EXHIBIT 4.19
FORM OF OWNED AIRCRAFT PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT
(N___U_)
Dated as of
_________ __, 2001
By and Between
US AIRWAYS, INC.,
Owner
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity except
as expressly provided herein, but solely as
Pass Through Trustee under each of the
Pass Through Trust Agreements,
Subordination Agent and Indenture Trustee
-----------------------------
One Airbus [A321][A330] Aircraft
U.S. Registration No. N___U_
===============================================================================
INDEX TO PARTICIPATION AGREEMENT
Page
SECTION 1. Definitions and Construction..................................2
SECTION 2. Participation by Pass Through Trustees in Financing
of the Aircraft...............................................2
(a) Participation by Pass Through Trustees on the
Delivery Date; Issuance of Equipment Notes................2
(b) Owner's Notice of Delivery Date...........................3
(c) Closing...................................................3
(d) Postponement of Scheduled Delivery Date...................3
SECTION 3. [Reserved.]...................................................4
SECTION 4. Conditions Precedent..........................................4
(a) Conditions Precedent to Purchase of Equipment Notes.......4
(b) Conditions Precedent to the Obligations of Owner.........10
SECTION 5. Extent of Interest of Note Holders...........................12
SECTION 6. Representations and Warranties of Owner; Indemnities.........12
(a) Representations and Warranties...........................12
(b) General Indemnity........................................15
SECTION 7. Representations, Warranties and Covenants....................19
(a) Securities Act...........................................19
(b) Reregistration...........................................19
(c) Quiet Enjoyment..........................................20
(d) Equipment Notes Acquired for Investment..................20
(e) Owner Merger Covenant....................................21
(f) Representations, Warranties and Covenants of
the Indenture Trustee....................................22
(g) Confidentiality of Purchase Agreement....................23
(h) Loan Participant Liens...................................23
(i) Indenture Trustee Liens..................................24
(j) Further Assurances.......................................24
(k) Transfer of Equipment Notes..............................24
(l) Representations and Warranties of Pass Through
Trustees.................................................24
(m) Representations and Warranties of Subordination
Agent....................................................26
SECTION 8. Reliance of Liquidity Provider and Policy Provider...........28
SECTION 9. Other Documents..............................................29
SECTION 10. Certain Covenants of Owner...................................29
(a) Further Assurances.......................................29
(b) Filings..................................................29
SECTION 11. [Reserved.]..................................................29
SECTION 12. Notices; Consent to Jurisdiction.............................29
(a) Notices..................................................29
(b) Consent to Jurisdiction..................................30
SECTION 13. [Reserved.]..................................................30
SECTION 14. Miscellaneous................................................30
(a) Survival.................................................30
(b) Counterparts.............................................31
(c) Amendments and Waivers...................................31
(d) Successors and Assigns...................................31
(e) Governing Law............................................31
(e) References...............................................31
EXHIBITS
Exhibit A - Form of Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
(Illinois), special counsel for Owner
Exhibit B - Form of Opinion of Owner's Legal Department
Exhibit C - Form of Opinion of ▇▇▇▇▇▇▇▇ Chance, regarding the
Manufacturer documents
Exhibit D - Form of Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special FAA
Counsel
Exhibit E - Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for
the Indenture Trustee
Exhibit F - Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for
the Pass Through Trustees
Exhibit G - Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for
the Subordination Agent
SCHEDULES
Schedule I - Names and Addresses
Schedule II - Commitment
Schedule III - Pass Through Trust Agreements
Owned Aircraft
Participation Agreement
N___U_
PARTICIPATION AGREEMENT
(N___U_)
THIS PARTICIPATION AGREEMENT (N___U_) dated as of _______
___, 2001 (as amended, supplemented or otherwise modified from time to
time, this "Agreement") by and between US AIRWAYS, INC., a Delaware
corporation (together with its successors and permitted assigns, the
"Owner"), and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity
except as otherwise provided herein, but solely as pass through trustee
under each of two separate Pass Through Trust Agreements (in such capacity,
together with its successors and permitted assigns, the "Pass Through
Trustee"), subordination agent and trustee under the Intercreditor
Agreement (in such capacity, together with its successors and permitted
assigns, the "Subordination Agent"), and Indenture Trustee under the
Indenture (in such capacity, together with any successor indenture trustee,
the "Indenture Trustee");
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Indenture Trustee and the Owner are entering into the
Indenture pursuant to which the Owner will issue to the Pass Through
Trustees for each Pass Through Trust Equipment Notes in two series, which
Equipment Notes are to be secured by the mortgage and security interests
created by the Owner in favor of the Indenture Trustee;
WHEREAS, concurrently with the execution and delivery of
this Agreement, Owner will execute and deliver an Indenture Supplement
covering the Aircraft, supplementing the Indenture;
WHEREAS, the proceeds from the issuance and sale of the Pass
Through Certificates by each Pass Through Trust will be applied in part by
the Pass Through Trustees on the Delivery Date to purchase from Owner, on
behalf of each Pass Through Trust, all of the Equipment Notes bearing the
same interest rate as the Pass Through Certificates issued by such Pass
Through Trust;
WHEREAS, pursuant to the terms of the Note Purchase
Agreement, the Pass Through Trustees will purchase from the Owner on the
Delivery Date, on behalf of each Pass Through Trust, all of the Equipment
Notes bearing the same interest rate as the Pass Through Certificates
issued by such Pass Through Trust;
WHEREAS, prior to the execution and delivery of this
Agreement, (i) the Liquidity Provider entered into two separate Liquidity
Facilities, one for the benefit of the holders of Pass Through Certificates
of each of the Class G Pass Through Trust, and the Class C Pass Through
Trust (each referenced on Schedule III hereto), with the Subordination
Agent, as agent for the Pass Through Trustees on behalf of each such Pass
Through Trust; (ii) the Policy Provider entered into the Policy Provider
Agreement with the Subordination Agent, as agent for the Class G Pass
Through Trustee on behalf of the Class G Pass Through Trust and has issued
the Policy for the benefit of the holders of the Class G Pass Through
Certificates and (iii) the Pass Through Trustees, the Liquidity Providers,
the Policy Provider and the Subordination Agent have entered into the
Intercreditor Agreement; and
WHEREAS, the Equipment Notes will be held by the
Subordination Agent pursuant to the Intercreditor Agreement on behalf of
the Pass Through Trusts.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND CONSTRUCTION.
Capitalized terms used but not defined herein shall have the
respective meanings set forth or incorporated by reference, and shall be
construed and interpreted in the manner described, in Annex A.
SECTION 2. PARTICIPATION BY PASS THROUGH TRUSTEES IN FINANCING OF THE
AIRCRAFT.
(a) Participation by Pass Through Trustees on the Delivery
Date; Issuance of Equipment Notes. Subject to the terms and conditions of
this Agreement, the Pass Through Trustee for each Pass Through Trust agrees
to make a secured loan to Owner on the Delivery Date to finance, in part,
the Owner's acquisition of the Aircraft by paying to Owner the aggregate
purchase price of the Equipment Notes being issued to such Pass Through
Trustee as set forth on Schedule II opposite the name of such Pass Through
Trust. The Pass Through Trustees shall make such payments to Owner on a
date to be designated pursuant to Section 2(b) but in no event later than
_________________, by transferring to the account of Owner at State Street
Bank and Trust Company of Connecticut, National Association, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Square, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ABA No. 011-00-0028,
Account No. __________, Reference: US Airways, Inc. 2001-1 EETC/N___U_),
not later than 9:30 a.m., New York City time, on the Delivery Date in
immediately available funds in Dollars, the amount set forth opposite the
name of such Pass Through Trust on Schedule II hereto.
Upon the occurrence of the above transfers by the Pass
Through Trustee for each Pass Through Trust to Owner, Owner shall issue,
pursuant to Article II of the Indenture, to the Subordination Agent on
behalf of the Pass Through Trustees for each of the Pass Through Trusts,
Equipment Notes of the maturity and aggregate principal amount, bearing the
interest rate and for the purchase price set forth on Schedule II opposite
the name of such Pass Through Trust.
(b) Owner's Notice of Delivery Date. Owner agrees to give
the Indenture Trustee, the Pass Through Trustees and the Subordination
Agent at least one (1) Business Day written or facsimile notice prior to
the Delivery Date, which notice shall specify the amount of Equipment Notes
to be purchased by the Pass Through Trustees, the Delivery Date for the
Aircraft, the serial number of the Airframe and each Engine, and the United
States registration number for the Aircraft.
(c) Closing. The closing of the transactions referred to in
this Agreement shall take place commencing at 9:30 a.m. local time, on the
Delivery Date, at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
in New York, New York.
(d) Postponement of Scheduled Delivery Date.
(i) If for any reason whatsoever the closing of the
transactions contemplated hereby is not consummated on the Delivery
Date provided for pursuant to Section 2(b) (the "Scheduled Delivery
Date"), the closing shall be deemed adjourned to the next Business
Day or to such other Business Day on or prior to _______________ as
Owner shall specify by written notice to the Pass Through Trustees
and the Indenture Trustee.
(ii) If the closing fails to occur on the Scheduled Delivery
Date, Owner shall cause the Indenture Trustee to promptly return to
the Pass Through Trustees any funds provided by any such Pass
Through Trustee, together with interest or income earned thereon.
(iii) If the closing fails to occur on the Scheduled
Delivery Date and funds are not returned, as provided by clause
(ii) above, to each Pass Through Trustee that made funds available,
Owner shall use reasonable efforts to cause the Indenture Trustee
to invest, at the risk of Owner, the funds received by it from such
Pass Through Trustees in Cash Equivalents. Any such obligations
purchased by Owner, whether directly or through a repurchase
agreement, shall be held in trust by the Indenture Trustee for the
benefit of the respective Pass Through Trustees that provided such
funds.
(iv) If the closing fails to occur on the Scheduled Delivery
Date, unless Owner shall cause the Indenture Trustee to return all
funds to the Pass Through Trustees by 2:00 p.m., New York City
time, on the Scheduled Delivery Date, Owner shall reimburse each
Pass Through Trustee that has made funds available pursuant to this
Section 2 for the loss of the use of its funds an amount equal to
the excess, if any, of (x) interest at the Debt Rate on the amount
of such funds for the period from and including the Scheduled
Delivery Date to but excluding the actual Delivery Date or, if
earlier, the day on which such Pass Through Trustee's funds are
returned if such return is made by 2:00 p.m., New York City time
(or to but excluding the next following Business Day if such return
is not made by such time) over (y) any amount paid to such Pass
Through Trustee in respect of interest or income earned by Owner
pursuant to clause (iii) above.
(v) On the Delivery Date or on the date funds are required
to be returned to the Pass Through Trustees pursuant to clause (ii)
above, Owner shall reimburse the Pass Through Trustees that
provided funds which are invested by Owner pursuant to this
subsection (d) for any losses incurred on such investments. All
income and profits on the investment of such funds shall be for the
respective accounts of such Pass Through Trustee, and Owner shall
not be liable for failure to invest such funds, except for its own
negligence or willful misconduct.
SECTION 3. [RESERVED.]
SECTION 4. CONDITIONS PRECEDENT.
(a) Conditions Precedent to Purchase of Equipment Notes. It
is agreed that the obligations of the Indenture Trustee, the Subordination
Agent and the Pass Through Trustees on behalf of each Pass Through Trust to
participate in the transaction contemplated hereby on the Delivery Date are
subject to the fulfillment to the satisfaction of each party (or waiver by
such party), prior to or on the Delivery Date of the following conditions
precedent:
(i) At least one (1) Business Day prior to the Delivery
Date, each of the parties hereto shall have received the Delivery
Notice pursuant to Section 2(b).
(ii) On the Delivery Date, no change shall have occurred
after the date of the execution and delivery of this Agreement in
applicable law or regulations or guidelines or interpretations
thereof by appropriate regulatory authorities which would make it a
violation of law or regulations or guidelines for the Pass Through
Trustees to make its Commitment available in accordance with
Section 2.
(iii) The following documents shall have been duly
authorized, executed and delivered by the respective party or
parties thereto, shall each be satisfactory in form and substance
to the Indenture Trustee, the Pass Through Trustees and the
Subordination Agent and shall be in full force and effect and
executed counterparts shall have been delivered to the Indenture
Trustee, the Pass Through Trustees and the Subordination Agent, or
their respective counsel, provided that only the Subordination
Agent on behalf of each Pass Through Trustee shall receive an
executed original of such Pass Through Trustee's respective
Equipment Note:
(1) an excerpted copy of the Purchase Agreement
(insofar as it relates to the Aircraft);
(2) the Indenture;
(3) the Indenture Supplement;
(4) the Equipment Notes;
(5) the FAA ▇▇▇▇ of Sale;
(6) the ▇▇▇▇ of Sale;
(7) the Purchase Agreement Assignment;
(8) the Consent and Agreement; and
(9) the French Pledge Agreement.
In addition, the Pass Through Trustees shall have
received executed counterparts or conformed copies of the following
documents:
(1) each of the Pass Through Trust Agreements;
(2) the Intercreditor Agreement;
(3) the Liquidity Facility for each of the Class G and
Class C Pass Through Trusts; and
(4) the Policy Provider Agreement and the Policy for
the Class G Pass Through Trust.
(iv) A Uniform Commercial Code financing statement or
statements covering all the security interests created by or
pursuant to the Granting Clause of the Indenture that are not
covered by the recording system established by the Transportation
Code shall have been executed and delivered by Owner, and
arrangements satisfactory to the Indenture Trustee shall have been
made for the filing of such financing statement or statements in
all places necessary or advisable, and any additional Uniform
Commercial Code financing statements deemed advisable by the Pass
Through Trustees shall have been executed and delivered by Owner
and arrangements satisfactory to the Indenture Trustee shall have
been made for the filing of such financing statements.
(v) The Indenture Trustee, the Pass Through Trustees and the
Subordination Agent shall have received the following, in each case
in form and substance satisfactory to it (except it shall not be a
condition to the obligation of any such party that it receive a
certificate or other document required to be delivered by it):
(A) (1) an incumbency certificate of Owner as to the person
or persons authorized to execute and deliver the Operative
Documents to which Owner is a party and any other documents
to be executed on behalf of Owner in connection with the
transactions contemplated hereby and the signatures of such
person or persons;
(2) a copy of the resolutions of the board of
directors of Owner or Owner's executive committee, certified
by the Secretary or an Assistant Secretary of Owner, duly
authorizing the transactions contemplated hereby and the
execution and delivery of each of the documents required to
be executed and delivered on behalf of Owner in connection
with the transactions contemplated hereby; and
(3) a copy of the certificate of incorporation of
Owner, certified by the Secretary of State of the State of
Delaware, a copy of the by-laws of Owner certified by the
Secretary or Assistant Secretary of Owner, and a certificate
or other evidence from the Secretary of State of the State
of Delaware, dated as of a date shortly prior to the
Delivery Date, as to the due incorporation and good standing
of Owner in such state.
(B) (1) an incumbency certificate of the Indenture Trustee
as to the person or persons authorized to execute and
deliver the Operative Documents to which the Indenture
Trustee is a party and any other documents to be executed on
behalf of the Indenture Trustee in connection with the
transactions contemplated hereby and the signatures of such
person or persons;
(2) a copy of the resolutions of the board of
directors of the Indenture Trustee, certified by the
Secretary or an Assistant Secretary of the Indenture
Trustee, duly authorizing the transactions contemplated
hereby and the execution and delivery of each of the
documents required to be executed and delivered on behalf of
the Indenture Trustee in connection with the transactions
contemplated hereby;
(3) a copy of the articles of association of the
Indenture Trustee certified by the Comptroller of the
Currency, a copy of the by-laws of the Indenture Trustee
certified by the Secretary or an Assistant Secretary of the
Indenture Trustee, and a certificate or other evidence from
the Comptroller of the Currency, dated as of a date shortly
prior to the Delivery Date, as to the existence of the
Indenture Trustee under the laws of the United States of
America; and
(4) a certificate signed by an authorized officer of
the Indenture Trustee, dated the Delivery Date, certifying
that the representations and warranties contained herein of
the Indenture Trustee are correct in all material respects
as though made on and as of the Delivery Date, except to the
extent that such representations and warranties relate
solely to an earlier date (in which case such
representations and warranties are correct on and as of such
earlier date).
(vi) All appropriate action required to have been taken
prior to the Delivery Date in connection with the transactions
contemplated by this Agreement shall have been taken by the Federal
Aviation Administration, or any governmental or political agency,
subdivision or instrumentality of the United States, and all
orders, permits, waivers, authorizations, exemptions and approvals
of such entities required to be in effect on the Delivery Date in
connection with the transactions contemplated by this Agreement
shall have been issued, and all such orders, permits, waivers,
authorizations, exemptions and approvals shall be in full force and
effect on the Delivery Date.
(vii) The Indenture Trustee, the Pass Through Trustees and
the Subordination Agent shall have received a certificate signed by
an authorized officer of Owner to the effect that:
(1) the Aircraft has been duly certified by the
Federal Aviation Administration as to type and has a current
certificate of airworthiness;
(2) the Indenture and the Indenture Supplement
covering the Aircraft shall have been duly filed for
recordation (or shall be in the process of being so duly
filed for recordation) with the Federal Aviation
Administration;
(3) the representations and warranties contained
herein of Owner are correct in all material respects as
though made on and as of the Delivery Date, except to the
extent that such representations and warranties relate
solely to an earlier date (in which case such
representations and warranties were correct on and as of
such earlier date); and
(4) the conditions to the purchase of the Equipment
Notes by the Pass Through Trustees under the Pass Through
Documents have been duly satisfied or waived in accordance
with their respective terms.
(viii) In the case of the Pass Through Trustees, the
conditions specified in Section 3 of the Note Purchase Agreement
shall have been satisfied or waived.
(ix) The Indenture Trustee, the Pass Through Trustees and
the Subordination Agent shall have received, addressed to each such
party, an opinion dated the Delivery Date substantially in the form
of Exhibit A hereto from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
(Illinois), special counsel for Owner, and an opinion dated the
Delivery Date substantially in the form of Exhibit B hereto from
Owner's legal department.
(x) The Pass Through Trustees and the Indenture Trustee
shall have received, addressed to the Pass Through Trustees, the
Indenture Trustee and Owner an opinion dated the Delivery Date
substantially in the form of Exhibit C hereto from ▇▇▇▇▇▇▇▇ Chance,
with respect to the Manufacturer Documents.
(xi) [Reserved.]
(xii) [Reserved.]
(xiii) The Indenture Trustee, the Pass Through Trustees and
the Subordination Agent shall have received, addressed to each such
party, an opinion dated the Delivery Date substantially in the form
of Exhibit D hereto from ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special FAA
counsel.
(xiv) The Pass Through Trustees and the Subordination Agent
shall have received, addressed to each such party an opinion dated
the Delivery Date substantially in the form of Exhibit E from
▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the Indenture Trustee.
(xv) [Reserved.]
(xvi) The Indenture Trustee, the Pass Through Trustees and
the Subordination Agent shall have received an insurance
certificate together with an independent insurance broker's report,
in form and substance reasonably satisfactory to the Indenture
Trustee, as to the due compliance with the terms of Section 7.04 of
the Indenture relating to insurance with respect to the Aircraft.
(xvii) [Reserved.]
(xviii)No action or proceeding shall have been instituted
nor shall governmental action be threatened before any court or
governmental agency, nor shall any order, judgment or decree have
been issued or proposed to be issued by any court or governmental
agency at the time of the Delivery Date to set aside, restrain,
enjoin or prevent the completion and consummation of this Agreement
or the transactions contemplated hereby.
(xix) [Reserved.]
(xx) No Event of Default has occurred and is continuing and
no Event of Loss has occurred with respect to the Airframe or any
Engine.
(xxi) The Indenture Trustee and the Subordination Agent
shall have received (A) a certificate signed by an authorized
officer of the Pass Through Trustees, dated the Delivery Date,
certifying that the representations and warranties contained herein
of the Pass Through Trustees are correct in all material respects
as though made on and as of the Delivery Date, except to the extent
that such representations and warranties relate solely to an
earlier date (in which case such representations and warranties are
correct on and as of such earlier date), (B) an opinion dated the
Delivery Date substantially in the form of Exhibit F hereto
addressed to each such party of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel
for the Pass Through Trustees and (C) such other documents and
evidence with respect to the Pass Through Trustees as either such
Person may reasonably request in order to establish the due
consummation of the transactions contemplated by this Agreement,
the taking of all necessary corporate action in connection
therewith and compliance with the conditions herein set forth.
(xxii) The Indenture Trustee and the Pass Through Trustees
shall have received, addressed to each such party an opinion dated
the Delivery Date substantially in the form of Exhibit G hereto
from ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the Subordination Agent.
Promptly upon the recording of the Indenture and the
Indenture Supplement covering the Aircraft pursuant to the Transportation
Code, Owner will cause ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special FAA counsel in
Oklahoma City, Oklahoma, to deliver to the Pass Through Trustees, the
Indenture Trustee and Owner an opinion as to the due recording of the
Indenture and such Indenture Supplement and the lack of filing of any
intervening documents with respect to the Aircraft.
(b) Conditions Precedent to the Obligations of Owner. It is
agreed that the obligations of Owner to participate in the transactions
contemplated hereby on the Delivery Date are all subject to the fulfillment
to the satisfaction of Owner prior to the Delivery Date of the following
conditions precedent:
(i) All appropriate action required to have been taken on or
prior to the Delivery Date in connection with the transactions
contemplated by this Agreement shall have been taken by the Federal
Aviation Administration, or any governmental or political agency,
subdivision or instrumentality of the United States, and all
orders, permits, waivers, exemptions, authorizations and approvals
of such entities required to be in effect on the Delivery Date in
connection with the transactions contemplated by this Agreement
shall have been issued, and all such orders, permits, waivers,
exemptions, authorizations and approvals shall be in full force and
effect on the Delivery Date.
(ii) The conditions specified in Sections 4(a)(ii) shall
have been satisfied.
(iii) Those documents described in Section 4(a)(iii) shall
have been duly authorized, executed and delivered by the respective
party or parties thereto (other than Owner) in the manner specified
in Section 4(a)(iii), shall each be satisfactory in form and
substance to Owner, shall be in full force and effect on the
Delivery Date, and an executed counterpart of each thereof (other
than the Equipment Notes) shall have been delivered to Owner or its
special counsel.
(iv) Owner shall have received (A) each certificate referred
to in Section 4(a)(v) (other than the certificate referred to in
clause (A) thereof), (B) the certificate referred to in Section
4(a)(xxi)(A), and (C) such other documents and evidence with
respect to the Pass Through Trustees as Owner or its special
counsel may reasonably request in order to establish the due
consummation of the transactions contemplated by this Agreement,
the taking of all corporate proceedings in connection therewith and
compliance with the conditions herein set forth.
(v) Owner shall have received the opinions set forth in
Sections 4(a)(x), 4(a)(xiii), 4(a)(xiv), 4(a)(xxi)(B) and
4(a)(xxii) in each case addressed to Owner and dated the Delivery
Date.
(vi) No action or proceeding shall have been instituted nor
shall governmental action be threatened before any court or
governmental agency, nor shall any order, judgment or decree have
been issued or proposed to be issued by any court or governmental
agency at the time of the Delivery Date to set aside, restrain,
enjoin or prevent the completion and consummation of this Agreement
or the transactions contemplated hereby.
(vii) No change shall have occurred after the date of the
execution and delivery of this Agreement in applicable law or
regulations or guidelines or interpretations by appropriate
regulatory authorities which would make it a violation of law or
regulations or guidelines for Owner to enter into any transaction
contemplated by the Operative Documents to be executed on or before
the Delivery Date.
(viii) Owner shall have been paid by the Pass Through
Trustees for the issuance of the Equipment Notes.
SECTION 5. EXTENT OF INTEREST OF NOTE HOLDERS. No Note Holder shall
have any further interest in, or other right with respect to, the mortgage
and security interests created by the Indenture when and if the principal
of and interest on all Equipment Notes held by such holder and all other
sums payable to such holder hereunder, under the Indenture and under such
Equipment Notes shall have been paid in full.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF OWNER; INDEMNITIES.
(a) Representations and Warranties. Owner represents and
warrants to the Pass Through Trustees, the Indenture Trustee, each Loan
Participant, the Subordination Agent the Liquidity Provider and the Policy
Provider that:
(i) Owner is a corporation duly organized, validly existing
and in good standing under the laws of the state of its
incorporation, has the corporate power and authority to own or hold
under lease its properties, has, or had on the respective dates of
execution thereof, the corporate power and authority to enter into
and perform its obligations under the Owner Documents, the Pass
Through Trust Agreements and the other Operative Documents to which
it is a party, and is duly qualified to do business as a foreign
corporation in each state in which its operations or the nature of
its business requires other than failures to so qualify which would
not have a material adverse effect on the condition (financial or
otherwise), business or properties of Owner and its subsidiaries
considered as one enterprise;
(ii) Owner is a Certificated Air Carrier, and its chief
executive office (as such term is used in Article 9 of the Uniform
Commercial Code in effect in the State of Virginia) is located at
Arlington, Virginia;
(iii) the execution and delivery by Owner of the Owner
Documents, the Pass Through Trust Agreements and each other
Operative Document to which Owner is a party, and the performance
of the obligations of Owner under the Owner Documents, the Pass
Through Trust Agreements and each other Operative Document to which
Owner is a party, have been duly authorized by all necessary
corporate action on the part of Owner, do not require any
stockholder approval, or approval or consent of any trustee or
holder of any material indebtedness or material obligations of
Owner, except such as have been duly obtained and are in full force
and effect, and do not contravene any law, governmental rule,
regulation or order binding on Owner or the certificate of
incorporation or by-laws of Owner, or contravene the provisions of,
or constitute a default under, or result in the creation of any
Lien (other than Permitted Liens) upon the property of Owner under,
any indenture, mortgage, contract or other agreement to which Owner
is a party or by which it may be bound or affected which
contravention, default or Lien, individually or in the aggregate,
would be reasonably likely to have a material adverse effect on the
condition (financial or otherwise), business or properties of Owner
and its subsidiaries considered as one enterprise; provided, that
insofar as the representations and warranties set forth in this
Section 6(a)(iii) apply to the prohibited transaction rules of
ERISA and Section 4975 of the Code, such representations and
warranties are based upon and subject to the truth and accuracy of
the representations and warranties made or deemed made by each
purchaser of Pass Through Certificates issued by a Pass Through
Trust;
(iv) neither the execution and delivery by Owner of Owner
Documents, the Pass Through Trust Agreements or any other Operative
Document to which Owner is a party, nor the performance of the
obligations of Owner under Owner Documents, the Pass Through Trust
Agreements or the other Operative Documents to which Owner is a
party, requires the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in
respect of, the Department of Transportation, the FAA, or any other
Federal, state or foreign governmental authority having
jurisdiction over Owner, other than (A) the registration of the
Pass Through Certificates under the Securities Act and under the
securities laws of any state in which the Pass Through Certificates
may be offered for sale if the laws of such state require such
action, (B) the qualification of the Pass Through Trust Agreements
under the Trust Indenture Act of 1939, as amended, pursuant to an
order of the Securities and Exchange Commission, (C) the orders,
permits, waivers, exemptions, authorizations and approvals of the
regulatory authorities having jurisdiction over the operation of
the Aircraft by Owner required to be obtained on or prior to the
Delivery Date, which orders, permits, waivers, exemptions,
authorizations and approvals have been, or on the Delivery Date
will be, duly obtained and are, or on the Delivery Date will be, in
full force and effect, (D) the registrations and filings referred
to in Section 6(a)(vi), and (E) authorizations, consents,
approvals, actions, notices and filings required to be obtained,
taken, given or made either only after the date hereof or the
failure of which to obtain, take, give or make would not be
reasonably likely to have a material adverse effect on the
condition (financial or otherwise), business or properties of Owner
and its subsidiaries considered as one enterprise;
(v) this Agreement, each of the other Owner Documents and
the Pass Through Trust Agreements to which Owner is a party
constitute (or, in the case of documents to be executed on the
Delivery Date, will constitute) the legal, valid and binding
obligations of Owner enforceable against Owner in accordance with
their respective terms, except as the same may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(vi) except for (A) the filing for recording pursuant to the
Transportation Code of the Indenture and the Indenture Supplement
attached thereto and made a part thereof and (B) the filing of
financing statements (and continuation statements at periodic
intervals) with respect to the security interests created by such
documents under the Uniform Commercial Code of Virginia and such
other states as may be specified in the opinion furnished pursuant
to Section 4(a)(ix) hereof, no further filing or recording of any
document (including any financing statement in respect thereof
under Article 9 of the Uniform Commercial Code of any applicable
jurisdiction) or other action is necessary under the laws of the
United States of America or any State thereof in order to perfect
the security interest in favor of the Indenture Trustee in the
Aircraft (with respect to such portion of the Aircraft as is
covered by the recording system established by the FAA pursuant to
49 U.S.C. Section 44107);
(vii) neither Owner nor any of its Affiliates has directly
or indirectly offered any interest in the Equipment Notes or the
Pass Through Certificates for sale to any Person other than in a
manner permitted by the Securities Act and by the rules and
regulations thereunder;
(viii) Owner is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(ix) no event has occurred and is continuing which
constitutes a Default or an Event of Default;
(x) no event has occurred and is continuing which
constitutes an Event of Loss or would constitute an Event of Loss
with the lapse of time;
(xi) Owner is solvent and has no intention or belief that it
is about to incur debts beyond its ability to pay as they mature;
(xii) none of the proceeds from the issuance of the
Equipment Notes will be used directly or indirectly by Owner to
purchase or carry any "margin security" as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve
System;
(xiii) except as may have been disclosed in Owner's reports
filed with the Securities and Exchange Commission, there are no
pending or threatened actions or proceedings that individually or
in the aggregate which could be expected to have a material adverse
effect on the condition (financial or otherwise), business or
properties of Owner and its subsidiaries considered as one
enterprise;
(xiv) Owner has good title (subject to filing and
recordation of the FAA ▇▇▇▇ of Sale with the FAA) to the Aircraft,
free and clear of all Liens, except the Lien of the Trust Indenture
and Liens permitted by clauses (iv) (solely for Taxes not yet due
but excluding any such Taxes being contested) and (v) (solely
securing obligations that are not yet due but excluding any such
obligations being contested) of Section 7.01 of the Trust
Indenture;
(xv) the audited consolidated balance sheet of Owner with
respect to fiscal year ended [December 31, 1999] included in
Owner's annual report on Form 10-K for the year ended [December 31,
1999,] filed by Owner with the SEC, and the related consolidated
statements of income, stockholders' equity and cash flows for the
period then ended, have been prepared in conformity with GAAP and
present fairly in all material respects the financial condition of
Owner and its consolidated subsidiaries as of such date and the
result of its operations and cash flows for such period; and
(xvi) Owner holds all licenses, permits and franchises from
the appropriate Government Entities necessary to authorize Owner to
lawfully engage in air transportation and to carry on scheduled
commercial passenger service as currently conducted, except where
the failure to so hold any such license, permit or franchise would
not be reasonably likely to have a material adverse effect on the
condition (financial or otherwise), business or properties of Owner
and its subsidiaries considered as one enterprise.
(b) General Indemnity. Owner hereby agrees to indemnify each
Indemnitee against, and agrees to protect, save and keep harmless each of
them from (whether or not the transactions contemplated herein or in any of
the other Operative Documents are consummated), any and all expenses
imposed on, incurred by or asserted against any Indemnitee, in any way
relating to, based on or arising out of (A) the execution, delivery and
performance of the Operative Documents or the Pass Through Documents and
the transactions contemplated thereby; (B) the manufacture, purchase,
acceptance or rejection of the Airframe or any Engine or Parts; (C) the
Aircraft (or any portion thereof) or any engine installed on the Airframe
or any airframe on which an Engine is installed whether or not arising out
of the manufacture, purchase, registration, reregistration, financing,
refinancing, ownership, delivery, nondelivery, inspection, lease, sublease,
possession, storage, use or non-use, operation, maintenance, overhaul,
modification, alteration, condition, replacement, repair, substitution,
sale, return or other disposition of the Aircraft including, without
limitation, any violation of law relating to the Aircraft (including
environmental laws), latent or other defects, whether or not discoverable,
strict tort liability and any claim for patent, trademark or copyright
infringement; or (D) the offer or sale of any interest in the Equipment
Notes or the Pass Through Certificates (or other evidence of the debt
relating to the Aircraft) on the Delivery Date or in connection with a
refinancing in accordance with the terms hereof (including any violation of
securities laws or ERISA); provided, that the foregoing indemnity shall not
extend to an Indemnitee with respect to any Expense to the extent such
Expense is attributable to one or more of the following: (1) any
representation or warranty by such Indemnitee in the Operative Documents or
the Pass Through Documents being incorrect, or (2) the failure by such
Indemnitee to perform or observe any of its agreements, covenants or
conditions in any of the Operative Documents or the Pass Through Documents,
or (3) the willful misconduct or the gross negligence of such Indemnitee,
or (4) (A) in the case of any Indemnitee, the offer, sale or other
disposition (voluntary or involuntary) by such Indemnitee of all or any
part of its interest in the Airframe or any Engine, (B) in the case of a
Note Holder, the offer, sale or other disposition (voluntary or
involuntary) by such Note Holder of all or any part of its interest in any
Equipment Note or (C) in the case of any Indemnitee, the offer, sale or
other disposition by such Indemnitee of all or any part of such
Indemnitee's interest in the Operative Documents, or (5) any Tax, or (6) in
the case of the Indenture Trustee in its individual and trust capacities,
failure on the part of the Indenture Trustee to distribute in accordance
with the Indenture any amounts distributable by it thereunder, or (7) in
the case of any Pass Through Trustee or the Subordination Agent, failure on
the part of such Pass Through Trustee or the Subordination Agent to
distribute in accordance with the Intercreditor Agreement and the Pass
Through Trust Agreement amounts received and distributable thereunder, or
(8) the authorization or giving or withholding of any future amendments,
supplements, waivers or consents with respect to any of the Operative
Documents which amendments, supplements, waivers or consents (a) are not or
were not requested by Owner or (b) are not occasioned by a specific
requirement of the Operative Documents, or (9) any amount which any
Indemnitee expressly agrees to pay under any Operative Document or any
amount which is expressly stated to be an expense that is not reimbursable
by Owner under the Operative Documents, or (10) any amount that is an
ordinary and usual operating or overhead expense of any Indemnitee (it
being understood out-of-pocket expenses payable to third parties do not
constitute "ordinary and usual operating and overhead expenses"), or (11)
any amounts attributable to any Lien which such Indemnitee is required to
remove pursuant to the terms of the Operative Documents or the Pass Through
Documents, or (12) any loss of tax benefits or increases in tax liability
or (13) any amount that constitutes principal of, or interest or premium on
the Equipment Notes.
Owner's indemnity obligation to an Indemnitee under this
Section 6(b) shall equal the amount which, after taking into account any
Tax imposed upon the receipt or accrual of the amounts payable under this
Section 6(b) and any tax benefits realized by such Indemnitee as a result
of the accrual or payment of such Expense shall equal the amount of the
Expense indemnifiable under this Section 6(b).
If any Indemnitee shall realize a tax savings by reason of
any Tax paid or indemnified by Owner pursuant to this Section 6(b) (whether
such tax savings shall be by means of a foreign tax credit, depreciation or
cost recovery deduction or otherwise) and such savings are not otherwise
taken into account in computing such payment or indemnity such Indemnitee
shall pay to Owner an amount equal to the lesser of (i) the amount of such
tax savings, plus any additional tax savings recognized as the result of
any payment made pursuant to this sentence, when, as if, and to the extent,
realized or (ii) the amount of all payments pursuant to this Section 6(b)
by Owner to such Indemnitee (less any payments previously made by such
Indemnitee to Owner pursuant to this Section 6(b)) (and the excess, if any,
of the amount described in clause (i) over the amount described in clause
(ii) shall be carried forward and applied to reduce pro tanto any
subsequent obligations of Owner to make payments to such Indemnitee
pursuant to this Section 6(b)).
If a claim is made against an Indemnitee involving one or
more Expenses and such Indemnitee has notice thereof, such Indemnitee shall
promptly after receiving such notice give notice of such claim to Owner;
provided that the failure to give such notice shall not affect the
obligations of Owner hereunder except to the extent Owner is prejudiced by
such failure or Owner's indemnification obligations are increased as a
result of such failure. If no Event of Default shall have occurred and be
continuing, Owner shall be entitled, at its sole cost and expense, acting
through counsel reasonably acceptable to the respective Indemnitee, (A) in
any judicial or administrative proceeding that involves solely a claim for
one or more expenses, to assume responsibility for and control thereof, (B)
in any judicial or administrative proceeding involving a claim for one or
more expenses and other claims related or unrelated to the transactions
contemplated by the Operative Documents, to assume responsibility for and
control of such claim for Expenses to the extent that the same may be and
is severed from such other claims (and such Indemnitee shall use its best
efforts to obtain such severance) and (C) in any other case, to be
consulted by such Indemnitee with respect to judicial proceedings subject
to the control of such Indemnitee and to be allowed, at Owner's sole
expense, to participate therein. Notwithstanding any of the foregoing to
the contrary, Owner shall not be entitled to assume responsibility for and
control of any such judicial or administrative proceedings if such
proceedings will involve a material risk of the sale, forfeiture or loss
of, or the creation of any Lien (other than a Permitted Lien) on, the
Aircraft, the Indenture Estate or any part thereof unless in such an event
Owner shall have posted a bond or other security satisfactory to the
relevant Indemnitees in respect to such risk. The Indemnitee may
participate at its own expense and with its own counsel in any judicial
proceeding controlled by Owner pursuant to the preceding provisions.
The affected Indemnitee shall supply Owner with such
information reasonably requested by Owner as is necessary or advisable for
Owner to control or participate in any proceeding to the extent permitted
by this Section 6(b). Such Indemnitee shall not enter into a settlement or
other compromise with respect to any Expense without the prior written
consent of Owner, which consent shall not be unreasonably withheld or
delayed, unless such Indemnitee waives its right to be indemnified with
respect to such Expense under this Section 6(b).
Owner shall supply the Indemnitee with such information
reasonably requested by the Indemnitee as is necessary or advisable for the
Indemnitee to control or participate in any proceeding to the extent
permitted by this Section 6(b).
Upon payment of any Expense pursuant to this Section 6(b),
Owner, without any further action, shall be subrogated to any claims the
Indemnitee may have relating thereto. The Indemnitee agrees to give such
further assurances or agreements and to cooperate with Owner to permit
Owner to pursue such claims, if any, to the extent reasonably requested by
Owner.
If an Indemnitee is reimbursed, in whole or in part, with
respect to any Expense paid by Owner hereunder, it will promptly pay the
amount refunded, including interest received thereon (but not an amount in
excess of the amount Owner or any of its insurers has paid in respect of
such Expense pursuant to this Section 6(b)) over to Owner.
To the extent permitted by applicable law, interest at the
Base Rate plus one percent (1.0%) shall be paid, on demand, on any amount
or indemnity not paid when due pursuant to this Section 6 until the same
shall be paid. Such interest shall be paid in the same manner as the unpaid
amount in respect of which such interest is due.
Any amount which is payable to Owner by any Person pursuant
to this Section 6(b) shall not be paid to Owner if an Event of Default has
occurred and is continuing or if any payment is due and owing by Owner to
such Person under any Operative Document. Any such amount shall be held by
such Person (Owner hereby granting a security interest in such amount to
such Person) and, if an Event of Default shall have occurred and be
continuing, shall be applied against Owner's obligations hereunder or under
another applicable Operative Document to such Person as and when due (and,
to the extent that Owner has no obligations hereunder to such Person, such
amount shall be paid to Owner). At such time as there shall not be
continuing any such Event of Default or there shall not be due and owing
any such payment, such amount shall be paid to Owner to the extent not
previously applied in accordance with the immediately preceding sentence.
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Securities Act. Each Loan Participant represents and
warrants that neither it nor anyone acting in its behalf has offered any
Equipment Notes for sale to, or solicited any offer to buy any Equipment
Note from, any person or entity other than in a manner in compliance with,
and which does not require registration under, the Securities Act or the
rules and regulations thereunder.
(b) Reregistration. The Indenture Trustee and each Loan
Participant agree that, so long as no Event of Default shall have occurred
and be continuing, Owner may elect to effect a change in registration of
the Aircraft, at Owner's cost and expense, so long as the country of
registry of the Aircraft is a country listed in the last paragraph of this
Section 7(b). Upon the request of Owner, the country list in the last
paragraph of this Section 7(b) may be amended from time to time to include
any other country which the Indenture Trustee has determined, acting
reasonably, would provide substantially equivalent protection for the
rights of lenders in similar transactions as provided under the laws of the
United States of America and the states thereof. In order for Owner to
effect a change in the country of registry of the Aircraft, Owner shall
deliver to the Indenture Trustee the following:
(I) an Officer's Certificate certifying that (A) the insurance
or self-insurance required by Section 7.04 of the Indenture
shall be in full force and effect at the time of such change
in registration after giving effect to such change in
registration, (B) all indemnities in favor of the Indenture
Trustee under any Operative Document afford the Indenture
Trustee substantially the same protection as provided prior
to such change of registry, (C) the Lien of the Indenture in
favor of the Indenture Trustee will continue as a first
priority lien following such change of registry, (D) such
change will not result in the imposition of, or increase in
the amount of, any Tax for which Owner is not required to
indemnify, or is not then willing to enter into a binding
agreement to indemnify, the Note Holders or the Indenture
Trustee, pursuant to this Agreement and (E) that the new
country of registry imposes aircraft maintenance standards
not materially different from those of any Permitted Foreign
Air Authority; and
(II) a favorable opinion (subject to customary exceptions) of
counsel (reasonably acceptable to the Indenture Trustee)
addressed to the Indenture Trustee, from counsel of
recognized reputation qualified in the laws of the relevant
jurisdiction to the effect that: (A) it is not necessary,
solely as a consequence of such change in registration and
without giving effect to any other activity of the Indenture
Trustee (or any Affiliate thereof) for the Indenture Trustee
to register or qualify to do business in such jurisdiction;
(B) unless Owner shall have agreed to provide insurance
covering the risk of requisition of use of such Aircraft by
the government of such jurisdiction so long as such Aircraft
is registered under the laws of such jurisdiction, the laws
of such jurisdiction require fair compensation by the
government of such jurisdiction payable in currency freely
convertible into Dollars for the loss of use of such
Aircraft in the event of the requisition by such government
of such use; and (C) after giving effect to such change in
registration, the Lien of the Indenture on Owner's right,
title and interest in and to the Aircraft shall continue as
a valid and duly perfected first priority security interest
and all filing, recording or other action necessary to
protect the same shall have been accomplished (or, if such
opinion cannot be given at the time of such proposed change
in registration because such change in registration is not
yet effective, (1) the opinion shall detail what filing,
recording or other action is necessary, and (2) the
Indenture Trustee shall have received a certificate from
Owner that all possible preparations to accomplish such
filing, recording and other action shall have been done, and
such filing, recording and other action shall be
accomplished and a supplemental opinion to that effect shall
be delivered to the Indenture Trustee on or prior to the
effective date of such change in registration).
Owner shall pay all reasonable costs, expenses, fees,
recording and registration taxes, including the reasonable fees and
expenses of counsel to the Indenture Trustee, and other charges in
connection with any such change in registration.
The list of countries in which Owner is permitted to effect
a reregistration of the Aircraft in accordance with the procedures of this
Section 7(b) is as follows:
Australia Malta
Austria Mexico
Bahamas Netherlands
Belgium New Zealand
Bermuda Norway
Brazil People's Republic of China
Canada Philippines
Denmark Portugal
Finland Republic of China (Taiwan)*
France Singapore
Germany South Korea
Grenada Spain
Greece Sweden
Iceland Switzerland
India Thailand
Ireland Tobago
Italy Trinidad
Jamaica Turkey
Japan United Kingdom
Luxembourg United States
Malaysia Venezuela
*So long as on the date of registration such country and the
United States have diplomatic relations at least as good as those in effect
on the Delivery Date.
(c) Quiet Enjoyment. Each Loan Participant and each of the
Indenture Trustee, the Subordination Agent and the Pass Through Trustees
covenants and agrees that, so long as no Event of Default shall have
occurred and be continuing and the Indenture has not been duly declared in
default, such Person shall not (and shall not permit any Affiliate or other
Person claiming by, through or under it to) interfere with Owner's
continued possession, use and operation of, and quiet enjoyment of, the
Aircraft.
(d) Equipment Notes Acquired for Investment. Each Loan
Participant represents and warrants that the Equipment Note to be issued to
it pursuant to the Indenture is being acquired by it for investment and not
with a view to resale or distribution (it being understood that such Loan
Participant may pledge or assign as security its interest in each Equipment
Note issued to it), except that the Loan Participants may sell, transfer or
otherwise dispose of any Equipment Note or any portion thereof, or grant
participations therein, in a manner which in itself does not require
registration under the Securities Act.
(e) Owner Merger Covenant. Owner will not consolidate with
or merge into any other corporation or convey, transfer or lease
substantially all of its assets as an entirety to any Person unless:
(i) the corporation formed by such consolidation or into
which Owner is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of Owner as an
entirety shall be (i) organized and validly existing under the laws
of the United States of America or any state thereof or the
District of Columbia, (ii) a "citizen of the United States" as
defined in 49 U.S.C. Section 40102(a)(15), as amended, and (iii) a
Certificated Air Carrier, if and so long as such status is a
condition of entitlement to the benefits of Section 1110 of the
Bankruptcy Code with respect to the Lien of the Indenture;
(ii) the corporation formed by such consolidation or into
which Owner is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of Owner as an
entirety shall execute and deliver to Indenture Trustee an
agreement in form and substance reasonably satisfactory to the
Indenture Trustee a duly authorized, valid, binding and enforceable
agreement containing an assumption by such successor corporation or
Person of the due and punctual performance and observance of each
covenant and condition of the Operative Documents to which Owner is
a party to be performed or observed by Owner;
(iii) immediately after giving effect to such transaction,
no Event of Default shall have occurred and be continuing; and
(iv) Owner shall have delivered to the Indenture Trustee a
certificate signed by the President, any Executive Vice President,
any Senior Vice President or any Vice President and by the
Secretary or an Assistant Secretary of Owner, and an opinion of
counsel (which may be Owner's General Counsel, Deputy General
Counsel, Associate General Counsel or Assistant General Counsel)
reasonably satisfactory to the Indenture Trustee, each stating that
such consolidation, merger, conveyance, transfer or lease and the
assumption agreement mentioned in clause (ii) above comply with
this Section 7(e) and that all conditions precedent herein provided
for relating to such transaction have been complied with.
Upon any such consolidation or merger or any such
conveyance, transfer or lease of substantially all of the assets of Owner
as an entirety in accordance with this Section 7(e), the successor
corporation or Person formed by such consolidation or into which Owner is
merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of,
Owner under this Agreement with the same effect as if such successor
corporation or Person had been named as Owner herein. No such conveyance,
transfer or lease of substantially all of the assets of Owner as an
entirety shall have the effect of releasing Owner or any successor
corporation or Person which shall theretofore have become such in the
manner prescribed in this Section 7(e) from its liability in respect of any
Operative Document to which it is a party.
(f) Representations, Warranties and Covenants of the
Indenture Trustee. State Street Bank and Trust Company of Connecticut,
National Association represents, warrants (as of the Delivery Date) and
covenants, in its individual capacity, to Owner, the Pass Through Trustees,
the Subordination Agent the Liquidity Provider and the Policy Provider, as
follows:
(i) the Indenture Trustee is a national banking association
duly incorporated, validly existing and in good standing under the
laws of the United States, is a Citizen of the United States
(without making use of any voting trust, voting powers agreement or
similar arrangement), will notify promptly all parties to this
Agreement if in its reasonable opinion its status as a Citizen of
the United States (without making use of any voting trust, voting
powers agreement or similar arrangement) is likely to change and
will resign as Indenture Trustee as provided in Section 9.02 of the
Indenture promptly after it obtains actual knowledge that it has
ceased to be such a Citizen of the United States (without making
use of a voting trust, voting powers agreement or similar
arrangement), and has the full corporate power, authority and legal
right under the laws of the State of Connecticut and the United
States pertaining to its banking, trust and fiduciary powers to
execute and deliver each of this Agreement, the Indenture and each
other Operative Document to which it is a party and to carry out
its obligations under this Agreement, the Indenture and each other
Operative Document to which it is a party and to authenticate the
Equipment Notes;
(ii) the execution and delivery by the Indenture Trustee of
the Indenture Trustee Documents and the authentication of the
Equipment Notes and the performance by the Indenture Trustee of its
obligations under the Indenture Trustee Documents have been duly
authorized by the Indenture Trustee and will not violate its
articles of association or by-laws or the provisions of any
indenture, mortgage, contract or other agreement to which it is a
party or by which it is bound;
(iii) this Agreement and each of the other Indenture Trustee
Documents constitute the legal, valid and binding obligations of
the Indenture Trustee enforceable against it in accordance with
their respective terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity;
(iv) there are no pending or, to its knowledge, threatened
actions or proceedings against the Indenture Trustee, either in its
individual capacity or as Indenture Trustee, before any court or
administrative agency which, if determined adversely to it, would
materially adversely affect the ability of the Indenture Trustee,
in its individual capacity or as Indenture Trustee as the case may
be, to perform its obligations under the Operative Documents to
which it is a party;
(v) there are no Indenture Trustee Liens on the Aircraft; and
(vi) the Indenture Trustee will furnish to the Note Holders
and the Policy Provider, promptly upon receipt thereof, duplicates
or copies of all reports, notices, requests, demands, certificates
and other instruments furnished to the Indenture Trustee under any
Operative Document to the extent that the same shall not have been
furnished or be required to have been furnished to the Note Holders
and the Policy Provider pursuant to the applicable Operative
Documents.
(g) Confidentiality of Purchase Agreement. The Indenture
Trustee agrees for the benefit of the Seller, the Manufacturer and Owner
that it will not disclose or suffer to be disclosed the terms of the
Purchase Agreement to any third party except (A) as may be required by any
applicable statute, court or administrative order or decree or governmental
ruling or regulation or to any regulatory authorities having official
jurisdiction over them, (B) in connection with the financing of the
Aircraft and the other transactions contemplated by the Operative Documents
(including any transfer of Equipment Notes (including by way of
participation or assignment of an interest, provided such participant or
assignee agrees to hold such terms confidential to the same extent as
herein provided) and any exercise of remedies under the Indenture), (C)
with the prior written consent of the Manufacturer, the Seller and Owner or
(D) to the Indenture Trustee's counsel or special counsel, independent
insurance brokers or other agents who agree to hold such information
confidential.
(h) Loan Participant Liens. Each Loan Participant covenants
and agrees that it shall not cause or permit to exist a Loan Participant
Lien attributable to it with respect to the Aircraft. Each Loan Participant
agrees that it will promptly, at its own expense, take such other action as
may be necessary duly to discharge such Loan Participant Lien attributable
to it. Each Loan Participant agrees to make restitution to Owner for any
actual diminution of the assets of Owner resulting from such Loan
Participant Lien attributable to it.
(i) Indenture Trustee Liens. State Street Bank and Trust
Company of Connecticut, National Association, in its individual capacity,
covenants and agrees that it shall not cause or permit to exist any
Indenture Trustee's Liens with respect to the Indenture Estate. State
Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity, agrees that it will promptly, at its own expense, take
such action as may be necessary duly to discharge such Indenture Trustee's
Liens. State Street Bank and Trust Company of Connecticut, National
Association, in its individual capacity, agrees to make restitution to
Owner for any actual diminution of the assets of the Indenture Estate
resulting from such Indenture Trustee's Liens.
(j) Further Assurances. Owner, at its expense, will take, or
cause to be taken, such action with respect to the recording, filing,
re-recording and refiling of the Indenture, the Indenture Supplement and
any financing statements or other instruments as are necessary to maintain,
so long as the Indenture is in effect, the perfection of the security
interests created by the Indenture or will furnish to the Indenture Trustee
timely notice of the necessity of such action, together with such
instruments, in execution form, and such other information as may be
required to enable them to take such action. Owner will notify the
Indenture Trustee of any change in the location of its chief executive
office (as such term is used in Article 9 of the Uniform Commercial Code)
promptly after making such change or in any event within the period of time
necessary under applicable law to prevent the lapse of perfection (absent
refiling) of financing statements filed under the Operative Documents.
(k) Transfer of Equipment Notes. Each Loan Participant
hereby represents, warrants and agrees that it shall not transfer any
interest in any Equipment Note unless and until the transferee agrees in
writing (copies of which shall be provided by the Indenture Trustee to
Owner) to make the representations contemplated to be made by a Loan
Participant in this Agreement and to be bound by the terms of this
Agreement and the Indenture.
(l) Representations and Warranties of Pass Through Trustees.
The Pass Through Trustees represent and warrant to Owner, the Indenture
Trustee, the Subordination Agent, in its capacity as such and in its
individual capacity, the Liquidity Provider and the Policy Provider, as
follows:
(i) the Pass Through Trustee is a national banking
association duly organized, validly existing and in good standing
under the laws of the United States, and has the full corporate
power, authority and legal right under the laws of the State of
Connecticut and the United States pertaining to its banking, trust
and fiduciary powers to execute and deliver each of the Pass
Through Trust Agreements, the Intercreditor Agreement and this
Agreement and to perform its obligations under the Pass Through
Trust Agreements, the Intercreditor Agreement and this Agreement;
(ii) this Agreement, each of the Pass Through Trust
Agreements and the Intercreditor Agreement have been duly
authorized, executed and delivered by the Pass Through Trustee;
this Agreement, each of the Pass Through Trust Agreements and the
Intercreditor Agreement constitute the legal, valid and binding
obligations of the Pass Through Trustee enforceable against it in
accordance with their respective terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether considered
in a proceeding at law or in equity;
(iii) none of the execution, delivery and performance by the
Pass Through Trustee of any of the Pass Through Trust Agreements,
the Intercreditor Agreement or this Agreement, the purchase by the
Pass Through Trustee of the Equipment Notes pursuant to this
Agreement, or the issuance of the Pass Through Certificates
pursuant to the Pass Through Trust Agreements, contravenes any law,
rule or regulation of the State of Connecticut or any United States
governmental authority or agency regulating the Pass Through
Trustee's banking, trust or fiduciary powers or any judgment or
order applicable to or binding on the Pass Through Trustee and does
not contravene or result in any breach of, or constitute a default
under, the Pass Through Trustee's articles of association or
by-laws or any agreement or instrument to which the Pass Through
Trustee is a party or by which it or any of its properties may be
bound;
(iv) neither the execution and delivery by the Pass Through
Trustee of any of the Pass Through Trust Agreements, the
Intercreditor Agreement or this Agreement, nor the consummation by
the Pass Through Trustee of any of the transactions contemplated
hereby or thereby, requires the consent or approval of, the giving
of notice to, the registration with, or the taking of any other
action with respect to, any Connecticut governmental authority or
agency or any Federal governmental authority or agency regulating
the Pass Through Trustee's banking, trust or fiduciary powers;
(v) there are no Taxes payable by the Pass Through Trustee
imposed by the State of Connecticut or any political subdivision or
taxing authority thereof in connection with the execution, delivery
and performance by the Pass Through Trustee of this Agreement, any
of the Pass Through Trust Agreements or the Intercreditor Agreement
(other than franchise or other taxes based on or measured by any
fees or compensation received by the Pass Through Trustee for
services rendered in connection with the transactions contemplated
by any of the Pass Through Trust Agreements), and there are no
Taxes payable by the Pass Through Trustee imposed by the State of
Connecticut or any political subdivision thereof in connection with
the acquisition, possession or ownership by the Pass Through
Trustee of any of the Equipment Notes (other than franchise or
other taxes based on or measured by any fees or compensation
received by the Pass Through Trustee for services rendered in
connection with the transactions contemplated by any of the Pass
Through Trust Agreements), and, assuming that the trusts created by
the Pass Through Trust Agreements will not be taxable as
corporations, but rather, each will be characterized either as a
grantor trust under subpart E, Part I, of Subchapter J of the Code
or as a partnership, such trusts will not be subject to any Taxes
imposed by the State of Connecticut or any political subdivision
thereof;
(vi) there are no pending or threatened actions or
proceedings against the Pass Through Trustee before any court or
administrative agency which individually or in the aggregate, if
determined adversely to it, would materially adversely affect the
ability of the Pass Through Trustee to perform its obligations
under this Agreement, the Intercreditor Agreement or any Pass
Through Trust Agreement;
(vii) except for the issue and sale of the Pass Through
Certificates contemplated hereby, the Pass Through Trustee has not
directly or indirectly offered any Equipment Note for sale to any
Person or solicited any offer to acquire any Equipment Notes from
any Person, nor has the Pass Through Trustee authorized anyone to
act on its behalf to offer directly or indirectly any Equipment
Note for sale to any Person, or to solicit any offer to acquire any
Equipment Note from any Person; and the Pass Through Trustee is not
in default under any Pass Through Trust Agreement; and
(viii) the Pass Through Trustee is not directly or
indirectly controlling, controlled by or under common control with
Owner.
(m) Representations and Warranties of Subordination Agent.
The Subordination Agent represents and warrants to Owner, the Indenture
Trustee and the Pass Through Trustees, in its capacity as such and in its
individual capacity, the Liquidity Provider and the Policy Provider, as
follows:
(i) the Subordination Agent is a national banking
association duly organized, validly existing and in good standing
under the laws of the United States, and has the full corporate
power, authority and legal right under the laws of the State of
Connecticut and the United States pertaining to its banking, trust
and fiduciary powers to execute and deliver this Agreement, the
Liquidity Facilities, the Policy Provider Agreement and the
Intercreditor Agreement and to perform its obligations under this
Agreement, the Liquidity Facilities, the Policy Provider Agreement
and the Intercreditor Agreement;
(ii) this Agreement, each of the Liquidity Facilities, the
Policy Provider Agreement and the Intercreditor Agreement have been
duly authorized, executed and delivered by the Subordination Agent;
this Agreement, each of the Liquidity Facilities, the Policy
Provider Agreement and the Intercreditor Agreement constitute the
legal, valid and binding obligations of the Subordination Agent
enforceable against it in accordance with their respective terms,
except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the rights of creditors generally and by general principles of
equity, whether considered in a proceeding at law or in equity;
(iii) none of the execution, delivery and performance by the
Subordination Agent of each of the Liquidity Facilities, the Policy
Provider Agreement, the Intercreditor Agreement or this Agreement
contravenes any law, rule or regulation of the State of Connecticut
or any United States governmental authority or agency regulating
the Subordination Agent's banking, trust or fiduciary powers or any
judgment or order applicable to or binding on the Subordination
Agent and do not contravene or result in any breach of, or
constitute a default under, the Subordination Agent's articles of
association or by-laws or any agreement or instrument to which the
Subordination Agent is a party or by which it or any of its
properties may be bound;
(iv) neither the execution and delivery by the Subordination
Agent of any of the Liquidity Facilities, the Policy Provider
Agreement, the Intercreditor Agreement or this Agreement nor the
consummation by the Subordination Agent of any of the transactions
contemplated hereby or thereby requires the consent or approval of,
the giving of notice to, the registration with, or the taking of
any other action with respect to, any Connecticut governmental
authority or agency or any Federal governmental authority or agency
regulating the Subordination Agent's banking, trust or fiduciary
powers;
(v) there are no Taxes payable by the Subordination Agent
imposed by the State of Connecticut or any political subdivision or
taxing authority thereof in connection with the execution, delivery
and performance by the Subordination Agent of this Agreement, any
of the Liquidity Facilities, the Policy Provider Agreement or the
Intercreditor Agreement (other than franchise or other taxes based
on or measured by any fees or compensation received by the
Subordination Agent for services rendered in connection with the
transactions contemplated by the Intercreditor Agreement, any of
the Liquidity Facilities or the Policy Provider Agreement), and
there are no Taxes payable by the Subordination Agent imposed by
the State of Connecticut or any political subdivision thereof in
connection with the acquisition, possession or ownership by the
Subordination Agent of any of the Equipment Notes (other than
franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services
rendered in connection with the transactions contemplated by the
Intercreditor Agreement, any of the Liquidity Facilities or the
Policy Provider Agreement);
(vi) there are no pending or threatened actions or
proceedings against the Subordination Agent before any court or
administrative agency which individually or in the aggregate, if
determined adversely to it, would materially adversely affect the
ability of the Subordination Agent to perform its obligations under
this Agreement, the Intercreditor Agreement, any Liquidity Facility
or the Policy Provider Agreement;
(vii) the Subordination Agent has not directly or indirectly
offered any Equipment Note for sale to any Person or solicited any
offer to acquire any Equipment Notes from any Person, nor has the
Subordination Agent authorized anyone to act on its behalf to offer
directly or indirectly any Equipment Note for sale to any Person,
or to solicit any offer to acquire any Equipment Note from any
Person; and the Subordination Agent is not in default under any
Liquidity Facility or the Policy Provider Agreement; and
(viii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with Owner.
SECTION 8. RELIANCE OF LIQUIDITY PROVIDER AND POLICY PROVIDER. Each
of the parties hereto agrees and acknowledges that the Liquidity Provider
and Policy Provider shall be third party beneficiaries of each of the
representations, warranties and covenants made herein by such party, and
that each of the Liquidity Provider and Policy Provider may rely on such
representations and warranties to the same extent as if such
representations and warranties were made to each of the Liquidity Provider
and Policy Provider directly. Owner agrees and acknowledges that each of
the Liquidity Provider and Policy Provider shall be third party
beneficiaries of the indemnities contained in Section 6(b), and the
Liquidity Provider and Policy Provider may rely on such indemnities to the
same extent as if such indemnities were made to each of the Liquidity
Provider and the Policy Provider directly.
SECTION 9. OTHER DOCUMENTS. So long as the Lien of the Indenture
has not been terminated, the Pass Through Trustees, the Subordination Agent
and the Indenture Trustee hereby agree for the benefit of Owner that
without Owner's consent, each such party will not amend any other provision
of any Operative Document or Pass Through Document in a manner adversely
affecting Owner. Each of the Indenture Trustee, the Subordination Agent and
the Pass Through Trustees agree to promptly furnish to Owner copies of any
supplement, amendment, waiver or modification of any of the Operative
Documents or Pass Through Documents to which Owner is not a party. Each
Loan Participant agrees that it will not take any action in respect of the
Indenture Estate except through the Indenture Trustee pursuant to the
Indenture or as otherwise permitted by the Indenture.
SECTION 10. CERTAIN COVENANTS OF OWNER. Owner covenants and agrees
with each of the Loan Participants and the Indenture Trustee, as follows:
(a) Further Assurances. Owner will cause to be done,
executed, acknowledged and delivered all and every such further acts,
conveyances and assurances as the Indenture Trustee shall reasonably
require for accomplishing the purposes of this Agreement and the other
Operative Documents; provided that any instrument or other document so
executed by Owner will not expand any obligations or limit any rights of
Owner in respect of the transactions contemplated by any Operative
Documents.
(b) Filings. Owner, at its expense, will cause the
Indenture, all supplements and amendments to the Indenture and this
Agreement to be promptly filed and recorded, or filed for recording, to the
extent permitted under the Transportation Code or required under any other
applicable law. Upon the execution and delivery of the Indenture, the
Indenture and the Indenture Supplement shall be filed for recording with
the Federal Aviation Administration.
SECTION 11. [RESERVED.]
SECTION 12. NOTICES; CONSENT TO JURISDICTION.
(a) Notices. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing and shall be personally delivered or sent by
registered or certified mail, postage prepaid, or by telecopier, or by
prepaid courier service, and shall be deemed to be given for purposes of
this Agreement on the day that such writing is delivered to the recipient
thereof in accordance with the provisions of this Section 12(a). Unless
otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section 12(a), notices, demands, instructions
and other communications in writing shall be given to or made upon the
respective parties hereto at their respective addresses (or to their
respective telecopier numbers) as follows: (A) if to Owner, the Pass
Through Trustees, the Subordination Agent or the Indenture Trustee to the
respective addresses set forth on Schedule I hereto or (B) if to any
subsequent Note Holder, addressed to such Note Holder at its address set
forth in the Equipment Note register maintained pursuant to Section 2.07 of
the Indenture.
(b) Consent to Jurisdiction. Each of the parties hereto (A)
hereby irrevocably submits itself to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and to
the non-exclusive jurisdiction of the Supreme Court of the State of New
York, New York County, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any other Operative Document,
the subject matter of any thereof or any of the transactions contemplated
hereby or thereby brought by any party or parties thereto, or their
successors or assigns, and (B) hereby waives, and agrees not to assert, by
way of motion, as a defense, or otherwise, in any such suit, action or
proceeding, to the extent permitted by applicable law, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of
the suit, action or proceeding is improper, or that this Agreement or any
other Operative Document or the subject matter of any thereof or any of the
transactions contemplated hereby or thereby may not be enforced in or by
such courts; provided, however that the foregoing shall not apply to the
right any party may have to seek removal of such suit, action or proceeding
to federal court or to seek consolidation of any separate actions, suits or
proceedings brought by one or more of the other parties in the same or
different jurisdictions. The agreement set forth in this Section 12(b) is
given solely for the benefit of the parties hereto and shall not inure to
the benefit of any other Person.
SECTION 13. [RESERVED.]
SECTION 14. MISCELLANEOUS.
(a) Survival. The representations, warranties, indemnities
and agreements of Owner, the Indenture Trustee, the Subordination Agent and
the Pass Through Trustees provided for in this Agreement or any other
Operative Document, and Owner's, the Indenture Trustee's, the Subordination
Agent's and the Pass Through Trustee's obligations under any and all
thereof, shall survive the making available of the respective Commitments
by the Pass Through Trustees, the transfer of any interest by any Loan
Participant in any Equipment Note or the Indenture Estate and the
expiration or other termination of this Agreement or any other Operative
Document.
(b) Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
(c) Amendments and Waivers. Neither this Agreement nor any
of the terms hereof may be terminated, amended, supplemented, waived or
modified, except by an instrument in writing signed by the party against
which the enforcement of the termination, amendment, supplement, waiver or
modification is sought; and no such termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy thereof
shall have been delivered to the Indenture Trustee.
(d) Successors and Assigns. The terms of this Agreement
shall be binding upon, and inure to the benefit of, Owner and, subject to
the terms of this Agreement, its successors and permitted assigns, the Pass
Through Trustees and its successors as Pass Through Trustees (and any
additional trustee appointed) under any of the Pass Through Trust
Agreements, each Note Holder and its successors and registered assigns and
the Indenture Trustee and its successors as Indenture Trustee under the
Indenture. The terms of this Agreement shall inure to the benefit of the
Liquidity Provider and Policy Provider, and each of their successors and
permitted assigns.
(e) Governing Law. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
(f) References. Unless otherwise specified, references in
this Agreement to Sections, Exhibits, Schedules and Annexes are references
to Sections, Exhibits, Schedules and Annexes herein or hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
US AIRWAYS, INC.,
Owner
By:
--------------------------------------
Name:
Title:
STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity
except as otherwise provided herein,
but solely as Indenture Trustee
By:
--------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its
individual capacity, except as otherwise
provided herein, but solely as Pass
Through Trustees
By:
--------------------------------------
Name:
Title:
STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its
individual capacity, except as otherwise
provided herein, but solely as
Subordination Agent
By:
--------------------------------------
Name:
Title:
ANNEX A
DEFINITIONS
(N___U_)
The following terms shall have the following meanings for all
purposes of the Operative Documents referred to below, unless otherwise
defined in an Operative Document or the context thereof shall otherwise
require and such meanings shall be equally applicable to both the singular
and the plural forms of the terms herein defined. In the case of any
conflict between the provisions of this Annex A and the provisions of the
main body of any Operative Document, the provisions of the main body of
such Operative Document shall control the construction of such Operative
Document.
Except as otherwise provided herein, all references to any
agreement defined in this Annex A shall be deemed to include such agreement
as the same may from time to time be amended, supplemented or otherwise
modified in accordance with its terms and, where applicable, the terms of
the other Operative Documents. All references to statutes, rules and
regulations shall be deemed to include all amendments, replacements and
successors thereto unless otherwise specified herein.
"Acceptable Alternate Engine" means [(i) a [CFM International
Model 56-5B (or improved) type engine] having not less than 1,500 cycles
left before such engine's next scheduled shop visit or (ii) an engine of
the same or another manufacturer suitable for use on the Airframe and
having a value and utility equal to or greater than a CFM Model 56-5B type
engine,]1 [(i) a ▇▇▇▇▇ & ▇▇▇▇▇▇▇ model PW 4168A (or improved) type engine
having not less than 500 cycles left before such engine's next scheduled
shop visit or (ii) an engine of the same or another manufacturer suitable
for use on the Airframe and having a value and utility equal to or greater
than a ▇▇▇▇▇ & Whitney model PW 4168A type engine,]2 assuming such engine
is in the condition required by the Indenture.
-------------------
1 To be used with A321 aircraft.
2 To be used with A330 aircraft.
"Actual Knowledge" means actual knowledge of a Responsible Officer
in the Corporate Trust Office of the Indenture Trustee.
"Additional Insured" means the Indenture Trustee, the Pass Through
Trustees, the Liquidity Providers, the Policy Provider, Owner in its
capacity as lessor under any Lease, and each of their respective
Affiliates, successors and permitted assigns, and the respective directors,
officers, employees and agents of the foregoing.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control
with such Person. For the purposes of this definition, "control" (including
"controlled by" and "under common control with") shall mean the power,
directly or indirectly, to direct or cause the direction of the management
and policies of such Person whether through the ownership of voting
securities or by contract or otherwise.
"AIFS" means Airbus Industrie Financial Services, a corporation
formed under the laws of Ireland.
"Aircraft" means the Airframe to be subject to the Lien of the
Indenture (or any airframe from time to time substituted for such Airframe
pursuant to Section 5.06 of the Indenture) together with the two Engines
initially subject to the Lien of the Indenture (or any engine substituted
for either of such Engines pursuant to the terms of the Indenture), in each
case as specified in the applicable Indenture Supplement, whether or not
any of such initial or substituted Engines may from time to time be
installed on such initial or substituted Airframe or may be installed on
any other airframe or on any other aircraft.
"Airframe" means: (i) the Airbus aircraft (except Engines or
engines from time to time installed thereon) specified in the initial
Indenture Supplement, and any aircraft (except Engines or engines from time
to time installed thereon) which may from time to time be substituted for
such aircraft (except Engines or engines from time to time installed
thereon) pursuant to Section 5.06 of the Indenture; and (ii) any and all
Parts so long as the same shall be incorporated or installed in or attached
to such aircraft (except Engines or engines from time to time installed
thereon); provided, however, that at such time as an aircraft (except
Engines or engines from time to time installed thereon) shall be deemed
part of the property subject to the Lien of the Indenture in substitution
for the Airframe pursuant to the applicable provisions of the Indenture,
the replaced Airframe shall cease to be an Airframe subject to the Lien of
the Indenture; provided further that the Airframe shall not include
Passenger Convenience Equipment.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended, or any subsequent legislation that amends, supplements or
supersedes such provisions.
"Base Rate" means the rate of interest announced publicly by The
Chase Manhattan Bank in New York, New York from time to time as its base
rate.
"▇▇▇▇ of Sale" means a full warranty ▇▇▇▇ of sale covering the
Aircraft delivered by the Manufacturer or its Affiliate to Owner.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in New
York, New York, Hartford, Connecticut or Pittsburgh, Pennsylvania.
"Cash Equivalents" means (i) direct obligations of the United
States of America and agencies guaranteed by the United States government
having a final maturity of ninety (90) days or less from date of purchase
thereof; (ii) certificates of deposit issued by, bankers' acceptances of,
or time deposits with, any bank, trust company or national banking
association incorporated under the laws of the United States of America or
one of the states thereof having combined capital and surplus and retained
earnings as of its last report of condition of at least $500,000,000 and
having a rating of Aa or better by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") or AA or better by Standard & Poor's Corporation ("S&P") and
having a final maturity of ninety (90) days or less from date of purchase
thereof; and (iii) commercial paper of any holding company of a bank, trust
company or national banking association described in (ii) and commercial
paper of any corporation or finance company incorporated or doing business
under the laws of the United States of America or any state thereof having
a rating assigned to such commercial paper of A1 by S&P or P1 by Moody's
and having a final maturity of ninety (90) days or less from the date of
purchase thereof; provided, however, that the aggregate amount at any one
time so invested in certificates of deposit issued by any one bank shall
not be in excess of 5% of such bank's capital and surplus.
"Certificated Air Carrier" means a Citizen of the United States
holding an air carrier operating certificate issued pursuant to Chapter 447
of Title 49, United States Code, for aircraft capable of carrying ten or
more individuals or 6,000 pounds or more of cargo or that otherwise is
certified or registered to the extent required to fall within the purview
of Section 1110 of the Bankruptcy Code or any analogous successor provision
of the Bankruptcy Code.
"Citizen of the United States" has the meaning specified for such
term in Section 40102(a)(15) of Title 49 of the United States Code or any
similar legislation of the United States of America enacted in substitution
or replacement therefor.
"Civil Reserve Air Fleet Program" means the Civil Reserve Air
Fleet Program currently administered by the United States Air Force Air
Mobility Command pursuant to Executive Order No. 11490, as amended, or any
substantially similar program.
"Class C Liquidity Provider" means __________________, or any
successor thereto.
"Class C Purchase Agreement" means that certain Purchase
Agreement, dated as of _____________________, by and between Owner and
AIFS.
"Class C Pass Through Certificates" means any certificates issued
by the Class C Pass Through Trust and authenticated by the Class C Pass
Through Trustee, representing fractional undivided interests in the Class C
Pass Through Trust, and any certificates issued in exchange therefor or
replacement thereof pursuant to the terms of the applicable Pass Through
Trust Agreement.
"Class C Pass Through Trust" means the Class C Pass Through Trust,
No. 2001-1C, created pursuant to the Pass Through Trust Agreement for the
Class C Pass Through Trust.
"Class C Pass Through Trustee" means State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association, in its capacity as trustee under the Pass Through Trust
Agreement for the Class C Pass Through Trust, and each other Person that
may from time to time be acting as successor trustee under the applicable
Pass Through Trust Agreement.
"Class G Liquidity Facility" means the Revolving Credit Agreement,
dated as of the Pass Through Trust Closing Date, between the Subordination
Agent, as borrower, and the Class G Liquidity Provider, and any replacement
thereof, as the same may be amended, modified or supplemented.
"Class G Liquidity Provider" means ________, or any successor
thereto.
"Class G Pass Through Certificates" means the certificates issued
by the Class G Pass Through Trust and authenticated by the Class G Pass
Through Trustee on the Class G Pass Through Trust Closing Date, and any
certificates issued in exchange therefor or replacement thereof pursuant to
the terms of the applicable Pass Through Trust Agreement.
"Class G Pass Through Trust" means the Class G Pass Through Trust
set forth in Schedule III to the Series G Participation Agreement.
"Class G Pass Through Trustee" means State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association, in its capacity as trustee under the Pass Through Trust
Agreement for the Class G Pass Through Trust, and each other Person that
may from time to time be acting as successor trustee under the applicable
Pass Through Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means the commitment pursuant to the Participation
Agreement of each of the Pass Through Trustees to finance a portion of
Owner's cost for the Aircraft.
"Consent and Agreement" means, collectively, each Consent and
Agreement (N___U_), dated as of the date of the Participation Agreement,
executed by the Seller and the Manufacturer, respectively, as the same may
be amended, modified or supplemented from time to time in accordance with
the applicable provisions thereof.
"Corporate Trust Office" means the principal office of the
Indenture Trustee located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Square, Hartford,
Connecticut 06103, Attention: Corporate Trust Administration, or such other
office at which the Indenture Trustee's corporate trust business shall be
administered which the Indenture Trustee shall have specified by notice in
writing to Owner, the Loan Participants and each Note Holder.
"Debt Rate" means, (i) with respect to any Equipment Note, the
rate per annum specified for such Series under the heading "Interest Rate"
in Schedule I to the Indenture.
"Default" means any event or condition that with the giving of
notice or the lapse of time or both would become an Event of Default.
"Delivery Date" means the date of the initial Indenture Supplement
for the Aircraft.
"Delivery Notice" means the notice of delivery delivered pursuant
to Section 2(b) of the Participation Agreement.
"Deposit Agreements" means, collectively, (i) that certain Deposit
Agreement (Class G), dated as of ______________, between First Security
Bank, National Association, as escrow agent under the Escrow Agreement
referred to therein, and the Depositary and (ii) that certain Deposit
Agreement (Class C), dated as of ______________, between First Security
Bank, National Association, as escrow agent under the Escrow Agreement
referred to therein, and the Depositary
"Depositary" means __________, as Depositary under the Deposit
Agreements, or any successors thereto.
"Dollars" and "$" mean the lawful currency of the United States of
America.
"Engine" means (i) each of the two [CFM International 56-5B type
engines]3 [▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ type engines]4 listed by manufacturer's
serial number in the initial Indenture Supplement, whether or not from time
to time thereafter installed on the Airframe or installed on any other
airframe or on any other aircraft; and (ii) any Acceptable Alternate Engine
that may from time to time be substituted, pursuant to the terms of the
Indenture, for either of such two Engines, together in each case with any
and all Parts incorporated or installed in or attached thereto or any and
all Parts removed there from; provided, however, that at such time as an
engine shall be deemed part of the property leased under the Indenture in
substitution for an Engine pursuant to the applicable provisions of the
Indenture, the replaced Engine shall cease to be an Engine subject to the
Lien of the Indenture. The term "Engines" means, as of any date of
determination, all Engines then subject to the Lien of the Indenture.
"Equipment Note Register" has the meaning specified for such term
in Section 2.07 of the Indenture.
"Equipment Note Registrar" has the meaning specified for such term
in Section 2.07 of the Indenture.
"Equipment Notes" means and include any Series G Equipment Notes
and any Series C Equipment Notes issued under the Indenture, and issued in
exchange therefor or replacement thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are references to ERISA as
in effect at the date of the Participation Agreement, and any subsequent
provisions of ERISA, amendatory thereof, supplemental thereto or
substituted therefor.
"Escrow Agreements" means, collectively, (i) that certain Escrow
and Paying Agent Agreement (Class G), dated as of ______________, among
First Security Bank, National Association, as escrow agent, the
Underwriters, the Pass Through Trustee for the Class G Pass Through Trust,
and State Street Bank and Trust Company of Connecticut, National
Association, as paying agent thereunder and (ii) that certain Escrow and
Paying Agent Agreement (Class C), dated as of _____________, among First
Security Bank, National Association, as escrow agent, AIFS, the Pass
Through Trustee for the Class C Pass Through Trust, and State Street Bank
and Trust Company of Connecticut, National Association, as paying agent
thereunder.
-------------------
3 To be used with A321 aircraft.
4 To be used with A330 aircraft.
"Event of Default" has the meaning specified for such term in
Section 4.02 of the Indenture.
"Event of Loss" means, with respect to the Aircraft, Airframe or
any Engine, any of the following events with respect to such property: (i)
the loss of such property or of the use thereof due to the destruction of
or damage to such property which renders repair uneconomic or which renders
such property permanently unfit for normal use by Owner (or any Lessee) for
any reason whatsoever; (ii) any damage to such property which results in an
insurance settlement with respect to such property on the basis of a total
loss, or a constructive or compromised total loss; (iii) the theft or
disappearance of such property for a period in excess of one hundred eighty
(180) days; (iv) the requisition for use of such property by any
governmental authority (other than a requisition for use by the United
States Government or any government of registry of the Aircraft or any
agency or instrumentality thereof) that shall have resulted in the loss of
possession of such property by Owner (or any Lessee) for a period in excess
of one hundred eighty (180) consecutive days; (v) [intentionally omitted];
(vi) condemnation, confiscation, requisition or taking of title of the
Aircraft or the Airframe for more than thirty (30) days; (vii) as a result
of any law, rule, regulation, order or other action by the Federal Aviation
Administration or other governmental body of the government of registry of
the Aircraft having jurisdiction, the use of such property in the normal
course of the business of air transportation shall have been prohibited for
a period of one hundred eighty (180) consecutive days, unless Owner (or
Lessee) shall have undertaken and shall be diligently carrying forward all
steps which are necessary or desirable to permit the normal use of such
property by Owner (or such Lessee), but in any event an "Event of Loss"
shall occur if such "grounding" extends for a period of more than three
hundred sixty (360) days; provided that no Event of Loss shall be deemed to
occur if such "grounding" is applicable to Owner's entire fleet of
[A321][A330] aircraft and Owner, prior to the expiration of one year from
the prohibition of such use, shall have conformed at least one such
aircraft in its fleet to the requirements of any such law, rule,
regulation, order or other action and commenced regular commercial use of
the same in such jurisdiction and shall be diligently carrying forward, on
a non-discriminatory basis, all steps which are necessary or desirable to
permit the normal use of the Aircraft by Owner (or such Lessee), but in any
event an "Event of Loss" shall be deemed to have occurred if such use shall
have been prohibited for a period of two consecutive years; and (viii) with
respect to an Engine only, any divestiture of title to or interest in an
Engine or any event with respect to an Engine that is deemed to be an Event
of Loss with respect to such Engine pursuant to Section 5.06(b) of the
Indenture. An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if an Event of Loss occurs with respect to the Airframe.
"Expenses" means all liabilities, obligations, losses, damages,
settlements, penalties, claims, actions, suits, costs, expenses and
disbursements (including, without limitation, reasonable fees and
disbursements of legal counsel, accountants, appraisers, inspectors or
other professionals and reasonable costs of investigation).
"FAA ▇▇▇▇ of Sale" means a ▇▇▇▇ of sale for the Aircraft on AC
Form 8050-2 (or such other form as may be approved by the FAA) delivered to
Owner by the Manufacturer or its Affiliates.
"Federal Aviation Administration" and "FAA" mean the United States
Federal Aviation Administration and any agency or instrumentality of the
United States government succeeding to their functions.
"Federal Funds Rate" means a fluctuating interest rate per annum
in effect from time to time, which rate per annum shall at all times be
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by State Street from three Federal funds brokers of
recognized standing selected by it.
"Foreign Air Carrier" means any air carrier which is not a U.S.
Air Carrier and which performs, or contracts for the performance of,
maintenance, preventative maintenance and inspections for the Aircraft,
Airframe and/or any Engine or engine to standards which are approved by, or
which are substantially equivalent to those required by, the Federal
Aviation Administration or any Permitted Foreign Air Authority.
"French Pledge Agreement" means the French Pledge Agreement, dated
as of the date of the Participation Agreement, between Owner and the
Indenture Trustee, as the same may be amended, supplemented or modified
from time to time.
"Government Entity" means (a) any federal, state, provincial or
similar government, and any body, board, department, commission, court,
tribunal, authority, agency or other instrumentality of any such government
or otherwise exercising any executive, legislative, judicial,
administrative or regulatory functions of such government or (b) any other
government entity having jurisdiction over any matter contemplated by the
Operative Documents or relating to the observance or performance of the
obligations of any of the parties to the Operative Documents.
"Indemnitee" means (i) the Indenture Trustee, (ii) the Loan
Participants and each other Note Holder, (iii) the Subordination Agent,
(iv) the Liquidity Providers, (v) the Policy Provider; (vi) the Pass
Through Trustees, (vii) each Affiliate of the Persons described in clauses
(i) through (vi), inclusive, (viii) the respective directors, officers,
employees, agents and servants of each of the Persons described in clauses
(i) through (vii), inclusive, and (vix) the successors and permitted
assigns of the Persons described in clauses (i) through (viii), inclusive.
"Indemnity Agreement" means that certain Indemnity Agreement,
dated as of the Pass Through Trust Closing Date, between the Depositary and
Owner.
"Indenture" or "Trust Indenture" means that certain Indenture and
Security Agreement (N___U_), dated as of the date of the Participation
Agreement, between Owner and the Indenture Trustee, as it may from time to
time be supplemented or amended as therein provided, including
supplementing by the Indenture Supplement pursuant to the Indenture.
"Indenture Agreements" means the Participation Agreement, the
Purchase Agreement, the Purchase Agreement Assignment, the French Pledge
Agreement, the Consent and Agreement and any other contract, agreement or
instrument from time to time assigned or pledged under the Indenture.
"Indenture Estate" or "Trust Indenture Estate" means all estate,
right, title and interest of the Indenture Trustee in and to the properties
referred to in the Granting Clause of the Indenture.
"Indenture Indemnitees" means (i) State Street and the Indenture
Trustee, (ii) each separate or additional trustee appointed pursuant to the
Indenture, (iii) the Subordination Agent, (iv) the Liquidity Providers, (v)
the Policy Provider, (vi) each Pass Through Trustee and (vii) each of the
respective directors, officers, employees, agents and servants of each of
the Persons described in clauses (i) through (vi), inclusive.
"Indenture Supplement" means a supplement to the Indenture,
substantially in the form of Exhibit A to the Indenture, which shall
particularly describe the Aircraft, and any Replacement Airframe and
Replacement Engine included in the property subject to the Lien of the
Indenture.
"Indenture Trustee" means State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, not in
its individual capacity, but solely as Indenture Trustee, and any entity
which may from time to time be acting as indenture trustee under the
Indenture.
"Indenture Trustee Documents" means the Participation Agreement,
the Indenture, the Purchase Agreement Assignment, the French Pledge
Agreement and any other agreements between the Indenture Trustee and any
other party to the Participation Agreement relating to the Transactions
delivered on the Delivery Date.
"Indenture Trustee's Liens" means any Lien which arises as a
result of (A) claims against the Indenture Trustee not related to its
interest in the Aircraft, (B) acts of the Indenture Trustee not permitted
by, or failure of the Indenture Trustee to take any action required by, the
Operative Documents to the extent such acts arise or such failure arises
from or constitutes gross negligence or willful misconduct, (C) claims
against the Indenture Trustee relating to Taxes or Expenses which are
excluded from the indemnification provided by Section 6 of the
Participation Agreement pursuant to said Section or (D) claims against the
Indenture Trustee arising out of the transfer by the Indenture Trustee of
all or any portion of its interest in the Aircraft, the Indenture Estate or
the Operative Documents other than a transfer of the Aircraft pursuant to
Article IV or V of the Indenture.
"Insurance Brokers" has the meaning specified for such term in
Section 7.04 of the Indenture.
"Intercreditor Agreement" means that certain Intercreditor
Agreement, dated as of the Pass Through Trust Closing Date, among the Pass
Through Trustees, the Liquidity Provider, the Policy Provider and the
Subordination Agent.
"Law" means (a) any constitution, treaty, statute, law,
regulation, order, rule or directive of any Government Entity and (b) any
judicial or administrative interpretation or application of, or decision
under, any of the foregoing.
"Lease" means any lease permitted by the terms of Section
7.02(b)(x) of the Indenture.
"Lessee" means any Person for so long, but only so long, as such
Person is in possession of the Airframe and/or any Engine pursuant to the
terms of a Lease which is then in effect pursuant to Section 7.02(b) of the
Indenture.
"Lien" means any mortgage, pledge, lien, charge, claim,
encumbrance, lease, sublease, sub-sublease or security interest.
"Liquidity Providers" means, collectively, the Class G Liquidity
Provider and the Class C Liquidity Provider.
"Loan Participant" means, each Purchaser and its respective
successor and registered assigns, including any Note Holder.
"Loan Participant Liens" means any Lien which arises from acts or
claims against any Loan Participant not related to the transactions
contemplated by the Operative Documents.
"Majority in Interest of Note Holders" as of a particular date of
determination means the holders of at least a majority in aggregate unpaid
principal amount of all Equipment Notes outstanding as of such date
(excluding any Equipment Notes held by Owner or any Affiliate thereof).
"Make-Whole Amount" means, with respect to any Equipment Note, the
amount (as determined by an independent investment banker selected by Owner
and reasonably acceptable to the Indenture Trustee) by which (a) the
present value of the remaining scheduled payments of principal and interest
from the redemption date to maturity of such Equipment Note computed by
discounting each such payment on a semiannual basis from its respective
Payment Date (assuming a 360-day year of twelve 30-day months) using a
discount rate equal to the Treasury Yield exceeds (b) the outstanding
principal amount of such Equipment Note plus accrued interest. For purposes
of determining the Make-Whole Amount, "Treasury Yield" means, at the time
of determination, the interest rate (expressed as a semiannual equivalent
and as a decimal and, in the case of United States Treasury bills,
converted to a bond equivalent yield) determined to be the per annum rate
equal to the semiannual yield to maturity for United States Treasury
securities maturing on the Average Life Date and trading in the public
securities market either as determined by interpolation between the most
recent weekly average yield to maturity for two series of United States
Treasury securities, trading in the public securities markets, (A) one
maturing as close as possible to, but earlier than, the Average Life Date
and (B) the other maturing as close as possible to, but later than, the
Average Life Date, in each case as published in the most recent H.15(519)
or, if a weekly average yield to maturity for United States Treasury
securities maturing on the Average Life Date is reported on the most recent
H.15(519), such weekly average yield to maturity as published in such
H.15(519). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of
the Federal Reserve System. The date of determination of a Make-Whole
Amount shall be the third Business Day prior to the applicable redemption
date and the "most recent H.15(519)" means the H.15(519) published prior to
the close of business on the third Business Day prior to the applicable
redemption date. "Average Life Date" means, for each Equipment Note to be
redeemed, the date which follows the redemption date by a period equal to
the Remaining Weighted Average Life at the redemption date of such
Equipment Note.
"Manufacturer" means Airbus Industrie G.I.E., a groupement
d'interet economique established under Ordonnance No. 67-821 dated
September 23, 1967 of the Republic of France, and its successors and
assigns.
"Manufacturer Documents" means the Purchase Agreement Assignment
and the Consent and Agreement.
"Mortgaged Property" has the meaning specified for such term in
Section 3.03 of the Indenture.
"Non-U.S. Person" means any Person other than a U.S. Person.
"Note Holder" means any holder from time to time of one or more
Equipment Notes.
"Note Purchase Agreement" means the Note Purchase Agreement dated
as of the Pass Through Trust Closing Date among Owner, the Pass Through
Trustee for the Pass Through Trusts, the Subordination Agent, First
Security Bank, National Association, as Escrow Agent, and State Street Bank
and Trust Company of Connecticut, National Association, as Paying Agent.
"Obsolete Parts" has the meaning specified for such term in
Section 7.03(c) of the Indenture.
"Operative Documents" means, collectively, the Participation
Agreement, the Indenture, the Indenture Supplement covering the Aircraft,
the Equipment Notes, the Purchase Agreement (insofar as it relates to the
Aircraft), the Purchase Agreement Assignment, the French Pledge Agreement
and the Consent and Agreement (each, an "Operative Document").
"Operative Indentures" means each of the indentures under which
notes have been issued and purchased by the Pass Through Trustees.
"Owner" means US Airways, Inc., a Delaware corporation.
"Owner Documents" means the Participation Agreement, the French
Pledge Agreement, the Indenture and the Equipment Notes.
"Participation Agreement" means that certain Participation
Agreement (N___U_), dated as of , ____, among the Subordination Agent, the
Indenture Trustee, Owner and the Pass Through Trustees, as the same may
from time to time be supplemented or further amended, or the terms thereof
waived or modified, to the extent permitted by, and in accordance with, the
terms thereof.
"Parts" means all appliances, parts, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
(a) complete Engines or engines, (b) any items leased by Owner from a third
party and (c) cargo containers) which may from time to time be incorporated
or installed in or attached to the Airframe or any Engine for so long as
such items remain subject to the Lien of the Indenture after removal
therefrom; provided that "Parts" shall not include Passenger Convenience
Equipment.
"Pass Through Certificates" means the pass through certificates to
be issued by the Pass Through Trustees in connection with the Transactions.
"Pass Through Documents" means the Participation Agreement, the
Pass Through Trust Agreements, the Note Purchase Agreement, the Deposit
Agreements, the Liquidity Facilities, the Policy Provider Agreement, the
Policy, the Escrow Agreements and the Intercreditor Agreement.
"Pass Through Indemnitees" means (i) the Subordination Agent, the
Liquidity Providers, the Policy Provider and the Pass Through Trustees,
(ii) each Affiliate of a Person described in the preceding clause (i),
(iii) the respective directors, officers, employees, agents and servants of
each of the Persons described in the preceding clauses (i) and (ii) and
(iv) the successors and permitted assigns of the Persons described in the
preceding clauses (i), (ii) and (iii).
"Pass Through Trust" means, collectively, the two separate grantor
trusts set forth in Schedule III to the Participation Agreement created,
pursuant to the Pass Through Trust Agreement, to facilitate certain of the
transactions contemplated by the Operative Documents.
"Pass Through Trust Agreement" or Pass Through Trust Agreements"
means the pass through trust agreement and each of the two separate pass
through trust supplements referred to on Schedule III to the Participation
Agreement.
"Pass Through Trust Closing Date" means _____________________.
"Pass Through Trustee" means State Street Bank and Trust Company
of Connecticut, National Association, a national banking association, in
its capacity as trustee under each Pass Through Trust Agreement, and each
other Person that may from time to time be acting as successor trustee
under any such Pass Through Trust Agreement.
"Passenger Convenience Equipment" means available components or
systems installed on or affixed to the Airframe that are used to provide
individual telecommunications to passengers aboard the Aircraft.
"Past Due Rate" means a rate per annum equal to 1% over the Debt
Rate.
"Payment Date" means each March 20 and September 20, commencing on
_________ (or, if any such day is not a Business Day, the immediately
succeeding Business Day) until the Equipment Notes have been paid in full.
"Permitted Foreign Air Authority" means the Civil Aviation
Authority of the United Kingdom, the Direction Generale de l'Aviation
Civile of the French Republic, the Luftfahrt Bundesamt of the Federal
Republic of Germany, the Rijflauchtraatdienst of the Kingdom of the
Netherlands, the Ministry of Transportation of Japan or the Federal
Ministry of Transport of Canada (and any agency or instrumentality of the
applicable government succeeding to the functions of any of the foregoing
entities).
"Permitted Foreign Air Carrier" means any air carrier with its
principal executive office in a country listed in Section 7(b) of the
Participation Agreement as in effect from time to time and as may be
modified in accordance with such Section 7(b).
"Permitted Lien" means any Lien referred to in clauses (i) through
(viii) of Section 7.01 of the Indenture.
"Permitted Lessee" means any (i) manufacturer of airframes or
aircraft engines, or any Affiliate of a manufacturer of airframes or
aircraft engines, (ii) any Permitted Foreign Air Carrier, (iii) any Person
approved in writing by the Indenture Trustee and (iv) any U.S. Air Carrier.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Policy" means the financial guarantee insurance policy, dated as
of the Pass Through Trust Closing Date, issued by the Policy Provider in
favor of the Subordination Agent for the benefit of the Class G Pass
Through Trust.
"Policy Provider" means [MBIA Insurance Corporation], or any
successor thereto.
"Policy Provider Agreement" means the Insurance and Indemnity
Agreement, dated as of the Pass Through Trust Closing Date, among the
Policy Provider, Owner and the Subordination Agent.
"Principal Amount", with respect to an Equipment Note, means the
stated original principal amount of such Equipment Note and, with respect
to all Equipment Notes, means the aggregate stated original principal
amounts of all Equipment Notes.
"Purchase Agreement" means [the Sale and Purchase Agreement, dated
as of October 31, 1997, between US Airways Group, Inc. and Seller ]5 [the
Purchase Agreement dated as of November 24, 1998 between US Airways Group,
Inc. and Seller]6 (including all exhibits thereto, together with all letter
agreements entered into that by their terms constitute part of any such
Purchase Agreement), as the same may be amended or otherwise supplemented
from time to time, relating to the Aircraft.
"Purchase Agreement Assignment" means the Purchase Agreement
Assignment (N___U_), dated as of the date of the Participation Agreement,
between Owner and the Indenture Trustee, as the same may be amended,
supplemented or modified from time to time, with a form of Consent and
Agreement to be executed by the Seller attached thereto.
"Purchasers" means each Pass Through Trustee.
"QIB" has the meaning specified for such term in Section 2.08 of
the Indenture.
"Registration Agreement" means the Registration Agreement dated
___________ made by US Airways, Inc., and confirmed and accepted by AIFS,
in respect of the ___% Pass Through Certificates, Series 2001-1C, as such
Registration Agreement may be amended, modified and supplemented from time
to time in accordance with the provisions thereof.
"Registration Default" has the meaning specified for such term in
the Registration Agreement.
"Remaining Weighted Average Life" of an Equipment Note, at the
redemption date of such Equipment Note, means the number of days equal to
the quotient obtained by dividing (a) the sum of the products obtained by
multiplying (i) the amount of each then remaining installment of principal,
including the payment due on the maturity date of such Equipment Note, by
(ii) the number of days from and including the redemption date to but
excluding the scheduled payment date of such principal installment; by (b)
the then unpaid principal amount of such Equipment Note.
"Replacement Airframe" means any airframe substituted for the
Airframe pursuant to Section 5.06 of the Indenture.
-------------------
5 To be used with A321 aircraft.
6 To be used with A330 aircraft.
"Replacement Engine" means any engine substituted for an Engine
pursuant to Section 5.06 of the Indenture.
"Responsible Officer" means a responsible officer in the Corporate
Trust Office of the Indenture Trustee.
"Scheduled Delivery Date" has the meaning specified for such term
in Section 2(d) of the Participation Agreement.
"Secured Obligations" has the meaning specified for such term in
the Granting Clause of the Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means AVSA, S.A.R.L., a societe a responsabilite limitee
organized and existing under the laws of the Republic of France.
"Senior Holder" has the meaning specified for such term in Section
2.15(c) of the Indenture.
"Series C" or "Series C Equipment Notes" means all Equipment Notes
issued and designated as "Series C" under the Indenture, in the Principal
Amount and maturities and bearing interest as specified in Schedule I to
the Indenture under the heading "Series C".
"Series G" or "Series G Equipment Notes" means Equipment Notes
issued and designated as "Series G" under the Indenture, in the Principal
Amount and maturities and bearing interest as specified in Schedule I to
the Indenture under the heading "Series G."
"State Street" means State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, in its
individual capacity.
"Subordination Agent" means State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, as
subordination agent under the Intercreditor Agreement, or any successor
thereto.
"Taxes" means any and all fees (including, without limitation,
license, recording, documentation and registration fees), taxes (including,
without limitation, income, gross receipts, sales, rental, use, turnover,
value added, property (tangible and intangible), excise and stamp taxes),
license, levies, imposts, duties, recording charges and assessments of any
kind whatsoever that are in the nature of taxes or other governmental
charges including interest, penalties and additions to tax (each,
individually a "Tax").
"Transactions" means the transactions contemplated by the
Participation Agreement and the other Operative Documents.
"Transportation Code" means that portion of the United States Code
comprising those provisions formerly referred to as the Federal Aviation
Act of 1958, as amended, or any subsequent legislation that amends,
supplements or supersedes such provisions.
"Underwriters" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇ Securities
Inc., Credit Suisse First Boston Corporation, Credit Lyonnais Securities
(USA) Inc. and Deutsche Bank Securities Inc.
"U.S. Air Carrier" means any Certificated Air Carrier as to which
there is in force an air carrier operating certificate issued pursuant to
Part 121 of the regulations under the Transportation Code, or which may
operate as an air carrier by certification or otherwise under any successor
or substitute provisions therefor or in the absence thereof.
"U.S. Person" means any Person that qualifies as a "United States
person" under Section 7701(a)(30) of the Code.
"Wet Lease" means any arrangement whereby Owner (or any Lessee)
agrees to furnish the Airframe and Engines or engines installed thereon to
a third party pursuant to which such Airframe and Engines or engines (i)
shall be operated solely by regular employees of Owner (or any Lessee)
possessing all current certificates and licenses that would be required
under the Transportation Code, or, if the Aircraft is not registered in the
United States, all certificates and licenses required by the laws of the
jurisdiction of registry, for the performance by such employees of similar
functions within the United States of America or such other jurisdiction of
registry (it is understood that cabin attendants need not be regular
employees of Owner (or any Lessee)) and (ii) shall be maintained by Owner
(or any Lessee) in accordance with its normal maintenance practices.
