factor to 73.8%. Express passenger yield decreased by 13.9% to 23.04 cents in the first nine months of 2009 from 26.76 cents in the 2008 period. Express PRASM decreased 12.8% to 17 cents in the first nine months of 2009 from 19.5 cents in the 2008 period. The decreases in Express yield and PRASM were the result of the same passenger demand declines and weak pricing environment discussed in mainline passenger revenues above.
   
Cargo revenues were $67 million for the nine months ended September 30, 2009, a decrease of $44 million or 39.3% from the 2008 period. The decrease in cargo revenues was driven by declines in freight volumes as a result of the contraction of business spending in the current economic environment as well as a decrease in fuel surcharges in 2009 as compared to the 2008 period.
   
Other revenues were $817 million for the nine months ended September 30, 2009, an increase of $165 million or 25.3% from the 2008 period. The increase was primarily due to an increase of $221 million generated by our first and second checked bag fees, which were implemented in the second and third quarters of 2008. This increase was offset in part by declines in fuel sales to our pro-rate carriers through our MSC subsidiary driven by lower fuel prices in the 2009 period. A decline in the volume of passenger ticketing change fees also contributed to this decrease.

 

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Operating Expenses:
                         
                    Percent  
    2009     2008     Change  
    (In millions)        
Operating expenses:
                       
Aircraft fuel and related taxes
  $ 1,353     $ 3,018       (55.2 )
Loss (gain) on fuel hedging instruments, net:
                       
Realized
    382       (342 )   nm  
Unrealized
    (375 )     262     nm  
Salaries and related costs
    1,653       1,701       (2.8 )
Aircraft rent
    523       544       (3.9 )
Aircraft maintenance
    532       601       (11.4 )
Other rent and landing fees
    422       424       (0.6 )
Selling expenses
    291       340       (14.5 )
Special items, net
    22       67       (67.7 )
Depreciation and amortization
    185       159       16.0  
Goodwill impairment
          622     nm  
Other
    859       982       (12.5 )
 
                   
Total mainline operating expenses
    5,847       8,378       (30.2 )
Express expenses:
                       
Fuel
    438       938       (53.3 )
Other
    1,444       1,462       (1.2 )
 
                   
Total Express expenses
    1,882       2,400       (21.6 )
 
                   
Total operating expenses
  $ 7,729     $ 10,778       (28.3 )
 
                   
Total operating expenses were $7.73 billion in the first nine months of 2009, a decrease of $3.05 billion or 28.3% compared to the 2008 period. Mainline operating expenses were $5.85 billion in the first nine months of 2009, a decrease of $2.53 billion or 30.2% from the 2008 period, while ASMs decreased 5.5%.
Mainline CASM decreased 26.2% to 10.82 cents in the first nine months of 2009 from 14.67 cents in the 2008 period. The period over period decrease in mainline CASM was driven principally by decreases in fuel costs ($1.67 billion or 2.78 cents per ASM) in the 2009 period. The 2008 period included a $622 million non-cash charge to write off all of the goodwill created by the merger of US Airways Group and America West Holdings in September 2005, which contributed 1.09 cents to our mainline CASM.
The 2009 period included $22 million of net special charges consisting of $16 million in aircraft costs as a result of our previously announced capacity reductions and $6 million in severance and other charges. This compares to net special charges of $67 million in the 2008 period, consisting of $35 million of merger related transition expenses, $18 million in non-cash charges related to the decline in the fair value of certain spare parts associated with our Boeing 737 aircraft fleet, and as a result of our capacity reductions, $8 million in severance charges and $6 million in aircraft costs.
The table below sets forth the major components of our mainline CASM for the nine months ended September 30, 2009 and 2008:
                         
                    Percent  
    2009     2008     Change  
    (In cents)        
Mainline CASM:
                       
Aircraft fuel and related taxes
    2.50       5.28       (52.6 )
Loss (gain) on fuel hedging instruments, net
    0.01       (0.14 )   nm  
Salaries and related costs
    3.06       2.98       2.8  
Aircraft rent
    0.97       0.95       1.6  
Aircraft maintenance
    0.99       1.05       (6.3 )
Other rent and landing fees
    0.78       0.74       5.1  
Selling expenses
    0.54       0.60       (9.6 )
Special items, net
    0.04       0.12       (65.9 )
Depreciation and amortization
    0.34       0.28       22.7  
Goodwill impairment
          1.09     nm  
Other
    1.59       1.72       (7.5 )
 
                   
Total mainline CASM
    10.82       14.67       (26.2 )
 
                   

 

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Significant changes in the components of mainline operating expense per ASM are as follows:
   
Aircraft fuel and related taxes per ASM decreased 52.6% primarily due to a 51.7% decrease in the average price per gallon of fuel to $1.65 in the first nine months of 2009 from $3.42 in the 2008 period. A 7.2% decrease in gallons of fuel consumed in the 2009 period on 5.5% lower capacity also contributed to the decrease.
   
Loss (gain) on fuel hedging instruments, net per ASM fluctuated to a loss of 0.01 cent in the first nine months of 2009 from a gain of 0.14 cents in the first nine months of 2008. Since the third quarter of 2008, we have not entered into any new transactions as part of our fuel hedging program and as of September 30, 2009, there were no remaining outstanding fuel hedging contracts. The net loss in the 2009 period included realized losses of $382 million on settled fuel hedging instruments, offset by $375 million of net unrealized gains. The unrealized gains are the result of the application of mark-to-market accounting in which unrealized losses recognized in prior periods are reversed as hedge transactions are settled in the current period. We recognized net gains from our fuel hedging program in the first nine months of 2008 as the price of heating oil exceeded the upper limit on certain of our collar transactions.
   
Aircraft maintenance expense per ASM decreased 6.3% due principally to decreases in the number of engine and landing gear overhauls performed in the 2009 period as compared to the 2008 period as a result of the timing of maintenance cycles.
   
Other rent and landing fees per ASM increased 5.1% despite a decrease in ASMs of 5.5% over the 2008 period due to the fixed nature of space rent as well as rate increases in landing fees and space rent at certain airport locations.
   
Selling expenses per ASM decreased 9.6% due to lower credit card fees, booking fees and commissions paid as a result of a decline in the number and value of tickets sold resulting from the weakened demand and pricing caused by the economic recession.
   
Depreciation and amortization expense per ASM increased 22.7% due to an increase in the average number of owned aircraft to 69 in the 2009 period from 51 in the 2008 period, which increased depreciation expense. The increase in the average number of owned aircraft included nine Airbus 320 family, eight Embraer 190 and one Airbus 330 aircraft.
   
Other expense per ASM decreased 7.5% due to a decrease in the incremental cost of travel awards associated with our frequent traveler program, principally as a result of lower fuel costs and the decline in the cost of fuel associated with sales to pro-rate carriers through MSC driven by lower fuel prices in the 2009 period. Our continued focus on overall cost control also contributed to the decrease.
Total Express expenses decreased $518 million or 21.6% in the first nine months of 2009 to $1.88 billion from $2.4 billion in the 2008 period. The period over period decrease was primarily driven by decreases in fuel costs. Express fuel costs decreased $500 million as the average fuel price per gallon decreased 51% from $3.49 in the first nine months of 2008 to $1.71 in the 2009 period. In addition, gallons of fuel consumed in 2009 decreased 4.7% on 4.5% lower capacity. Other Express expenses decreased $18 million or 1.2% despite a 4.5% decrease in Express ASMs due to certain fixed costs associated with our capacity purchase agreements as well as certain contractual rate increases with these carriers.
Nonoperating Income (Expense):
                         
                    Percent  
    2009     2008     Change  
    (In millions)        
Nonoperating income (expense):
                       
Interest income
  $ 17     $ 69       (74.6 )
Interest expense, net
    (229 )     (176 )     29.8  
Other, net
    (16 )     (140 )     (88.2 )
 
                   
Total nonoperating expense, net
  $ (228 )   $ (247 )     (7.8 )
 
                   

 

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Net nonoperating expense was $228 million in the first nine months of 2009 as compared to $247 million in the 2008 period. Interest income decreased $52 million in the 2009 period due to lower average investment balances and lower rates of return. Interest expense, net increased $53 million due to an increase in the average debt balance outstanding primarily as a result of financing transactions completed in the fourth quarter of 2008 and first nine months of 2009, partially offset by reductions in average interest rates associated with variable rate debt as compared to the 2008 period.
Other nonoperating expense, net in the 2009 period included $10 million in other-than-temporary non-cash impairment charges for our investments in auction rate securities, a $6 million loss on the sale of certain aircraft equipment and a $2 million non-cash asset impairment charge, offset by $2 million in foreign currency gains. Other nonoperating expense, net in the 2008 period included $140 million in other- than-temporary non-cash impairment charges for our investments in auction rate securities, $6 million in foreign currency losses, and a $2 million write off of debt discount and debt issuance costs in connection with the refinancing of certain aircraft equipment notes, offset by $8 million in gains on forgiveness of debt. The impairment charges on auction rate securities are discussed in more detail under “Liquidity and Capital Resources.”

 

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US Airways’ Results of Operations
In the three months ended September 30, 2009, US Airways realized operating income of $1 million and a loss before income taxes of $68 million. The weak demand environment caused by the global economic recession drove a $535 million or 16.2% decrease in total revenues on 3.6% lower capacity as compared to the 2008 period. The declines in revenues were offset by lower fuel expense as US Airways’ mainline and Express fuel expense for the third quarter of 2009 was $754 million or 51.7% lower than the 2008 period on 3.6% lower capacity. The average mainline and Express price per gallon of fuel decreased 49.3% to $1.90 in the third quarter of 2009 from $3.75 in the third quarter of 2008. US Airways’ third quarter 2009 results were also impacted by recognition of the following items:
   
$50 million of net realized losses on settled fuel hedging instruments, offset by $48 million of net unrealized gains resulting from the application of mark-to-market accounting for changes in the fair value of fuel hedging instruments. In mark-to-market accounting, the unrealized losses recognized in prior periods are reversed as hedge transactions are settled in the current period. US Airways was required to use mark-to-market accounting as its fuel hedging instruments did not meet the requirements for hedge accounting. If these instruments had qualified for hedge accounting treatment, any unrealized gains or losses would have been recorded in other comprehensive income, a component of stockholder’s equity;
   
$15 million of net special charges consisting of $10 million in aircraft costs as a result of US Airways’ previously announced capacity reductions and $5 million in severance and other charges; and
   
$3 million in other-than-temporary non-cash impairment charges included in nonoperating expense, net for US Airways’ investments in auction rate securities.
In the three months ended September 30, 2008, US Airways realized an operating loss of $688 million and a loss before income taxes of $852 million. The third quarter of 2008 loss was driven by an average price per gallon of fuel of $3.75 for mainline and Express operations. US Airways’ third quarter 2008 results were also impacted by recognition of the following items:
   
$488 million of net unrealized losses resulting from the application of mark-to-market accounting for changes in the fair value of fuel hedging instruments, offset by $68 million of net realized gains on settled fuel hedging instruments;
   
$8 million of net special charges for severance costs as a result of US Airways’ capacity reductions; and
   
$127 million in other-than-temporary non-cash impairment charges included in nonoperating expense, net for US Airways’ investments in auction rate securities.
In the first nine months of 2009, US Airways realized operating income of $96 million and a loss before income taxes of $94 million. The weak demand environment caused by the global economic recession drove a $1.5 billion or 15.9% decrease in total revenues on 5.3% lower capacity as compared to the 2008 period. The declines in revenues were offset by lower fuel expense as US Airways’ mainline and Express fuel expense for the first nine months of 2009 was $2.17 billion or 54.7% lower than the 2008 period on 5.3% lower capacity. The average mainline and Express price per gallon of fuel decreased 51.5% to $1.67 in the first nine months of 2009 from $3.44 in the 2008 period. US Airways’ results for the first nine months of 2009 were also impacted by recognition of the following items:
   
$382 million of net realized losses on settled fuel hedging instruments, offset by $375 million of net unrealized gains resulting from the application of mark-to-market accounting for changes in the fair value of fuel hedging instruments;
   
$22 million of net special charges consisting of $16 million in aircraft costs as a result of US Airways’ previously announced capacity reductions and $6 million in severance and other charges; and
   
$10 million in other-than-temporary non-cash impairment charges for US Airways’ investments in auction rate securities as well as a $2 million non-cash asset impairment charge, all included in nonoperating expense, net.

 

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In the first nine months of 2008, US Airways realized an operating loss of $1.42 billion and a loss before income taxes of $1.64 billion. The loss in the first nine months of 2008 was driven by an average price per gallon of fuel of $3.44 for mainline and Express operations as well as a $622 million non-cash charge to write off all the goodwill created by the merger of US Airways Group and America West Holdings in September 2005. US Airways’ results for the first nine months of 2008 were also impacted by recognition of the following items:
   
$342 million of net realized gains on settled fuel hedging instruments, offset by $262 million of net unrealized losses resulting from the application of mark-to-market accounting for changes in the fair value of fuel hedging instruments;
   
$67 million of net special charges consisting of $35 million of merger related transition expenses, $18 million in non-cash charges related to the decline in the fair value of certain spare parts associated with US Airways’ Boeing 737 aircraft fleet, and as a result of US Airways’ capacity reductions, $8 million in severance charges and $6 million in aircraft costs; and
   
$140 million in other-than-temporary non-cash impairment charges for US Airways’ investments in auction rate securities, a $2 million write off of debt discount and debt issuance costs in connection with the refinancing of certain aircraft equipment notes, offset by $8 million in gains on forgiveness of debt, all included in nonoperating expense, net.
At December 31, 2008, US Airways had approximately $1.3 billion of gross NOL to reduce future federal taxable income, substantially all of which is available to reduce federal taxable income in the calendar year 2009. The NOL expires during the years 2022 through 2028. US Airways’ deferred tax asset, which included $1.2 billion of the NOL discussed above, has been subject to a full valuation allowance. US Airways also had approximately $72 million of tax-effected state NOL at December 31, 2008.
US Airways reported a loss in the nine months ended September 30, 2009 and did not record a tax provision in any 2009 period.
US Airways recorded income tax expense of $3 million in the three and nine month periods ended September 30, 2008 related to a reconciliation of the 2007 tax provision to the tax return as filed in the third quarter of 2008.

 

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The table below sets forth US Airways’ selected mainline and Express operating data:
                                                 
    Three Months Ended     Percent     Nine Months Ended     Percent  
    September 30,     Change     September 30,     Change  
    2009     2008     2009-2008     2009     2008     2009-2008  
Mainline
                                               
Revenue passenger miles (millions) (a)
    15,719       16,270       (3.4 )     44,553       46,952       (5.1 )
Available seat miles (millions) (b)
    18,718       19,402       (3.5 )     54,007       57,124       (5.5 )
Passenger load factor (percent) (c)
    84.0       83.9       0.1  pts     82.5       82.2       0.3  pts
Yield (cents) (d)
    11.18       13.50       (17.2 )     11.43       13.56       (15.7 )
Passenger revenue per available seat mile (cents) (e)
    9.39       11.32       (17.1 )     9.43       11.14       (15.4 )
Aircraft at end of period
    348       358       (2.8 )     348       358       (2.8 )
Fuel consumption (gallons in millions)
    282       297       (5.0 )     818       882       (7.2 )
Average aircraft fuel price including related taxes (dollars per gallon)
    1.89       3.73       (49.4 )     1.65       3.42       (51.7 )
Express (f)
                                               
Revenue passenger miles (millions) (a)
    2,873       2,942       (2.4 )     8,055       8,333       (3.3 )
Available seat miles (millions) (b)
    3,785       3,943       (4.0 )     10,917       11,434       (4.5 )
Passenger load factor (percent) (c)
    75.9       74.6       1.3  pts     73.8       72.9       0.9  pts
Yield (cents) (d)
    23.06       26.20       (12.0 )     23.04       26.76       (13.9 )
Passenger revenue per available seat mile (cents) (e)
    17.50       19.55       (10.5 )     17.00       19.50       (12.8 )
Aircraft at end of period
    288       296       (2.7 )     288       296       (2.7 )
Fuel consumption (gallons in millions)
    89       92       (3.6 )     256       269       (4.7 )
Average aircraft fuel price including related taxes (dollars per gallon)
    1.93       3.80       (49.3 )     1.71       3.49       (51.0 )
Total Mainline and Express
                                               
Revenue passenger miles (millions) (a)
    18,592       19,212       (3.2 )     52,608       55,285       (4.8 )
Available seat miles (millions) (b)
    22,503       23,345       (3.6 )     64,924       68,558       (5.3 )
Passenger load factor (percent) (c)
    82.6       82.3       0.3  pts     81.0       80.6       0.4  pts
Yield (cents) (d)
    13.01       15.45       (15.8 )     13.21       15.55       (15.0 )
Passenger revenue per available seat mile (cents) (e)
    10.75       12.71       (15.4 )     10.70       12.54       (14.6 )
Total revenue per available seat mile (cents) (g)
    12.26       14.11       (13.1 )     12.24       13.78       (11.2 )
Aircraft at end of period
    636       654       (2.8 )     636       654       (2.8 )
Fuel consumption (gallons in millions)
    371       389       (4.7 )     1,074       1,151       (6.6 )
Average aircraft fuel price including related taxes (dollars per gallon)
    1.90       3.75       (49.3 )     1.67       3.44       (51.5 )
 
     
(a)  
Revenue passenger mile (“RPM”) — A basic measure of sales volume. A RPM represents one passenger flown one mile.
 
(b)  
Available seat mile (“ASM”) — A basic measure of production. An ASM represents one seat flown one mile.
 
(c)  
Passenger load factor — The percentage of available seats that are filled with revenue passengers.
 
(d)  
Yield — A measure of airline revenue derived by dividing passenger revenue by revenue passenger miles and expressed in cents per mile.
 
(e)  
Passenger revenue per available seat mile (“PRASM”) — Passenger revenues divided by available seat miles.
 
(f)  
Express statistics include Piedmont and PSA, as well as operating and financial results from capacity purchase agreements with Air Wisconsin Airlines Corporation, Republic Airways, Mesa Airlines, Inc. and Chautauqua Airlines, Inc.
 
(g)  
Total revenue per available seat mile (“RASM”) — Total revenues divided by total mainline and Express available seat miles.

 

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Three Months Ended September 30, 2009
Compared with the
Three Months Ended September 30, 2008
Operating Revenues:
                         
                    Percent  
    2009     2008     Change  
    (In millions)        
Operating revenues:
                       
Mainline passenger
  $ 1,757     $ 2,197       (20.0 )
Express passenger
    662       771       (14.1 )
Cargo
    23       37       (36.5 )
Other
    316       288       9.5  
 
                   
Total operating revenues
  $ 2,758     $ 3,293       (16.2 )
 
                   
Total operating revenues in the third quarter of 2009 were $2.76 billion as compared to $3.29 billion in the 2008 period, a decline of $535 million or 16.2%. The weak demand environment in 2009 drove a $549 million or 18.5% decrease in mainline and Express passenger revenues on 3.6% lower capacity as compared to the 2008 period. The increase in ancillary revenues resulting from US Airways’ new revenue initiatives implemented in the latter part of 2008 offset a portion of this decline. As a result, on a period over period basis, total RASM decreased by only 13.1% as compared to mainline and Express PRASM, which decreased by 15.4%. Significant changes in the components of operating revenues are as follows:
   
Mainline passenger revenues were $1.76 billion in the third quarter of 2009 as compared to $2.2 billion for the 2008 period. Mainline RPMs decreased 3.4% as mainline capacity, as measured by ASMs, decreased 3.5%, resulting in a 0.1 point increase in load factor to 84%. Mainline passenger yield decreased 17.2% to 11.18 cents in the third quarter of 2009 from 13.5 cents in the 2008 period. Mainline PRASM decreased 17.1% to 9.39 cents in the third quarter of 2009 from 11.32 cents in the 2008 period. Mainline yield and PRASM decreased in the third quarter of 2009 due principally to the decline in passenger demand and weak pricing environment driven by the global economic recession.
   
Express passenger revenues were $662 million in the third quarter of 2009, a decrease of $109 million from the 2008 period. Express RPMs decreased by 2.4% as Express capacity, as measured by ASMs, decreased 4%, resulting in a 1.3 point increase in load factor to 75.9%. Express passenger yield decreased by 12% to 23.06 cents in the third quarter of 2009 from 26.2 cents in the 2008 period. Express PRASM decreased 10.5% to 17.5 cents in the third quarter of 2009 from 19.55 cents in the 2008 period. The decreases in Express yield and PRASM were the result of the same passenger demand declines and weak pricing environment discussed in mainline passenger revenues above.
   
Cargo revenues were $23 million in the third quarter of 2009, a decrease of $14 million or 36.5% from the 2008 period. The decrease in cargo revenues was driven by declines in freight volumes as a result of the contraction of business spending in the current economic environment as well as a decrease in fuel surcharges in 2009 as compared to the 2008 period.
   
Other revenues were $316 million in the third quarter of 2009, an increase of $28 million or 9.5% from the 2008 period primarily due to an increase of $46 million generated by US Airways’ first checked bag fees, which were implemented in the third quarter of 2008. This increase was offset in part by a decline in the volume of passenger ticketing change fees.

 

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Operating Expenses:
                         
                    Percent  
    2009     2008     Change  
    (In millions)        
Operating expenses:
                       
Aircraft fuel and related taxes
  $ 534     $ 1,110       (51.9 )
Loss (gain) on fuel hedging instruments, net:
                       
Realized
    50       (68 )   nm  
Unrealized
    (48 )     488     nm  
Salaries and related costs
    553       567       (2.5 )
Aircraft rent
    171       183       (6.4 )
Aircraft maintenance
    174       188       (7.5 )
Other rent and landing fees
    148       137       8.2  
Selling expenses
    99       120       (17.3 )
Special items, net
    15       8       81.6  
Depreciation and amortization
    65       55       19.3  
Other
    307       321       (4.4 )
 
                   
Total mainline operating expenses
    2,068       3,109       (33.5 )
Express expenses:
                       
Fuel
    171       349       (51.1 )
Other
    518       523       (1.1 )
 
                   
Total Express expenses
    689       872       (21.1 )
 
                   
Total operating expenses
  $ 2,757     $ 3,981       (30.8 )
 
                   
Total operating expenses were $2.76 billion in the third quarter of 2009, a decrease of $1.22 billion or 30.8% compared to the 2008 period. Mainline operating expenses were $2.07 billion in the third quarter of 2009, a decrease of $1.04 billion or 33.5% from the 2008 period. The period over period decrease in mainline operating expenses was driven principally by decreases in fuel costs ($576 million) as well as a decrease in the net losses on fuel hedging instruments ($418 million) in the 2009 period compared to the 2008 period.
The 2009 period included $15 million of net special charges consisting of $10 million in aircraft costs as a result of US Airways’ previously announced capacity reductions and $5 million in severance and other charges. This compares to net special charges of $8 million in the 2008 period for severance costs as a result of US Airways’ capacity reductions.
Significant changes in the components of mainline operating expenses are as follows:
   
Aircraft fuel and related taxes decreased 51.9% primarily due to a 49.4% decrease in the average price per gallon of fuel to $1.89 in the third quarter of 2009 from $3.73 in the 2008 period. A 5% decrease in gallons of fuel consumed in the 2009 period on 3.5% lower capacity also contributed to the decrease.
   
Loss on fuel hedging instruments, net was a loss of $2 million in the third quarter of 2009 as compared to a loss of $420 million in the third quarter of 2008. Since the third quarter of 2008, US Airways has not entered into any new transactions as part of its fuel hedging program and as of September 30, 2009, there were no remaining outstanding fuel hedging contracts. The net loss in the 2009 period included realized losses of $50 million on settled fuel hedging instruments, offset by net unrealized gains of $48 million. The unrealized gains are the result of the application of mark-to-market accounting in which unrealized losses recognized in prior periods are reversed as hedge transactions are settled in the current period. US Airways recognized net losses from its fuel hedging program in the third quarter of 2008 due to the significant decline in the price of oil in September 2008, which generated unrealized losses on certain open fuel hedging instruments as the price of heating oil fell below the lower limit of those collar transactions.
   
Other rent and landing fees increased 8.2% despite a 3.5% decrease in capacity over the 2008 period due to rate increases in landing fees and space rent at certain airport locations as well as the fixed nature of space rent.
   
Selling expenses decreased 17.3% due to lower credit card fees, booking fees and commissions paid as a result of a decline in the number and value of tickets sold resulting from the weakened demand and pricing caused by the economic recession.
   
Depreciation and amortization expense increased 19.3% due to an increase in the average number of owned aircraft to 75 in the 2009 period from 57 in the 2008 period, which increased depreciation expense. The increase in the average number of owned aircraft included 13 Airbus 320 family, three Embraer 190 and two Airbus 330 aircraft.

 

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Total Express expenses decreased $183 million or 21.1% in the third quarter of 2009 to $689 million from $872 million in the 2008 period. The period over period decrease was primarily driven by decreases in fuel costs. Express fuel costs decreased $178 million as the average fuel price per gallon decreased 49.3% from $3.80 in the 2008 period to $1.93 in the 2009 period. In addition, gallons of fuel consumed in 2009 decreased 3.6% on 4% lower capacity. Other Express expenses decreased $5 million or 1.1% despite a 4% decrease in Express ASMs due to certain fixed costs associated with US Airways’ capacity purchase agreements as well as certain contractual rate increases with these carriers.
Nonoperating Income (Expense):
                         
                    Percent  
    2009     2008     Change  
    (In millions)        
Nonoperating income (expense):
                       
Interest income
  $ 5     $ 19       (75.1 )
Interest expense, net
    (64 )     (48 )     34.1  
Other, net
    (10 )     (135 )     (93.0 )
 
                   
Total nonoperating expense, net
  $ (69 )   $ (164 )     (57.8 )
 
                   
Net nonoperating expense was $69 million in the third quarter of 2009 as compared to $164 million in the 2008 period. Interest income decreased $14 million in the 2009 period due to lower average investment balances and lower rates of return. Interest expense, net increased $16 million due to an increase in the average debt balance outstanding primarily as a result of financing transactions completed in the fourth quarter of 2008 and first nine months of 2009, partially offset by reductions in average interest rates associated with variable rate debt as compared to the 2008 period.
Other nonoperating expense, net in the 2009 period included a $6 million loss on the sale of certain aircraft equipment and $3 million in other-than-temporary non-cash impairment charges for US Airways’ investments in auction rate securities. Other nonoperating expense, net in the 2008 period included $127 million in other-than-temporary non-cash impairment charges for US Airways’ investments in auction rate securities as well as $8 million in foreign currency losses. The impairment charges on auction rate securities are discussed in more detail under “Liquidity and Capital Resources.”

 

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Nine Months Ended September 30, 2009
Compared with the
Nine Months Ended September 30, 2008
Operating Revenues:
                         
                    Percent  
    2009     2008     Change  
    (In millions)        
Operating revenues:
                       
Mainline passenger
  $ 5,092     $ 6,364       (20.0 )
Express passenger
    1,856       2,230       (16.8 )
Cargo
    67       111       (39.3 )
Other
    930       742       25.4  
 
                   
Total operating revenues
  $ 7,945     $ 9,447       (15.9 )
 
                   
Total operating revenues for the nine months ended September 30, 2009 were $7.95 billion as compared to $9.45 billion in the 2008 period, a decline of $1.5 billion or 15.9%. The weak demand environment in 2009 drove a $1.65 billion or 19.2% decrease in mainline and Express passenger revenues on 5.3% lower capacity as compared to the 2008 period. The increase in ancillary revenues resulting from US Airways’ new revenue initiatives implemented in the latter part of 2008 offset a portion of this decline. As a result, on a period over period basis, total RASM decreased only 11.2% as compared to mainline and Express PRASM, which decreased by 14.6%. Significant changes in the components of operating revenues are as follows:
   
Mainline passenger revenues were $5.09 billion for the nine months ended September 30, 2009 as compared to $6.36 billion for the 2008 period. Mainline RPMs decreased 5.1% as mainline capacity, as measured by ASMs, decreased 5.5%, resulting in a 0.3 point increase in load factor to 82.5%. Mainline passenger yield decreased 15.7% to 11.43 cents in the first nine months of 2009 from 13.56 cents in the 2008 period. Mainline PRASM decreased 15.4% to 9.43 cents in the first nine months of 2009 from 11.14 cents in the 2008 period. Mainline yield and PRASM decreased in the first nine months of 2009 due principally to the decline in passenger demand and weak pricing environment driven by the global economic recession.
   
Express passenger revenues were $1.86 billion for the nine months ended September 30, 2009, a decrease of $374 million from the 2008 period. Express RPMs decreased by 3.3% as Express capacity, as measured by ASMs, decreased 4.5%, resulting in a 0.9 point increase in load factor to 73.8%. Express passenger yield decreased by 13.9% to 23.04 cents in the first nine months of 2009 from 26.76 cents in the 2008 period. Express PRASM decreased 12.8% to 17 cents in the first nine months of 2009 from 19.5 cents in the 2008 period. The decreases in Express yield and PRASM were the result of the same passenger demand declines and weak pricing environment discussed in mainline passenger revenues above.
   
Cargo revenues were $67 million for the nine months ended September 30, 2009, a decrease of $44 million or 39.3% from the 2008 period. The decrease in cargo revenues was driven by declines in freight volumes as a result of the contraction of business spending in the current economic environment as well as a decrease in fuel surcharges in 2009 as compared to the 2008 period.
   
Other revenues were $930 million for the nine months ended September 30, 2009, an increase of $188 million or 25.4% from the 2008 period. The increase was primarily due to an increase of $221 million generated by US Airways’ first and second checked bag fees, which were implemented in the second and third quarters of 2008. This increase was offset in part by a decline in the volume of passenger ticketing change fees.

 

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Operating Expenses:
                         
                    Percent  
    2009     2008     Change  
    (In millions)        
Operating expenses:
                       
Aircraft fuel and related taxes
  $ 1,353     $ 3,018       (55.2 )
Loss (gain) on fuel hedging instruments, net:
                       
Realized
    382       (342 )   nm  
Unrealized
    (375 )     262     nm  
Salaries and related costs
    1,653       1,701       (2.8 )
Aircraft rent
    523       544       (3.9 )
Aircraft maintenance
    532       601       (11.4 )
Other rent and landing fees
    422       424       (0.6 )
Selling expenses
    291       340       (14.5 )
Special items, net
    22       67       (67.7 )
Depreciation and amortization
    192       166       15.4  
Goodwill impairment
          622     nm  
Other
    879       977       (9.8 )
 
                   
Total mainline operating expenses
    5,874       8,380       (29.9 )
Express expenses:
                       
Fuel
    438       938       (53.3 )
Other
    1,537       1,547       (0.6 )
 
                   
Total Express expenses
    1,975       2,485       (20.5 )
 
                   
Total operating expenses
  $ 7,849     $ 10,865       (27.8 )
 
                   
Total operating expenses were $7.85 billion in the first nine months of 2009, a decrease of $3.02 billion or 27.8% compared to the 2008 period. Mainline operating expenses were $5.87 billion in the first nine months of 2009, a decrease of $2.51 billion or 29.9% from the 2008 period. The period over period decrease in mainline operating expenses was driven principally by decreases in fuel costs ($1.67 billion) in the 2009 period. The 2008 period included a $622 million non-cash charge to write off all of the goodwill created by the merger of US Airways Group and America West Holdings in September 2005.
The 2009 period included $22 million of net special charges consisting of $16 million in aircraft costs as a result of US Airways’ previously announced capacity reductions and $6 million in severance and other charges. This compares to net special charges of $67 million in the 2008 period, consisting of $35 million of merger related transition expenses, $18 million in non-cash charges related to the decline in the fair value of certain spare parts associated with US Airways’ Boeing 737 aircraft fleet, and as a result of US Airways’ capacity reductions, $8 million in severance charges and $6 million in aircraft costs.
Significant changes in the components of mainline operating expenses are as follows:
   
Aircraft fuel and related taxes decreased 55.2% primarily due to a 51.7% decrease in the average price per gallon of fuel to $1.65 in the first nine months of 2009 from $3.42 in the 2008 period. A 7.2% decrease in gallons of fuel consumed in the 2009 period on 5.5% lower capacity also contributed to the decrease.
   
Loss (gain) on fuel hedging instruments, net fluctuated to a loss of $7 million in the first nine months of 2009 from a gain of $80 million in the first nine months of 2008. Since the third quarter of 2008, US Airways has not entered into any new transactions as part of its fuel hedging program and as of September 30, 2009, there were no remaining outstanding fuel hedging contracts. The net loss in the 2009 period included realized losses of $382 million on settled fuel hedging instruments, offset by $375 million of net unrealized gains. The unrealized gains are the result of the application of mark-to-market accounting in which unrealized losses recognized in prior periods are reversed as hedge transactions are settled in the current period. US Airways recognized net gains from its fuel hedging program in the first nine months of 2008 as the price of heating oil exceeded the upper limit on certain of its collar transactions.
   
Aircraft maintenance expense decreased 11.4% due principally to decreases in the number of engine and landing gear overhauls performed in the 2009 period as compared to the 2008 period as a result of the timing of maintenance cycles.
   
Selling expenses decreased 14.5% due to lower credit card fees, booking fees and commissions paid as a result of a decline in the number and value of tickets sold resulting from the weakened demand and pricing caused by the economic recession.

 

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Depreciation and amortization expense increased 15.4% due to an increase in the average number of owned aircraft to 69 in the 2009 period from 51 in the 2008 period, which increased depreciation expense. The increase in the average number of owned aircraft included nine Airbus 320 family, eight Embraer 190 and one Airbus 330 aircraft
   
Other expense decreased 9.8% due to a decrease in the incremental cost of travel awards associated with US Airways’ frequent traveler program, principally as a result of lower fuel costs. US Airways’ continued focus on overall cost control also contributed to the decrease.
Total Express expenses decreased $510 million or 20.5% in the first nine months of 2009 to $1.98 billion from $2.49 billion in the 2008 period. The period over period decrease was primarily driven by decreases in fuel costs. Express fuel costs decreased $500 million as the average fuel price per gallon decreased 51% from $3.49 in the first nine months of 2008 to $1.71 in the 2009 period. In addition, gallons of fuel consumed in 2009 decreased 4.7% on 4.5% lower capacity. Other Express expenses decreased $10 million or 0.6% despite a 4.5% decrease in Express ASMs due to certain fixed costs associated with US Airways’ capacity purchase agreements as well as certain contractual rate increases with these carriers.
Nonoperating Income (Expense):
                         
                Percent  
    2009     2008     Change  
    (In millions)        
Nonoperating income (expense):
                       
Interest income
  $ 17     $ 68       (74.6 )
Interest expense, net
    (189 )     (146 )     29.0  
Other, net
    (18 )     (140 )     (87.1 )
 
                   
Total nonoperating expense, net
  $ (190 )   $ (218 )     (13.0 )
 
                   
Net nonoperating expense was $190 million in the first nine months of 2009 as compared to $218 million in the 2008 period. Interest income decreased $51 million in the 2009 period due to lower average investment balances and lower rates of return. Interest expense, net increased $43 million due to an increase in the average debt balance outstanding primarily as a result of financing transactions completed in the fourth quarter of 2008 and first nine months of 2009, partially offset by reductions in average interest rates associated with variable rate debt as compared to the 2008 period.
Other nonoperating expense, net in the 2009 period included $10 million in other-than-temporary non-cash impairment charges for US Airways’ investments in auction rate securities, a $6 million loss on the sale of certain aircraft equipment and a $2 million non-cash asset impairment charge, offset by $2 million in foreign currency gains. Other nonoperating expense, net in the 2008 period included $140 million in other-than-temporary non-cash impairment charges for US Airways’ investments in auction rate securities, $6 million in foreign currency losses, and a $2 million write off of debt discount and debt issuance costs in connection with the refinancing of certain aircraft equipment notes, offset by $8 million in gains on forgiveness of debt. The impairment charges on auction rate securities are discussed in more detail under “Liquidity and Capital Resources.”

 

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Liquidity and Capital Resources
As of September 30, 2009, our cash, cash equivalents, investments in marketable securities and restricted cash were $2 billion, of which $530 million was restricted. Our investments in marketable securities included $228 million of auction rate securities at fair value ($411 million par value) that are classified as noncurrent assets on our condensed consolidated balance sheets.
Investments in Marketable Securities
As of September 30, 2009, we held auction rate securities totaling $411 million at par value, which are classified as available for sale securities and noncurrent assets on our condensed consolidated balance sheets. Contractual maturities for these auction rate securities range from seven to 43 years, with 62% of our portfolio maturing within the next 10 years (2016 — 2017), 10% maturing within the next 20 years (2025), 16% maturing within the next 30 years (2033 — 2036) and 12% maturing thereafter (2039 — 2052). With the liquidity issues experienced in the global credit and capital markets, all of our auction rate securities have experienced failed auctions since August 2007. The estimated fair value of these auction rate securities no longer approximates par value. As of September 30, 2009, the fair value of our auction rate securities was $228 million, a net increase of $14 million from June 30, 2009 and $41 million from December 31, 2008.
In the three and nine months ended September 30, 2009, we recorded unrealized gains of $17 million and $51 million, respectively, in other comprehensive income related to the increase in fair value of certain of our investments in auction rate securities. These unrealized gains were offset by other-than-temporary impairment charges of $3 million and $10 million, respectively, in the three and nine months ended September 30, 2009. These other-than-temporary impairment charges are recorded in other nonoperating expense, net and relate to the decline in fair value of certain of our investments in auction rate securities.
We continue to monitor the market for auction rate securities and consider its impact (if any) on the fair value of our investments. If the current market conditions deteriorate, we may be required to record additional impairment charges in other nonoperating expense, net in future periods.
We believe that, based on our current unrestricted cash and cash equivalents balance at September 30, 2009, the current lack of liquidity in our investments in auction rate securities will not have a material impact on our liquidity, our cash flow or our ability to fund our operations.
Sources and Uses of Cash
US Airways Group
Net cash provided by operating activities was $130 million for the first nine months of 2009 as compared to net cash used in operating activities of $583 million for the first nine months of 2008. The period over period increase of $713 million was primarily driven by a decrease in the net loss recognized in the first nine months of 2009 as compared to the first nine months of 2008. Fuel costs were substantially lower in the 2009 period, which was offset in part by a decline in revenues. Our mainline and Express fuel expense was $2.17 billion lower in the 2009 period as compared to the 2008 period on 5.3% lower capacity. Total revenues declined $1.53 billion due to the economic slowdown and resulting weak revenue environment in 2009.
Net cash used in investing activities was $646 million and $832 million for the first nine months of 2009 and 2008, respectively. Principal investing activities in the 2009 period included expenditures for property and equipment totaling $676 million, including the purchase of 10 Airbus aircraft, and a $55 million increase in equipment purchase deposits for certain aircraft on order, offset by $55 million in proceeds from the disposition of property and equipment and net sales of investments in marketable securities of $20 million. The $55 million in proceeds resulted from a swap of an owned aircraft for the aircraft involved in the Flight 1549 accident as allowed under our lease agreement and three engine sale-leaseback transactions. Principal investing activities in the 2008 period included expenditures for property and equipment totaling $755 million, including the purchase of 13 Embraer aircraft and three Airbus aircraft, a $117 million increase in restricted cash and a $97 million increase in equipment purchase deposits for certain aircraft on order, all of which were offset in part by net sales of investments in marketable securities of $117 million. The change in the restricted cash balance was due to a change in the amount of holdback by certain credit card processors for advance ticket sales for which we had not yet provided air transportation.
Net cash provided by financing activities was $724 million and $635 million for the first nine months of 2009 and 2008, respectively. Principal financing activities in the 2009 period included proceeds from the issuance of debt of $803 million, which included the issuance of $172 million of convertible notes, additional loans under a spare parts loan agreement, a loan secured by certain airport landing slots, an unsecured financing with one of our third party Express carriers and the financing associated with the purchase of 10 Airbus aircraft acquisitions. Debt repayments totaled $271 million in the 2009 period. Financing activities in the 2009 period also included net proceeds from the issuance of common stock of $66 million as a result of a public stock offering of 17.5 million shares in May 2009 and $137 million as a result of a public stock offering of 29 million shares in September 2009. Principal financing activities in the 2008 period included proceeds from the issuance of debt of $669 million, in part to finance the acquisition of 13 Embraer aircraft and three Airbus aircraft, and $145 million in proceeds from the refinancing of certain aircraft equipment notes. Debt repayments were $205 million, including $97 million related to the $145 million aircraft equipment note refinancing discussed above. Financing activities in the 2008 period also included $179 million in net proceeds from the issuance of common stock as a result of a public stock offering of 21.85 million common shares during the third quarter of 2008.

 

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US Airways
Net cash provided by operating activities was $211 million for the first nine months of 2009 as compared to net cash used in operating activities of $438 million for the first nine months of 2008. The period over period increase of $649 million was primarily driven by a decrease in the net loss recognized in the first nine months of 2009 as compared to the first nine months of 2008. Fuel costs were substantially lower in the 2009 period, which was offset in part by a decline in revenues. US Airways’ mainline and Express fuel expense was $2.17 billion lower in the 2009 period as compared to the 2008 period on 5.3% lower capacity. Total revenues declined $1.5 billion due to the economic slowdown and resulting weak revenue environment in 2009.
Net cash used in investing activities was $642 million and $811 million for the first nine months of 2009 and 2008, respectively. Principal investing activities in the 2009 period included expenditures for property and equipment totaling $672 million, including the purchase of 10 Airbus aircraft, and a $55 million increase in equipment purchase deposits for certain aircraft on order, offset by $55 million in proceeds from the disposition of property and equipment and net sales of investments in marketable securities of $20 million. The $55 million in proceeds resulted from a swap of an owned aircraft for the aircraft involved in the Flight 1549 accident as allowed under US Airways’ lease agreement and three engine sale-leaseback transactions. Principal investing activities in the 2008 period included expenditures for property and equipment totaling $734 million, including the purchase of 13 Embraer aircraft and three Airbus aircraft, a $117 million increase in restricted cash and a $97 million increase in equipment purchase deposits for certain aircraft on order, all of which were offset in part by net sales of investments in marketable securities of $117 million. The change in the restricted cash balance was due to a change in the amount of holdback by certain credit card processors for advance ticket sales for which US Airways had not yet provided air transportation.
Net cash provided by financing activities was $370 million and $472 million for the first nine months of 2009 and 2008, respectively. Principal financing activities in the 2009 period included proceeds from the issuance of debt of $631 million, which included additional loans under a spare parts loan agreement, a loan secured by certain airport landing slots, an unsecured financing with one of US Airways’ third party Express carriers and the financing associated with the purchase of 10 Airbus aircraft acquisitions. Debt repayments totaled $255 million in the 2009 period. Principal financing activities in the 2008 period included proceeds from the issuance of debt of $669 million, in part to finance the acquisition of 13 Embraer aircraft and three Airbus aircraft, and $145 million in proceeds from the refinancing of certain aircraft equipment notes. Debt repayments were $189 million, including $97 million related to the $145 million aircraft equipment note refinancing discussed above.
Commitments
As of September 30, 2009, we had $4.86 billion of long-term debt and capital leases (including current maturities and before discount on debt). The information contained herein is not a comprehensive discussion and analysis of our commitments, but rather updates disclosures made in the 2008 Form 10-K.
Citicorp Credit Facility
On March 23, 2007, US Airways Group entered into a term loan credit facility with Citicorp North America, Inc., as administrative agent, and a syndicate of lenders pursuant to which US Airways Group borrowed an aggregate principal amount of $1.6 billion. US Airways, AWA and certain other subsidiaries of US Airways Group are guarantors of the Citicorp credit facility.
The Citicorp credit facility bears interest at an index rate plus an applicable index margin or, at our option, LIBOR plus an applicable LIBOR margin for interest periods of one, two, three or six months. The applicable index margin, subject to adjustment, is 1.00%, 1.25% or 1.50% if the adjusted loan balance is less than $600 million, between $600 million and $1 billion, or greater than $1 billion, respectively. The applicable LIBOR margin, subject to adjustment, is 2.00%, 2.25% or 2.50% if the adjusted loan balance is less than $600 million, between $600 million and $1 billion, or greater than $1 billion, respectively. In addition, interest on the Citicorp credit facility may be adjusted based on the credit rating for the Citicorp credit facility as follows: (i) if the credit ratings of the Citicorp credit facility by Moody’s and S&P in effect as of the last day of the most recently ended fiscal quarter are both at least one subgrade better than the credit ratings in effect on March 23, 2007, then (A) the applicable LIBOR margin will be the lower of 2.25% and the rate otherwise applicable based upon the adjusted Citicorp credit facility balance and (B) the applicable index margin will be the lower of 1.25% and the rate otherwise applicable based upon the Citicorp credit facility principal balance, and (ii) if the credit ratings of the Citicorp credit facility by Moody’s and S&P in effect as of the last day of the most recently ended fiscal quarter are both at least two subgrades better than the credit ratings in effect on March 23, 2007, then (A) the applicable LIBOR margin will be 2.00% and (B) the applicable index margin will be 1.00%. As of September 30, 2009, the interest rate on the Citicorp credit facility was 2.75% based on a 2.50% LIBOR margin.

 

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The Citicorp credit facility matures on March 23, 2014, and is repayable in seven annual installments with each of the first six installments to be paid on each anniversary of the closing date in an amount equal to 1% of the initial aggregate principal amount of the loan and the final installment to be paid on the maturity date in the amount of the full remaining balance of the loan.
In addition, the Citicorp credit facility requires certain mandatory prepayments upon the occurrence of certain events, establishes certain financial covenants, including minimum cash requirements and maintenance of certain minimum ratios, contains customary affirmative covenants and negative covenants and contains customary events of default. Prior to the amendment discussed below, the Citicorp credit facility required us to maintain consolidated unrestricted cash and cash equivalents of not less than $1.25 billion, with not less than $750 million (subject to partial reductions upon certain reductions in the outstanding principal amount of the loan) of that amount held in accounts subject to control agreements, which would become restricted for use by us if certain adverse events occur per the terms of the agreement.
On October 20, 2008, US Airways Group entered into an amendment to the Citicorp credit facility. Pursuant to the amendment, we repaid $400 million of indebtedness under the credit facility, reducing the principal amount outstanding under the credit facility to approximately $1.17 billion as of September 30, 2009. The Citicorp credit facility amendment also provides for a reduction in the amount of unrestricted cash required to be held by us from $1.25 billion to $850 million. In addition, the Citicorp credit facility amendment provides that we may issue debt in the future with a silent second lien on the assets pledged as collateral under the Citicorp credit facility. As of September 30, 2009, we were in compliance with all debt covenants under the amended credit facility.
7.25% Convertible Senior Notes
In May 2009, US Airways Group issued $172 million aggregate principal amount of 7.25% Convertible Senior Notes due 2014 (the “7.25% notes”) for proceeds, net of expenses, of approximately $168 million. The 7.25% notes bear interest at a rate of 7.25% per annum, which shall be payable semi-annually in arrears on each May 15 and November 15, beginning November 15, 2009. The 7.25% notes mature on May 15, 2014.
Holders may convert their 7.25% notes at their option at any time prior to the close of business on the second scheduled trading day immediately preceding the maturity date for the 7.25% notes. Upon conversion, we will pay or deliver, as the case may be, cash, shares of our common stock or a combination thereof at our election. The initial conversion rate for the 7.25% notes is 218.8184 shares of our common stock per $1,000 principal amount of notes (equivalent to an initial conversion price of approximately $4.57 per share). Such conversion rate is subject to adjustment in certain events.
If we undergo a fundamental change, holders may require us to purchase all or a portion of their 7.25% notes for cash at a price equal to 100% of the principal amount of the 7.25% notes to be purchased plus any accrued and unpaid interest to, but excluding, the purchase date. A fundamental change includes a person or group (other than us or our subsidiaries) becoming the beneficial owner of more than 50% of the voting power of our capital stock, certain merger or combination transactions, a substantial turnover of our directors, stockholder approval of our liquidation or dissolution and US Airways Group’s common stock ceasing to be listed on at least one national securities exchange.
The 7.25% notes rank equal in right of payment to all of our other existing and future unsecured senior debt and senior in right of payment to our debt that is expressly subordinated to the 7.25% notes, if any. The 7.25% notes impose no limit on the amount of debt we or our subsidiaries may incur. The 7.25% notes are structurally subordinated to all debt and other liabilities and commitments (including trade payables) of our subsidiaries. The 7.25% notes are also effectively junior to our secured debt, if any, to the extent of the value of the assets securing such debt.
As the 7.25% notes can be settled in cash upon conversion, for accounting purposes, the 7.25% notes were bifurcated into a debt component that is initially recorded at fair value and an equity component. In addition to the 7.25% coupon interest, we expect to record non-cash interest expense of $3 million in 2009, $12 million in 2010, $16 million in 2011, $22 million in 2012, $29 million in 2013 and $13 million in 2014 representing the amortization of the discounted carrying value of the 7.25% notes to its face value over the five year term.
Other 2009 Financing Transactions
On January 16, 2009, US Airways exercised its right to obtain new loan commitments and incur additional loans under a spare parts loan agreement. In connection with the exercise of that right, Airbus Financial Services funded $50 million in satisfaction of a previous commitment. This loan will mature on October 20, 2014, bears interest at a rate of LIBOR plus a margin and is secured by the collateral securing loans under the spare parts loan agreement.

 

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On March 31, 2009, US Airways again exercised its right to obtain new loan commitments and incur additional loans under the spare parts loan agreement and borrowed $50 million. This loan will mature on October 20, 2014, bears interest at a rate of LIBOR plus a margin and is secured by the collateral securing loans under the spare parts loan agreement. US Airways used a portion of the proceeds to purchase an A321 aircraft previously leased to US Airways by an affiliate of the debt holder. As a result, this aircraft became unencumbered.
In June 2009, US Airways entered into loan agreements totaling $132 million to finance the acquisition of certain A330-200 aircraft. The loans bear interest at a rate of LIBOR plus an applicable margin, contain default provisions and other covenants that are typical in the industry for similar financings and are amortized over seven years with balloon payments at maturity.
In the third quarter of 2009, US Airways utilized backstop financing through the manufacturer totaling $104 million to finance the acquisition of certain A320 family aircraft. The financing bears interest at a rate of LIBOR plus an applicable margin, contains default provisions and other covenants that are typical in the industry for similar financings and is amortized over twelve years.
US Airways Group had previously entered into a co-branded credit card agreement with Barclays Bank Delaware. The agreement provides for, among other things, the pre-purchase of frequent flyer miles in the aggregate amount of $200 million. Barclays has agreed that it will pre-purchase additional miles on a monthly basis in an amount equal to the difference between $200 million and the amount of unused miles then outstanding, which purchases average approximately $17 million per month. Among the conditions to this monthly purchase of miles is a requirement that US Airways Group maintain an unrestricted cash balance of at least $1.5 billion. In September 2009, Barclays agreed to temporarily reduce this requirement to $1.35 billion for the months of August through October 2009.
Credit Card Processing Agreements
We have agreements with companies that process customer credit card transactions for the sale of air travel and other services. Credit card processors have financial risk associated with tickets purchased for travel because, although the processor generally forwards the cash related to the purchase to us soon after the purchase is completed, the air travel generally occurs after that time, and the processor may have liability if we do not ultimately provide the air travel. Our agreements allow these processing companies, under certain conditions, to hold an amount of our cash (referred to as a “holdback”) equal to a portion of advance ticket sales that have been processed by that company, but for which we have not yet provided the air transportation. These holdback requirements can be modified at the discretion of the processing companies, up to the estimated liability for future air travel purchased with the respective credit cards, upon the occurrence of specified events, including material adverse changes in our financial condition. The amount that the processing companies may withhold also varies as a result of changes in financial risk due to seasonal fluctuations in ticket volume. Additional holdback requirements will reduce our liquidity in the form of unrestricted cash and short-term investments by the amount of the holdbacks.
Aircraft and Engine Purchase Commitments
US Airways has definitive purchase agreements with Airbus for the acquisition of 134 aircraft, including 97 single-aisle A320 family aircraft and 37 widebody aircraft (comprised of 22 A350 XWB aircraft and 15 A330-200 aircraft). Deliveries of the A320 family aircraft commenced during 2008 with the delivery of five A321 aircraft. During the first nine months of 2009, US Airways took delivery of 12 A321 aircraft and three A330-200 aircraft. Of the 12 A321 aircraft, eight were financed through existing financing facilities, three were financed using manufacturer backstop financing and one was financed through a leasing transaction. Of the three A330-200 aircraft, two were financed through the June 2009 agreements discussed above and one was financed through a leasing transaction. US Airways plans to take delivery of six A321 aircraft, two A320 aircraft and two A330-200 aircraft prior to the end of 2009. Deliveries of the remaining A320 family aircraft and the A330-200 aircraft will continue through 2012 and deliveries of the A350 XWB aircraft will begin in 2015 and extend through 2018.
US Airways has agreements for the purchase of eight new IAE V2500-A5 spare engines scheduled for delivery through 2014 for use on the Airbus A320 family fleet, three new Trent 700 spare engines scheduled for delivery through 2011 for use on the Airbus A330-200 fleet and three new Trent XWB spare engines scheduled for delivery in 2015 through 2017 for use on the Airbus A350 XWB aircraft. US Airways has taken delivery of one Trent 700 spare engine, which was financed through a leasing transaction.
Under all of our aircraft and engine purchase agreements, our total future commitments as of September 30, 2009 are expected to be approximately $6 billion through 2018, which includes predelivery deposits and payments. The remaining A320 family aircraft scheduled for delivery in 2009 have backstop financing available through the manufacturer and we have secured financing for the remaining two A330-200 deliveries scheduled for delivery in 2009. See “Risk Factors — Our high level of fixed obligations limits our ability to fund general corporate requirements and obtain additional financing, limits our flexibility in responding to competitive developments and increases our vulnerability to adverse economic and industry conditions” in Part II, Item 1A, “Risk Factors.”

 

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Covenants and Credit Rating
In addition to the minimum cash balance requirements, our long-term debt agreements contain various negative covenants that restrict or limit our actions, including our ability to pay dividends or make other restricted payments. Certain long-term debt agreements also contain cross-default provisions, which may be triggered by defaults by us under other agreements relating to indebtedness. See “Risk Factors — Our high level of fixed obligations limits our ability to fund general corporate requirements and obtain additional financing, limits our flexibility in responding to competitive developments and increases our vulnerability to adverse economic and industry conditions” in Part II, Item 1A, “Risk Factors.” As of September 30, 2009, we and our subsidiaries were in compliance with the covenants in our long-term debt agreements.
Our credit ratings, like those of most airlines, are relatively low. The following table details our credit ratings as of September 30, 2009:
             
    S&P   Fitch   Moody’s
    Local Issuer   Issuer Default   Corporate
    credit rating   credit rating   Family rating
US Airways Group
  B-   CCC   Caa1
US Airways
  B-   *   *
     
(*)  
The credit agencies do not rate these categories for US Airways.
A decrease in our credit ratings could cause our borrowing costs to increase, which would increase our interest expense and could affect our net income, and our credit ratings could adversely affect our ability to obtain additional financing. If our financial performance or industry conditions do not improve, we may face future downgrades, which could further negatively impact our borrowing costs and the prices of our equity or debt securities. In addition, any downgrade of our credit ratings may indicate a decline in our business and in our ability to satisfy our obligations under our indebtedness.

 

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Off-Balance Sheet Arrangements
An off-balance sheet arrangement is any transaction, agreement or other contractual arrangement involving an unconsolidated entity under which a company has (1) made guarantees, (2) a retained or a contingent interest in transferred assets, (3) an obligation under derivative instruments classified as equity or (4) any obligation arising out of a material variable interest in an unconsolidated entity that provides financing, liquidity, market risk or credit risk support to us, or that engages in leasing, hedging or research and development arrangements with us.
There have been no material changes in our off-balance sheet arrangements as set forth in our 2008 Form 10-K.
Contractual Obligations
The following table provides details of our future cash contractual obligations as of September 30, 2009 (in millions):
                                                         
    Payments Due by Period  
    2009     2010     2011     2012     2013     Thereafter     Total  
US Airways Group (1)
                                                       
Debt (2)
  $     $ 33     $ 116     $ 99     $ 16     $ 1,350     $ 1,614  
Interest obligations (3)
    15       59       56       51       48       55       284  
US Airways (4)
                                                       
Debt and capital lease obligations (5) (6)
    148       403       335       298       248       1,815       3,247  
Interest obligations (3) (6)
    37       138       153       135       92       431       986  
Aircraft purchase and operating lease commitments (7)
    698       2,394       2,213       1,610       737       5,869       13,521  
Regional capacity purchase agreements (8)
    247       1,030       1,050       915       784       2,812       6,838  
Other US Airways Group subsidiaries (9)
    2       2       1       1       1             7  
 
                                         
Total
  $ 1,147     $ 4,059     $ 3,924     $ 3,109     $ 1,926     $ 12,332     $ 26,497  
 
                                         
 
     
(1)  
These commitments represent those specifically entered into by US Airways Group or joint commitments entered into by US Airways Group and US Airways under which each entity is jointly and severally liable.
 
(2)  
Excludes $136 million of unamortized debt discount as of September 30, 2009.
 
(3)  
For variable-rate debt, future interest obligations are shown above using interest rates in effect as of September 30, 2009.
 
(4)  
Commitments listed separately under US Airways and its wholly owned subsidiaries represent commitments under agreements entered into separately by those companies.
 
(5)  
Excludes $99 million of unamortized debt discount as of September 30, 2009.
 
(6)  
Includes $505 million of future principal payments and $229 million of future interest payments as of September 30, 2009, respectively, related to pass through trust certificates or EETCs associated with mortgage financings for the purchase of certain aircraft.
 
(7)  
Includes $3.27 billion of future minimum lease payments related to EETC leveraged leased financings of certain aircraft as of September 30, 2009.
 
(8)  
Represents minimum payments under capacity purchase agreements with third-party Express carriers.
 
(9)  
Represents operating lease commitments entered into by US Airways Group’s other airline subsidiaries Piedmont and PSA.
We expect to fund these cash obligations from funds provided by operations and future financings, if necessary. The cash available to us from these sources, however, may not be sufficient to cover these cash obligations because economic factors outside our control may reduce the amount of cash generated by operations or increase our costs. For instance, a prolonged or continuing economic downturn or general global instability caused by military actions, terrorism, disease outbreaks and natural disasters could reduce the demand for air travel, which would reduce the amount of cash generated by operations. An increase in our costs, either due to an increase in borrowing costs caused by a reduction in our credit rating or a general increase in interest rates or due to an increase in the cost of fuel, maintenance, aircraft and aircraft engines and parts, could decrease the amount of cash available to cover the cash obligations. Moreover, the Citicorp credit facility, our amended credit card agreement with Barclays and certain of our other financing arrangements contain minimum cash balance requirements. As a result, we cannot use all of our available cash to fund operations, capital expenditures and cash obligations without violating these requirements.

 

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Critical Accounting Policies and Estimates
In the third quarter of 2009, there were no changes to our critical accounting policies and estimates from those disclosed in the financial statements and accompanying notes contained in our 2008 Form 10-K except as updated below.
Impairment of Intangible and Other Assets
We assess the impairment of long-lived assets and intangible assets whenever events or changes in circumstances indicate that the carrying value may not be recoverable. In addition, our international route authorities and trademark intangible assets are classified as indefinite lived assets and are reviewed for impairment annually. Factors which could trigger an impairment review include the following: significant changes in the manner of use of the assets; significant underperformance relative to historical or projected future operating results; or significant negative industry or economic trends. An impairment has occurred when the future undiscounted cash flows estimated to be generated by those assets are less than the carrying amount of those items. Cash flow estimates are based on historical results adjusted to reflect management’s best estimate of future market and operating conditions. The net carrying value of assets not recoverable is reduced to fair value.
Estimates of fair value represent management’s best estimate based on appraisals, industry trends and reference to market rates and transactions. The magnitude of the ongoing impact of the weakened economic environment remains uncertain. Changes in industry capacity and demand for air transportation can significantly impact the fair value of intangible assets, aircraft and related assets which in turn could result in future non-cash impairment charges.
Recent Accounting Pronouncements
In June 2009, the Financial Accounting Standards Board (“FASB”) issued Statement of Financial Accounting Standards (“SFAS”) No. 168, “The FASB Accounting Standards Codification™ and the Hierarchy of Generally Accepted Accounting Principles — A Replacement of FASB Statement No. 162.” SFAS No. 168 establishes the FASB Accounting Standards Codification™ (the “Codification”) as the single source of authoritative U.S. GAAP recognized by the FASB to be applied by nongovernmental entities. Rules and interpretive releases of the SEC under authority of federal securities laws are also sources of authoritative U.S. GAAP for SEC registrants. Effective July 1, 2009, the Codification superseded all existing non-SEC accounting and reporting standards.
In May 2008, the FASB issued FASB Staff Position (“FSP’) Accounting Principle Board (“APB”) 14-1, “Accounting for Convertible Debt Instruments That May Be Settled in Cash upon Conversion (Including Partial Cash Settlement),” as adopted by the Codification on July 1, 2009. FSP APB 14-1 applies to convertible debt instruments that, by their stated terms, may be settled in cash (or other assets) upon conversion, including partial cash settlement of the conversion option. FSP APB 14-1 requires bifurcation of the instrument into a debt component that is initially recorded at fair value and an equity component. The difference between the fair value of the debt component and the initial proceeds from issuance of the instrument is recorded as a component of equity. The liability component of the debt instrument is accreted to par using the effective yield method; accretion is reported as a component of interest expense. The equity component is not subsequently re-valued as long as it continues to qualify for equity treatment. FSP APB 14-1 must be applied retrospectively to previously issued cash-settleable convertible instruments as well as prospectively to newly issued instruments. FSP APB 14-1 is effective for fiscal years beginning after December 15, 2008, and interim periods within those fiscal years.
In September 2005, we issued a total of $144 million principal amount of 7% Senior Convertible Notes due 2020 (the “7% notes”). As of September 30, 2009, $74 million of principal amount remained outstanding under the 7% notes. The holders of these notes may convert, at any time prior to the earlier of the business day prior to the redemption date and the second business day preceding the maturity date, any outstanding notes (or portions thereof) into shares of our common stock, at an initial conversion rate of 41.4508 shares of common stock per $1,000 principal amount of notes (equivalent to an initial conversion price of approximately $24.12 per share). In lieu of delivery of shares of common stock upon conversion of all or any portion of the 7% notes, we may elect to pay cash or a combination of shares and cash to holders surrendering notes for conversion. The 7% notes are subject to the provisions of FSP APB 14-1 since the 7% notes can be settled in cash upon conversion.

 

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We adopted FSP APB 14-1 on January 1, 2009. We concluded that the fair value of the equity component of the 7% notes at the time of issuance in 2005 was $47 million. Upon retrospective application, the adoption resulted in a $29 million increase in accumulated deficit at December 31, 2008, comprised of non-cash interest expense of $17 million for the years 2005-2008 and non-cash losses on debt extinguishment of $12 million related to the partial conversion of certain of the 7% notes to common stock in 2006. As of September 30, 2009 and December 31, 2008, the carrying value of the equity component was $40 million. The principal amount of the outstanding notes, the unamortized discount and the net carrying value at September 30, 2009 was $74 million, $7 million and $67 million, respectively, and at December 31, 2008 was $74 million, $11 million and $63 million, respectively. The remaining period over which the unamortized discount will be recognized is one year. We recognized $1 million and $4 million in non-cash interest expense in the three and nine months ended September 30, 2009, respectively, and $1 million and $3 million in the three and nine months ended September 30, 2008, respectively, related to the adoption of FSP APB 14-1. In addition, we recognized $2 million and $4 million in cash interest expense in the three and nine months ended September 30, 2009, respectively, and $2 million and $4 million in cash interest expense in the three and nine months ended September 30, 2008, respectively. The following table presents the December 31, 2008 balance sheet line items affected as adjusted and as originally reported (in millions).
                 
    December 31, 2008  
    As Adjusted     As Reported  
Long-term debt and capital leases, net of current maturities
  $ 3,623     $ 3,634  
Additional paid-in capital
    1,789       1,749  
Accumulated deficit
    (2,336 )     (2,307 )
In April 2009, the FASB issued FSP Financial Accounting Standards (“FAS”) 115-2 and FAS 124-2, “Recognition and Presentation of Other-Than-Temporary Impairments,” as adopted by the Codification on July 1, 2009. This FSP changes existing guidance for determining whether an impairment of debt securities is other-than-temporary. The FSP requires other-than-temporary impairments to be separated into the amount representing the decrease in cash flows expected to be collected from a security (referred to as credit losses) which is recognized in earnings and the amount related to other factors (referred to as noncredit losses) which is recognized in other comprehensive income. This noncredit loss component of the impairment may only be classified in other comprehensive income if both of the following conditions are met (a) the holder of the security concludes that it does not intend to sell the security and (b) the holder concludes that it is more likely than not that the holder will not be required to sell the security before the security recovers its value. If these conditions are not met, the noncredit loss must also be recognized in earnings. When adopting the FSP, an entity is required to record a cumulative effect adjustment as of the beginning of the period of adoption to reclassify the noncredit component of a previously recognized other-than-temporary impairment from retained earnings to accumulated other comprehensive income. FSP FAS 115-2 and FAS 124-2 is effective for interim and annual periods ending after June 15, 2009. We adopted FSP FAS 115-2 and FAS 124-2 as of April 1, 2009. We do not meet the conditions necessary to recognize the noncredit loss component of our auction rate securities in other comprehensive income. Accordingly, we did not reclassify any previously recognized other-than-temporary impairment losses from retained earnings to accumulated other comprehensive income and the adoption of FSP FAS 115-2 and FAS 124-2 had no material impact on our condensed consolidated financial statements.
In April 2009, the FASB issued FSP FAS 157-4, “Determining Fair Value When the Volume and Level of Activity for the Asset or Liability Have Significantly Decreased and Identifying Transactions That Are Not Orderly,” as adopted by the Codification on July 1, 2009. This FSP provides additional guidance on estimating fair value when the volume and level of activity for an asset or liability have significantly decreased in relation to normal market activity for the asset or liability. The FSP also provides additional guidance on circumstances that may indicate that a transaction is not orderly. FSP FAS 157-4 is effective for interim and annual periods ending after June 15, 2009. We adopted FSP FAS 157-4 during the second quarter of 2009, and its application had no impact on our condensed consolidated financial statements.
In May 2009, the FASB issued SFAS No. 165, “Subsequent Events,” as adopted by the Codification on July 1, 2009, which establishes general standards of accounting for and disclosure of events that occur after the balance sheet date but before the financial statements are issued or are available to be issued. SFAS No. 165 provides guidance on the period after the balance sheet date during which management of a reporting entity should evaluate events or transactions that may occur for potential recognition or disclosure in the financial statements, the circumstances under which an entity should recognize events or transactions occurring after the balance sheet date in its financial statements and the disclosures that an entity should make about events or transactions that occurred after the balance sheet date. We adopted SFAS No. 165 during the second quarter of 2009, and its application had no impact on our condensed consolidated financial statements. We evaluated subsequent events through the date the accompanying financial statements were issued, which was October 21, 2009.

 

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In June 2009, the FASB issued SFAS No. 167, “Amendments to FASB Interpretation (“FIN”) No. 46(R),” which changes how a reporting entity determines when an entity that is insufficiently capitalized or is not controlled through voting (or similar rights) should be consolidated. The determination of whether a reporting entity is required to consolidate another entity is based on, among other things, the other entity’s purpose and design and the reporting entity’s ability to direct the activities of the other entity that most significantly impact the other entity’s economic performance. SFAS No. 167 will require a reporting entity to provide additional disclosures about its involvement with variable interest entities and any significant changes in risk exposure due to that involvement. A reporting entity will be required to disclose how its involvement with a variable interest entity affects the reporting entity’s financial statements. SFAS No. 167 is effective for fiscal years beginning after November 15, 2009, and interim periods within those fiscal years. Management is currently evaluating the requirements of SFAS No. 167 and has not yet determined the impact on our condensed consolidated financial statements.
In October 2009, the FASB issued Accounting Standards Update (“ASU”) No. 2009-13, “Revenue Recognition (Topic 605) — Multiple-Deliverable Revenue Arrangements.” ASU No. 2009-13 addresses the accounting for multiple-deliverable arrangements to enable vendors to account for products or services (deliverables) separately rather than as a combined unit. This guidance establishes a selling price hierarchy for determining the selling price of a deliverable, which is based on: (a) vendor-specific objective evidence; (b) third-party evidence; or (c) estimates. This guidance also eliminates the residual method of allocation and requires that arrangement consideration be allocated at the inception of the arrangement to all deliverables using the relative selling price method. In addition, this guidance significantly expands required disclosures related to a vendor’s multiple-deliverable revenue arrangements. ASU No. 2009-13 is effective prospectively for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010 and early adoption is permitted. A company may elect, but will not be required, to adopt the amendments in ASU No. 2009-13 retrospectively for all prior periods. Management is currently evaluating the requirements of ASU No. 2009-13 and has not yet determined the impact on our condensed consolidated financial statements.

 

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Item 3.  
Quantitative and Qualitative Disclosures About Market Risk
Market Risk Sensitive Instruments
Our primary market risk exposures include commodity price risk (i.e., the price paid to obtain aviation fuel) and interest rate risk. Our exposure to market risk from changes in commodity prices and interest rates has not changed materially from our exposure discussed in our 2008 Form 10-K except as updated below.
Commodity price risk
Our 2009 forecasted mainline and Express fuel consumption is approximately 1.42 billion gallons, and a one cent per gallon increase in aviation fuel price results in a $14 million annual increase in expense. Since the third quarter of 2008, we have not entered into any new transactions as part of our fuel hedging program and as of September 30, 2009, there were no remaining outstanding fuel hedging contracts.
Interest rate risk
Our exposure to interest rate risk relates primarily to our cash equivalents, investment portfolios and variable rate debt obligations. At September 30, 2009, our variable-rate long-term debt obligations of approximately $3.38 billion represented approximately 70% of our total long-term debt. If interest rates increased 10% in 2009, the impact on our results of operations would be approximately $12 million of additional interest expense.
At September 30, 2009, included within our investment portfolio are $411 million par value of investments in auction rate securities. With the liquidity issues experienced in the global credit and capital markets, all of our auction rate securities have experienced failed auctions since August 2007. The estimated fair value of these auction rate securities no longer approximates par value. As of September 30, 2009, the fair value of our auction rate securities was $228 million. We continue to monitor the market for auction rate securities and consider its impact (if any) on the fair value of our investments. If the current market conditions deteriorate, we may be required to record additional impairment charges in other nonoperating expense, net in future periods.
We believe that, based on our current unrestricted cash and cash equivalents balance at September 30, 2009, the current lack of liquidity in our investments in auction rate securities will not have a material impact on our liquidity, our cash flow or our ability to fund our operations. Refer to Note 8, “Investments in Marketable Securities (Noncurrent)” in Part I, Items 1A and 1B, respectively, of this report for additional information.

 

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Item 4.  
Controls and Procedures
Evaluation of disclosure controls and procedures.
An evaluation was performed under the supervision and with the participation of US Airways Group’s and US Airways’ management, including the Chief Executive Officer (the “CEO”) and Chief Financial Officer (the “CFO”), of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in the rules promulgated under the Exchange Act) as of September 30, 2009. Based on that evaluation, our management, including the CEO and CFO, concluded that our disclosure controls and procedures were effective as of September 30, 2009.
Changes in internal control over financial reporting.
There has been no change to US Airways Group’s or US Airways’ internal control over financial reporting that occurred during the quarter ended September 30, 2009 that has materially affected, or is reasonably likely to materially affect, US Airways Group’s or US Airways’ internal control over financial reporting.
Limitation on the effectiveness of controls.
We believe that a controls system, no matter how well designed and operated, cannot provide absolute assurance that the objectives of the controls system are met and no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within a company have been detected. Our disclosure controls and procedures are designed to provide reasonable assurance of achieving their objectives, and the CEO and CFO believe that our disclosure controls and procedures were effective at the “reasonable assurance” level as of September 30, 2009.

 

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Part II. Other Information
Item 1.  
Legal Proceedings
On September 12, 2004, US Airways Group and its domestic subsidiaries (collectively, the “Reorganized Debtors”) filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Virginia, Alexandria Division (Case Nos. 04-13819-SSM through 03-13823-SSM) (the “2004 Bankruptcy”). On September 16, 2005, the Bankruptcy Court issued an order confirming the plan of reorganization submitted by the Reorganized Debtors and on September 27, 2005, the Reorganized Debtors emerged from the 2004 Bankruptcy. The Bankruptcy Court’s order confirming the plan included a provision called the plan injunction, which forever bars other parties from pursuing most claims against the Reorganized Debtors that arose prior to September 27, 2005 in any forum other than the Bankruptcy Court. The great majority of these claims are pre-petition claims that, if paid out at all, will be paid out in common stock of the post-bankruptcy US Airways Group at a fraction of the actual claim amount.
The Company and/or its subsidiaries are defendants in various pending lawsuits and proceedings, and from time to time are subject to other claims arising in the normal course of our business, many of which are covered in whole or in part by insurance. The outcome of those matters cannot be predicted with certainty at this time, but the Company, having consulted with outside counsel, believes that the ultimate disposition of these contingencies will not materially affect its consolidated financial position or results of operations.
Item 1A.  
Risk Factors
Below are a series of risk factors that may affect our results of operations or financial performance. We caution the reader that these risk factors may not be exhaustive. We operate in a continually changing business environment, and new risk factors emerge from time to time. Management cannot predict such new risk factors, nor can it assess the impact, if any, of these risk factors on our business or the extent to which any factor or combination of factors may impact our business.
Risk Factors Relating to the Company and Industry Related Risks
US Airways Group could experience significant operating losses in the future.
There are several reasons, including those addressed in these risk factors, why US Airways Group might fail to achieve profitability and might experience significant losses. In particular, the weakened condition of the economy and the high volatility of fuel prices have had and continue to have an impact on our operating results, and overall worsening economic conditions increase the risk that we will experience losses.
Downturns in economic conditions adversely affect our business.
Due to the discretionary nature of business and leisure travel spending, airline industry revenues are heavily influenced by the condition of the U.S. economy and the economies in other regions of the world. Unfavorable conditions in these broader economies have resulted in decreased passenger demand for air travel and changes in booking practices, both of which in turn have had a strong negative effect on our revenues. In addition, during challenging economic times, actions by our competitors to increase their revenues can have an adverse impact on our revenues. See “ The airline industry is intensely competitive and dynamic ” below. Certain contractual obligations limit our ability to reduce the number of aircraft in operation below certain levels. As a result, we may not be able to optimize the number of aircraft in operation in response to a decrease in passenger demand for air travel.
Increased costs of financing, a reduction in the availability of financing and fluctuations in interest rates could adversely affect our liquidity, operating expenses and results.
Recent global market and economic conditions have been unprecedented and challenging with tighter credit conditions. Continued concerns about the systemic impact of inflation, the availability and cost of credit, energy costs and geopolitical issues, combined with declining business activity levels and consumer confidence, increased unemployment and volatile oil prices, have contributed to unprecedented levels of volatility in the capital markets. As a result of these market conditions, the cost and availability of credit have been and may continue to be adversely affected by illiquid credit markets and wider credit spreads. These changes in the domestic and global financial markets may increase our costs of financing and adversely affect our ability to obtain financing needed for the acquisition of aircraft that we have contractual commitments to purchase and for other types of financings we may seek in order to raise capital or fund other types of obligations. Any downgrades to our credit rating may likewise increase the cost and reduce the availability of financings.
In addition, we have substantial non-cancelable commitments for capital expenditures, including the acquisition of new aircraft and related spare engines. Although we have in place backstop financing for the narrow body aircraft we have on order, we have not yet secured financing commitments or backstop financing for some of the widebody aircraft we have on order, commencing with deliveries scheduled for March 2010, and cannot assure you of the availability or cost of that financing. If we are not able to arrange financing for such aircraft at customary advance rates and on terms and conditions acceptable to us, we expect we would seek to negotiate deferrals of aircraft deliveries with the manufacturer or financing at lower than customary advance rates, or, if required, use cash from operations or other sources to purchase the aircraft.

 

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Further, a substantial portion of our indebtedness bears interest at fluctuating interest rates. These are primarily based on the London interbank offered rate for deposits of U.S. dollars, or “LIBOR.” LIBOR tends to fluctuate based on general economic conditions, general interest rates, federal reserve rates and the supply of and demand for credit in the London interbank market. We have not hedged our interest rate exposure and, accordingly, our interest expense for any particular period may fluctuate based on LIBOR and other variable interest rates. To the extent these interest rates increase, our interest expense will increase, in which event we may have difficulties making interest payments and funding our other fixed costs, and our available cash flow for general corporate requirements may be adversely affected. See also the discussion of interest rate risk in Part I, Item 3, “Quantitative and Qualitative Disclosures About Market Risk.”
Our high level of fixed obligations limits our ability to fund general corporate requirements and obtain additional financing, limits our flexibility in responding to competitive developments and increases our vulnerability to adverse economic and industry conditions.
We have a significant amount of fixed obligations, including debt, aircraft leases and financings, aircraft purchase commitments, leases and developments of airport and other facilities and other cash obligations. We also have certain guaranteed costs associated with our regional alliances. Our existing indebtedness is secured by substantially all of our assets.
As a result of the substantial fixed costs associated with these obligations:
   
a decrease in revenues results in a disproportionately greater percentage decrease in earnings;
   
we may not have sufficient liquidity to fund all of these fixed costs if our revenues decline or costs increase; and
   
we may have to use our working capital to fund these fixed costs instead of funding general corporate requirements, including capital expenditures.
These obligations also impact our ability to obtain additional financing, if needed, and our flexibility in the conduct of our business.
Any failure to comply with the liquidity covenants contained in our financing arrangements would likely have a material adverse effect on our business, financial condition and results of operations.
The terms of our Citicorp credit facility and certain of our other financing arrangements require us to maintain consolidated unrestricted cash and cash equivalents of not less than $850 million, with not less than $750 million (subject to partial reductions upon certain reductions in the outstanding principal amount of the loan) of that amount held in accounts subject to control agreements.
Our ability to comply with these covenants while paying the fixed costs associated with our contractual obligations and our other expenses will depend on our operating performance and cash flow, which are seasonal, as well as factors including fuel costs and general economic and political conditions.
In order to strengthen our ability to continue complying with our liquidity covenants in the event that the factors affecting our liquidity will in fact be more adverse than we currently anticipate, management is pursuing a number of initiatives. These initiatives are intended to provide a cushion to mitigate against such an event. There can be no assurance that these initiatives will be consummated, however, and even if these initiatives are consummated, the factors affecting our liquidity (and our ability to comply with related covenants) will remain subject to significant fluctuations and uncertainties, many of which are outside our control. Any breach of our liquidity covenants or failure to timely pay our obligations could result in a variety of adverse consequences, including the acceleration of our indebtedness, the withholding of credit card proceeds by the credit card servicers and the exercise of remedies by our creditors and lessors. In such a situation, it is unlikely that we would be able to fulfill our contractual obligations, repay the accelerated indebtedness, make required lease payments or otherwise cover our fixed costs.
Our business is dependent on the price and availability of aircraft fuel. Continued periods of high volatility in fuel costs, increased fuel prices and significant disruptions in the supply of aircraft fuel could have a significant negative impact on our operating results and liquidity.
Our operating results are significantly impacted by changes in the availability, price volatility and the cost of aircraft fuel, which represents the largest single cost item in our business. Fuel prices have fluctuated substantially over the past several years and sharply in the last year.

 

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Because of the amount of fuel needed to operate our airline, even a relatively small increase in the price of fuel can have a significant adverse aggregate effect on our costs and liquidity. Due to the competitive nature of the airline industry and unpredictability of the market, we can offer no assurance that we may be able to increase our fares, impose fuel surcharges or otherwise increase revenues sufficiently to offset fuel prices.
Although we are currently able to obtain adequate supplies of aircraft fuel, we cannot predict the future availability, price volatility or cost of aircraft fuel. Natural disasters, political disruptions or wars involving oil-producing countries, changes in fuel-related governmental policy, the strength of the U.S. dollar against foreign currencies, speculation in the energy futures markets, changes in aircraft fuel production capacity, environmental concerns and other unpredictable events may result in fuel supply shortages, additional fuel price volatility and cost increases in the future.
Historically from time to time we have entered into hedging arrangements to protect against rising fuel costs. Since the third quarter of 2008, we have not entered into any new hedging transactions as part of our fuel hedging program and as of September 30, 2009, there were no remaining outstanding fuel hedging contracts. Our ability to hedge in the future, however, may be limited, particularly if the financial condition of our airline worsens. In the event we do hedge in the future, our fuel hedging arrangements do not completely protect us against price increases and are limited in both volume of fuel and duration. Also, a rapid decline in the price of fuel can adversely impact our short-term liquidity as our hedge counterparties require that we post collateral in the form of cash or letters of credit when the projected future market price of fuel drops below the strike price. See also the discussion in Part I, Item 3, “Quantitative and Qualitative Disclosures About Market Risk.”
If our financial condition worsens, provisions in our credit card processing and other commercial agreements may adversely affect our liquidity.
We have agreements with companies that process customer credit card transactions for the sale of air travel and other services. These agreements allow these processing companies, under certain conditions, to hold an amount of our cash (referred to as a “holdback”) equal to a portion of advance ticket sales that have been processed by that company, but for which we have not yet provided the air transportation. These holdback requirements can be modified at the discretion of the processing companies upon the occurrence of specific events, including material adverse changes in our financial condition. An increase in the current holdback balances to higher percentages up to and including 100% of relevant advanced ticket sales could materially reduce our liquidity. Likewise, other of our commercial agreements contain provisions that allow other entities to impose less favorable terms, including the acceleration of amounts due, in the event of material adverse changes in our financial condition.
Union disputes, employee strikes and other labor-related disruptions may adversely affect our operations.
Relations between air carriers and labor unions in the United States are governed by the Railway Labor Act (the “RLA”). Under the RLA, collective bargaining agreements generally contain “amendable dates” rather than expiration dates, and the RLA requires that a carrier maintain the existing terms and conditions of employment following the amendable date through a multi-stage and usually lengthy series of bargaining processes overseen by the National Mediation Board. These processes do not apply to our current and ongoing negotiations for post-merger integrated labor agreements, and this means unions may not lawfully engage in concerted refusals to work, such as strikes, slow-downs, sick-outs or other similar activity, against us. Nonetheless, after more than four years of negotiations without a resolution to the bargaining issues that arose from the merger, there is a risk that disgruntled employees, either with or without union involvement, could engage in one or more concerted refusals to work that could individually or collectively harm the operation of our airline and impair our financial performance. Likewise, employees represented by unions that have reached post-merger integrated agreements could engage in improper actions that disrupt our operations.
If we incur problems with any of our third party service providers, our operations could be adversely affected by a resulting decline in revenue or negative public perception about our services.
Our reliance upon others to provide essential services on behalf of our operations may result in our relative inability to control the efficiency and timeliness of contract services. We have entered into agreements with contractors to provide various facilities and services required for our operations, including Express flight operations, aircraft maintenance, ground services and facilities, reservations and baggage handling. Similar agreements may be entered into in any new markets we decide to serve. These agreements are generally subject to termination after notice by the third party service provider. We are also at risk should one of these service providers cease operations, and there is no guarantee that we could replace these providers on a timely basis with comparably priced providers. Recent volatility in fuel prices, disruptions to capital markets and the current economic downturn in general have subjected certain of these third party service providers to strong financial pressures. Any material problems with the efficiency and timeliness of contract services, resulting from financial hardships or otherwise, could have a material adverse effect on our business, financial condition and results of operations.

 

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We rely heavily on automated systems to operate our business and any failure or disruption of these systems could harm our business.
To operate our business, we depend on automated systems, including our computerized airline reservation systems, flight operations systems, telecommunication systems, airport customer self-service kiosks and websites. Our website and reservation systems must be able to accommodate a high volume of traffic and deliver important flight information on a timely and reliable basis. Substantial or repeated disruptions or failures of any of these automated systems could impair our operations, reduce the attractiveness of our services and could result in lost revenues and increased costs. In addition, these automated systems require periodic maintenance, upgrades and replacements, and our business may be harmed if we fail to properly maintain, upgrade or replace such systems.
The integration of our business units following the merger continues to present significant challenges.
We continue to face significant challenges relating to our merger in consolidating functions and integrating diverse organizations, information technology systems, processes, procedures, operations and training and maintenance programs, in a timely and efficient manner. This integration has been and will continue to be costly, complex and time consuming. Failure to successfully complete the integration may adversely affect our business and results of operations.
Changes to our business model that are designed to increase revenues may not be successful and may cause operational difficulties or decreased demand.
We have implemented several new measures designed to increase revenue and offset costs. These measures include charging separately for services that had previously been included within the price of a ticket and increasing other pre-existing fees. We may introduce additional initiatives in the future. We cannot assure you that these new measures or any future initiatives will be successful in increasing our revenues. Additionally, the implementation of these initiatives creates logistical challenges that could harm the operational performance of our airline. Also, the new and increased fees might reduce the demand for air travel on our airline or across the industry in general, particularly as weakening economic conditions make our customers more sensitive to increased travel costs.
The airline industry is intensely competitive and dynamic.
Our competitors include other major domestic airlines as well as foreign, regional and new entrant airlines, some of which have more financial resources or lower cost structures than ours, and other forms of transportation, including rail and private automobiles. In many of our markets we compete with at least one low cost air carrier. Our revenues are sensitive to numerous factors, and the actions of other carriers in the areas of pricing, scheduling and promotions can have a substantial adverse impact not only on our revenues but on overall industry revenues. These factors may become even more significant in periods when the industry experiences large losses, as airlines under financial stress, or in bankruptcy, may institute pricing structures intended to achieve near-term survival rather than long-term viability. In addition, because a significant portion of our traffic is short-haul travel, we are more susceptible than other major airlines to competition from surface transportation such as automobiles and trains.
Low cost carriers have a profound impact on industry revenues. Using the advantage of low unit costs, these carriers offer lower fares, particularly those targeted at business passengers, in order to shift demand from larger, more-established airlines. Some low cost carriers, which have cost structures lower than ours, have better financial performance and significant numbers of aircraft on order for delivery in the next few years. These low-cost carriers are expected to continue to increase their market share through growth and could continue to have an impact on the overall performance of US Airways Group.
Industry consolidation could weaken our competitive position.
If mergers or other forms of industry consolidation including antitrust immunity grants take place, we might or might not be included as a participant. Depending on which carriers combine and which assets, if any, are sold or otherwise transferred to other carriers in connection with such combinations, our competitive position relative to the post-combination carriers or other carriers that acquire such assets could be harmed. In addition, as carriers combine through traditional mergers or antitrust immunity grants, their route networks might grow and result in greater overlap with our network, which in turn could result in lower overall market share and revenues for us. Such consolidation is not limited to the U.S., but could include further consolidation among international carriers in Europe and elsewhere.
The loss of key personnel upon whom we depend to operate our business or the inability to attract additional qualified personnel could adversely affect the results of our operations or our financial performance.
We believe that our future success will depend in large part on our ability to attract and retain highly qualified management, technical and other personnel, particularly in light of reductions in headcount associated with cost-saving measures that we have implemented. We may not be successful in retaining key personnel or in attracting and retaining other highly qualified personnel. Any inability to retain or attract significant numbers of qualified management and other personnel could adversely affect our business.

 

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The travel industry continues to face ongoing security concerns.
The attacks of September 11, 2001 and continuing terrorist threats materially impacted and continue to impact air travel. The Aviation and Transportation Security Act mandates improved flight deck security; deployment of federal air marshals on board flights; improved airport perimeter access security; airline crew security training; enhanced security screening of passengers, baggage, cargo, mail, employees and vendors; enhanced training and qualifications of security screening personnel; additional provision of passenger data to U.S. Customs and enhanced background checks. These increased security procedures introduced at airports since the attacks and other such measures as may be introduced in the future generate higher operating costs for airlines. A concurrent increase in airport security charges and procedures, such as restrictions on carry-on baggage, has also had and may continue to have a disproportionate impact on short-haul travel, which constitutes a significant portion of our flying and revenue. We would also be materially impacted in the event of further terrorist attacks or perceived terrorist threats.
Changes in government regulation could increase our operating costs and limit our ability to conduct our business.
Airlines are subject to extensive regulatory requirements. In the last several years, Congress has passed laws, and the DOT, the Federal Aviation Administration (“FAA”), the Transportation Security Administration (“TSA”) and the Department of Homeland Security have issued a number of directives and other regulations. These requirements impose substantial costs on airlines. On October 10, 2008, the FAA finalized new rules governing flight operations at the three major New York airports. These rules did not take effect because of a legal challenge, but the FAA has pushed forward with a reduction in the number of flights per hour at LaGuardia. The FAA is attempting to work with carriers on a voluntary basis to implement its new lower operations cap at LaGuardia. If this is not successful, the FAA may resort to other methods to reduce congestion in New York. Additionally, the DOT recently finalized a policy change that will permit airports to charge differentiated landing fees during congested periods, which could impact our ability to serve certain markets in the future. The new rule is being challenged in court by the industry. The Obama Administration has not yet indicated how it intends to move forward on the issue of congestion management in the New York region.
The FAA from time to time issues directives and other regulations relating to the maintenance and operation of aircraft that require significant expenditures or operational restrictions. Some FAA requirements cover, among other things, retirement of older aircraft, security measures, collision avoidance systems, airborne windshear avoidance systems, noise abatement and other environmental concerns, aircraft operation and safety and increased inspections and maintenance procedures to be conducted on older aircraft. Our failure to timely comply with these requirements can result in fines and other enforcement actions by the FAA or other regulators. For example, on October 14, 2009, the FAA proposed a fine of $5.4 million with respect to certain alleged violations and we are in discussions with the agency regarding resolution of this matter.
Additional laws, regulations, taxes and policies have been proposed or discussed from time to time, including recently introduced federal legislation on a “passenger bill of rights,” that, if adopted, could significantly increase the cost of airline operations or reduce revenues. The state of New York’s attempt to adopt such a measure has been successfully challenged by the airline industry. Other states, however, are contemplating similar legislation. The DOT also has a rulemaking pending and completed a stakeholder task force working on various initiatives that could lead to additional expansion of airline obligations in the customer service area and increase our costs.
Finally, the ability of U.S. carriers to operate international routes is subject to change because the applicable arrangements between the U.S. and foreign governments may be amended from time to time, or because appropriate slots or facilities may not be available. We cannot assure you that laws or regulations enacted in the future will not adversely affect our operating costs. In addition, increased environmental regulation may increase costs or restrict our operations. The EU has been particularly aggressive in this area.
The inability to maintain labor costs at competitive levels could harm our financial performance.
Currently, our labor costs are very competitive. However, we cannot assure you that labor costs going forward will remain competitive because some of our agreements are amendable now and others may become amendable, competitors may significantly reduce their labor costs or we may agree to higher-cost provisions in our current labor negotiations. Approximately 87% of the employees within US Airways Group are represented for collective bargaining purposes by labor unions, including unionized groups of our employees abroad. Some of our unions have brought and may continue to bring grievances to binding arbitration. Unions may also bring court actions and may seek to compel us to engage in the bargaining processes where we believe we have no such obligation. If successful, there is a risk these judicial or arbitral avenues could create additional costs that we did not anticipate.

 

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Our ability to operate and grow our route network in the future is dependent on the availability of adequate facilities and infrastructure throughout our system.
In order to operate our existing flight schedule and, where appropriate, add service along new or existing routes, we must be able to obtain adequate gates, ticketing facilities, operations areas, slots (where applicable) and office space. For example, at our largest hub airport, we are seeking to increase international service despite challenging airport space constraints. The nation’s aging air traffic control infrastructure presents challenges as well. The ability of the air traffic control system to handle traffic in high-density areas where we have a large concentration of flights is critical to our ability to operate our existing schedule. Also, as airports around the world become more congested, we cannot always be sure that our plans for new service can be implemented in a commercially viable manner given operating constraints at airports throughout our network.
We are subject to many forms of environmental regulation and may incur substantial costs as a result.
We are subject to increasingly stringent federal, state, local and foreign laws, regulations and ordinances relating to the protection of the environment, including those relating to emissions to the air, discharges to surface and subsurface waters, safe drinking water, and the management of hazardous substances, oils and waste materials. Compliance with all environmental laws and regulations can require significant expenditures.
Several U.S. airport authorities are actively engaged in efforts to limit discharges of de-icing fluid (glycol) to local groundwater, often by requiring airlines to participate in the building or reconfiguring of airport de-icing facilities. Such efforts are likely to impose additional costs and restrictions on airlines using those airports. We do not believe, however, that such environmental developments will have a material impact on our capital expenditures or otherwise adversely affect our operations, operating costs or competitive position.
We are also subject to other environmental laws and regulations, including those that require us to remediate soil or groundwater to meet certain objectives. Under federal law, generators of waste materials, and owners or operators of facilities, can be subject to liability for investigation and remediation costs at locations that have been identified as requiring response actions. We have liability for such costs at various sites, although the future costs associated with the remediation efforts are currently not expected to have a material adverse affect on our business.
We have various leases and agreements with respect to real property, tanks and pipelines with airports and other operators. Under these leases and agreements, we have agreed to standard language indemnifying the lessor or operator against environmental liabilities associated with the real property or operations described under the agreement, even if we are not the party responsible for the initial event that caused the environmental damage. We also participate in leases with other airlines in fuel consortiums and fuel committees at airports, where such indemnities are generally joint and several among the participating airlines.
Recently, climate change issues and greenhouse gas emissions (including carbon) have attracted international and domestic regulatory interest that may result in the imposition of additional regulation on airlines. For example, the EU has adopted legislation to include aviation within the EU’s existing greenhouse gas emission trading scheme effective in 2012. Any such regulatory activity in the future may adversely affect our business and financial results.
California is in the process of implementing environmental provisions aimed at limiting emissions from motorized vehicles, which may include some airline belt loaders and tugs and require a change of ground service vehicles. The future costs associated with replacing some or all of our ground fleets in California cities are currently not expected to have a material adverse affect on our business.
Governmental authorities in several U.S. and foreign cities are also considering or have already implemented aircraft noise reduction programs, including the imposition of nighttime curfews and limitations on daytime take-offs and landings. We have been able to accommodate local noise restrictions imposed to date, but our operations could be adversely affected if locally-imposed regulations become more restrictive or widespread.
Ongoing data security compliance requirements could increase our costs, and any significant data breach could harm our business, financial condition or results of operations.
Our business requires the appropriate and secure utilization of customer and other sensitive information. We cannot be certain that advances in criminal capabilities, discovery of new vulnerabilities, attempts to exploit existing vulnerabilities in our systems, data thefts, physical system or network break-ins or inappropriate access, or other developments will not compromise or breach the technology protecting the networks that access and store database information. Furthermore, there has been heightened legislative and regulatory focus on data security in the U.S. and abroad (particularly in the EU), including requirements for varying levels of customer notification in the event of a data breach.
Many of our commercial partners, including credit card companies, have imposed certain data security standards that we must meet. In particular, we were required by the Payment Card Industry Security Standards Council, founded by the credit card companies, to comply with their highest level of data security standards. While we currently meet these standards, new and revised standards may be imposed that may be difficult for us to meet.

 

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In addition to the Payment Card Industry Standards discussed above, failure to comply with the other privacy and data use and security requirements of our partners or related laws and regulations to which we are subject may expose us to fines, sanctions or other penalties, which could materially and adversely affect our results of operations and overall business. In addition, failure to address appropriately these issues could also give rise to additional legal risks, which, in turn, could increase the size and number of litigation claims and damages asserted or subject us to enforcement actions, fines and penalties and cause us to incur further related costs and expenses.
Interruptions or disruptions in service at one of our hub airports could have a material adverse impact on our operations.
We operate principally through primary hubs in Charlotte, Philadelphia and Phoenix and focus cities in New York, Washington, D.C., Boston and Las Vegas. A majority of our flights either originate in or fly into one of these locations. A significant interruption or disruption in service at one of our hubs could result in the cancellation or delay of a significant portion of our flights and, as a result, could have a severe impact on our business, operations and financial performance.
We are at risk of losses and adverse publicity stemming from any accident involving any of our aircraft.
If one of our aircraft were to be involved in an accident, we could be exposed to significant tort liability. The insurance we carry to cover damages arising from any future accidents may be inadequate. In the event that our insurance is not adequate, we may be forced to bear substantial losses from an accident. In addition, any accident involving an aircraft that we operate could create a public perception that our aircraft are not safe or reliable, which could harm our reputation, result in air travelers being reluctant to fly on our aircraft and adversely impact our financial condition and operations.
Delays in scheduled aircraft deliveries or other loss of anticipated fleet capacity may adversely impact our operations and financial results.
The success of our business depends on, among other things, the ability to operate a certain number and type of aircraft. In many cases, the aircraft we intend to operate are not yet in our fleet, but we have contractual commitments to purchase or lease them. If for any reason we were unable to secure deliveries of new aircraft on contractually scheduled delivery dates, this could have a negative impact on our business, operations and financial performance. Our failure to integrate newly purchased aircraft into our fleet as planned might require us to seek extensions of the terms for some leased aircraft. Such unanticipated extensions may require us to operate existing aircraft beyond the point at which it is economically optimal to retire them, resulting in increased maintenance costs. If new aircraft orders are not filled on a timely basis, we could face higher monthly rental rates.
Our business is subject to weather factors and seasonal variations in airline travel, which cause our results to fluctuate.
Our operations are vulnerable to severe weather conditions in parts of our network that could disrupt service, create air traffic control problems, decrease revenue and increase costs, such as during hurricane season in the Caribbean and Southeast United States, snow and severe winters in the Northeast United States and thunderstorms in the Eastern United States. In addition, the air travel business historically fluctuates on a seasonal basis. Due to the greater demand for air and leisure travel during the summer months, revenues in the airline industry in the second and third quarters of the year tend to be greater than revenues in the first and fourth quarters of the year. Our results of operations will likely reflect weather factors and seasonality, and therefore quarterly results are not necessarily indicative of those for an entire year, and our prior results are not necessarily indicative of our future results.
Increases in insurance costs or reductions in insurance coverage may adversely impact our operations and financial results.
The terrorist attacks of September 11, 2001 led to a significant increase in insurance premiums and a decrease in the insurance coverage available to commercial air carriers. Accordingly, our insurance costs increased significantly and our ability to continue to obtain insurance even at current prices remains uncertain. In addition, we have obtained third party war risk (terrorism) insurance through a special program administered by the FAA, resulting in lower premiums than if we had obtained this insurance in the commercial insurance market. The program has been extended, with the same conditions and premiums, until August 31, 2010. If the federal insurance program terminates, we would likely face a material increase in the cost of war risk insurance. The failure of one or more of our insurers could result in a lack of coverage for a period of time. Additionally, severe disruptions in the domestic and global financial markets could adversely impact the ratings and survival of some insurers. Future downgrades in the ratings of enough insurers could adversely impact both the availability of appropriate insurance coverage and its cost. Because of competitive pressures in our industry, our ability to pass additional insurance costs to passengers is limited. As a result, further increases in insurance costs or reductions in available insurance coverage could have an adverse impact on our financial results.

 

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We may be adversely affected by global events that affect travel behavior.
Our revenue and results of operations may be adversely affected by global events beyond our control. Acts of terrorism, wars or other military conflicts, including the war in Iraq, may depress air travel, particularly on international routes. An outbreak of a contagious disease such as Severe Acute Respiratory Syndrome (“SARS”), avian flu, or any other influenza-type illness, if it were to persist for an extended period, could again materially affect the airline industry and us by reducing revenues and impacting travel behavior. For example, the recent outbreak of the “swine flu,” or H1N1 influenza virus, has caused a decline in the demand of our flights to and from Mexico.
We are exposed to foreign currency exchange rate fluctuations.
As we expand our international operations, we will have significant operating revenues and expenses, as well as assets and liabilities, denominated in foreign currencies. Fluctuations in foreign currencies can significantly affect our operating performance and the value of our assets and liabilities located outside of the United States.
The use of US Airways Group’s NOLs and certain other tax attributes could be limited in the future.
From the time of the merger until the first half of 2007, a significant portion of US Airways Group’s common stock was beneficially owned by a small number of equity investors. Since the merger, some of the equity investors have sold portions of their holdings and other investors have purchased US Airways Group stock, and, as a result, we believe an “ownership change” as defined in Internal Revenue Code Section 382 occurred for US Airways Group in February 2007. When a company undergoes such an ownership change, Section 382 limits the future ability to utilize any net operating losses, or NOL, generated before the ownership change and certain subsequently recognized “built-in” losses and deductions, if any, existing as of the date of the ownership change. A company’s ability to utilize new NOL arising after the ownership change is not affected. Since February 2007 there have been additional changes in the ownership of US Airways Group that, if combined with sufficiently large future changes in ownership, could result in another “ownership change” as defined in Internal Revenue Code Section 382. Until US Airways Group has used all of its existing NOL, future shifts in ownership of US Airways Group’s common stock could result in a new Section 382 limit on our NOL as of the date of an additional ownership change. For purposes of determining if an ownership change has occurred, the right to convert convertible notes into stock may be treated as if US Airways Group had issued the underlying stock.
Risks Relating to Our Common Stock
Our common stock has limited trading history and its market price may be volatile.
Our common stock began trading on the NYSE on September 27, 2005. The market price of our common stock may fluctuate substantially due to a variety of factors, many of which are beyond our control, including:
   
our operating results failing to meet the expectations of securities analysts or investors;
   
changes in financial estimates or recommendations by securities analysts;
   
material announcements by us or our competitors;
   
movements in fuel prices;
   
new regulatory pronouncements and changes in regulatory guidelines;
   
general and industry-specific economic conditions;
   
public sales of a substantial number of shares of our common stock; and
   
general market conditions.
Conversion of our convertible notes will dilute the ownership interest of existing stockholders and could adversely affect the market price of our common stock.
The conversion of some or all of US Airways Group’s 7% senior convertible notes due 2020 or 7.25% convertible senior notes due 2014 will dilute the ownership interests of existing stockholders. Any sales in the public market of the common stock issuable upon such conversion could adversely affect prevailing market prices of our common stock. In addition, the existence of the convertible notes may encourage short selling by market participants because the conversion of the notes could depress the price of our common stock.

 

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Certain provisions of the amended and restated certificate of incorporation and amended and restated bylaws of US Airways Group make it difficult for stockholders to change the composition of our board of directors and may discourage takeover attempts that some of our stockholders might consider beneficial.
Certain provisions of the amended and restated certificate of incorporation and amended and restated bylaws of US Airways Group may have the effect of delaying or preventing changes in control if our board of directors determines that such changes in control are not in the best interests of US Airways Group and its stockholders. These provisions include, among other things, the following:
   
a classified board of directors with three-year staggered terms;
   
advance notice procedures for stockholder proposals to be considered at stockholders’ meetings;
   
the ability of US Airways Group’s board of directors to fill vacancies on the board;
   
a prohibition against stockholders taking action by written consent;
   
a prohibition against stockholders calling special meetings of stockholders;
   
a requirement that holders of at least 80% of the voting power of the shares entitled to vote in the election of directors approve amendment of the amended and restated bylaws; and
   
super-majority voting requirements to modify or amend specified provisions of US Airways Group’s amended and restated certificate of incorporation.
These provisions are not intended to prevent a takeover, but are intended to protect and maximize the value of US Airways Group’s stockholders’ interests. While these provisions have the effect of encouraging persons seeking to acquire control of our company to negotiate with our board of directors, they could enable our board of directors to prevent a transaction that some, or a majority, of our stockholders might believe to be in their best interests and, in that case, may prevent or discourage attempts to remove and replace incumbent directors. In addition, US Airways Group is subject to the provisions of Section 203 of the Delaware General Corporation Law, which prohibits business combinations with interested stockholders. Interested stockholders do not include stockholders, such as our equity investors at the time of the merger, whose acquisition of US Airways Group’s securities is approved by the board of directors prior to the investment under Section 203.
Our charter documents include provisions limiting voting and ownership of our equity interests, which includes our common stock and our convertible notes, by foreign owners.
Our charter documents provide that, consistent with the requirements of Subtitle VII of Title 49 of the United States Code, as amended, or as the same may be from time to time amended (the “Aviation Act”), any person or entity who is not a “citizen of the United States” (as defined under the Aviation Act and administrative interpretations issued by the Department of Transportation, its predecessors and successors, from time to time), including any agent, trustee or representative of such person or entity (a “non-citizen”), shall not own (beneficially or of record) and/or control more than (a) 24.9% of the aggregate votes of all of our outstanding equity securities (as defined, which definition includes our capital stock, securities convertible into or exchangeable for shares of our capital stock, including our outstanding convertible notes, and any options, warrants or other rights to acquire capital stock) (the “voting cap amount”) or (b) 49.9% of our outstanding equity securities (the “absolute cap amount”). If non-citizens nonetheless at any time own and/or control more than the voting cap amount, the voting rights of the equity securities in excess of the voting cap amount shall be automatically suspended in accordance with the provisions of our bylaws. Voting rights of equity securities, if any, owned (beneficially or of record) by non-citizens shall be suspended in reverse chronological order based upon the date of registration in the foreign stock record. Further, if at any time a transfer of equity securities to a non-citizen would result in non-citizens owning more than the absolute cap amount, such transfer shall be void and of no effect, in accordance with provisions of our bylaws. Certificates for our equity securities must bear a legend set forth in our amended and restated certificate of incorporation stating that such equity securities are subject to the foregoing restrictions. Under our bylaws, it is the duty of each stockholder who is a non-citizen to register his, her or its equity securities on our foreign stock record. In addition, our bylaws provide that in the event that non-citizens shall own (beneficially or of record) or have voting control over any equity securities, the voting rights of such persons shall be subject to automatic suspension to the extent required to ensure that we are in compliance with applicable provisions of law and regulations relating to ownership or control of a United States air carrier. In the event that we determine that the equity securities registered on the foreign stock record or the stock records of the Company exceed the absolute cap amount, sufficient shares shall be removed from the foreign stock record and the stock records of the Company so that the number of shares entered therein does not exceed the absolute cap amount. Shares of equity securities shall be removed from the foreign stock record and the stock records of the Company in reverse chronological order based on the date of registration in the foreign stock record and the stock records of the Company.

 

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Item 6.  
Exhibits
         
Exhibit No.   Description
       
 
  2.1    
Mutual Asset Purchase and Sale Agreement dated as of August 11, 2009 among Delta Air Lines, Inc., US Airways, Inc. and US Airways Group, Inc.*
       
 
  3.1    
Certificate of Amendment to Amended and Restated Certificate of Incorporation of US Airways Group, Inc., effective as of July 24, 2009.
       
 
  10.1    
Amendment No. 4 to the Amended and Restated Airbus A320 Family Aircraft Purchase Agreement dated as of October 2, 2007 between Airbus S.A.S. and US Airways, Inc.*
       
 
  10.2    
Amendment No. 4 to the A330 Purchase Agreement dated as of October 2, 2007 between Airbus S.A.S. and US Airways, Inc.*
       
 
  10.3    
Amendment No. 3 to the Amended and Restated Airbus A350 XWB Purchase Agreement dated as of October 2, 2007 between Airbus S.A.S. and US Airways, Inc.*
       
 
  10.4    
Amendment No. 8 to America West Co-Branded Card Agreement dated September 17, 2009 by and between US Airways Group, Inc. and Barclays Bank Delaware.*
       
 
  10.5    
Amendment No. 9 to America West Co-Branded Card Agreement dated September 21, 2009 by and between US Airways Group, Inc. and Barclays Bank Delaware.*
       
 
  31.1    
Certification of US Airways Group’s Chief Executive Officer pursuant to Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended.
       
 
  31.2    
Certification of US Airways Group’s Chief Financial Officer pursuant to Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended.
       
 
  31.3    
Certification of US Airways’ Chief Executive Officer pursuant to Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended.
       
 
  31.4    
Certification of US Airways’ Chief Financial Officer pursuant to Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended.
       
 
  32.1    
Certification of US Airways Group’s Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
       
 
  32.2    
Certification of US Airways’ Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
     
*  
Portions of this exhibit have been omitted under a request for confidential treatment and filed separately with the United States Securities and Exchange Commission.

 

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Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrants have duly caused this report to be signed on their behalf by the undersigned thereunto duly authorized.
         
  US Airways Group, Inc. (Registrant)
 
 
Date: October 21, 2009  By:   /s/ Derek J. Kerr    
    Derek J. Kerr   
    Executive Vice President and
Chief Financial Officer
(Duly Authorized Officer and Principal Financial Officer) 
 
 
  US Airways, Inc. (Registrant)
 
 
Date: October 21, 2009  By:   /s/ Derek J. Kerr    
    Derek J. Kerr   
    Executive Vice President and
Chief Financial Officer
(Duly Authorized Officer and Principal Financial Officer)
 

 

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Exhibit Index
         
Exhibit No.   Description
       
 
  2.1    
Mutual Asset Purchase and Sale Agreement dated as of August 11, 2009 among Delta Air Lines, Inc., US Airways, Inc. and US Airways Group, Inc.*
       
 
  3.1    
Certificate of Amendment to Amended and Restated Certificate of Incorporation of US Airways Group, Inc., effective as of July 24, 2009.
       
 
  10.1    
Amendment No. 4 to the Amended and Restated Airbus A320 Family Aircraft Purchase Agreement dated as of October 2, 2007 between Airbus S.A.S. and US Airways, Inc.*
       
 
  10.2    
Amendment No. 4 to the A330 Purchase Agreement dated as of October 2, 2007 between Airbus S.A.S. and US Airways, Inc.*
       
 
  10.3    
Amendment No. 3 to the Amended and Restated Airbus A350 XWB Purchase Agreement dated as of October 2, 2007 between Airbus S.A.S. and US Airways, Inc.*
       
 
  10.4    
Amendment No. 8 to America West Co-Branded Card Agreement dated September 17, 2009 by and between US Airways Group, Inc. and Barclays Bank Delaware.*
       
 
  10.5    
Amendment No. 9 to America West Co-Branded Card Agreement dated September 21, 2009 by and between US Airways Group, Inc. and Barclays Bank Delaware.*
       
 
  31.1    
Certification of US Airways Group’s Chief Executive Officer pursuant to Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended.
       
 
  31.2    
Certification of US Airways Group’s Chief Financial Officer pursuant to Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended.
       
 
  31.3    
Certification of US Airways’ Chief Executive Officer pursuant to Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended.
       
 
  31.4    
Certification of US Airways’ Chief Financial Officer pursuant to Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended.
       
 
  32.1    
Certification of US Airways Group’s Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
       
 
  32.2    
Certification of US Airways’ Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
     
*  
Portions of this exhibit have been omitted under a request for confidential treatment and filed separately with the United States Securities and Exchange Commission.

 

73

Exhibit 2.1
Confidential Treatment Requested
EXECUTION VERSION
 
MUTUAL ASSET PURCHASE AND SALE AGREEMENT
Dated as of August 11, 2009
Among
Delta Air Lines, Inc.,
US Airways, Inc.,
and
US Airways Group, Inc.
 

 

 


 

Confidential Treatment Requested
TABLE OF CONTENTS
         
    Page  
 
       
ARTICLE I DEFINITIONS
    1  
 
       
Section 1.01 Certain Defined Terms
    1  
Section 1.02 Interpretation
    21  
 
       
ARTICLE II PURCHASE AND SALE OF THE DELTA TRANSFERRED ASSETS
    22  
 
       
Section 2.01 Purchase and Sale of the Delta Transferred Assets
    22  
Section 2.02 Excluded Delta Assets
    22  
Section 2.03 Assumed Delta Liabilities
    23  
Section 2.04 Excluded Delta Liabilities
    23  
Section 2.05 US Airways Purchase Price
    25  
Section 2.06 Consent of Third Parties
    25  
Section 2.07 Delta Credits and Prorations
    26  
 
       
ARTICLE III PURCHASE AND SALE OF THE US AIRWAYS TRANSFERRED ASSETS
    30  
 
       
Section 3.01 Purchase and Sale of the US Airways Transferred Assets
    30  
Section 3.02 Excluded US Airways Assets
    31  
Section 3.03 Assumed US Airways Liabilities
    32  
Section 3.04 Excluded US Airways Liabilities
    32  
Section 3.05 Delta Purchase Price
    34  
Section 3.06 Consent of Third Parties
    34  
Section 3.07 US Airways Credits and Prorations
    35  
 
       
ARTICLE IV CLOSING
    40  
 
       
Section 4.01 Closing
    40  
Section 4.02 Deliveries by Delta
    40  
Section 4.03 Deliveries by US Airways
    42  
Section 4.04 Contemporaneous Effectiveness
    44  
 
       
ARTICLE V REPRESENTATIONS AND WARRANTIES OF US AIRWAYS
    44  
 
       
Section 5.01 Organization, Standing and Power
    44  
Section 5.02 Authority; Execution and Delivery; Enforceability
    45  
Section 5.03 No Conflicts
    45  
Section 5.04 Consents
    46  
Section 5.05 Litigation
    46  
Section 5.06 Compliance with Applicable Laws
    46  
Section 5.07 Undisclosed Liabilities
    46  
Section 5.08 Title to Assets
    47  

 

i


 

Confidential Treatment Requested
         
    Page  
 
Section 5.09 Condition of Assets
    47  
Section 5.10 Assumed US Airways Contracts
    47  
Section 5.11 Slots
    48  
Section 5.12 Insurance
    48  
Section 5.13 Real Property
    48  
Section 5.14 Bonds
    49  
Section 5.15 Environmental Matters
    49  
Section 5.16 Taxes
    51  
Section 5.17 Brazilian Route Authorities
    52  
Section 5.18 Brokers or Finders
    52  
 
       
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF DELTA
    52  
 
       
Section 6.01 Organization, Standing and Power
    52  
Section 6.02 Authority; Execution and Delivery; Enforceability
    52  
Section 6.03 No Conflicts
    53  
Section 6.04 Consents
    53  
Section 6.05 Litigation
    53  
Section 6.06 Compliance with Applicable Laws
    54  
Section 6.07 Undisclosed Liabilities
    54  
Section 6.08 Title to Assets
    54  
Section 6.09 Condition of Assets
    55  
Section 6.10 Assumed Delta Contracts
    55  
Section 6.11 DCA Slots
    55  
Section 6.12 ***** Slots/Frequencies
    56  
Section 6.13 Insurance
    56  
Section 6.14 Real Property
    56  
Section 6.15 Environmental Matters
    57  
Section 6.16 Taxes
    59  
Section 6.17 Delta Brazilian Route Authorities
    59  
Section 6.18 Brokers or Finders
    59  
 
       
ARTICLE VII OTHER COVENANTS AND AGREEMENTS
    59  
 
       
Section 7.01 Operation of the US Airways Transferred Assets Prior to Closing
    59  
Section 7.02 Operation of the Delta Transferred Assets Prior to Closing
    61  
Section 7.03 Slot Trades
    63  
Section 7.04 Delta Investigations
    64  
Section 7.05 US Airways Investigations
    65  
Section 7.06 Delta Trade Right
    65  
Section 7.07 Notification
    66  
Section 7.08 Required Actions
    67  
Section 7.09 Cooperation on DCA Gate Reallocation
    70  
Section 7.10 Fees and Expenses
    70  
Section 7.11 Publicity
    71  
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

ii


 

Confidential Treatment Requested
         
    Page  
 
Section 7.12 Further Assurances
    72  
Section 7.13 Tax Cooperation
    72  
Section 7.14 Delta Purchase Right
    72  
Section 7.15 DCA Call Right
    73  
Section 7.16 Preservation of Books and Records
    75  
Section 7.17 Northwest DCA Slot Leases
    75  
Section 7.18 Bond Accounts
    75  
Section 7.19 Underground Storage Tanks
    77  
Section 7.20 US Airways Maintenance Obligations
    77  
Section 7.21 Delta Maintenance Obligations
    77  
Section 7.22 In-Line Screening System
    78  
Section 7.23 DISCLAIMER OF WARRANTY
    78  
 
       
ARTICLE VIII CONDITIONS PRECEDENT TO THE CLOSING
    79  
 
       
Section 8.01 Conditions to Each Party’s Obligation to Effect the Transaction
    79  
Section 8.02 Conditions to Obligations of Delta
    80  
Section 8.03 Conditions to Obligation of US Airways
    82  
 
       
ARTICLE IX SURVIVAL; INDEMNIFICATION
    84  
 
       
Section 9.01 Survival
    84  
Section 9.02 Indemnification by Delta
    85  
Section 9.03 Indemnification by US Airways
    86  
Section 9.04 Indemnification Procedures
    87  
Section 9.05 Set Off; Etc.
    91  
Section 9.06 Reserved
    91  
Section 9.07 Tax Effect
    91  
Section 9.08 Sole and Exclusive Remedy
    92  
 
       
ARTICLE X TERMINATION
    92  
 
       
Section 10.01 Prior to Closing Termination
    92  
Section 10.02 Effect of Termination
    93  
 
       
ARTICLE XI GENERAL PROVISIONS
    95  
 
       
Section 11.01 Amendment
    95  
Section 11.02 Extension; Waiver
    95  
Section 11.03 Notices
    95  
Section 11.04 Severability
    97  
Section 11.05 Counterparts
    97  
Section 11.06 Entire Agreement
    97  
Section 11.07 Governing Law; Jurisdiction
    98  
Section 11.08 Assignment
    98  
Section 11.09 Specific Enforcement
    98  
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

iii


 

Confidential Treatment Requested
         
    Page  
 
Section 11.10 Waiver of Jury Trial
    98  
Section 11.11 Bulk Transfer
    99  
 
       
ARTICLE XII GUARANTY
    99  
 
       
Section 12.01 US Airways Parent Guaranty
    99  
     
Exhibits    
Exhibit A
  Reserved
Exhibit B
  Reserved
Exhibit C
  Form of Assignment and Assumption Agreement — Contract/Permit or Otherwise
Exhibit D
  Form of Bill of Sale
Exhibit E
  DCA Slot Lease
Exhibit F
  Reserved
Exhibit G
  Delta DCA Slots
Exhibit H
  Reserved
Exhibit I
  Form of Delta Marine Air Terminal License
Exhibit J
  LaGuardia Slot Lease
Exhibit K
  LaGuardia Slots
Exhibit L
  Reserved
Exhibit M
  Northwest DCA Slots
Exhibit N
  ***** Slot Lease
Exhibit O
  ***** Slots/Frequencies
Exhibit P
  Reserved
Exhibit Q
  Reserved
Exhibit R
  Jet Bridge Maintenance and Operability Testing Requirements
Exhibit S
  Reserved
Exhibit T
  US Airways Brazilian Route Authorities
Exhibit U
  Form of US Airways LaGuardia Facilities License
Exhibit V
  Form of US Airways LaGuardia Facilities Sublease
     
  Issuer hereby undertakes to furnish supplementally a copy of any omitted schedule or exhibit to the Commission upon request.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

iv


 

Confidential Treatment Requested
     
Schedules    
Schedule 1.01-A
  Assumed Bond Documents
Schedule 1.01-B
  Bond Accounts
Schedule 1.01-C
  Bond Documents
Schedule 1.01-D
  Delta Tangible Personal Property
Schedule 1.01-E
  East End Terminal Lease
Schedule 1.01-F
  Existing GSE Facilities Permit
Schedule 1.01-G
  Delta LaGuardia Contracts
Schedule 1.01-H
  Marine Air Terminal Lease
Schedule 1.01-I
  Delta LaGuardia Permits
Schedule 1.01-J
  Parking Permit #1
Schedule 1.01-K
  Parking Permit #2
Schedule 1.01-L
  LGA Purchase Option Slots
Schedule 1.01-M
  US Airways Perimeter Slots
Schedule 1.01-N
  Northwest GSE Facilities Lease
Schedule 1.01-O
  Eastern Shuttle Documents
Schedule 1.01-P
  Underground Storage Tanks
Schedule 1.01-Q
  Shuttle Terminal Lease
Schedule 1.01-R
  US Airways LaGuardia Contracts
Schedule 1.01-S
  US Airways LaGuardia Permits
Schedule 1.01-T
  US Airways LaGuardia Tangible Personal Property
Schedule 1.01-U
  Requested Slot Times
Schedule 1.01-V
  Additional ***** Slots
Schedule 2.06
  Third Party Consents
Schedule 3.06
  Third Party Consents
Schedule 7.01
  Operation of the US Airways Transferred Assets
Schedule 7.02
  Operation of the Delta Transferred Assets
Schedule 7.08(a)(iv)
  Port Authority Items
US Airways Disclosure Schedules
Delta Disclosure Schedules
     
  Issuer hereby undertakes to furnish supplementally a copy of any omitted schedule or exhibit to the Commission upon request.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

v


 

Confidential Treatment Requested
This MUTUAL ASSET PURCHASE AND SALE AGREEMENT (this “ Agreement ”) dated as of August 11, 2009 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 Article XII) (each a “ Party ” and collectively “ Parties ”).
RECITALS
WHEREAS Delta and US Airways are each engaged in the operation of commercial passenger air transport businesses.
WHEREAS US Airways desires to purchase from Delta, and Delta desires to sell, assign, convey and deliver to US Airways, certain assets of Delta and Delta desires to assign and transfer certain liabilities of Delta and US Airways desires to assume such liabilities, in each case, as more particularly set forth herein, upon the terms and subject to the conditions set forth herein.
WHEREAS Delta desires to purchase from US Airways, and US Airways desires to sell, assign, convey and deliver to Delta, certain assets of US Airways and US Airways desires to assign and transfer certain liabilities of US Airways and Delta desires to assume such liabilities, in each case, as more particularly set forth herein, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and undertakings contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
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 ***** Slots ” means the 30 Slots at ***** more fully described on Schedule 1.01-V attached hereto.
Additional ***** Slot Lease Term ” means the period commencing on ***** of the premises designated as “Area B” in Exhibit A-2 to the US Airways ***** Facilities License and continuing until the end of the *****.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

 


 

Confidential Treatment Requested
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.
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.
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 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 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 Delta Contracts ” means the Delta LaGuardia Leases, the Delta LaGuardia Contracts and the Delta LaGuardia Permits.
Assumed Delta Liabilities ” has the meaning set forth in Section 2.03.
Assumed Liabilities ” means the Assumed Delta Liabilities and 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.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

2


 

Confidential Treatment Requested
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.
Bill of Sale ” means the bill 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 (a 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.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

3


 

Confidential Treatment Requested
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.
Brazilian Route Authorities ” means the Delta Brazilian Route Authorities and the US Airways Brazilian Route Authorities.
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.
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, as amended through the date hereof.
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.
Construction Fund ” has the meaning set forth in the East End Terminal Lease (as in effect on the date hereof).
*****” has the meaning set forth in Section 7.19.
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 Ronald Reagan Washington National Airport located in Arlington, Virginia.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

4


 

Confidential Treatment Requested
DCA Gate Reallocation ” means the process being conducted by MWAA on the date hereof for the reallocation of passenger gates located at DCA.
DCA Slot Lease ” means that certain slot lease dated as of the Closing Date, by and between US Airways and Delta substantially in the form attached hereto as Exhibit E .
DCA Slots ” means Delta DCA Slots and the Northwest DCA Slots.
Debt Service Fund ” has the meaning set forth in the East End Terminal Lease (as in effect on the date hereof).
***** ” has the meaning set forth in Section 7.19.
***** ” has the meaning set forth in Section 7.19.
Delta ” has the meaning set forth in the Recitals.
Delta Bond Escrow Funds ” has the meaning set forth in Section 7.18.
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 Event ” has the meaning set forth in Section 7.15.
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.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

5


 

Confidential Treatment Requested
Delta DCA Slots ” means the seventy-one (71) Slots at DCA to be transferred from Delta to US Airways pursuant to the terms and conditions of this Agreement, as more fully described on Exhibit G attached hereto.
***** ” 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 Environmental Claim ” has the meaning set forth in Section 6.15.
Delta Environmental Laws ” has the meaning set forth in Section 6.15.
Delta Indemnified Persons ” has the meaning set forth in Section 9.03.
Delta Investigation ” has the meaning set forth in Section 7.04.
Delta LaGuardia Contracts ” means, collectively, the Contracts set forth on Schedule 1.01-G attached hereto and related to the Delta LaGuardia Properties, including contracts entered into after the date hereof in accordance with Section 7.02 and excluding contracts terminated after the date hereof in accordance with Section 7.02.
Delta LaGuardia Leased Real Property ” means, collectively, the Marine Air Terminal Leased Real Property and the Northwest GSE Facilities Leased Real Property.
Delta LaGuardia Leases ” shall mean, collectively, the Marine Air Terminal Lease and the Northwest GSE Facilities Lease.
Delta LaGuardia Permits ” means, collectively, the Permits related to the operations of Delta at the Delta Properties, as set forth on Schedule 1.01-I attached hereto.
Delta Marine Air Terminal License ” means that certain License Agreement, dated as of the Closing Date, by and between US Airways and Delta, to Delta, substantially in the form attached hereto as Exhibit I .
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 (i) the condition or the ability to operate or use the Delta Transferred Assets, in the aggregate or (ii) the amount of Liability associated with the Assumed Delta 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
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

6


 

Confidential Treatment Requested
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 Port Authority Documents ” means, collectively, the US Airways LaGuardia Leases, the Existing GSE Facilities Permit, the US Airways LaGuardia Parking Permits, the Delta Marine Air Terminal License and the Port Approval Bond Documents.
Delta Properties ” means the Marine Air Terminal, the Northwest GSE Facilities, the Delta Tangible Personal Property and any other property of Delta related to any of the foregoing that is a Delta Transferred Asset.
Delta Properties Taxes and Assessments ” has the meaning set forth in Section 2.07.
Delta Prorations ” has the meaning set forth in Section 2.07.
Delta Proration Payment ” has the meaning set forth in Section 2.07.
Delta Purchase Price ” has the meaning set forth in Section 3.05.
Delta Purchase Right ” has the meaning set forth in Section 7.14.
Delta Recall Slots ” has the meaning set forth in Section 7.15.
Delta Receivables ” has the meaning set forth in Section 2.07.
Delta Reconciliation Notice ” has the meaning set forth in Section 2.07.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

7


 

Confidential Treatment Requested
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 Tangible Personal Property ” means the items set forth on Schedule 1.01-D attached hereto.
Delta Transferred Assets ” has the meaning set forth in Section 2.01.
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 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.
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
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

8


 

Confidential Treatment Requested
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 Delta Documents ” means the Delta LaGuardia Leases.
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.
Extension Date ” has the meaning set forth in Section 10.01.
FAA ” means the Federal Aviation Administration.
Fair Market Value ” means, with respect to the Delta Recall 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.
Goldman Sachs Second Lien Loan Agreement ” means the Second Lien Term Loan and Guaranty Agreement among Delta Air Lines, Inc., as borrower, the direct and indirect domestic subsidiaries of Delta party thereto, Goldman Sachs Credit Partners L.P., as administrative agent and collateral agent, the financial institutions party thereto, Barclays Capital, as syndication agent, Goldman Sachs Credit Partners L.P. and Merrill Lynch Commercial Finance Corp., as co-lead arrangers, Goldman Sachs Credit Partners L.P., Merrill Lynch Commercial Finance Corp. and Barclays Capital, as joint bookrunners, and Credit Suisse Securities (USA) LLC and C.I.T. Leasing Corporation, as co-documentation agents, together with the applicable Collateral Documents (as defined therein), each dated as of April 30, 2007.
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.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

9


 

Confidential Treatment Requested
HSR Act ” means the Hart-Scott-Rodino 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 End Date ” has the meaning set forth in Section 10.01.
JP Morgan Credit Agreement ” means the First Lien Revolving 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 and collateral agent, the financial institutions party thereto, UBS Securities LLC, as syndication agent, J.P. Morgan Securities Inc. and Lehman Brothers Inc., as co-lead arrangers, J.P. Morgan Securities Inc., Lehman Brothers Inc. and UBS Securities LLC, as joint bookrunners, and CALYON New York Branch and RBS Securities Corporation, as co-documentation agents, together with the applicable Collateral Documents (as defined therein), each dated as of April 30, 2007.
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 Slot Lease ” means that certain Slot Lease, dated as of the Closing Date, by and between US Airways and Delta substantially in the form attached hereto as Exhibit J .
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

10


 

Confidential Treatment Requested
LaGuardia Slots ” means the two hundred fifty (250) Slots at LaGuardia to be transferred from US Airways to Delta 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.
Lease ” means each of the US Airways LaGuardia Leases and the Delta LaGuardia Leases.
Leased Real Property ” means the real property that is the subject of a Lease, including any leasehold improvements, structures, buildings, fixtures, and mechanical and utility systems related to such Lease.
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 9.02 or 9.03 of this Agreement, as applicable.
Legal Restraints ” has the meaning set forth in Section 8.01.
***** ” has the meaning set forth in Section 10.02.
LGA Purchase Option Slots ” means 30 total Slots at LaGuardia with departure or arrival times within the one-half hour periods set forth on Schedule 1.01-L attached hereto.
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).
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
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).
Marine Air Terminal ” means the premises, facilities and fixtures, including the Marine Air Terminal Leased Real Property, which are the subject of the Marine Air Terminal Lease.
Marine Air Terminal Lease ” means that certain Agreement of Lease, by and between, Delta and the Port Authority, and identified as AGA-253, whereby the Port Authority leases the Marine Air Terminal to Delta, together with all amendments, modifications, and supplements thereto, as more fully described on Schedule 1.01-H attached hereto.
Marine Air Terminal Leased Real Property ” means the Leased Real Property that is the subject of the Marine Air Terminal Lease.
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.
Northwest ” means Northwest Airlines, Inc.
Northwest Bylaws ” means the Amended and Restated Bylaws of Northwest Airlines, Inc., as amended.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
Northwest Charter ” means the Amended and Restated Certificate of Incorporation of Northwest Airlines, Inc., as amended.
Northwest DCA Slot Lease ” means that certain DCA Slot Lease Agreement, dated as of June 11, 2004, as amended, by and between Northwest and US Airways.
Northwest DCA Slots ” means the thirteen (13) Slots at DCA to be transferred from Northwest to US Airways pursuant to the terms and conditions of this Agreement, as more fully described on Exhibit M attached hereto.
Northwest GSE Facilities ” means the premises, facilities, improvements and fixtures, including the Northwest GSE Facilities Leased Real Property, which are the subject of the Northwest GSE Facilities Lease.
Northwest GSE Facilities Lease ” means that certain Agreement of Lease, by and between Northwest and the Port Authority, identified as AGA-171, whereby the Port Authority leases the Northwest GSE Facilities to US Airways, together with all amendments, modifications, and supplements thereto, as more fully described on Schedule 1.01-N attached hereto.
Northwest GSE Facilities Leased Real Property ” means the Leased Real Property that is the subject of the Northwest GSE Facilities Lease.
***** ” means ***** International Airport.
***** Slot Lease ” means that certain lease agreement dated as of the Closing Date, by and between US Airways and Delta substantially in the form attached hereto as Exhibit N .
***** Slots/Frequencies ” means fourteen (14) Slots at the ***** International Airport, as more fully described on Exhibit O attached hereto.
Parking Permit #267 ” means that certain LaGuardia Airport Privilege Permit, dated as of February 1, 1992 and identified as Permit AGA-267, 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 permitor, together with all amendments, modifications, and supplements thereto, as more fully described on Schedule 1.01-K attached hereto.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
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 each 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 affecting any Leased Real Property that have been disclosed on Schedules 1.01-G and Schedule 1.01-P ; 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 Closing, “Permitted Liens” shall be defined to exclude clause (a) and (b) for purposes of Sections 2.01 and 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.
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.
Port Approval Bond Documents ” means, collectively, (a) that certain Leasehold Mortgage, dated as of June 1, 1990, by and between Continental Airlines, Inc.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
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
Ramp ” means the ramp pavement surfaces and subsurfaces of a Leased Property.
Reconciliation Date ” has the meaning set forth in Section 2.07.
Reconciliation Period ” has the meaning set forth in Section 2.07.
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 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 any 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 any 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.
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 a specified Lease, 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.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
Right of First Refusal ” has the meaning set forth in Section 10.02.
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.
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 Trump 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.
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, DCA or *****, 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.
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.
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
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
and Delivery; Enforceability), 5.08 and 6.08 (in each case, last sentence only) (Title to Assets) and 5.16 and 6.16 (Taxes).
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.
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.
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 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.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
Transferred Assets ” means the assets of either Party to be transferred pursuant to the terms hereof.
Transfer Tax Amount A ” has the meaning set forth in Section 7.10.
Transfer Tax Amount B ” has the meaning set forth in Section 7.10.
Underground Storage Tanks ” shall meaning those underground storage tanks more fully described on Schedule 1.01-P attached hereto.
U.S. Bank Credit Agreement ” means the Credit Agreement by and among Northwest Airlines, Inc., as borrower, Northwest Airlines Corporation, MCH, Inc., Compass Airlines, Inc., Mesaba Aviation, Inc., NWA Fuel Services Corporation, Northwest Aerospace Training Corporation, NWA Retail Sales Inc. and MLT Inc., as guarantors, the lenders from time to time parties thereto, U.S. Bank National Association, as Lead Arranger, Joint Book Runner and Administrative Agent, and Citigroup Global Markets Inc. and Morgan Stanley Bank, N.A., as Co-Lead Arrangers and Joint Book Runners, together with the applicable Security Documents (as defined therein), each dated as of October 29, 2008.
US Airways ” has the meaning set forth in the Recitals.
US Airways Bond Escrow Funds ” has the meaning set forth in Section 7.18.
US Airways Brazilian Route Authorities ” means the right, license, permit, certificate, frequencies, exemptions or other authorizations issued to US Airways by the DOT pursuant to the Air Services Agreement, whereby US Airways is entitled or permitted to fly seven (7) weekly unrestricted frequencies between the United States of America and Rio de Janeiro, Brazil, as more fully described on Exhibit T attached hereto.
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 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.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
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 Investigation ” has the meaning set forth in Section 7.05.
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, dated as of the Closing Date, by and between US Airways and Delta, substantially in the form attached hereto as Exhibit U .
US Airways LaGuardia Facilities Sublease ” means that certain Sublease Agreement, dated as of the Closing Date, by and between US Airways and Delta, substantially in the form attached hereto as Exhibit V .
US Airways LaGuardia Leases ” means the East End Terminal Lease and the Shuttle Terminal Lease.
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 Parking Permits ” means Parking Permit #267 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.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
US Airways LaGuardia Receivables ” shall have meaning set forth in Section 3.07.
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 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 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.
US Airways Perimeter Event ” has the meaning set forth in Section 7.14.
US Airways Perimeter Event Notice ” has the meaning set forth in Section 7.14.
US Airways Perimeter Slots ” means 10 total Slots at LaGuardia with arrival or departure times within the one-half hour periods set forth on Schedule 1.01-M .
US Airways Port Authority Documents ” means, collectively, the Delta LaGuardia Leases, the US Airways LaGuardia Facilities License, and the US Airways LaGuardia Facilities Sublease.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
US Airways Proportionate Share ” has the meaning set forth in Section 7.18.
US Airways Prorations ” has the meaning set forth in Section 3.07.
US Airways Proration Payment ” has the meaning set forth in Section 3.07.
US Airways Purchase Price ” has the meaning set forth in Section 2.05.
US Airways Reconciliation Notice ” has the meaning set forth in Section 3.07.
US Airways Retained Bond Obligations ” shall have the meaning set forth in Section 3.04(d).
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.
***** ” has the meaning set forth in Section 10.01.
US Airways Transferred Assets ” has the meaning set forth in Section 3.01.
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.
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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ARTICLE II
Purchase and Sale of the Delta Transferred Assets
Section 2.01 Purchase and Sale of the Delta Transferred Assets . On the terms and subject to the conditions set forth in this Agreement, at the Closing, Delta shall:
(a) 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 following rights, interests, assets and property, real and personal, tangible and intangible, free and clear of all Liens, other than Permitted Liens (together with the Northwest DCA Slots and the Northwest GSE Facilities Lease, the “ Delta Transferred Assets ”):
(i) the DCA Slots;
(ii) the Delta Brazilian Route Authorities;
(iii) the Delta Tangible Personal Property;
(iv) the Delta LaGuardia Contracts;
(v) the Delta LaGuardia Permits;
(vi) the Marine Air Terminal Lease;
(vii) the ***** Slots/Frequencies; and
(viii) security deposits referenced in Section 2.07(b)(ii)(A);
(b) cause Northwest to sell, convey, assign, transfer and deliver to US Airways, and US Airways shall purchase, assume, acquire and accept transfer and assignment of, the (i) Northwest DCA Slots and (ii) the Northwest GSE Facilities Lease, in each case free and clear of all Liens other than Permitted Liens.
Section 2.02 Excluded Delta Assets . Notwithstanding anything herein to the contrary, from and after the 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 shall not include, Delta’s right, title, interest to, the following assets (collectively, the “ Excluded Delta Assets ”):
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
(a) all rights of Delta under this Agreement, any Ancillary Documents to which Delta 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 Delta LaGuardia Leases, the Delta LaGuardia Contracts and the Delta LaGuardia Permits prior to the consummation of the Closing;
(c) Tax refunds for any period prior to the Closing Date with respect to any Delta Transferred Asset and related rights and claims;
(d) any insurance claims with respect to any event, claim or loss with respect to any Delta Transferred Assets occurring prior to consummation of the Closing, subject to any obligations of Delta to replace or restore damage or destruction to the Delta Properties pursuant to Section 7.02(c); and
(e) security deposits referenced in Section 2.07(b)(ii)(B).
Section 2.03 Assumed Delta Liabilities . On the terms and subject to the conditions set forth in this Agreement, at the Closing, US Airways shall assume only the following liabilities and obligations of Delta (collectively the “ Assumed Delta Liabilities ”) and no other liabilities or obligations:
(a) the obligations and liabilities of Delta under the Delta LaGuardia Leases, the Delta LaGuardia Contracts and the Delta LaGuardia Permits arising exclusively from, and accruing exclusively with respect to, the period after the consummation of the Closing.
Section 2.04 Excluded Delta Liabilities . Except as expressly provided in Section 2.03, the Assumed Delta Liabilities will not include, US Airways shall not assume or be liable for, and Delta or Northwest, as applicable, shall retain any other liability, obligation or commitment of Delta or Northwest, as applicable (or which may be asserted against or imposed upon US Airways as a successor or transferee of Delta or Northwest, as applicable, 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 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
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
facts existing on or prior to the Closing Date, whether or not such Liabilities were known as of the date hereof or at the 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 Closing;
(c) any Liability based upon, arising under or with respect to the Delta LaGuardia Leases, any Delta LaGuardia Contracts or any Delta LaGuardia Permits that (x) subject to Section 2.06, was not capable of being assigned to US Airways as of the Closing until such time as any such Delta LaGuardia Contract or Delta LaGuardia Permit has effectively been assigned, or the benefits thereof made available, to US Airways, (y) is required by the terms thereof to be discharged on or prior to the consummation of the Closing, or (z) relates to or arises out of a breach or default by Delta prior to the consummation of the Closing (including any event occurring at or prior to the consummation of the Closing that with the lapse of time or the giving of notice, or both, would become a breach or default) under the Delta LaGuardia Leases, any Delta LaGuardia Contract or any Delta LaGuardia Permits;
(d) all indebtedness and other similar obligations of Delta or Northwest, 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;
(e) all Liabilities arising under Environmental Laws and relating to the Delta Transferred Assets prior to the Closing Date or after the Closing Date during the term of the Delta Marine Air Terminal License, including without limitation, any fines, penalties, required capital expenditures or other costs incurred after the Closing 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 Closing Date or after the Closing Date during the term of the Delta Marine Air Terminal License, whether or not such Liabilities were known on the date hereof or at Closing;
(f) all Liabilities arising out of or relating to any employees or former employees of Delta or any of its Affiliates;
(g) 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;
(h) 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;
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Confidential Treatment Requested
(i) 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 Closing Date; and
(j) 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 Closing.
Section 2.05 US Airways Purchase Price . 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 Delta Transferred Assets and Delta’s other obligations set forth herein, at the Closing, in addition to the assumption of the Assumed Delta Liabilities, US Airways shall pay to Delta an amount in cash equal to $***** (the “ US Airways Purchase Price ”). The cash portion of the US Airways 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 Closing.
Section 2.06 Consent of Third Parties . Notwithstanding anything in this Agreement to the contrary, this Agreement will not constitute an agreement to assign any Delta LaGuardia Contract or Delta LaGuardia Permit set forth on Schedule 2.06 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 US Airways thereunder after the Closing. Delta will use its reasonable best efforts to obtain the consent of any such Third Party for the assignment to US Airways of any such Delta LaGuardia Contract or Delta LaGuardia Permit. If such consent is not obtained prior to the consummation of the Closing, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of Delta thereunder so that US Airways would not in fact receive all such rights, Delta shall use its reasonable best efforts to provide US Airways the benefits thereunder from and after the Closing Date and US Airways shall pay and perform the corresponding Assumed Delta Liabilities thereunder to the extent US Airways shall have received the benefits thereof. Delta shall pay promptly to US Airways when received all monies received by Delta after the Closing Date under any such Delta LaGuardia Contracts or Delta LaGuardia Permits or any claim or right or any benefit arising thereunder to the extent that US Airways would be entitled thereto pursuant hereto. The provisions of this Section 2.06 shall in no way limit the conditions precedent set forth in Article VIII or the obligation of Delta to seek consents prior to the Closing, and the waiver by US Airways of any such conditions precedent at the Closing shall in no way limit the obligations of Delta contained in this Section 2.06. If and when any such consents shall be obtained, Delta shall promptly assign its rights under the applicable Delta LaGuardia Contract or Delta LaGuardia Permit to US Airways
 
     
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without payment of consideration and US Airways 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 Delta Liabilities if such assignment had occurred on the Closing Date).
Section 2.07 Delta Credits and Prorations .
(a) Prorations shall be made with respect to the Delta Transferred Assets pursuant to this Section 2.07, with Delta to bear that portion of such charges and expenses to the extent attributable to the Delta Transferred Assets accruing prior to the Closing Date and to the extent the same are Excluded Delta Liabilities, and US Airways to bear that portion of such charges and expenses to the extent attributable to the Delta Transferred Assets accruing on and after the Closing Date and to the extent the same are Assumed Delta Liabilities. The following shall be apportioned with respect to the Delta Transferred Assets as of 12:01 a.m. on the Closing Date as if US Airways was vested with title to such Delta Transferred Assets during the entire Closing Date (collectively, the “ Delta Prorations ”):
(i) Rents, fees, charges, and other amounts payable under the Delta LaGuardia Leases, the Delta LaGuardia Contracts and the Delta LaGuardia Permits;
(ii) taxes and assessments (including, without limitation, personal property taxes on the Delta Tangible Personal Property) levied against the Delta Transferred Assets (the “ Delta Properties Taxes and Assessments ”);
(iii) gas, electricity and other utility charges to be apportioned at Closing on the basis of the most recent meter reading occurring prior to Closing (dated not more than fifteen (15) days prior to the Closing Date) or, if unmetered, on the basis of a current bill for each such utility;
(iv) all Rents, fees, charges, and other amounts payable to Delta, if any, pursuant to each of the Delta LaGuardia Contracts (the “ Delta Receivables ”); and
(v) any maintenance and operating expenses pertaining to the Delta Transferred Assets, or any other items pertaining to the Delta 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 Closing:
 
     
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(i) Delta shall pay to US Airways (or set off against amounts owed by US Airways to Delta pursuant to Section 3.07(b)) an amount in cash equal to the sum that is owed to US Airways as of the Closing Date pursuant to this Section 2.07 (the “ Delta Proration Payment ”); provided , however , that to the extent the Delta Proration Payment is negative, US Airways shall make such payment to Delta as if it were a US Airways Proration Payment in accordance with Section 3.07(b)(i). To the extent the Delta Proration Payment is not set off against amounts owed by US Airways to Delta pursuant to Section 3.07(b), Delta shall pay the Delta Proration Payment 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 Closing;
(ii) (A) Delta shall deliver to US Airways the amount of any security deposits actually held, or required to be held by, Delta pursuant to any of the Delta LaGuardia Contracts (to the extent such security deposits have not been applied against delinquent rents or otherwise as provided in the applicable Delta LaGuardia Contract) as part of the Delta Proration Payment and (B) subject to the provisions of Section 7.18 below, US Airways shall deliver to Delta the amount of all other security deposits, and shall replace all other deposits, in each case that have been posted by or on behalf of Delta with respect to the Delta Transferred Assets; and
(iii) In the event current bills are not available or amounts subject to proration are not otherwise immediately ascertainable at Closing (including, without limitation, for any Delta Properties Taxes and Assessments), Delta shall (A) estimate such amount based on the most recently ascertainable bill for purposes of calculating the Delta Proration Payment and (B) reconcile such estimate upon receipt of the final and actual bill in accordance with subsection (c) below.
(c) Notwithstanding anything to the contrary in this Section 2.07, 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 days (730) days after the Closing Date (each, a “ Reconciliation Date ”), the Parties shall undertake the following with respect to the period between the 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 Delta Prorations for which current bills were not available or amounts subject to proration were not otherwise immediately ascertainable as of the
 
     
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Closing Date and were therefore estimated for purposes of determining the Delta Proration Payment at Closing, and which amounts have not already been reconciled and finalized on a prior Reconciliation Date, US Airways shall provide a copy of the final bill or the final determination setting out the actual amounts due and reprorate such actual amounts between the Parties as of the Closing Date;
(ii) With respect to any unpaid and delinquent Delta Receivables collected after the Closing Date and received during an applicable Reconciliation Period, (a) if Delta collects any such unpaid or delinquent Delta Receivables which US Airways is entitled to hereunder, Delta shall, within fifteen (15) days after the receipt thereof, deliver to US Airways any such Delta Receivables and include such amounts in the reconciliation calculations for the applicable Reconciliation Period as an amount paid to US Airways, and (b) if US Airways collects any unpaid or delinquent Delta Receivables which Delta is entitled to hereunder, US Airways shall, within fifteen (15) days after the receipt thereof, deliver to Delta any such Delta Receivables and include such amounts in the reconciliation calculations for the applicable Reconciliation Period as an amount paid to Delta. Delta and US Airways agree that all Delta Receivables received by Delta or US Airways after the Closing Date shall be applied first to current Delta Receivables and then to delinquent Delta Receivables, if any, in inverse order of maturity. In the event that there shall be any Delta Receivables which, although relating to a period prior to Closing, do not become due and payable until after Closing (such as year-end common area expense reimbursements, insurance, operating expenses, taxes, and the like), then any such Delta Receivables received by US Airways subsequent to Closing shall, to the extent applicable to a period extending through the Closing Date, be prorated between the Parties as of the Closing Date and US Airways shall include such amounts in the reconciliation calculation as an amount payable to Delta;
(iii) With respect to each Reconciliation Period, US Airways shall promptly remit to Delta any amount that is owed to Delta pursuant to the reconciliations for such Reconciliation Period; provided , however , that if it is determined that Delta owes any amount to US Airways pursuant to such reconciliation, US Airways shall provide notice of such amount to Delta, together with reasonable back-up information and calculations evidencing such amounts, and Delta shall, upon receipt of such notice, promptly remit such amount to US Airways; and
(iv) Notwithstanding anything to the contrary contained herein, with respect to any amounts to be prorated hereunder
 
     
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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 of the Parties 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 Delta Receivables collected after the final Reconciliation Date, (a) if Delta collects any unpaid or delinquent Delta Receivables which US Airways is entitled to hereunder relating to the Closing Date and any period thereafter, Delta shall promptly pay such amounts to US Airways after receipt, and (b) if US Airways collects any unpaid or delinquent Delta Receivables which Delta is entitled to hereunder relating to the period prior to the Closing Date, US Airways shall promptly pay such amounts to Delta after receipt.
(e) To the extent Delta in good faith disagrees with the amount of any demand for, or notice of, proration payments described in Section 2.07 or 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 Section 2.07 or 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 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 to the extent such Liability is not an Assumed Delta 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,
 
     
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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 2.07, 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) All prorations made under this Section 2.07 shall be based on the number of days Delta owns or leases the applicable Delta Properties in the month or year, as applicable, in which the Closing occurs.
(g) The provisions of this Section 2.07 shall survive Closing until the final Reconciliation Date (except with respect to Section 2.07(d), which shall survive indefinitely and Section 2.07(e) 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 object or dispute with respect to any reconciliations in accordance with the terms of subsection (e) of Section 2.07 and Section 3.07.
ARTICLE III
Purchase and Sale of the US Airways Transferred Assets
Section 3.01 Purchase and Sale of the US Airways Transferred Assets . On the terms and subject to the conditions set forth in this Agreement, at the Closing, US Airways shall:
(a) 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 Transferred Assets ”):
(i) the LaGuardia Slots;
(ii) the US Airways Brazilian Route Authorities;
(iii) the US Airways LaGuardia Tangible Personal Property;
 
     
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(iv) the US Airways LaGuardia Contracts;
(v) the US Airways LaGuardia Parking Permits;
(vi) the US Airways LaGuardia Permits;
(vii) the East End Terminal Lease;
(viii) the Shuttle Terminal Lease;
(ix) the Existing GSE Facilities Permit;
(x) 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
(xi) security deposits referenced in Section 3.07(b)(ii)(A).
Section 3.02 Excluded US Airways Assets . Notwithstanding anything herein to the contrary, from and after the 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 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 Closing;
(c) Tax refunds for any period prior to the Closing Date with respect to any US Airways Transferred Asset 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 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);
(e) security deposits referenced in Section 3.07(b)(ii)(B); and
(f) the *****.
 
     
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Section 3.03 Assumed US Airways Liabilities . On the terms and subject to the conditions set forth in this Agreement, at the 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 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 Closing other than the US Airways Retained Bond Obligations.
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 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 Closing Date, whether or not such Liabilities were known as of the date hereof or at the 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 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 Closing until such time as any such US Airways LaGuardia Contract or US Airways LaGuardia Permit has effectively been
 
     
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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 Closing, or (z) relates to or arises out of a breach or default by US Airways prior to the consummation of the Closing (including any event occurring at or prior to the consummation of the 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 Closing, (x) any Liability with respect to the Bond Obligations arising out of, whether accruing with respect to the period prior to or after 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 ”);
(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 Closing Date or after the 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 the Closing 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 Closing Date or after the 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 Closing, including without limitation any and all Liability related to the *****;
(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;
 
     
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(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 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 Closing.
Section 3.05 Delta Purchase Price . 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 Transferred Assets and US Airways’ other obligations set forth herein, at the 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 Purchase Price ”). The cash portion of the Delta 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 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 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 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 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 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
 
     
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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 Closing, and the waiver by Delta of any such conditions precedent at the 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 Closing Date).
Section 3.07 US Airways Credits and Prorations .
(a) Prorations shall be made with respect to the US Airways 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 Transferred Assets accruing prior to the 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 Transferred Assets accruing on and after the Closing Date and to the extent the same are Assumed US Airways Liabilities. The following shall be apportioned with respect to the US Airways Transferred Assets as of 12:01 a.m. on the Closing Date as if Delta was vested with title to such US Airways Transferred Assets during the entire 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;
(ii) taxes and assessments (including, without limitation, personal property taxes on the US Airways Tangible Personal Property) levied against the US Airways Transferred Assets (the “ US Airways LaGuardia Properties Taxes and Assessments ”);
(iii) gas, electricity and other utility charges to be apportioned at Closing on the basis of the most recent meter reading occurring prior to Closing (dated not more than fifteen (15) days prior to the Closing Date) or, if unmetered, on the basis of a current bill 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 Contracts (the “ US Airways LaGuardia Receivables ”); and
 
     
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(v) any maintenance and operating expenses pertaining to the US Airways Transferred Assets, or any other items pertaining to the US Airways 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 Closing:
(i) US Airways shall pay to Delta (or set off against amounts owed by Delta pursuant to Section 2.07(b)) an amount in cash equal to the sum that is owed to Delta as of the 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, Delta shall make such payment to US Airways as if it were a Delta Proration Payment in accordance with Section 2.07(b)(i). To the extent the US Airways Proration Payment is not set off against amounts owed by Delta to US Airways pursuant to Section 2.07(b), 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 Closing;
(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 Transferred Assets; and
(iii) In the event current bills are not available or amounts subject to proration are not otherwise immediately ascertainable at Closing (including, without limitation, any US Airways Properties Taxes and Assessments), US Airways shall (A) estimate such amount based on the most recently ascertainable bill for purposes of calculating the US Airways Proration Payment and (B) reconcile such estimate upon receipt of the final and actual bill in accordance with subsection (c) below.
 
     
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(c) Notwithstanding anything to the contrary in this Section 3.07, within ten (10) days of each Reconciliation Date, the Parties shall undertake the following with respect to each 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 Closing Date and were therefore estimated for purposes of determining the US Airways Proration Payment at Closing, and which amounts have not already been reconciled and finalized on a prior Reconciliation Date, Delta shall provide a copy of the final bill or the final determination setting out the actual amounts due and reprorate such actual amounts between the Parties as of the Closing Date;
(ii) With respect to any unpaid and delinquent US Airways LaGuardia Receivables collected after the 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 Airways LaGuardia Receivables received by US Airways or Delta after the 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 Closing, do not become due and payable until after 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 Closing shall, to the extent applicable to a period extending through the Closing Date, be prorated between the Parties as of the 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
 
     
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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, (a) if US Airways collects any unpaid or delinquent US Airways Receivables which Delta is entitled to hereunder relating to the Closing Date and any period thereafter, US Airways shall promptly pay such amounts to Delta after receipt, and (b) if Delta collects any unpaid or delinquent US Airways Receivables which US Airways is entitled to hereunder relating to the period prior to the 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 Section 2.07 or 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 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 Section 2.07 or Section
 
     
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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) 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 Closing occurs.
(g) The provisions of this Section 3.07 shall survive Closing until the final Reconciliation Date (except with respect to Section 3.07(d), which shall survive indefinitely and Section 3.07(e) 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 object or dispute with respect to any reconciliations in accordance with the terms of subsection (e) of Section 2.07 and Section 3.07.
 
     
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ARTICLE IV
Closing
Section 4.01 Closing . The consummation of the purchase, assignment and transfer of all right, title and interest in and to the Transferred Assets contemplated hereby (the “ Closing ”), shall take place on the fifth Business Day after all the conditions set forth in Article VIII have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at the Closing), or on such other date as US Airways and Delta may agree in writing. The Closing shall be held no later than 10:00 a.m., Chicago time, at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 155 N. Wacker Drive, Chicago, Illinois, 60606, or such other time or place as US Airways and Delta may agree in writing (the date on which the Closing takes place being the “ 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 Delta Transferred Assets:
(i) a duly executed counterpart of each of the Assignment and Assumption Agreements assigning from Delta to US Airways the Delta LaGuardia Leases;
(ii) a duly executed counterpart of the Assignment and Assumption Agreement assigning from Delta to US Airways each of the Delta LaGuardia Contracts and the Delta LaGuardia Permits,
(iii) a duly executed Bill of Sale by Delta to US Airways with respect to the Delta Tangible Personal Property;
(iv) the Related Real Estate Documents of Delta applicable to the Delta Transferred Assets;
(v) a copy of each of the Delta Required Consents (duly executed by Delta, if applicable);
(vi) instruments of conveyance or consents to assignment for the transfer of the DCA Slots, in form and substance reasonably satisfactory to US Airways, duly executed by Delta;
 
     
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(vii) instruments of conveyance or consents to assignment for the transfer of the ***** Slots/Frequencies, in form and substance reasonably satisfactory to US Airways, duly executed by Delta;
(viii) 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;
(ix) release of security interests in any Delta Transferred Assets by Delta’s or Northwest’s lenders and applicable UCC termination statements, in each case, in form and substance reasonably satisfactory to US Airways;
(x) the certification referred to in Section 6.16(a); and
(xi) all other agreements, documents, certificates, instruments or writings contemplated or described herein or as reasonably requested by US Airways in connection herewith.
(b) Deliveries by Delta with respect to the purchase of the US Airways 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.
 
     
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(c) Deliveries by Delta with respect to post-Closing agreements:
(i) a duly executed counterpart of the Delta Marine Air Terminal License;
(ii) a duly executed counterpart of the US Airways LaGuardia Facilities License;
(iii) a duly executed counterpart of the US Airways LaGuardia Facilities Sublease;
(iv) a duly executed counterpart of the DCA Slot Lease;
(v) a duly executed counterpart of the LaGuardia Slot Lease; and
(vi) a duly executed counterpart of the ***** 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 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 Bill of Sale by US Airways to Delta with respect to the US Airways LaGuardia Tangible Personal Property;
 
     
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(v) the Related Real Estate Documents of US Airways applicable to the US Airways 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 Slots, in form and substance reasonably satisfactory to Delta, duly executed by US Airways;
(viii) 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;
(ix) release of security interest in any 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;
(x) the certification referred to in Section 5.16(a);
(xi) a duly executed notice and acknowledgement to be delivered pursuant to Section 7.18; and
(xii) 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 purchase of the Delta Transferred Assets:
(i) a duly executed counterpart of each of the Assignment and Assumption Agreements assigning from Delta to US Airways the Delta LaGuardia Leases;
(ii) a duly executed counterpart of the Assignment and Assumption Agreements assigning from Delta to US Airways each of the Delta LaGuardia Contracts and the Delta LaGuardia Permits; and
(iii) 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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(c) Deliveries by US Airways with respect to post-Closing agreements:
(i) a duly executed counterpart of the Delta Marine Air Terminal License;
(ii) a duly executed counterpart of the US Airways LaGuardia Facilities License;
(iii) a duly executed counterpart of the US Airways LaGuardia Facilities Sublease;
(iv) a duly executed counterpart of the DCA Slot Lease;
(v) a duly executed counterpart of the LaGuardia Slot Lease; and
(vi) a duly executed counterpart of the ***** Slot Lease.
Section 4.04 Contemporaneous Effectiveness . All acts and deliveries prescribed by this Article IV and the payment of the US Airways Purchase Price and the Delta 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
Representations and Warranties of US Airways
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 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
 
     
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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.
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 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 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
 
     
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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 the 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.
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 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 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,
 
     
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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 Closing. At the 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.
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
 
     
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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. 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 2006-25755-82, 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 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 2006-25755-82 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.
Section 5.12 Insurance . US Airways has in place insurance policies with respect to the US Airways Transferred Assets, in amounts and types that are customary in the industry for similar assets, and all such policies are in full force and effect.
Section 5.13 Real Property .
(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.
 
     
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(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.
Section 5.14 Bonds .
(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 August 4, 2009 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.
(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.
Section 5.15 Environmental Matters .
 
     
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(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 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:
(1) “ 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.
(2) “ 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.
Section 5.16 Taxes .
(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 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
 
     
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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.
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
Representations and Warranties of Delta
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 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’ 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
 
     
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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 or Northwest, as applicable, will, at the 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 Closing, as applicable) the legal, valid and binding obligations of Delta, or Northwest, as applicable, enforceable against it in accordance with their respective terms.
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 or Northwest 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) the Northwest Charter or the Northwest Bylaws, (iii) any Contract or Permit to which Delta or Northwest 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 Northwest or any of the Delta Transferred Assets or by which Delta or Northwest 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 the 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
 
     
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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 (which for the purposes of this Section 6.06 would not include any terms and conditions of any Delta LaGuardia Leases) of the FAA, DOT, the MWAA, the Port 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.
Section 6.07 Undisclosed Liabilities . Except for obligations arising after the consummation of the Closing under Assumed Delta Contracts and 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 constitute an Assumed Delta Liability.
Section 6.08 Title to Assets . Except as set forth on Schedule 6.08 , Delta or Northwest, as applicable, has good and valid title to, or holds by valid and existing leases or licenses for, all of the Delta Transferred Assets (excluding the Delta LaGuardia Leases which are addressed in Section 6.14), free and clear of all Liens other than 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 (excluding the real property assets that are addressed in Section 6.14) except with respect to Liens that will be released at or prior to Closing. At the Closing, Delta, or Northwest, as applicable, will convey to US Airways good and valid title to all of the Delta Transferred Assets (excluding the Delta LaGuardia Leases which are addressed in Section 6.14), free and clear of all Liens other than Permitted Liens.
 
     
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Section 6.09 Condition of Assets . Except as set forth on Schedule 6.09 , all equipment included in the Delta Transferred Assets is in operating condition (taking into account the age of such assets), ordinary wear and tear excepted.
Section 6.10 Assumed Delta Contracts . Schedule 6.10 lists each Assumed Delta Contract in effect on the date hereof. Each Assumed Delta Contract (excluding for purposes of this sentence only the Delta LaGuardia Leases which are addressed in Section 6.14) is a legal, valid and binding obligation of Delta and, to the Knowledge of Delta, each other party to such Assumed Delta Contract. Each Assumed Delta Contract is enforceable against Delta and, to the Knowledge of Delta, each other party to such Assumed Delta 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 6.10, none of Delta or, to the Knowledge of Delta, any other party to an Assumed Delta Contract, is in breach of, or default under, any Assumed Delta Contract, Delta has not waived in writing any right under any Assumed Delta Contract, there are no unresolved material disputes under any of the Assumed Delta Contracts, and, to the Knowledge of Delta, 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 Delta or, to the Knowledge of Delta, any other party under, any Assumed Delta Contract. Delta 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 Delta Contracts. Copies of all written, and a description of all oral, Assumed Delta Contracts, together with all modifications amendments and supplements thereto, have been provided to US Airways prior to the date of this Agreement.
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. Delta and Northwest, as applicable, 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, neither Delta nor Northwest has 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 Closing Date, each of Delta and Northwest, as applicable, has used or caused the use of each DCA Slot in compliance with 14 C.F.R. § 93.227(i), as amended
 
     
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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.
Section 6.12 ***** Slots/Frequencies . Schedule 6.12 sets forth a true, correct and complete list of the ***** Slots/Frequencies, including identification of all such ***** Slots/Frequencies. Delta is in compliance in all material respects with the requirements of the ***** and any other laws with respect to such ***** Slots/Frequencies. 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 the ***** Slots/Frequencies by the DOT or, any other Governmental Authority. During the most recent IATA scheduling season prior to the date hereof and the Closing Date, Delta has used or caused the use of each ***** Slot/Frequency in compliance with applicable IATA guidelines and the rules, regulations, requirements, orders and directives of all Governmental Authorities, including without limitation the ***** and the ***** Slot Coordinator, as amended from time to time, as may have been required to protect such ***** Slots/Frequencies’ authorization from termination or withdrawal under regulations established by any Governmental Authority or airport authority.
Section 6.13 Insurance . Delta has in place insurance policies with respect to the Delta Transferred Assets, in amounts and types that are customary in the industry for similar assets, and all such policies are in full force and effect.
Section 6.14 Real Property .
(a) Except as set forth on Schedule 6.14(a) , Delta and Northwest, as applicable, has a legal, valid, and binding leasehold interest in each of the Delta LaGuardia Leases, free and clear of all Liens, except Permitted Liens.
(b) There are no pending, or to the Knowledge of Delta, threatened, appropriation, condemnation, eminent domain or like proceedings relating to the Delta 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 Delta or Northwest, as applicable, in all or any portion of the Delta LaGuardia Leased Real Property, except as may be set forth in the applicable Delta LaGuardia Lease. The Port Authority has not delivered any written or oral notice to Delta or Northwest pursuant to which it has exercised any option to purchase, terminate, or reduce Delta’s or Northwest’s interest in all or any portion of the Delta LaGuardia Leases and/or any portions of the Delta LaGuardia Leased Real Property.
 
     
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(d) Delta or Northwest 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 Delta 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 6.14(e) and for contracts entered into after the date hereof in accordance with Section 7.02, neither Delta nor Northwest lease, sublease, license or otherwise permit the occupancy of any portion of the Delta LaGuardia Leased Real Property to or by any other Person and there is no Person in possession of the Delta LaGuardia Leased Real Property without any such permission.
Section 6.15 Environmental Matters .
(a) Except as set forth on Schedule 6.15 , the use and operation of the Delta Transferred Assets is and has been during the last four years in full compliance with all applicable Delta Environmental Laws, and consistent with Delta’s ability to own, use or operate the Delta Transferred Assets in substantially the same manner as the Delta Transferred Assets are presently owned, used or operated by Delta. Except as set forth on Schedule 6.15(a)-1 or has been fully resolved in writing, Delta has not received any written communication from any Person that alleges that Delta is not in such full compliance, and, to Delta’s Knowledge, there are no circumstances (other than changes in existing, or future requirements of, Delta Environmental Laws) that could reasonably be expected to prevent or interfere with such full compliance in the future. Schedule 6.15(a)-2 sets forth a true, correct and complete list of all orders, decrees or other agreements relating to the Delta Transferred Assets issued pursuant to or entered into under any Delta Environmental Law.
(b) Except as set forth on Schedule 6.15(b) , there is no Delta Environmental Claim relating to the ownership or use of the Delta Transferred Assets pending or to Delta’s Knowledge, threatened against Delta or against any Person whose liability for such Delta Environmental Claim Delta has retained or assumed either contractually or by operation of law.
(c) Except as set forth on Schedule 6.15(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 Delta Transferred Assets that could be reasonably expected to give rise to a Delta Environmental Claim against or involving the Delta Transferred Assets, Delta or any Person whose liability for such Delta Environmental Claim Delta has retained or assumed either contractually or by operation of law.
 
     
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(d) Without in any way limiting the generality of the foregoing, to Delta’s Knowledge (i) all onsite locations where any Delta or its Affiliates or any other occupant has stored, disposed or arranged for the disposal of Materials of Environmental Concern from 2005 to the Closing Date relating to the Delta Transferred Assets are identified on Schedule 6.15(d) , (ii) all underground storage tanks, and the capacity and contents of such tanks, included in the Delta Transferred Assets (if any) are identified on Schedule 6.15(d) , (iii) except as set forth on Schedule 6.15(d) , there is no damaged and friable asbestos or lead-based paint coatings in poor condition contained in or forming part of the Delta LaGuardia Leased Real Property and (iv) except as set forth on Schedule 6.15(d) , no polychlorinated biphenyls (PCB’s) are used at the Delta LaGuardia Leased Real Property in violation of Delta Environmental Laws.
(e) Delta has delivered or otherwise made available for inspection to US Airways true, complete and correct copies and results of any reports, studies, analyses, tests or monitoring possessed or initiated by Delta or its Affiliates pertaining to Materials of Environmental Concern in, on, beneath or adjacent to the Delta Transferred Assets or any other site where the Materials of Environmental Concern generated at or by the Delta Transferred Assets were released or disposed of, or regarding the Delta Transferred Assets’ compliance with applicable Delta Environmental Laws.
(f) For purposes of this Agreement but only as it relates to the Delta Transferred Assets, the following terms shall have the following meanings:
(1) “ Delta 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 Delta 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 Delta or (y) any violation, or alleged violation, of any Delta Environmental Law.
(2) “ Delta Environmental Laws ” means all Laws applicable to the respective Delta Transferred Assets or the Assumed Delta 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,
 
     
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treatment, storage, disposal, transport or handling of Materials of Environmental Concern.
Section 6.16 Taxes .
(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 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 Delta Transferred Assets.
Section 6.17 Delta Brazilian Route Authorities . Schedule 6.17 sets forth a true, correct and complete list of all Delta Brazilian Route Authorities. Except as set forth on Schedule 6.17 , 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.
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
Other Covenants and Agreements
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 the Closing, 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;
(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
 
     
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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 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 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 Leases 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 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 US Airways Brazilian Route Authorities or 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;
(f) comply in all material respects with all provisions of any Assumed US Airways Contract;
 
     
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(g) continue to use and operate the US Airways Brazilian Route Authorities, 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 US Airways Brazilian Route Authorities, 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, and with the applicable Governmental Authority, with respect to the US Airways Brazilian Route Authorities;
(j) 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 LaGuardia Slots or any US Airways Brazilian Route Authorities, 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 Closing) or otherwise transfer any LaGuardia Slots or any US Airways Brazilian Route Authorities; 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 Delta Transferred Assets 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 the Closing, Delta shall:
(a) except as may be required by Law, operate the Delta Transferred Assets 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 (provided that Delta 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 Closing Date, shall not give rise to any
 
     
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Assumed US Airways Liability and shall be subject to the indemnity obligations of Delta pursuant to Section 9.02(a)(iv));
(c) maintain all of the Delta 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 Delta Properties prior to the Closing, whether insured or not, Delta will promptly commence and diligently pursue the restoration or replacement of such Delta Properties to the condition existing immediately prior to such damage or destruction, subject to (i) the terms and conditions of any Leases affecting such Delta Properties and the rights and obligations thereunder, (ii) consultation with and agreement in writing of US Airways 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 Delta maintenance projects that are the subject of Section 7.21;
(d) except for mortgages or pledges pursuant to the JP Morgan Credit Agreement, the Goldman Sachs Second Lien Loan Agreement, the U.S. Bank Credit Agreement, or any existing provisions of the Delta LaGuardia Leases, not mortgage, pledge, sell or dispose of any Delta 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 Closing Date, shall not give rise to any Assumed Delta Liability and shall be subject to the indemnity obligations of Delta pursuant to Section 9.02(a)(iv)), and not waive, release, grant, transfer or permit to lapse any rights of material value with respect to any Delta Transferred Assets, including without limitation any Delta Brazilian Route Authorities, DCA Slots or ***** Slots/Frequencies;
(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 Delta Transferred Asset or any Assumed Delta Liability; provided, however, that notwithstanding Section 7.02(b) and/or (d), Delta shall be permitted to enter into, subject to receipt of US Airway’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;
(f) comply in all material respects with all provisions of the Assumed Delta Contracts;
(g) continue to use and operate the Delta Brazilian Route Authorities, DCA Slots, ***** Slots/Frequencies and all other Delta 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,
 
     
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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 such Delta Brazilian Route Authorities, DCA Slots, ***** Slots/Frequencies and the other Delta Transferred Assets;
(h) not use the DCA Slots for the provision of essential air service;
(i) promptly make all required filings with the FAA, with respect to the DCA Slots, and with the applicable Governmental Authority, with respect to the ***** Slots/Frequencies and the Delta Brazilian Route Authorities;
(j) 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, ***** Slots/Frequencies or any Delta Brazilian Route Authorities, or trade, rent, lease, sell, encumber in any manner (other than Permitted Liens or Liens under the JP Morgan Credit Agreement, the Goldman Sachs Second Lien Loan Agreement or the U.S. Bank Credit Agreement which will be released at Closing) or otherwise transfer any DCA Slots, ***** Slots/Frequencies or any Delta Brazilian Route Authorities; and
(k) authorize or enter into any agreement or otherwise make any commitment (in writing or otherwise) to do any of the foregoing.
Section 7.03 Slot Trades . 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 Closing until 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 Laws 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 end of the IATA summer season in *****, Delta will not offer to trade Slots at ***** in the Requested Slot Times to any third party 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 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 trades
 
     
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between US Airways and Delta will include the right to operate, or to allow an Affiliate of the Party 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 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, 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 *****.
Section 7.04 Delta Investigations .
(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-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
(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 any applicable Lease, Existing GSE Facilities Permit, US
 
     
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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 7.05 US Airways Investigations .
(a) In addition to any other covenants of access set forth in this Agreement, subject to applicable Laws and regulations, Delta shall use reasonable efforts to cooperate with and provide US Airways, or any of its respective Representative(s), with reasonable access to the Delta Properties upon reasonable prior notice by US Airways to Delta, during normal business hours, solely for the purpose of collecting information and preparing and applying for consents and permitting in anticipation of post-Closing work with respect to such Delta 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 Delta LaGuardia Leased Real Property, including, without limitation, a review of any and all of the Related Real Estate Documents of Delta (each, an “ US Airways Investigation ”) and will cause to be made available all documents, records and information (and copies thereof) in its possession pertaining to the Delta Transferred Assets or Assumed Delta Liabilities as US Airways may reasonably request; provided that Delta shall have the right to have a Representative on its behalf accompany US Airways and its Representatives during any US Airways Investigation and no investigation or receipt of information by US Airways pursuant to, or in connection with, the investigation contemplated by this Section 7.05 or otherwise will diminish or obviate any of the representations, warranties, covenants or agreements of Delta under this Agreement or the conditions to the obligations of US Airways under this Agreement; and
(b) US Airways shall, and shall cause its Representatives to use reasonable best efforts not to interfere with the operations of Delta at its Delta LaGuardia Leased Real Property at any time while undertaking any US Airways Investigation and under no circumstances undertake any action that could reasonably be expected to violate the terms of any applicable Lease or Delta LaGuardia Permit, in each case to the extent copies of such documents have been provided to US Airways.
Section 7.06 Delta Trade Right . US Airways hereby agrees that, during the Additional ***** Slot Lease Term, US Airways shall provide to Delta for no additional consideration payable by Delta the right to use and operate the Additional ***** Slots on the terms and conditions set forth in this Section 7.06 for the Additional ***** Slot Lease Term. US Airways shall have the option in its sole discretion to provide the use of such Additional ***** Slots consistent with customary industry practices and transfer of operator status only. Delta’s interest in the Additional ***** Slots provided to Delta pursuant to this Section 7.06 will include the right to operate, or to allow any Affiliate of Delta or a Delta Connection Carrier to operate, the Additional ***** Slots at the specified time and for a departure or arrival only during the applicable
 
     
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IATA Season and no additional rights with respect to the Additional ***** Slots shall be transferred or inferred. At the end of the Additional ***** Slot Lease Term, the right to use and operate the Additional ***** Slots will revert to US Airways. Each of Delta and US Airways agrees that, in connection with any Slot trade or other transaction pursuant to this Section 7.06, Delta 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.
Section 7.07 Notification . During the period prior to 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 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 or the US Airways Brazilian Route Authorities;
 
     
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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 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;
(h) on or before sixty (60) days prior to the commencement of any IATA scheduling season, Delta shall provide US Airways with its scheduled operations of its ***** Slots/Frequencies for such season, and, within fifteen (15) days after the end of each such season, a report of any variances between Delta’s actual operations of its ***** Slots/Frequencies and such scheduled operations during such season, if any;
(i) Delta shall notify US Airways in writing of any incidents or accidents occurring on or after the date hereof involving any Delta Transferred Assets that resulted or could reasonably be expected to result in damages or losses in excess of $100,000;
(j) 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, Delta Brazilian Route Authorities, or ***** Slots/Frequencies; and
(k) Delta shall notify US Airways in writing of (i) the commencement of any Action against Delta or Northwest 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 Delta Transferred Assets or the Assumed Delta 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 Delta Transferred Assets, or (Z) any agreement, consent or order of the FAA, DOT or the Port Authority involving any of the Delta Transferred Assets or the Assumed Delta Liabilities.
Section 7.08 Required Actions .
 
     
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(a) Upon the terms and subject to the conditions set forth in this Agreement, 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, including filing the Notification and Report Forms required under the HSR Act with the Federal Trade Commission and the United States Department of Justice as soon as practicable after the date hereof and supplying any additional information and documentary material that may be necessary to substantially comply with any requests made pursuant to the HSR Act, (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 Closing Date, each of those items set forth on Schedule 7.08(a)(iv) , (v) seeking from the Port Authority the preferred form of 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)(2)) 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 (x) seek amendment or waiver of any financing or bank agreement, (y) bring any action against its agent, lenders or bond holders, or (z) 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)).
(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
 
     
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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 consults with the other in advance, (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) respond as promptly as practicable to any inquiries received from a Governmental Authority for additional information or documentation in connection with antitrust matters.
(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 (including with respect to selling, holding separate or otherwise disposing of any business or assets), or agree to any condition or restriction of any Governmental Authority, (collectively, the “ Regulatory Actions ”) required or necessary to obtain, any of the foregoing permits, consents, approvals, expirations or terminations of waiting periods, and authorizations of Governmental Authorities; provided , that neither Delta nor US Airways shall have any obligations to agree to, and neither shall be obligated to take, any of the foregoing Regulatory Actions that individually or in the aggregate, would reasonably be expected to have a material adverse effect on (i) 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 (ii) the business or operations of such Party in the relevant geographic market. Notwithstanding the foregoing, 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.
(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,
 
     
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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.
(e) To the extent any Transferred Assets to be acquired pursuant to the Agreement are required to be sold, held separate or otherwise disposed of as a condition to receipt of such regulatory approvals, then the Party that acquires such Transferred Assets pursuant to this Agreement shall be responsible for satisfaction of any such condition or requirement required hereunder; provided, however, that either Party, with respect to the Transferred Assets to be acquired by such Party hereunder, may at its option request in writing that the selling Party hold such Transferred Assets in trust for the receiving Party and accept the direction of the receiving Party to promptly effectuate such disposition. The selling Party who holds such Transferred Assets in trust will, on the closing of such disposition, remit the proceeds to the receiving Party.
Section 7.09 Cooperation on DCA Gate Reallocation . To the extent permitted by Law, each of US Airways and Delta agrees that (i) it has prior to the date hereof cooperated, and shall cooperate, with the other Party in its communications and discussions with MWAA and any Third Party (including without limitation other airlines operating at DCA) regarding the location of such other Party’s facilities at DCA with each Party acknowledging that the goal is for such other Party to not be required to relocate from the premises currently leased by it at DCA and (ii) it has not prior to the date hereof advocated for or stated, and shall not advocate for or state, any preference or desire for a gate allocation plan at DCA that would require the other Party to relocate from its current location at DCA.
Section 7.10 Fees and Expenses .
(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 US Airways and Delta shall bear and pay one-half of (i) the filing fee 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) In connection with the DCA Gate Reallocation, each Party shall bear its own costs and expenses related to the relocation of any of its own facilities
 
     
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at DCA (and with respect to Delta, the relocation of any facilities of Northwest or its affiliated entities at DCA), but so long as the Transaction contemplated hereby is consummated shall share equally in the out-of-pocket relocation costs and expenses of Air Canada, Frontier Airlines, United Airlines, American Airlines, or Continental Airlines if either US Airways or Delta is required to pay for such costs or expenses as a result of such relocation required as part of the DCA Gate Reallocation which occur prior to, or within twelve (12) months after, the Closing so long as US Airways complies with the covenant set forth in Section 7.09.
(c) Delta and US Airways will be responsible for Transfer Taxes according to the following allocation. The transferor with the lower aggregate transfer tax obligation (such obligation, the “ Transfer Tax Amount A ”) shall pay 100% of such obligation. The transferor with the higher aggregate transfer tax obligation (such obligation, the “ Transfer Tax Amount B ”) shall pay that portion of such obligation equal to the Transfer Tax Amount A and the Parties shall share equally the remaining portion of such obligation (that is, the amount represented by the excess of the Transfer Tax Amount B over the Transfer Tax Amount A). Each Party shall, within sixty (60) days after the date hereof, but in any event prior to Closing, prepare and deliver to the other Party for their consent (not to be unreasonably withheld, conditioned or delayed) a schedule allocating the Purchase Price to be paid by such Party among the respective Transferred Assets and Assumed Liabilities to be purchased and assumed by such Party for Transfer Tax purposes. If either Party raises objections, the Parties will negotiate in good faith to resolve such objections. Each Party 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 Closing.
(d) Each of Delta and US Airways shall split equally any one-time, lump sum fee charged by the Port Authority in connection with the transactions and/or any agreements contemplated by this Agreement.
Section 7.11 Publicity . Prior to Closing and in connection with the consummation of the 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 the 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 Closing, each Party shall, from time to time, at the reasonable request of the other Party, (i) 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 or the Assumed Delta Liabilities, as the case may be, and (ii) in addition, with respect to the transfer of the Brazilian Route Authorities and the ***** Slot/Frequencies, use commercially reasonable efforts to take such actions as may be necessary to effectuate the transactions contemplated by this Agreement.
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 Delta Purchase Right . Except as may be prohibited by applicable regulation or Law, Delta shall have the right (the “ Delta Purchase Right ”), pursuant to the terms and conditions set forth below, to purchase from US Airways all but not less than all of the LGA Purchase Option Slots. The Purchase Right shall be exercisable as follows:
(a) Delta or any Affiliate of Delta may elect to exercise the Delta Purchase Right with respect to the LGA Purchase Option Slots by delivery of irrevocable written notice to US Airways on or prior to *****.
(b) The purchase price for each LGA Purchase Option Slot shall be equal to the lesser of (i) $***** and (ii) the Fair Market Value at the time of exercise of the Delta Purchase Right. The Fair Market Value shall be agreed upon by the Parties and, in the event the Parties cannot agree, shall be determined by an SH&E appraisal.
(c) Subject to the receipt of any necessary approvals from Governmental Authorities, the closing of the purchase of the LGA Purchase Option Slots pursuant to this Section 7.14 shall take place at a place and on a date to be mutually agreed upon by the Parties, which date shall be no earlier than ***** and no later than *****, or such other date to be mutually agreed.
 
     
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(d) Upon exercise of the Delta Purchase 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 Purchase Right, including the obtaining of all necessary consents, approvals or waivers of any Governmental Authority.
(e) At the closing of the purchase of the LGA Purchase Option Slots, US Airways will only be required to make, with respect to the LGA Purchase Option Slots, 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 Delta may reasonably request to effectuate the transfer. The purchase price for the LGA Purchase Option Slots to be purchased pursuant to the Delta Purchase 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 7.14 shall be free and clear of any Lien.
(g)  US Airways Perimeter Event . 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 (a “ US Airways Perimeter Event ”), US Airways or its Affiliates shall have the right, pursuant to the terms and conditions set forth below, to delete from the LGA Purchase Option Slots one or more of the US Airways Perimeter Slots.
(i) Prior to *****, US Airways may elect to cancel the Delta Purchase Right with respect to only the US Airways Perimeter Slots, by delivery of irrevocable written notice to Delta (the “ US Airways Perimeter Event Notice ”). Such notice shall acknowledge that a US Airways Perimeter Event has occurred and set forth the US Airways Perimeter Slots to be excluded from the Delta Purchase Right.
(ii) Prior to the closing of the purchase of the Additional ***** Slots pursuant to this Section 7.14, upon Delta’s receipt of the delivery of the US Airways Perimeter Event Notice, the US Airways Perimeter Slots shall be excluded from the definition of LGA Purchase Option Slots.
Section 7.15 DCA Call Right . In the event that prior to ***** the “Perimeter Rule” at DCA is lifted or modified in such a way to permit flights beyond the perimeter (a “ Delta DCA Call Event ”), Delta or any Affiliates of Delta shall have the right (the “ Delta DCA Call Right ”), pursuant to the terms and procedures set forth below,
 
     
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to purchase from US Airways up to one DCA Slot in each of the following hours: 0700, 1500, 1800, and 2200 which particular Slots shall be identified and designated by Delta in its sole discretion (the “ Delta Recall Slots ”). The Delta DCA Call Right shall be exercisable as follows:
(a) Beginning the next calendar year after the Closing Date and ending on ***** (the “ Delta DCA Call Period ”), Delta may, at its option, purchase the Delta Recall Slots at a purchase price per Slot 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 an SH&E appraisal.
(b) Delta or its Affiliates 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) In connection with the Delta DCA Call Right, Delta may deliver no more than two (2) Delta DCA Call Notices. After the delivery of the second Delta DCA Call Notice, regardless of whether Delta elected to purchase the Delta Recall Slots pursuant to the delivery of either of the Delta DCA Call Notices, the Delta DCA Call Right shall terminate.
(d) Subject to the receipt of any necessary approvals 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.
(e) 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.
(f) At the closing of the purchase of the Delta Recall Slots, US Airways will only be required to 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 all 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.
 
     
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(g) All transfers pursuant to this Section 7.15 shall be free and clear of any Lien.
Section 7.16 Preservation of Books and Records . For a period of seven (7) years after the 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 Closing Date.
Section 7.17 Northwest DCA Slot Leases . The Parties agree and acknowledge that, unless sooner terminated, the Northwest DCA Slot Lease Agreement shall automatically terminate, effective concurrently with the consummation of the Closing without any further required action by the Parties.
Section 7.18 Bond Accounts .
(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 US Airways Proportionate Share (defined below) of 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 “ Delta Bond Escrow Funds ” and the US Airways Proportionate Share of the Delta Bond Escrow Funds, the “ US Airways Bond Escrow Funds ”). “ US Airways Proportionate Share ”, as used herein, shall mean the ratio computed as follows: 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 Closing Date, divided by (y) 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. Delta shall pay the US Airways Bond Escrow Funds to US Airways within five (5) Business Days after Delta’s receipt of the Delta Bond Escrow Funds.
(b) Notwithstanding the foregoing, if the Delta Bond Escrow Funds are less than $***** (the “ Bond Fund Closing Balance ”), the aggregate balance of the Bond Accounts as of August 4, 2009, 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 Delta 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 equal to the US Airways Proportionate Share of the Bond Fund Closing Balance, and (iii) such reduction in the
 
     
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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 Delta 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 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 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 Closing (and to the extent attributable to any failure of Delta to pay rents due under the East End Terminal Lease on or after Closing).
(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 by the US Airways Proportionate Share of any fees, charges or other payments required to be paid by Delta to the Trustee or the Port Authority with respect to the Delta 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 Closing.
 
     
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Section 7.19 Underground Storage Tanks . Promptly following the date of this Agreement, *****.
Section 7.20 US Airways Maintenance Obligations .
(a) During the period from the date of this Agreement and continuing until the 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 Closing. In addition, during the period from the date of this Agreement and continuing until the 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.
(b) During the period from the date of this Agreement and continuing until the 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 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 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 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 7.21 Delta Maintenance Obligations .
(a) During the period from the date of this Agreement and continuing until the Closing, Delta 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 Delta LaGuardia Leased Real Property to demonstrate safe operability of all such bridges and equipment as of Closing. In addition,
 
     
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during the period from the date of this Agreement and continuing until the Closing, Delta shall use reasonable efforts to demonstrate compliance with all Original Equipment Manufacturer safety service bulletins and otherwise shall notify US Airways of all such safety service bulletins that Delta has not complied with or for which it has no knowledge of compliance.
(b) During the period from the date of this Agreement and continuing until the Closing, Delta shall maintain the Roof of each Delta 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 Closing, should a leak or leaks appear from time to time, Delta 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 Closing, Delta shall repair any portion of the Delta 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 Closing, Delta shall maintain the Ramps included in the Delta 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 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, Terminal D at LaGuardia, and the Marine Air Terminal, respectively, 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 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 DISCLAIMER OF WARRANTY .
(a) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, US AIRWAYS TRANSFERS AND DELTA TAKES THE US AIRWAYS TRANSFERRED ASSETS, INCLUDING US AIRWAYS LAGUARDIA TANGIBLE
 
     
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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, INCLUDING DELTA TANGIBLE PERSONAL PROPERTY “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, INCLUDING DELTA 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 DELTA TRANSFERRED ASSETS OR OTHERWISE.
ARTICLE VIII
Conditions Precedent to the Closing
Section 8.01 Conditions to Each Party’s Obligation to Effect the Transaction . The respective obligation of each Party to consummate the Transaction is
 
     
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subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:
(a)  Governmental Approvals . The Governmental Approvals as set forth on Schedule 5.04 and Schedule 6.04 shall have been obtained.
(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 . The obligations of Delta to consummate the 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 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 Closing Date.
(c)  Officer’s Certificate . Delta shall have received a certificate, dated as of the 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.
(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), and (c).
(e)  Port Authority .
(1) The Port Authority shall have provided written consent to the transfers and assignments of each of the Delta Port
 
     
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Authority Documents to Delta and to the assumption by Delta of the obligations thereunder;
(2) 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 (i) 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; (ii) 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 (iii) 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;
(3) the Port Authority shall have agreed and acknowledged in writing that: (i) 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 (ii) 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
(4) the conditions set forth in Section 8.03(e)(1) 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
 
     
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limitation, the waiver of US Airways’ reversionary interest under the LaGuardia Order and (ii) the lease of Slots contemplated by the LaGuardia Slot Lease.
(g)  DOT . All consents, approvals, licenses, orders, exemptions, waivers or authorizations of or from the DOT required to be obtained for the transfer of the US Airways Brazilian Route Authorities to Delta shall have been obtained.
(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 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 . The obligation of US Airways to consummate the 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 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 Closing Date.
(c)  Officer’s Certificate . US Airways shall have received a certificate, dated as of the 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.
 
     
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(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) and (c).
(e) Port Authority .
(1) The Port Authority shall have provided written consent to the transfers and assignments of each of the US Airways Port Authority Documents to US Airways and to the assumption by US Airways of the obligations thereunder;
(2) Taking into consideration the Assignment and Assumption Agreements for the Existing Delta Documents and the terms and conditions of such Port Authority consents, taken as a whole, the Existing Delta Documents shall have been assigned and transferred to US Airways on terms and conditions that would not, or would not reasonably be expected to, in the aggregate, result in (i) a material reduction or impairment of the rights that Delta or Northwest, as applicable, enjoyed under the Existing Delta Documents immediately prior to the date of this Agreement; (ii) a material increase in the Liabilities or obligations to which Delta or Northwest, as applicable, was subject under the Existing Delta Documents immediately prior to the date of this Agreement; or (iii) a material adverse effect on the ability of US Airways to operate or use the facilities subject to the Existing Delta Documents in the same manner as operated and used by Delta or Northwest, as applicable, immediately prior to the date of this Agreement; and
(3) the conditions set forth in Section 8.02(e)(1) 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 Slot Lease.
(g)  DOT . All consents, approvals, licenses, orders, exemptions, waivers or authorizations of or from the DOT required to be obtained for the transfer of the Delta Brazilian Route Authorities to US Airways shall have been obtained.
(h)  Bankruptcy Event . No Bankruptcy Event has occurred with respect to Delta.
 
     
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(i)  Delta UCC Releases . The release of all security interests in the Delta Transferred Assets by Delta’s lenders and applicable UCC-3 termination statements, in each case, in form and substance reasonably satisfactory to US Airways.
(j)  Northwest UCC Releases . The release of all security interests in the Delta Transferred Assets by Northwest’s lenders and applicable UCC-3 termination statements, in each case, in form and substance reasonably satisfactory to US Airways.
(k)  Slots . As of the 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.
ARTICLE IX
Survival; Indemnification
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 Closing 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 Closing Date; provided , however , that (x) 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), Sections 5.08 and 6.08 (in each case, last sentence only) (Title to Assets), Sections 5.15 and 6.15 (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 Sections 9.02(a)(i) or 9.03(a)(i) shall survive until five (5) years after the 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, (2) the covenants and agreements contained in Sections 7.01, 7.02, 7.04, 7.05, 7.07, 7.08, 7.09 and 7.11 and the indemnity obligations for a breach of such covenants and
 
     
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agreements contained in Sections 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 Closing, and (3) the indemnity obligations contained in Sections 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 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.
Section 9.02 Indemnification by Delta .
(a) From and after the 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 Closing Date 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 Closing 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
 
     
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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.
(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 Sections 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 Sections 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 $100,000 (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 ”).
Section 9.03 Indemnification by US Airways .
(a) From and after the 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 Closing Date 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 Closing 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);
 
     
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(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) the Assumed Delta Liabilities;
(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.
(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)(iii), 9.03(a)(v) and 9.03(a)(vi)) shall in no event exceed $***** (the “ US Airways Cap Amount ”).
Section 9.04 Indemnification Procedures .
(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
 
     
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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.
(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
 
     
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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 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.
 
     
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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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Section 9.05 Set Off; Etc .
(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 Purchase Price, the Delta Purchase Price, the Delta Bond Escrow Funds, the US Airways Bond Escrow Funds, the Delta Purchase Right, the Delta DCA Call Right or with respect to the indemnity for the Bond Obligations in Section 9.02.
Section 9.06 Reserved .
Section 9.07 Tax Effect .
(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 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 as set forth in Section 11.09 (Specific Performance), in the case of fraud or intentional misrepresentation, 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
Termination
Section 10.01 Prior to Closing Termination . This Agreement may be terminated at any time prior to the Closing Date:
(a) by mutual written consent of Delta and US Airways;
(b) by written notice of either Delta or US Airways:
(1) if Closing has not occurred by the close of business on the End Date. The “ End Date ” shall mean the date that is seven (7) months after the date of this Agreement (the “ Initial End Date ”); provided , however , that:
(A) if, as of the Initial End Date, 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 not have become final and non-appealable, then the End Date shall be automatically extended to the earlier of (A) eighteen (18) months following the Initial End Date and (B) the date that is two (2) Business Days after the date that the last of the conditions in Sections 8.01(a)[Governmental Approvals], 8.02(e)[Port], 8.02(f) [FAA], 8.02(g) [DOT], 8.03(e)[Port],
 
     
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8.03(f) [FAA] and 8.03(g) [DOT] have been satisfied or waived (such date, the “ Extension Date ”);
provided , however , that the right to terminate this Agreement under this Section 10.01(b)(1) 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
(2) 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; or
(c) *****.
Section 10.02 Effect of Termination .
(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):
 
     
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(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 “ Right of First Refusal ”), in accordance with Section 10.02(b)(ii)(C):
(i) The term of the Right of First Refusal shall be one year from ***** election in accordance with Section 10.02(b) and after which time the Right of First Refusal shall expire and be null and void.
(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 ROFR Election Notice, *****: (A) *****, (B) *****, (C) *****; (D) ***** ROFR Election Notice; 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, *****.
 
     
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ARTICLE XI
General Provisions
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.
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.
 
     
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  (a)   if to Delta, to
 
      Delta Air Lines, Inc.
Dept. 941
1040 Delta Blvd.
Atlanta, GA 30354-1989
Phone: (404) 715-1601
Facsimile: (404) 773-2087
Attention: Executive V.P. — Network Planning & Revenue Management
 
      with a copy to:
 
      Delta Air Lines, Inc.
Dept. 877
1030 Delta Blvd.
Atlanta, GA 30354-1989
Phone: (404) 715-2541
Facsimile: (404) 773-0953
Attention: Vice President — Corporate Real Estate
 
      and
 
      Delta Air Lines, Inc.
Dept. 981
1030 Delta Blvd.
Atlanta, GA 30354-1989
Phone: (404) 715-2191
Facsimile: (404) 715-2233
 
      Attention: Senior Vice President and General Counsel
 
  (b)   if to US Airways, to
 
      US Airways, Inc.
111 W. Rio Salado Parkway
Tempe, AZ 85281
Phone: (480) 693-0800
Facsimile: (480) 693-5932
Attention: Legal Department
 
      with a copy to:
 
     
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Skadden, Arps, Slate, Meagher & Flom LLP
155 N. Wacker Drive
Chicago, IL 60606
  Attention:   Peter C. Krupp, Esq.
Kimberly A. deBeers, Esq.
  Facsimile:   (312) 407-0411
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 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
 
     
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98


 

Confidential Treatment Requested
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.
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
Guaranty
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.
[Remainder of page left intentionally blank]
 
     
*****   Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

99


 

Confidential Treatment Requested
IN WITNESS WHEREOF, Delta and US Airways have duly executed this Agreement, each as of the date first written above.
         
  DELTA AIR LINES, INC.
 
 
  By:   /s/ Glen W. Hauenstein  
    Name:  Glen W. Hauenstein  
    Title:  Executive Vice President —
Network Planning and Revenue Management 
 
 
  US AIRWAYS, INC.
 
 
  By:   /s/ J. Scott Kirby    
    Name:   J. Scott Kirby  
    Title:   President   
 
  AND SOLELY WITH RESPECT TO ARTICLE XII HEREOF

US AIRWAYS GROUP, INC.
 
 
  By:   /s/ J. Scott Kirby    
    Name:   J. Scott Kirby  
    Title:   President   

 

100

Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
US AIRWAYS GROUP, INC.
US Airways Group, Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (as the same exists or may hereafter be amended, the “DGCL”), does hereby certify as follows:
1. The name of the Corporation is US Airways Group, Inc. The original certificate of incorporation of the Corporation was filed with the office of the Secretary of State of the State of Delaware on February 16, 1982.
2. The Amended and Restated Certificate of Incorporation of the Corporation is hereby amended by replacing SECTION 1 of ARTICLE IV in its entirety with the following:
“SECTION 1. Authorized Capital Stock. The total number of shares of stock which the Corporation shall have authority to issue is 400,000,000 shares of capital stock, consisting of 400,000,000 shares of common stock having a par value of $0.01 per share (the “Common Stock”).”
3. This Certificate of Amendment has been duly adopted by the board of directors and the stockholders of the Corporation, in each case in accordance with Section 242 of the DGCL.
IN WITNESS WHEREOF, US Airways Group, Inc. has caused this Certificate of Amendment to be executed by the undersigned authorized officer on behalf of the Corporation as of July 24, 2009.
         
  US AIRWAYS GROUP, INC.
 
 
  By:   /s/ Stephen L. Johnson    
    Name:   Stephen L. Johnson   
    Title:   Executive Vice President — Corporate   
 

 

Exhibit 10.1
Confidential Treatment Requested
Amendment No. 4
to the
Amended and Restated Airbus A320 Family Aircraft Purchase Agreement
dated as of October 2, 2007
between
AIRBUS S.A.S.
and
US AIRWAYS, INC.
This Amendment No. 4 to the Amended and Restated Airbus A320 Family Aircraft Purchase Agreement between Airbus S.A.S. and US Airways, Inc. (the “ Amendment ”) is entered into as of August 11, 2009, by and between Airbus S.A.S., a société par actions simplifiée, organized and existing under the laws of the Republic of France, having its registered office located at 1, rond-point Maurice Bellonte, 31700 Blagnac, France (the “ Seller ”), and US Airways, Inc., a corporation organized and existing under the laws of the State of Delaware, United States of America, having its principal corporate offices located at 111 West Rio Salado Parkway, Tempe, Arizona 85281, U.S.A.(the “ Buyer ”);
WITNESSETH:
WHEREAS, the Buyer and the Seller have entered into an Amended and Restated Airbus A320 Family Purchase Agreement, dated as of October 2, 2007, which agreements, as previously amended by and supplemented with all Exhibits Appendices Letter Agreements and amendments, including Amendment No. 1 dated as of January 11, 2008 Amendment No. 2 dated as of October 20, 2008 and Amendment No. 3 dated as of January 16, 2009 (the “ Agreement ”) relates to the sale by the Seller and the purchase by the Buyer of certain Airbus single-aisle aircraft;
WHEREAS the Buyer and the Seller agree and acknowledge the cancellation of the fifteen (15) A318 Aircraft which were cancelled as of February 1, 2009; and
WHEREAS, the Buyer wishes to exercise its conversion rights with respect to one (1) New A319 Aircraft scheduled for delivery *****.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
Capitalized terms used herein and not otherwise defined in this Amendment will have the meanings assigned to them in the Agreement. The terms “herein,” “hereof,” and “hereunder” and words of similar import refer to this Amendment.
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

 


 

Confidential Treatment Requested
2 . CANCELLATION
The Buyer and the Seller hereby confirm that the fifteen (15) A318 Aircraft are cancelled pursuant to the terms of Letter Agreement No. 3 to the Agreement.
3. CONVERSION
Pursuant to the terms of Letter Agreement No. 3 to the Agreement, the Buyer hereby irrevocably exercises its right to convert one (1) New A319 Aircraft to one (1) Converted New A320 Aircraft as follows:
3.1  
One (1) New A319 Aircraft with ***** is converted to one (1) Converted New A320 Aircraft with *****.
3.2  
Exhibit B to Amendment No. 1 to the Agreement is deleted in its entirety and replaced with Exhibit B attached to this Amendment summarizing conversions as of the date hereof.
4. DELIVERY SCHEDULE
The delivery schedule table set forth in Clause 9.1.1 of the Agreement is deleted in its entirety and replaced with the delivery schedule table below between the QUOTE and the UNQUOTE:
QUOTE
                         
Rank   *****   Aircraft   *****   *****   Year  
1   *****  
Original A321 Aircraft
  *****   *****     2008  
2   *****  
Original A321 Aircraft
  *****   *****     2008  
3   *****  
Original A321 Aircraft
  *****   *****     2008  
4   *****  
Original A321 Aircraft
  *****   *****     2008  
5   *****  
Original A321 Aircraft
  *****   *****     2008  
6   *****  
Original A321 Aircraft
  *****   *****     2009  
7   *****  
Original A321 Aircraft
  *****   *****     2009  
8   *****  
Original A321 Aircraft
  *****   *****     2009  
9   *****  
Original A321 Aircraft
  *****   *****     2009  
10   *****  
Original A321 Aircraft
  *****   *****     2009  
11   *****  
Original A321 Aircraft
  *****   *****     2009  
12   *****  
Original A321 Aircraft
  *****   *****     2009  
13   *****  
Original A321 Aircraft
  *****   *****     2009  
14   *****  
Converted Original A321 Aircraft
  *****   *****     2009  
15   *****  
Original A321 Aircraft
  *****   *****     2009  
16   *****  
Converted Original A321 Aircraft
  *****   *****     2009  
17   *****  
Converted Original A321 Aircraft
  *****   *****     2009  
18   *****  
Converted Original A321 Aircraft
  *****   *****     2009  
19   *****  
Original A321 Aircraft
  *****   *****     2009  
20   *****  
Converted Original A321 Aircraft
  *****   *****     2009  
21   *****  
Converted Original A320 Aircraft
  *****   *****     2009  
22   *****  
Converted Original A321 Aircraft
  *****   *****     2009  
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

 


 

Confidential Treatment Requested
                         
Rank   *****   Aircraft   *****   *****   Year  
23   *****  
Converted Original A321 Aircraft
  *****   *****     2009  
24   *****  
Converted Original A320 Aircraft
  *****   *****     2009  
25   *****  
Converted Original A321 Aircraft
  *****   *****     2009  
26   *****  
Converted Original A320 Aircraft
  *****   *****     2010  
27   *****  
Converted Original A320 Aircraft
  *****   *****     2010  
28   *****  
Converted New A320 Aircraft
  *****   *****     2010  
29   *****  
Converted Original A320 Aircraft
  *****   *****     2010  
30   *****  
New A320 Aircraft
  *****   *****     2010  
31   *****  
Converted Original A320 Aircraft
  *****   *****     2010  
32   *****  
New A321 Aircraft
  *****   *****     2010  
33   *****  
Converted Original A320 Aircraft
  *****   *****     2010  
34   *****  
Converted Original A320 Aircraft
  *****   *****     2010  
35   *****  
Converted Original A321 Aircraft
  *****   *****     2010  
36   *****  
Converted Original A321 Aircraft
  *****   *****     2010  
37   *****  
Converted New A321 Aircraft
  *****   *****     2010  
38   *****  
Converted Original A320 Aircraft
  *****   *****     2010  
39   *****  
New A321 Aircraft
  *****   *****     2010  
40   *****  
Converted Original A320 Aircraft
  *****   *****     2010  
41   *****  
Converted Original A320 Aircraft
  *****   *****     2010  
42   *****  
Converted Original A320 Aircraft
  *****   *****     2010  
43   *****  
Converted New A321 Aircraft
  *****   *****     2010  
44   *****  
Converted New A320 Aircraft
  *****   *****     2011  
45   *****  
New A320 Aircraft
  *****   *****     2011  
46   *****  
New A320 Aircraft
  *****   *****     2011  
47   *****  
New A320 Aircraft
  *****   *****     2011  
48   *****  
New A321 Aircraft
  *****   *****     2011  
49   *****  
New A319 Aircraft
  *****   *****     2011  
50   *****  
New A320 Aircraft
  *****   *****     2011  
51   *****  
New A319 Aircraft
  *****   *****     2011  
52   *****  
New A320 Aircraft
  *****   *****     2011  
53   *****  
New A320 Aircraft
  *****   *****     2011  
54   *****  
New A320 Aircraft
  *****   *****     2011  
55   *****  
New A321 Aircraft
  *****   *****     2011  
56   *****  
New A319 Aircraft
  *****   *****     2011  
57   *****  
New A320 Aircraft
  *****   *****     2011  
58   *****  
New A320 Aircraft
  *****   *****     2011  
59   *****  
New A320 Aircraft
  *****   *****     2011  
60   *****  
New A320 Aircraft
  *****   *****     2011  
61   *****  
New A321 Aircraft
  *****   *****     2011  
62   *****  
New A319 Aircraft
  *****   *****     2011  
63   *****  
New A320 Aircraft
  *****   *****     2011  
64   *****  
New A321 Aircraft
  *****   *****     2011  
65   *****  
New A319 Aircraft
  *****   *****     2011  
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.
 

 


 

Confidential Treatment Requested
                         
Rank   *****   Aircraft   *****   *****   Year  
66   *****  
New A320 Aircraft
  *****   *****     2011  
67   *****  
New A320 Aircraft
  *****   *****     2011  
68   *****  
New A319 Aircraft
  *****   *****     2011  
69   *****  
New A320 Aircraft
  *****   *****     2011  
70   *****  
New A321 Aircraft
  *****   *****     2011  
71   *****  
New A320 Aircraft
  *****   *****     2011  
72   *****  
New A320 Aircraft
  *****   *****     2011  
73   *****  
New A321 Aircraft
  *****   *****     2011  
74   *****  
New A320 Aircraft
  *****   *****     2012  
75   *****  
New A320 Aircraft
  *****   *****     2012  
76   *****  
New A319 Aircraft
  *****   *****     2012  
77   *****  
New A320 Aircraft
  *****   *****     2012  
78   *****  
New A320 Aircraft
  *****   *****     2012  
79   *****  
New A320 Aircraft
  *****   *****     2012  
80   *****  
New A320 Aircraft
  *****   *****     2012  
81   *****  
New A320 Aircraft
  *****   *****     2012  
82   *****  
New A320 Aircraft
  *****   *****     2012  
83   *****  
New A320 Aircraft
  *****   *****     2012  
84   *****  
New A320 Aircraft
  *****   *****     2012  
85   *****  
New A321 Aircraft
  *****   *****     2012  
86   *****  
New A320 Aircraft
  *****   *****     2012  
87   *****  
New A320 Aircraft
  *****   *****     2012  
88   *****  
New A320 Aircraft
  *****   *****     2012  
89   *****  
New A320 Aircraft
  *****   *****     2012  
90   *****  
New A320 Aircraft
  *****   *****     2012  
91   *****  
New A319 Aircraft
  *****   *****     2012  
92   *****  
New A320 Aircraft
  *****   *****     2012  
93   *****  
New A321 Aircraft
  *****   *****     2012  
94   *****  
New A320 Aircraft
  *****   *****     2012  
95   *****  
New A320 Aircraft
  *****   *****     2012  
96   *****  
New A320 Aircraft
  *****   *****     2012  
97   *****  
New A320 Aircraft
  *****   *****     2012  
UNQUOTE
5.  The table set forth in Paragraph 4.2 of Letter Agreement No. 7 to the Agreement is deleted in its entirety and replaced with the table set forth below:
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

 


 

Confidential Treatment Requested
                 
    *****   Aircraft   *****   Year
1   *****  
Original A321 Aircraft
  *****   2009
2   *****  
Original A321 Aircraft
  *****   2009
3   *****  
Original A321 Aircraft
  *****   2009
4   *****  
Original A321 Aircraft
  *****   2009
5   *****  
Original A321 Aircraft
  *****   2009
6   *****  
Converted Original A321 Aircraft
  *****   2009
7   *****  
Converted Original A321 Aircraft
  *****   2009
8   *****  
Converted Original A320 Aircraft
  *****   2010
9   *****  
Converted Original A320 Aircraft
  *****   2010
10   *****  
Converted Original A320 Aircraft
  *****   2010
11   *****  
Converted Original A320 Aircraft
  *****   2010
12   *****  
Converted Original A320 Aircraft
  *****   2010
13   *****  
Converted Original A320 Aircraft
  *****   2010
14   *****  
Converted Original A321 Aircraft
  *****   2010
15   *****  
Converted Original A321 Aircraft
  *****   2010
16   *****  
Converted Original A320 Aircraft
  *****   2010
17   *****  
Converted Original A320 Aircraft
  *****   2010
18   *****  
Converted Original A320 Aircraft
  *****   2010
19   *****  
Converted Original A320 Aircraft
  *****   2010
6. EFFECT OF AMENDMENT
6.1  
The provisions of this Amendment constitute a valid amendment to the Agreement and the Agreement will be deemed to be amended to the extent herein provided and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. This Amendment supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter of this Amendment.
6.2  
Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Amendment will be governed by the provisions of the Agreement, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern.
7. CONFIDENTIALITY
This Amendment is subject to the confidentiality provisions set forth in Clause 22.7 of the Agreement.
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

 


 

Confidential Treatment Requested
8. COUNTERPARTS
This Amendment may be signed in separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission), will be an original, and the counterparts will together constitute one and the same instrument.
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

 


 

Confidential Treatment Requested
IN WITNESS WHEREOF, these presents were entered into as of the day and year first above written.
                 
US AIRWAYS, INC.       AIRBUS S.A.S.
 
               
By: 
/s/ Thomas T. Weir       By:  /s/ Christophe Mourey
 
           
 
Its: 
Vice President and Treasurer         Its:  Senior Vice President Contracts
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

 


 

Exhibit B
Conversion Schedule
*****
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.
PRIVILEGED AND CONFIDENTIAL

 

 

Exhibit 10.2
Confidential Treatment Requested
Amendment No. 4
to the
A330 Purchase Agreement
dated as of October 2, 2007
between
AIRBUS S.A.S.
and
US AIRWAYS, INC.
This Amendment No. 4 to the A330 Purchase Agreement between Airbus S.A.S. and US Airways, Inc., (this “ Amendment ”) is entered into as of July 23, 2009, by and between Airbus S.A.S., a société par actions simplifiée, organized and existing under the laws of the Republic of France, having its registered office located at 1, rond-point Maurice Bellonte, 31700 Blagnac, France (the “ Seller ”), and US Airways, Inc., a corporation organized and existing under the laws of the State of Delaware, United States of America, having its principal corporate offices located at 111 West Rio Salado Parkway, Tempe, Arizona 85281, U.S.A. (the “ Buyer ”).
WITNESSETH:
WHEREAS, the Buyer and the Seller entered into an Airbus A330 Purchase Agreement, dated as of October 2, 2007, which agreement, as previously amended by and supplemented with all Exhibits, Appendices, Letter Agreements and amendments, including Amendment No. 1 dated as of November 15, 2007, Amendment No. 2 dated as of October 20, 2008 (“Amendment No. 2”) and Amendment No. 3 dated as of January 16, 2009 (the “ Agreement ”), relates to the sale by the Seller and the purchase by the Buyer of certain Airbus A330 model aircraft;
WHEREAS, at the Seller’s request, the Buyer and the Seller have agreed to provide the Seller a right to reschedule certain A330 Aircraft; and
WHEREAS, the parties agree to amend certain terms of the Agreement as set forth in this Amendment.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
Capitalized terms used herein and not otherwise defined in this Amendment will have the meanings assigned to them in the Agreement. The terms “herein,” “hereof,” and “hereunder” and words of similar import refer to this Amendment.
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.
     
USA — Airbus A330 Purchase Agreement
Amendment 4
  CONFIDENTIAL AND PRIVILEGED

 


 

Confidential Treatment Requested
1.  
*****
 
   
*****
 
2.  
PREDELIVERY PAYMENTS
 
   
If the Seller exercises an *****.
 
3.  
EFFECT OF AMENDMENT
 
3.1  
Upon execution, this Amendment will constitute a valid amendment to the Agreement and the Agreement will be deemed to be amended to the extent herein provided and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. This Amendment supersedes any previous understandings, commitments or representations whatsoever, whether oral or written, related to the subject matter of this Amendment.
 
3.2  
Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement, that the provisions of the Agreement are hereby incorporated herein by reference, and that this Amendment will be governed by the provisions of the Agreement, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern.
 
4.  
CONFIDENTIALITY
 
   
This Amendment is subject to the confidentiality provisions set forth in Clause 22.7 of the Agreement.
 
5.  
COUNTERPARTS
 
   
This Amendment may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission), will be an original, and the counterparts will together constitute one and the same instrument.
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.
     
USA — Airbus A330 Purchase Agreement
Amendment 4
  CONFIDENTIAL AND PRIVILEGED

 

2/3


 

Confidential Treatment Requested
IN WITNESS WHEREOF, these presents were entered into as of the day and year first above written.
                     
US AIRWAYS, INC.       AIRBUS S.A.S.    
 
                   
By:
  /s/ Thomas T. Weir
 
      By:   /s/ Christophe Mourey
 
   
 
  Its: Vice President and Treasurer           Its: Senior Vice President Contracts    
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.
     
USA — Airbus A330 Purchase Agreement
Amendment 4
  CONFIDENTIAL AND PRIVILEGED

 

3/3

Exhibit 10.3
Confidential Treatment Requested
Amendment No. 3
to the
Amended and Restated Airbus A350 XWB Purchase Agreement
dated as of October 2, 2007
between
AIRBUS S.A.S.
and
US AIRWAYS, INC.
This Amendment No. 3 to the Amended and Restated Airbus A350 XWB Purchase Agreement between Airbus S.A.S. and US Airways, Inc., (this “ Amendment ”) is entered into as of July 23, 2009 by and between Airbus S.A.S., a société par actions simplifiée, organized and existing under the laws of the Republic of France, having its registered office located at 1, rond-point Maurice Bellonte, 31700 Blagnac, France (the “ Seller ”), and US Airways, Inc., a corporation organized and existing under the laws of the State of Delaware, United States of America, having its principal corporate offices located at 111 West Rio Salado Parkway, Tempe, Arizona 85281, U.S.A. (the “ Buyer ”).
WITNESSETH:
WHEREAS, the Buyer and the Seller entered into an Amended and Restated Airbus A350 XWB Purchase Agreement, dated as of October 2, 2007, which agreement, as previously amended by and supplemented with all Exhibits, Appendices, Letter Agreements and amendments, including Amendment No. 1 dated as of October 20, 2008 (“Amendment No. 1”) and Amendment No. 2 dated as of January 16, 2009 (as amended, the “ Agreement ”) relates to the sale by the Seller and the purchase by the Buyer of certain Airbus A350 XWB model aircraft; and
WHEREAS, at the Seller’s request, the Buyer and the Seller have agreed to *****.
WHEREAS, the parties agree to amend certain terms of the Agreement as set forth in this Amendment.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
Capitalized terms used herein and not otherwise defined in this Amendment will have the meanings assigned to them in the Agreement. The terms “herein,” “hereof,” and “hereunder” and words of similar import refer to this Amendment.
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.
     
USA — Airbus A350 XWB Purchase Agreement
Amendment 3
  CONFIDENTIAL AND PRIVILEGED

 


 

Confidential Treatment Requested
1.  
DEFINITIONS
 
   
The following term is used in this Amendment as defined below and such definition is added to the Agreement:
 
   
*****
 
2.  
*****
 
   
*****
 
3.  
DELIVERY
 
   
The following Clause 9.1.2.5 is added after Clause 9.1.2.4 of the Agreement:
 
   
QUOTE
 
   
*****
 
   
UNQUOTE
 
4.  
PERFORMANCE RETENTION GUARANTEE
 
   
Appendix B to Letter Agreement No. 12 will be deemed amended from time to time to reflect the reschedulings contemplated by Clause 9.1.2.5 of the Agreement.
 
5.  
PRODUCT SUPPORT
 
   
In Paragraph 18 of Letter Agreement No. 7 the word “*****” is deleted and replaced with “*****”, upon the rescheduling of Aircraft pursuant to Clause 9.1.2.5 i). Upon the rescheduling of Aircraft pursuant to Clause 9.1.2.5 iii) the words “*****” will be deleted and replaced with “*****”.
 
6.  
Paragraphs 7, 8 and 9 of this Amendment will immediately become effective upon the rescheduling of Aircraft pursuant to Clause 9.1.2.5 i) of the Agreement.
 
7.  
*****
 
7.1  
In Paragraph ***** of Letter Agreement No. *****, the second sentence is deleted in its entirety and replaced with the following:
 
   
QUOTE
 
   
*****
 
   
UNQUOTE
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.
     
USA — Airbus A350 XWB Purchase Agreement
Amendment 3
  CONFIDENTIAL AND PRIVILEGED

 

2/5


 

Confidential Treatment Requested
7.2  
In Paragraph 3.1 of Letter Agreement No. 14 the word “*****” is deleted and replaced with “*****”.
 
8.  
*****
 
   
Paragraph ***** of Amendment No. ***** is hereby deleted in its entirety and restated to read as follows:
 
   
QUOTE
 
10.  
*****
 
   
In addition to the Seller’s other rights and remedies, *****.
 
   
UNQUOTE
 
9.  
*****
 
9.1  
*****
 
   
QUOTE
 
   
*****
 
   
UNQUOTE
 
9.2  
In Paragraph 1 (iii) of Amended and Restated Letter Agreement No. 3 the words “*****” are deleted and replaced with “*****”.
 
10.  
EFFECT OF AMENDMENT
 
10.1  
Upon execution, this Amendment will constitute a valid amendment to the Agreement and the Agreement will be deemed to be amended to the extent herein provided and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. This Amendment supersedes any previous understandings, commitments or representations whatsoever, whether oral or written, related to the subject matter of this Amendment.
 
10.2  
Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement, that the provisions of the Agreement are hereby incorporated herein by reference, and that this Amendment will be governed by the provisions of the Agreement, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern.
 
11.  
CONFIDENTIALITY
 
   
This Amendment is subject to the confidentiality provisions set forth in Clause 22.7 of the Agreement.
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.
     
USA — Airbus A350 XWB Purchase Agreement
Amendment 3
  CONFIDENTIAL AND PRIVILEGED

 

3/5


 

Confidential Treatment Requested
12.  
COUNTERPARTS
 
   
This Amendment may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission), will be an original, and the counterparts will together constitute one and the same instrument.
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.
     
USA — Airbus A350 XWB Purchase Agreement
Amendment 3
  CONFIDENTIAL AND PRIVILEGED

 

4/5


 

Confidential Treatment Requested
IN WITNESS WHEREOF, these presents were entered into as of the day and year first above written.
                     
US AIRWAYS, INC.       AIRBUS S.A.S.    
 
                   
By:
  /s/ Thomas T. Weir
 
Its: Vice President and Treasurer
      By:   /s/ Christophe Mourey
 
Its: Senior Vice President Contracts
   
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.
     
USA — Airbus A350 XWB Purchase Agreement
Amendment 3
  CONFIDENTIAL AND PRIVILEGED

 

5/5

Exhibit 10.4
Confidential Treatment Requested
     
CONFIDENTIAL   EXECUTION COPY
AMENDMENT NO. 8

TO

AMERICA WEST CO-BRANDED CARD AGREEMENT
THIS AMENDMENT NO. 8 TO AMERICA WEST CO-BRANDED CARD AGREEMENT (“ Amendment No. 8 ”) is dated September 17, 2009 (“ Effective Date ”), by and between US AIRWAYS GROUP, INC., a Delaware corporation (“ US Airways Group ”), and BARCLAYS BANK DELAWARE formerly known as JUNIPER BANK (“ Juniper Bank ”).
RECITALS
WHEREAS, America West Airlines, Inc. (“ America West ”) and Juniper Bank are parties to that certain America West Co-Branded Card Agreement, dated January 25, 2005 (the “ Original Agreement ”);
WHEREAS, US Airways Group merged with America West’s parent company, America West Holdings Corporation, and America West assigned its rights and obligations under the Original Agreement to US Airways Group pursuant to that certain Assignment and First Amendment to America West Co-Branded Card Agreement, dated August 8, 2005 (the “ First Amendment ”), as amended by that certain Amendment No. 2 to America West Co-Branded Card Agreement, dated September 26, 2005 (the “ Second Amendment ”), as amended by that certain Amendment No. 3 to America West Co-Branded Card Agreement, dated December 29, 2006 (the “ Third Amendment ”), as amended by that certain Amendment No. 4 to America West Co-Branded Card Agreement, dated December 5, 2007, (the “ Fourth Amendment ”), as amended by that certain Amendment No. 5 to America West Co-Branded Card Agreement, dated August 28, 2008 (the “ Fifth Amendment ”), as amended by that certain Amendment No. 6 to America West Co-Branded Card Agreement, dated October 17, 2008 (the “ Sixth Amendment ”) and as amended by that certain Amendment No. 7 to the to America West Co-Branded Card Agreement, dated February 17, 2009 (the “ Seventh Amendment ” and together with the First Amendment, Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment, Sixth Amendment and the Original Agreement, the “ Agreement ”); and
WHEREAS, US Airways Group and Juniper Bank agree to amend and modify certain terms of the Agreement to optimize the Administrative Fee.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:
1. Definitions . All capitalized terms used herein, but not otherwise defined herein, shall have the meanings given to such terms in the Agreement.

 

 


 

Confidential Treatment Requested
     
CONFIDENTIAL   EXECUTION COPY
2.   Amendment .
  a.  
Section 1 of the Agreement is amended by adding the following definitions in the appropriate alphabetical order:
““ Juniper Bank Portfolio ” means Accounts with Cards bearing US Airways Marks other than Accounts *****.
***** Accounts ” means Accounts for which*****.
***** Accounts ” means Accounts for which *****.
***** Percentage ” shall have the meaning set forth in Section 4.2.2 (b).”
  b.  
Section 4.2.2 of the Agreement is deleted in its entirety and replaced with the following:
“4.2.2. Fees .
(a) For each Mile awarded to a Cardholder hereunder Juniper Bank shall pay US Airways Group (i)_a ***** fee equal to ***** for each Base, Bonus or Adjustment Mile awarded by Juniper Bank to an Account (the “ ***** Fee ”); and (ii) a fee for the use of US Airways’ Marks, marketing channels, marketing support, administrative support and brand equity (the “ ***** Fee ”). The ***** Fee shall be paid as set forth below.
(b) On and after *****, the ***** Fee for Miles awarded for purchases shall be determined based on the ***** as compared to the *****, as established by Juniper Bank as follows:
(i) on or before ***** and ***** of each year during the remaining term of this Agreement, Juniper Bank shall, based on the then current *****, establish and advise US Airways Group of the percentage of ***** Accounts as compared to the total number of Accounts that have activity during such period rounded to the nearest even percentage (the “***** Percentage ”) to be utilized for the ***** period beginning that ***** or ***** as applicable.
(ii) the ***** Fee for each category of Miles will be determined by ***** Percentage as set forth on the appropriate chart set forth on Exhibit G .
(iii) each month Juniper Bank will calculate the total number of Miles awarded in each category of Miles awarded for purchases (e.g., Base, Bonus and Adjustment Miles) on all Cards bearing US Airways Marks.
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

2


 

Confidential Treatment Requested
     
CONFIDENTIAL   EXECUTION COPY
(iv) Juniper Bank will apply the ***** Percentage established in (i) above to the number of Miles awarded in each category of Miles to determine the number of Miles awarded to a ***** Account and thus subject to the applicable ***** Fee (as set forth below) and the number of Miles awarded to a ***** Account and thus subject to the applicable ***** Fee (as set forth below).
(c) From ***** Juniper Bank shall pay US Airways Group for all Accounts except the Accounts ***** as follows:
(i) the ***** Fee for each Base, Bonus or Adjustment Mile awarded by Juniper Bank for Net New Purchase Transactions; and
(ii) the ***** Fee as follows:
1) For each ***** of Net New Purchase Transactions on Cards bearing US Airways Marks in which Affinity Cardholders earn ***** Mile per *****, a fee of *****;
2) For every ***** of Net New Purchase Transactions on Cards bearing US Airways Marks in which Cardholders earn ***** Mile per *****, a fee of *****;
3) For each Bonus or Adjustment Mile awarded by Juniper Bank on a Card bearing US Airways Marks, a fee of *****.
(d) As of ***** Juniper Bank shall pay US Airways Group for all Accounts except the Accounts ***** as follows:
(i) the ***** Fee for each Base, Bonus or Adjustment Mile awarded by Juniper Bank for Net New Purchase Transactions; and
(ii) the ***** Fee (as determined in Sub-section (b) above) as follows:
1) For each Base Mile awarded for Net New Purchase Transactions to ***** Accounts, ***** Fee of *****.
2) For each Base Mile awarded to ***** Accounts for Net New Purchase Transactions, ***** Fee based on the then applicable ***** Percentage as set forth on Exhibit G , Chart 1.
3) For each Bonus or Adjustment Mile awarded to ***** for Net New Purchase Transactions, ***** Fee of *****.
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

3


 

Confidential Treatment Requested
     
CONFIDENTIAL   EXECUTION COPY
4) For each Bonus or Adjustment Mile awarded to ***** Accounts for Net New Purchase Transactions, ***** Fee based on the then applicable ***** Percentage as set forth on Exhibit G , Chart 2.
5) To the extent that Juniper Bank awards Bonus Miles other than in connection with Net New Purchases, Juniper Bank shall pay ***** Fee to US Airways Group equal to ***** for each such Bonus Mile.
(e) As of ***** Juniper Bank shall pay US Airways Group for all Accounts except the Accounts ***** as follows:
(i) the ***** Fee for each Base, Bonus or Adjustment Mile awarded by Juniper Bank for Net New Purchase Transactions; and
(ii) the ***** Fee (as determined in Sub-section (b) above) as follows:
1) For each Base Mile awarded to ***** Accounts for Net New Purchase Transactions, ***** Fee of *****.
2) For each Base Mile awarded to ***** Accounts for Net New Purchase Transactions, ***** Fee based on the then applicable ***** Percentage as set forth on Exhibit G , Chart 1.
3) For each Bonus or Adjustment Mile awarded to ***** Accounts for Net New Purchase Transactions, ***** Fee of *****.
4) For each Bonus or Adjustment Mile awarded to ***** Accounts for Net New Purchase Transactions, ***** Fee based on the then applicable ***** Percentage as set forth on Exhibit G , Chart 3.
5) To the extent that Juniper Bank awards Bonus Miles other than in connection with Net New Purchases, Juniper Bank shall pay ***** Fee to US Airways Group equal to ***** for each such Bonus Mile.
(f) As of ***** Juniper Bank shall pay US Airways Group for Accounts ***** only as follows:
(i) the ***** Fee for each Base, Bonus or Adjustment Mile awarded by Juniper Bank for Net New Purchase Transactions; and
(ii) the ***** Fee (as determined in Sub-section (b) above) as follows:
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

4


 

Confidential Treatment Requested
     
CONFIDENTIAL   EXECUTION COPY
1) For each Base, Bonus or Adjustment Mile awarded to ***** Accounts for Net New Purchase Transactions, ***** Fee of *****.
2) For each Base, Bonus or Adjustment Mile awarded to ***** Accounts for Net New Purchase Transactions, ***** Fee based on the then applicable ***** Percentage as set forth in Exhibit G , Chart 4.
3) To the extent that Juniper Bank awards Bonus Miles as incentives for *****, Juniper Bank shall pay ***** Fee to US Airways Group equal to ***** for each such Bonus Mile awarded to such *****.
4) To the extent that Juniper Bank awards Bonus Miles other than in connection with Net New Purchases, Juniper Bank shall pay ***** Fee to US Airways Group equal to ***** for each such Bonus Mile.
(g) As of ***** Juniper Bank shall pay US Airways Group for Accounts ***** only the fees as set forth in Sub-section (e) above.
(h) In the absence of a determination by Juniper Bank of the ***** Percentage, the applicable ***** Fees shall be the ***** Fees and/or ***** Percentage applied *****.
(i) To the extent the rate of ***** Accounts is*****, Juniper Bank shall supplement the charts to account for the additional ***** Percentages.
(j) In addition, US Airways Group will award Base and Bonus Miles as follows:
   
US Airways Group shall award Base Miles as set forth in Exhibit A and Exhibit B attached hereto.
   
US Airways Group will from time to time award Bonus Miles to Accounts. Bonus Miles will be awarded as agreed from time to time by the parties for, by way of example only and not limitation, rewards to Customers when they open Accounts, rewards to Affinity Cardholders for engaging in certain categories of transactions as the parties may agree, including, but not limited to, the use of an Account to purchase US Airways Group tickets. Bonus Miles shall be in addition to Base Miles awarded per Net New Purchase Transactions.”
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

5


 

Confidential Treatment Requested
     
CONFIDENTIAL   EXECUTION COPY
(c) Section 14.1 of the Agreement is deleted in its entirety and replaced with the following:
“14.1 Pre-Purchase of Miles . Juniper Bank will pre-purchase Miles in an amount totaling two hundred million dollars ($200,000,000.00) (together with pre-purchased miles otherwise acquired hereunder, the “ Pre-Purchased Miles ”) and wire such funds to an escrow account held by Citi upon notice (the “ Pre-Purchase Date ”). The funds will be released upon the satisfaction of the following conditions (“ Closing Conditions ”): (i) receipt of requisite lenders consent under the Citi Loan; (ii) completion of the issuance of additional equity by US Airways Group in the amount of one hundred seventy-nine million dollars ($179,000,000), which was completed in August 2008; (iii) completion of the refinancing of a portion of the Citi Loan provided by General Electric and others resulting in, among other things, a prepayment of the Citi Loan in a minimum amount of four hundred million dollars ($400,000,000) and the lowering of the unrestricted cash covenant to eight hundred fifty million dollars ($850,000,000); (iv) receipt of a firm commitment for two hundred million dollars ($200,000,000) of new liquidity from Airbus to be funded at the Effective Time; and (v) US Airways Group has $1.0 billion in Unrestricted Cash (inclusive of the funds to be realized pursuant to the Liquidity Program but exclusive of the funds to be provided by Juniper Bank) above the minimum unrestricted cash covenant in the Citi Loan Amendment. For purposes of this Section 14.1, Unrestricted Cash shall include Collateral posted by US Airways Group with its fuel hedge counterparties. The price for each Pre-Purchased Mile shall be ***** that being the combination of the ***** Fee and the ***** Fee per Mile for Net New Purchase Transactions. If the Closing Conditions are not satisfied on or before *****, the funds in the escrow account shall be promptly returned to Juniper Bank.”
(d) The Agreement is amended by adding a new Exhibit G to the Agreement attached to this Amendment No. 8.
3. Effectiveness . This Amendment No. 8 shall be effective on the Effective Date.
4. Effect . Except as set forth in this Amendment No. 8, the Agreement shall remain in full force and effect and each of US Airways Group and Juniper Bank hereby restates and affirms all of the terms and provisions of the Agreement. If any conflict exists between the terms and provisions of the Agreement and this Amendment No. 8 the terms and provisions of this Amendment No. 8 will govern and control.
5. Entire Agreement . The Agreement, as amended by this Amendment No. 8, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings with respect thereto.
6. Counterparts . This Amendment No. 8 may be executed in any number of counterparts, each of which shall be deemed an original and all of which when taken together shall constitute
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

6


 

Confidential Treatment Requested
     
CONFIDENTIAL   EXECUTION COPY
one and the same instrument. Delivery of an executed counterpart signature page by facsimile shall be effective as a manually executed signature page.
IN WITNESS WHEREOF, Juniper Bank and US Airways Group have executed and delivered this Amendment No. 8 as of the date first written above.
                 
US AIRWAYS GROUP, INC.       BARCLAYS BANK DELAWARE
            Formerly known as
            JUNIPER BANK
 
               
By:
  /s/ Stephen L. Johnson       By:   /s/ Lloyd M. Wirshba
 
               
 
  Stephen L. Johnson           Lloyd M. Wirshba
 
  Title: Executive Vice President — Corporate           Title: CEO
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

7


 

Confidential Treatment Requested
     
CONFIDENTIAL   EXECUTION COPY
EXHIBIT G
***** FEE TABLES
     
Chart 1
 
 
*****
   
 
   
Chart 2
 
 
*****
   
 
   
Chart 3
 
 
*****
   
 
   
Chart 4
 
 
*****
   

 

 

Exhibit 10.5
Confidential Treatment Requested
     
CONFIDENTIAL   EXECUTION COPY
AMENDMENT NO. 9

TO

AMERICA WEST CO-BRANDED CARD AGREEMENT
THIS AMENDMENT NO. 9 TO AMERICA WEST CO-BRANDED CARD AGREEMENT (“ Amendment No. 9 ”) is dated September 21, 2009 (“ Effective Date ”), by and between US AIRWAYS GROUP, INC., a Delaware corporation (“ US Airways Group ”), and BARCLAYS BANK DELAWARE formerly known as JUNIPER BANK (“ Juniper Bank ”).
RECITALS
WHEREAS, America West Airlines, Inc. (“ America West ”) and Juniper Bank are parties to that certain America West Co-Branded Card Agreement, dated January 25, 2005 (the “ Original Agreement ”);
WHEREAS, US Airways Group merged with America West’s parent company, America West Holdings Corporation, and America West assigned its rights and obligations under the Original Agreement to US Airways Group pursuant to that certain Assignment and First Amendment to America West Co-Branded Card Agreement, dated August 8, 2005 (the “ First Amendment ”), as amended by that certain Amendment No. 2 to America West Co-Branded Card Agreement, dated September 26, 2005 (the “ Second Amendment ”), as amended by that certain Amendment No. 3 to America West Co-Branded Card Agreement, dated December 29, 2006 (the “ Third Amendment ”), as amended by that certain Amendment No. 4 to America West Co-Branded Card Agreement, dated December 5, 2007, (the “ Fourth Amendment ”), as amended by that certain Amendment No. 5 to America West Co-Branded Card Agreement, dated August 28, 2008 (the “ Fifth Amendment ”), as amended by that certain Amendment No. 6 to America West Co-Branded Card Agreement, dated October 17, 2008 (the “ Sixth Amendment ”), as amended by that certain Amendment No. 7 to America West Co-Branded Card Agreement, dated February 17, 2009 (the “ Seventh Amendment ”) and as amended by that certain Amendment No. 8 to America West Co-Branded Card Agreement, dated September 17, 2009 (the “ Eighth Amendment ” and together with the First Amendment, Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment, Sixth Amendment, Seventh Amendment and the Original Agreement, the “ Agreement ”);
WHEREAS, the overall global economic recession has impacted demand for air travel resulting in declining revenues for airlines, including US Airways Group, and adversely impacting airlines’ unrestricted cash positions; and
WHEREAS, US Airways Group and Juniper Bank agree to amend and modify certain terms of the Agreement to address such impact on US Airways Group’s unrestricted cash position.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:

 

 


 

Confidential Treatment Requested
     
CONFIDENTIAL   EXECUTION COPY
1. Definitions . All capitalized terms used herein, but not otherwise defined herein, shall have the meanings given to such terms in the Agreement.
2. Amendment . Section 14.3.1(i) of the Agreement is deleted in its entirety and replaced with the following:
  “(i)  
US Airways Group’s Unrestricted Cash shall be equal to or greater than $1.5 billion as measured at the end of each month and ***** pre-tax income (excluding special items) measured ***** (“ Income Test ”); provided, however, for the months of January 2009 and February 2009, US Airways Group’s Unrestricted Cash shall be equal to or greater than $1.4 billion and $1.45 billion, respectively, *****. Provided further, for the months of August through October 2009, US Airways Group’s Unrestricted Cash shall be equal to or greater than $1.35 billion.
 
     
For the purposes of this Section 14.3.1(i) , the calculation of Unrestricted Cash will include Collateral for fuel hedge contracts *****. By way of example, if October is being measured for November’s Subsequent Purchase, US Airways Group’s Unrestricted Cash (including the fuel hedge contracts) will be measured as of October 31 st *****.
 
     
If US Airways Group’s Unrestricted Cash falls below $1.5 billion in any month (other than the months of January February, August, September and October 2009) but the Income Test is met, then Juniper Bank will be required to purchase the additional Pre-Purchased Miles for such month *****.
 
     
By way of example, if US Airways Group’s Unrestricted Cash falls below $1.5 billion in May but the Income Test is met, then Juniper Bank will purchase the additional Pre-Purchased Miles for such month. *****.”
3. Effectiveness . This Amendment No. 9 shall be effective on the Effective Date.
4. Effect . Except as set forth in this Amendment No. 9, the Agreement shall remain in full force and effect and each of US Airways Group and Juniper Bank hereby restates and affirms all of the terms and provisions of the Agreement. If any conflict exists between the terms and provisions of the Agreement and this Amendment No. 9, the terms and provisions of this Amendment No. 9 will govern and control.
5. Entire Agreement . The Agreement, as amended by this Amendment No. 9, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings with respect thereto.
6. Counterparts . This Amendment No. 9 may be executed in any number of counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart signature page by facsimile shall be effective as a manually executed signature page.
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

2


 

Confidential Treatment Requested
     
CONFIDENTIAL   EXECUTION COPY
IN WITNESS WHEREOF, Juniper Bank and US Airways Group have executed and delivered this Amendment No. 9 as of the date first written above.
                 
US AIRWAYS GROUP, INC.       BARCLAYS BANK DELAWARE
            Formerly known as
            JUNIPER BANK
 
               
By:
  /s/ J. Scott Kirby       By:   /s/ Lloyd M. Wirshba
 
               
 
  J. Scott Kirby           Lloyd M. Wirshba
 
  Title: President           Title: CEO
 
     
*****  
Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

3

Exhibit 31.1
CEO CERTIFICATION
I, W. Douglas Parker, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of US Airways Group, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: October 21, 2009
         
  /s/ W. Douglas Parker    
  Name:   W. Douglas Parker   
  Title:   Chief Executive Officer   

 

 

Exhibit 31.2
CFO CERTIFICATION
I, Derek J. Kerr, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of US Airways Group, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: October 21, 2009
         
  /s/ Derek J. Kerr    
  Name:   Derek J. Kerr   
  Title:   Chief Financial Officer   

 

 

Exhibit 31.3
CEO CERTIFICATION
I, W. Douglas Parker, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of US Airways, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: October 21, 2009
         
  /s/ W. Douglas Parker    
  Name:   W. Douglas Parker   
  Title:   Chief Executive Officer   

 

 

Exhibit 31.4
CFO CERTIFICATION
I, Derek J. Kerr, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of US Airways, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: October 21, 2009
         
  /s/ Derek J. Kerr    
  Name:   Derek J. Kerr   
  Title:   Chief Financial Officer   

 

 

Exhibit 32.1
Certification of CEO and CFO Pursuant to
18 U.S.C. Section 1350,
as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report on Form 10-Q of US Airways Group, Inc. (the Company) for the quarterly period ended September 30, 2009 as filed with the Securities and Exchange Commission on the date hereof (the Report), W. Douglas Parker, as Chief Executive Officer of the Company, and Derek J. Kerr, as Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
     
/s/ W. Douglas Parker
 
 
Name:  W. Douglas Parker    
Title: Chief Executive Officer    
Date:  October 21, 2009    
 
   
/s/ Derek J. Kerr
 
 
Name:   Derek J. Kerr    
Title: Chief Financial Officer    
Date:   October 21, 2009    
This certification is being furnished to accompany the Report pursuant to 18 U.S.C. § 1350 and shall not be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

 

 

Exhibit 32.2
Certification of CEO and CFO Pursuant to
18 U.S.C. Section 1350,
as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report on Form 10-Q of US Airways, Inc. (the Company) for the quarterly period ended September 30, 2009 as filed with the Securities and Exchange Commission on the date hereof (the Report), W. Douglas Parker, as Chief Executive Officer of the Company, and Derek J. Kerr, as Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
     
/s/ W. Douglas Parker
 
 
Name:  W. Douglas Parker    
Title: Chief Executive Officer    
Date:  October 21, 2009    
 
   
/s/ Derek J. Kerr
 
 
Name:   Derek J. Kerr    
Title: Chief Financial Officer    
Date:   October 21, 2009    
This certification is being furnished to accompany the Report pursuant to 18 U.S.C. § 1350 and shall not be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.