UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark one)
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þ
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Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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For the quarterly period ended September 30, 2009
or
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o
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Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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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.
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US Airways Group, Inc.
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Large accelerated filer
o
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Accelerated filer
þ
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Non-accelerated filer
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Smaller reporting company
o
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US Airways, Inc.
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Large accelerated filer
o
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Accelerated filer
o
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Non-accelerated filer
þ
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Smaller reporting company
o
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act).
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US Airways Group, Inc.
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Yes
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o
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No
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US Airways, Inc.
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Yes
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o
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No
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þ
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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.
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US Airways Group, Inc.
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Yes
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þ
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No
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o
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US Airways, Inc.
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Yes
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No
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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
Table of Contents
2
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:
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the impact of future significant operating losses;
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economic conditions and their impact on passenger demand and related revenues;
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a reduction in the availability of financing and changes in prevailing interest rates
that result in increased costs of financing;
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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);
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the impact of fuel price volatility, significant disruptions in the supply of aircraft
fuel and further significant increases to fuel prices;
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our ability to maintain adequate liquidity;
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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;
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our reliance on vendors and service providers and our ability to obtain and maintain
commercially reasonable terms with those vendors and service providers;
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our reliance on automated systems and the impact of any failure or disruption of these
systems;
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the impact of the integration of our business units;
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the impact of changes in our business model;
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competitive practices in the industry, including significant fare restructuring
activities, capacity reductions and in court or out of court restructuring by major
airlines;
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the impact of industry consolidation;
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our ability to attract and retain qualified personnel;
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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;
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changes in government legislation and regulation;
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our ability to obtain and maintain adequate facilities and infrastructure to operate and
grow our route network;
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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;
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interruptions or disruptions in service at one or more of our hub airports;
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the impact of any accident involving our aircraft;
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delays in scheduled aircraft deliveries or other loss of anticipated fleet capacity;
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the impact of weather conditions and seasonality of airline travel;
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the cyclical nature of the airline industry;
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the impact of possible future increases in insurance costs and disruptions to insurance
markets;
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the impact of foreign currency exchange rate fluctuations;
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our ability to use NOLs and certain other tax attributes;
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our ability to maintain contracts that are critical to our operations;
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our ability to attract and retain customers; and
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other risks and uncertainties listed from time to time in our reports to and filings with
the Securities and Exchange Commission.
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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.
4
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Item 1A.
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Condensed Consolidated Financial Statements of US Airways Group, Inc.
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US Airways Group, Inc.
Condensed Consolidated Statements of Operations
(In millions, except share and per share amounts)
(Unaudited)
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Three Months
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Nine Months
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Ended September 30,
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Ended September 30,
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2009
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2008
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2009
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2008
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Operating revenues:
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Mainline passenger
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$
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1,757
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$
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2,197
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$
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5,092
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$
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6,364
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Express passenger
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662
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771
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1,856
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2,230
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Cargo
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23
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37
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67
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111
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Other
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277
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256
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817
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652
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Total operating revenues
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2,719
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3,261
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7,832
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9,357
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Operating expenses:
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Aircraft fuel and related taxes
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534
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1,110
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1,353
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3,018
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Loss (gain) on fuel hedging instruments, net
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2
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420
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7
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(80
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Salaries and related costs
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553
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567
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1,653
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1,701
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Express expenses
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654
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844
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1,882
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2,400
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Aircraft rent
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171
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183
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523
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544
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Aircraft maintenance
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174
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188
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532
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601
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Other rent and landing fees
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148
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137
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422
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424
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Selling expenses
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99
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120
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291
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340
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Special items, net
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15
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8
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22
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67
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Depreciation and amortization
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63
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52
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185
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159
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Goodwill impairment
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622
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Other
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300
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321
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859
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982
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Total operating expenses
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2,713
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3,950
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7,729
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10,778
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Operating income (loss)
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6
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(689
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103
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(1,421
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)
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Nonoperating income (expense):
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Interest income
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5
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19
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17
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69
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Interest expense, net
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(81
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(58
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(229
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(176
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Other, net
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(10
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(135
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(16
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(140
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Total nonoperating expense, net
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(86
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(174
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(228
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(247
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)
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Loss before income taxes
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(80
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(863
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)
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(125
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)
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(1,668
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Income tax provision
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3
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3
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Net loss
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$
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(80
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$
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(866
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$
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(125
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$
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(1,671
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Loss per common share:
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Basic loss per common share
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$
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(0.60
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$
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(8.46
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$
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(1.01
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$
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(17.50
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)
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Diluted loss per common share
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$
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(0.60
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)
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$
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(8.46
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$
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(1.01
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$
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(17.50
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)
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Shares used for computation (in thousands):
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Basic
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132,985
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102,406
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123,632
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95,522
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Diluted
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132,985
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102,406
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123,632
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95,522
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See accompanying notes to the condensed consolidated financial statements.
5
US Airways Group, Inc.
Condensed Consolidated Balance Sheets
(In millions, except share and per share amounts)
(Unaudited)
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September 30,
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December 31,
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2009
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2008
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ASSETS
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Current assets
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Cash and cash equivalents
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$
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1,242
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$
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1,034
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Investments in marketable securities
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20
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Restricted cash
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186
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Accounts receivable, net
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341
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293
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Materials and supplies, net
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237
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201
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Prepaid expenses and other
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485
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684
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Total current assets
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2,305
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2,418
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Property and equipment
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Flight equipment
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3,820
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3,157
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Ground property and equipment
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887
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816
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Less accumulated depreciation and amortization
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(1,109
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)
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(954
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)
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3,598
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3,019
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Equipment purchase deposits
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322
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267
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Total property and equipment
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3,920
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3,286
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Other assets
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Other intangibles, net of accumulated amortization of $107 million and $87 million, respectively
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525
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545
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Restricted cash
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530
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540
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Investments in marketable securities
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228
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187
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Other assets
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236
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238
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Total other assets
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1,519
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1,510
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Total assets
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$
|
7,744
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$
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7,214
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LIABILITIES AND STOCKHOLDERS DEFICIT
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Current liabilities
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Current maturities of debt and capital leases
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$
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491
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$
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362
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Accounts payable
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|
|
347
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|
797
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Air traffic liability
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|
|
852
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698
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Accrued compensation and vacation
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193
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|
158
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Accrued taxes
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138
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|
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|
142
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Other accrued expenses
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836
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|
887
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Total current liabilities
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2,857
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|
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3,044
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Noncurrent liabilities and deferred credits
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Long-term debt and capital leases, net of current maturities
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4,135
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3,623
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Deferred gains and credits, net
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360
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383
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Postretirement benefits other than pensions
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103
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108
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Employee benefit liabilities and other
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549
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550
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Total noncurrent liabilities and deferred credits
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5,147
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4,664
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Commitments and contingencies
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Stockholders deficit
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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
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|
2
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|
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|
1
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Additional paid-in capital
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|
|
2,103
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|
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|
1,789
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Accumulated other comprehensive income
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|
|
109
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|
|
|
65
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Accumulated deficit
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|
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(2,461
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)
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(2,336
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Treasury stock, common stock, 416,048 and 413,993 shares at September 30, 2009 and December 31,
2008
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(13
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)
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(13
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|
|
|
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Total stockholders deficit
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(260
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)
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(494
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)
|
|
|
|
|
|
|
|
Total liabilities and stockholders deficit
|
|
$
|
7,744
|
|
|
$
|
7,214
|
|
|
|
|
|
|
|
|
See accompanying notes to the condensed consolidated financial statements.
6
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.
7
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 Groups 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
Companys 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.
8
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 Companys condensed consolidated financial statements. Refer to Note 8 for
further discussion of the Companys 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 Companys 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 Companys 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 entitys purpose and design and the reporting entitys ability to
direct the activities of the other entity that most significantly impact the other entitys
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 entitys 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 Companys condensed consolidated financial statements.
9
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 vendors
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
Companys 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 Companys Boeing 737 aircraft fleet.
|
10
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.
11
4. Debt
The following table details the Companys 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 Groups common stock or a combination thereof at the Companys election. The initial
conversion rate for the 7.25% notes is 218.8184 shares of US Airways Groups 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 Companys capital stock,
certain merger or combination transactions, a substantial turnover of the Companys directors,
stockholder approval of the liquidation or dissolution of the Company and the Companys 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 Companys other existing and
future unsecured senior debt and senior in right of payment to the Companys 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 Companys subsidiaries. The
7.25% notes are also effectively junior to the Companys secured debt, if any, to the extent of the
value of the assets securing such debt.
12
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 Companys 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 Companys 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 Companys 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.
13
6. Express Expenses
Expenses associated with the Companys 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 Companys 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 Companys 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
Companys condensed consolidated balance sheets. Contractual maturities for these auction rate
securities range from seven to 43 years, with 62% of the Companys 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 Companys 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 Companys
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 Companys 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 Companys investments in auction rate securities.
14
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 Companys investments in marketable
securities.
|
|
(2)
|
|
As the Companys 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 Companys 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 Companys 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
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15
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.
16
|
|
|
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.
17
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 STOCKHOLDERS 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
|
|
|
|
|
|
|
|
|
Stockholders 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 stockholders equity (deficit)
|
|
|
329
|
|
|
|
(221
|
)
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity (deficit)
|
|
$
|
7,223
|
|
|
$
|
6,954
|
|
|
|
|
|
|
|
|
See accompanying notes to the condensed consolidated financial statements.
18
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.
19
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.
20
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 entitys purpose and design and the reporting entitys ability to
direct the activities of the other entity that most significantly impact the other entitys
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 entitys 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 vendors
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.
21
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.
|
22
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.
23
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 Groups 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 Groups 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
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24
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.
25
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
|
|
|
|
|
|
|
|
|
26
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.
27
|
|
|
Item 2.
|
|
Managements 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 Yorks LaGuardia Airport and the
Washington, D.C. areas 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.
28
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.
29
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 Groups 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.
30
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 Transportations (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.
|
31
US Airways Groups 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;
|
32
|
|
|
$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.
33
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.
|
34
|
|
|
(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.
|
35
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
|
)
|
|
|
|
|
|
|
|
|
|
|
|
36
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.
37
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.
|
38
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
|
)
|
|
|
|
|
|
|
|
|
|
|
|
39
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
|
)
|
|
|
|
|
|
|
|
|
|
|
|
40
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.
41
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
stockholders 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.
|
42
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.
43
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.
|
44
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.
|
45
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.
|
46
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.
47
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.
|
48
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.
|
49
|
|
|
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.
50
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.
51
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 Moodys 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 Moodys 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.
52
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 Groups 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.
53
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.
54
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
|
|
Moodys
|
|
|
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.
55
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 Groups 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.
56
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 managements 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 managements 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.
57
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.
58
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 entitys purpose and design and the reporting entitys ability to
direct the activities of the other entity that most significantly impact the other entitys
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 entitys 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 vendors 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.
59
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Item 3.
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Quantitative and Qualitative Disclosures About Market Risk
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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.
60
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Item 4.
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Controls and Procedures
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Evaluation of disclosure controls and procedures.
An evaluation was performed under the supervision and with the participation of US Airways
Groups 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 Groups 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 Groups 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.
61
Part II. Other Information
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Item 1.
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Legal Proceedings
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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 Courts 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.
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.
62
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.
63
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.
64
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.
65
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 Yorks 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.
66
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
nations 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
EUs 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.
67
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.
68
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 Groups 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
Groups 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
companys 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 Groups 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:
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our operating results failing to meet the expectations of securities analysts or
investors;
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changes in financial estimates or recommendations by securities analysts;
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material announcements by us or our competitors;
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movements in fuel prices;
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new regulatory pronouncements and changes in regulatory guidelines;
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general and industry-specific economic conditions;
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public sales of a substantial number of shares of our common stock; and
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general market conditions.
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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 Groups 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.
69
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:
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a classified board of directors with three-year staggered terms;
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advance notice procedures for stockholder proposals to be considered at stockholders
meetings;
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the ability of US Airways Groups board of directors to fill vacancies on the board;
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a prohibition against stockholders taking action by written consent;
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a prohibition against stockholders calling special meetings of stockholders;
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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
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super-majority voting requirements to modify or amend specified provisions of US Airways
Groups amended and restated certificate of incorporation.
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These provisions are not intended to prevent a takeover, but are intended to protect and
maximize the value of US Airways Groups 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 Groups 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.
70
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Exhibit No.
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Description
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2.1
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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.*
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3.1
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of US
Airways Group, Inc., effective as of July 24, 2009.
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10.1
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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.*
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10.2
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Amendment No. 4 to the A330 Purchase Agreement dated as of October 2, 2007 between
Airbus S.A.S. and US Airways, Inc.*
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10.3
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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.*
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10.4
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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.*
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10.5
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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.*
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31.1
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Certification of US Airways Groups Chief Executive Officer pursuant to Rule
13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended.
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31.2
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Certification of US Airways Groups Chief Financial Officer pursuant to Rule
13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended.
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31.3
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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.
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31.4
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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.
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32.1
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Certification of US Airways Groups Chief Executive Officer and Chief Financial Officer
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
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32.2
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Certification of US Airways Chief Executive Officer and Chief Financial Officer
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
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*
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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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71
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.
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US Airways Group, Inc. (Registrant)
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Date: October 21, 2009
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By:
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/s/ Derek J. Kerr
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Derek J. Kerr
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Executive Vice President and
Chief Financial Officer
(Duly Authorized Officer and Principal Financial Officer)
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US Airways, Inc. (Registrant)
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Date: October 21, 2009
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By:
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/s/ Derek J. Kerr
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Derek J. Kerr
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Executive Vice President and
Chief Financial Officer
(Duly Authorized Officer and Principal Financial Officer)
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72
Exhibit Index
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Exhibit No.
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Description
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2.1
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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.*
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3.1
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of US
Airways Group, Inc., effective as of July 24, 2009.
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10.1
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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.*
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10.2
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Amendment No. 4 to the A330 Purchase Agreement dated as of October 2, 2007 between
Airbus S.A.S. and US Airways, Inc.*
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10.3
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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.*
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10.4
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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.*
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10.5
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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.*
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31.1
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Certification of US Airways Groups Chief Executive Officer pursuant to Rule
13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended.
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31.2
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Certification of US Airways Groups Chief Financial Officer pursuant to Rule
13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934, as amended.
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31.3
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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.
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31.4
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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.
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32.1
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Certification of US Airways Groups Chief Executive Officer and Chief Financial Officer
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
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32.2
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Certification of US Airways Chief Executive Officer and Chief Financial Officer
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
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*
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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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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
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Page
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ARTICLE I DEFINITIONS
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1
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Section 1.01 Certain Defined Terms
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1
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Section 1.02 Interpretation
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21
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ARTICLE II PURCHASE AND SALE OF THE DELTA TRANSFERRED ASSETS
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22
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Section 2.01 Purchase and Sale of the Delta Transferred Assets
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22
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Section 2.02 Excluded Delta Assets
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22
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Section 2.03 Assumed Delta Liabilities
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23
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Section 2.04 Excluded Delta Liabilities
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23
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Section 2.05 US Airways Purchase Price
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25
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Section 2.06 Consent of Third Parties
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25
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Section 2.07 Delta Credits and Prorations
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26
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ARTICLE III PURCHASE AND SALE OF THE US AIRWAYS TRANSFERRED ASSETS
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30
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Section 3.01 Purchase and Sale of the US Airways Transferred Assets
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30
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Section 3.02 Excluded US Airways Assets
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31
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Section 3.03 Assumed US Airways Liabilities
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32
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Section 3.04 Excluded US Airways Liabilities
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32
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Section 3.05 Delta Purchase Price
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34
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Section 3.06 Consent of Third Parties
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34
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Section 3.07 US Airways Credits and Prorations
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35
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ARTICLE IV CLOSING
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40
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Section 4.01 Closing
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40
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Section 4.02 Deliveries by Delta
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40
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Section 4.03 Deliveries by US Airways
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42
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Section 4.04 Contemporaneous Effectiveness
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|
|
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
|
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Page
|
|
|
Section 5.09 Condition of Assets
|
|
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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
|
|
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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
|
|
|
|
|
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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 Partys 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
Persons 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
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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
Deltas 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.
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Delta Required Consents
means those certain consents, approvals and waivers that
Delta is required to secure in connection with the transactions contemplated herein, all as set
forth on
Schedule 6.04
attached hereto.
Delta 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
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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 arms-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.
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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 Persons 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
.
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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).
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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.
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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.
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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 Partys 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 Partys 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 Partys 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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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, Deltas right, title, interest to, the following assets (collectively, the
Excluded Delta Assets
):
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(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
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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;
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(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 Deltas 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 personnels normal business activities. The failure of Delta
to object by written notice within such sixty (60) day period will constitute Deltas 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 Deltas 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 Deltas 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 personnels 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 Deltas or
Northwests 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 FAAs 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 Slots 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 Deltas 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 (PCBs) 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 finders
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 Deltas
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 Slots 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 Deltas or Northwests 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 Deltas 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 Deltas 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 Deltas 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 Deltas 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 (PCBs) 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 Deltas 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 finders 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 Deltas 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
Airways 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 Partys 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 FAAs 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. Deltas 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 FAAs 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 Deltas
scheduled operations of its DCA Slots for the prior two months and a report of any variances
between Deltas 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 Deltas 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 Deltas 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
Partys 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 Partys 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 Deltas 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 Deltas 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 Deltas (or any Delta successors) 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 Trustees 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 Trustees 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) Deltas 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 Partys 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)
Officers 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)
Officers 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 Deltas 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 Northwests 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) Deltas 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 Persons 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 Persons 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 Partys 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 Partys 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 Partys responsibility to indemnify, defend and
hold harmless the Indemnified Party therefor and within such 15 Business Day period demonstrates to
the Indemnified Partys 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 Partys own expense and by such Indemnifying Partys 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 Partys
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
Partys 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 Partys 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 Partys
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 Partys 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 Partys own
expense and by such Indemnifying Partys 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 Partys 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 Partys 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 Partys 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
Partys 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 Partys 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)
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if to Delta, to
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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
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with a copy to:
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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
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and
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Delta Air Lines, Inc.
Dept. 981
1030 Delta Blvd.
Atlanta, GA 30354-1989
Phone: (404) 715-2191
Facsimile: (404) 715-2233
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Attention: Senior Vice President and General Counsel
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(b)
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if to US Airways, to
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US Airways, Inc.
111 W. Rio Salado Parkway
Tempe, AZ 85281
Phone: (480) 693-0800
Facsimile: (480) 693-5932
Attention: Legal Department
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with a copy to:
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Securities and Exchange Commission.
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Skadden, Arps, Slate, Meagher & Flom LLP
155 N. Wacker Drive
Chicago, IL 60606
|
Attention:
|
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Peter C. Krupp, Esq.
Kimberly A. deBeers, Esq.
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Facsimile:
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(312) 407-0411
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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 Partys 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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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.
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IN WITNESS WHEREOF, Delta and US Airways have duly executed this Agreement, each as of the
date first written above.
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DELTA AIR LINES, INC.
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By:
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/s/ Glen W. Hauenstein
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Name:
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Glen W. Hauenstein
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Title:
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Executive Vice President
Network Planning and
Revenue Management
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US AIRWAYS, INC.
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By:
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/s/ J. Scott Kirby
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Name:
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J. Scott Kirby
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Title:
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President
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AND SOLELY WITH RESPECT TO ARTICLE XII HEREOF
US AIRWAYS GROUP, INC.
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By:
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/s/ J. Scott Kirby
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Name:
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J. Scott Kirby
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Title:
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President
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