EXHIBIT 4(a)(xviii) Owned Aircraft
Participation Agreement
N7__UW
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PARTICIPATION AGREEMENT
(N7__UW)
Dated as of
_________ __, 199_
By and Between
US AIRWAYS, INC.,
Owner
and
STATE STREET BANK AND TRUST COMPANY,
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 A319 Aircraft
U.S. Registration No. N7__UW
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INDEX TO PARTICIPATION AGREEMENT
SECTION 1. Definitions and Construction............................2
SECTION 2. Participation by Pass Through Trustees in Owner's
Cost 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. [Reserved.]............................................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..................................21
(d) Equipment Notes Acquired for Investment..........21
(e) Owner Merger Covenant............................21
(f) Representations, Warranties and Covenants
of the Indenture Trustee.........................23
(g) Quiet Enjoyment..................................24
(h) Loan Participant Liens...........................24
(i) Indenture Trustee Liens..........................25
(j) Further Assurances...............................25
(k) Transfer of Equipment Notes......................25
(l) Representations and Warranties of Pass Through
Trustee..........................................25
(m) Representations and Warranties of Subordination
Agent............................................28
SECTION 8. Reliance of Liquidity Provider.........................30
SECTION 9. Other Documents........................................30
SECTION 10. Certain Covenants of Owner.............................30
(a) Further Assurances...............................31
(b) Filings..........................................31
SECTION 11. [Reserved].............................................31
SECTION 12. Notices; Consent to Jurisdiction.......................31
(a) Notices..........................................31
(b) Consent to Jurisdiction..........................31
SECTION 13. [Reserved.]............................................32
SECTION 14. Miscellaneous..........................................32
(a) Survival.........................................32
(b) Counterparts.....................................32
(c) Amendments and Waivers...........................32
(d) Successors and Assigns...........................33
(e) Governing Law....................................33
ANNEXES
ANNEX A - Definitions
SCHEDULES
SCHEDULE I - Names and Addresses
SCHEDULE II - Commitments
SCHEDULE III - Pass Through Trust Agreement and Pass Through Trust
Supplements
EXHIBITS
Exhibit A - Schedule of Countries Authorized for Reregistration
Exhibit B-1 - Form of Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
and Affiliates, special counsel for Owner
Exhibit B-2 - Form of Opinion of Owner's Legal Department
Exhibit C - Form of Opinion of_____________, special counsel for the
Manufacturer
Exhibit D - Form of Opinion of Xxxxx & Xxxxxxx, P.C., special FAA Counsel
Exhibit E - Form of Opinion of Xxxxxxx Xxxx LLP, special counsel for the
Indenture Trustee
Exhibit F - Form of Opinion of Xxxxxxx Xxxx LLP, special counsel for the
Pass Through Trustee
Exhibit G - Form of Opinion of Xxxxxxx Xxxx LLP, special counsel for the
Subordination Agent
PARTICIPATION AGREEMENT
(N7__UW)
THIS PARTICIPATION AGREEMENT (N7__UW) dated as of _______ ___,
199_ (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, a Massachusetts trust company, not in
its individual capacity except as otherwise provided herein, but solely as
pass through trustee under each of three 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
Trustee for each Pass Through Trust Equipment Notes in three 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 Trustee 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 Certificates issued by such Pass Through Trust;
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 OWNER'S
COST 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,
Owner's payment of Owner's Cost for 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, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, ABA No. 011-00- 0028, Account No. 0000-000-0, Reference: US Airways,
Inc. 1998 EETC/N7__UW), 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 Trustee 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 Trustee and the Subordination Agent at
least three (3) Business Days written or facsimile notice prior to the
Delivery Date, which notice shall specify Owner's Cost for the Aircraft,
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, Xxxxxxx & Xxxx LLP
in Washington, D.C.
(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 Trustee and
the Indenture Trustee, in which case the Pass Through Trustee shall
comply with its obligations under Section 1.01 of each applicable
Pass Through Trust Supplement.
(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 to each Pass Through Trustee that
made funds available as provided by clause (ii) above, 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 Trustee 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 or for any losses incurred on such
investments, 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 Trustee 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 three (3) Business Days prior to the Delivery
Date, each of the parties hereto shall have received the Delivery
Notice pursuant to Section
2(b) hereof.
(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
Trustee 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 Trustee 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
Trustee 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 and provided, further,
that an excerpted copy of the Purchase Agreement shall only be
delivered to and retained by the Indenture Trustee, which copy may be
inspected by the Indenture Trustee if and only if there shall occur
and be continuing an Event of Default:
(1) an excerpted copy of the Purchase Agreement
(insofar as it relates to the Aircraft);
(2) the Trust Indenture;
(3) the Indenture Supplement; and
(4) the Equipment Notes.
(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 such financing statement or
statements shall have been duly filed in all places necessary or
advisable, and any additional Uniform Commercial Code financing
statements deemed advisable by the Pass Through Trustee shall have
been executed and delivered by Owner and duly filed.
(v) The Indenture Trustee, the Pass Through Trustee 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,
and 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 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 and by-laws of
the Indenture Trustee, each certified by the Secretary or an
Assistant Secretary of the Indenture Trustee; 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 Trustee 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).
(viii) [Reserved.]
(ix) The Indenture Trustee, the Pass Through Trustee and the
Subordination Agent shall have received, addressed to each such
party, and reasonably satisfactory as to scope and substance to each
addressee thereof, opinions dated the Delivery Date substantially in
the form of Exhibit B-1 hereto from Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP and Affiliates, special counsel for Owner, and an opinion
dated the Delivery Date substantially in the form of Exhibit B-2
hereto from Owner's legal department.
(x) The Pass Through Trustee shall have received, addressed to
the Pass Through Trustee, the Indenture Trustee and Owner and
reasonably satisfactory as to scope and substance to the Pass Through
Trustee and Owner,
an opinion dated the Delivery Date substantially in the form of
Exhibit C hereto from _________________, special counsel to the
Manufacturer, with respect to the Manufacturer Documents.
(xi) [Reserved.]
(xii) [Reserved.]
(xiii)The Indenture Trustee, the Pass Through Trustee and the
Subordination Agent shall have received, addressed to each such
party, and reasonably satisfactory as to scope and substance to each
addressee thereof, an opinion dated the Delivery Date substantially
in the form of Exhibit D hereto from Xxxxx & Xxxxxxx, P.C., special
FAA counsel.
(xiv) The Pass Through Trustee and the Subordination Agent
shall have received, addressed to each such party, and reasonably
satisfactory as to scope and substance to each addressee thereof, an
opinion dated the Delivery Date substantially in the form of Exhibit
E from Xxxxxxx Xxxx LLP, special counsel for the Indenture Trustee.
(xv) [Reserved.]
(xvi) The Indenture Trustee, the Pass Through Trustee and the
Subordination Agent shall have received an independent insurance
broker's report, in form and substance satisfactory to the Indenture
Trustee, as to the due compliance with the terms of Section 11 of the
Lease 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) [Reserved.]
(xxi) The Indenture Trustee and the Subordination Agent shall
have received (A) a certificate signed by an authorized officer of
the Pass Through Trustee, dated the Delivery Date, certifying that
the representations and warranties contained herein of the Pass
Through 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), (B) an opinion dated the Delivery Date
substantially in the form of Exhibit F hereto addressed to each such
party of Xxxxxxx Xxxx LLP, special counsel for the Pass Through
Trustee, and reasonably satisfactory as to scope and substance to
each addressee thereof, and (C) such other documents and evidence
with respect to the Pass Through Trustee as it 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 Trustee shall
have received, addressed to each such party, and reasonably
satisfactory as to scope and substance, to each addressee thereof, an
opinion dated the Delivery Date substantially in the form of Exhibit
G hereto.
Promptly upon the recording of the Indenture and the Indenture
Supplement covering the Aircraft pursuant to the Transportation Code, Owner
will cause Xxxxx & Xxxxxxx, P.C., special FAA counsel in Oklahoma City,
Oklahoma, to deliver to the Pass Through Trustee, 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 enter into the Operative Documents
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) hereof 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 Trustee 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 and in
each case in scope and substance reasonably satisfactory to Owner and
its special counsel.
(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.
(viii) Owner shall have been paid by the Pass Through
Trustees for the issuance of the Equipment Notes.
SECTION 5. [Reserved.]
SECTION 6. REPRESENTATIONS AND WARRANTIES OF OWNER;
INDEMNITIES.
(a) Representations and Warranties. Owner represents and
warrants to the Pass Through Trustee, the Indenture Trustee and the
Subordination Agent 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 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 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 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;
(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 Trust
Certificates under the Securities Act of 1933, as amended, and under
the securities laws of any state in which the Pass Through Trust
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 or lessors generally
and by general principles of equity, whether considered in a
proceeding at law or in equity;
(vi) (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)(xi) 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 the Pass Through Trust Certificates for sale to
any Person other than in a manner permitted by the Securities Act of
1933, as amended, 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; and
(xiii) except as may have been disclosed in Owner's reports
filed with the Securities Exchange Commission, there are no pending
or threatened actions or proceedings that individually or in the
aggregate are 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.
(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 Trust 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 are not
requested by Owner or 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 is 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. 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, or participate in or be consulted with
respect to 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 Trust 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 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 thereto (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 shall be applied against Owner's obligations hereunder 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).
(d) Special Indemnity. If a Class C Special Indemnity Event
shall be continuing at any time, then on the final maturity date of the
Equipment Notes, Owner shall pay to the Pass Through Trustee on behalf of
the US Airways Pass Through Trust 1998-C the amount which has accrued
during the period in which the Equipment Notes were outstanding in
accordance with the following sentence and which remains unpaid on such
final maturity date (such amount, the "Class C Special Indemnity Payment").
The Class C Special Indemnity Payment shall accrue at a daily rate equal to
the Multiplier, in effect from time to time during the period in which the
Equipment Notes were outstanding, multiplied by the aggregate principal
amount of the Series C Equipment Notes outstanding on such date divided by
360. The Pass Through Trustee agrees that it will accept and receive the
Class C Special Indemnity Payment on behalf of the US Airways Pass Through
Trust 1998-C and that it will distribute the Class C Special Indemnity
Payment in accordance with the Trust Agreement for the US Airways Pass
Through Trust 1998-C.
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 of 1933,
as amended, or the rules and regulations thereunder.
(b) Reregistration. The Indenture Trustee and each Loan
Participant agree that, at any time after the Depreciation Period, 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 on Exhibit A. Upon the request of the Lessee, Exhibit A
shall be amended from time to time to include any other country which the
Indenture Trustee have 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 to the effect that (A) the insurance
or self-insurance required by Section 7.04 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 each such party substantially the
same protection as provided prior to such change of registry,
(C) the Lien of the Trust 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 Certificate
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) there is no
tort liability of Owner of an aircraft not in possession
thereof under the laws of such jurisdiction (it being agreed
that, in the event such latter opinion cannot be given in a
form satisfactory to the Indenture Trustee, such opinion shall
be waived if insurance reasonably satisfactory to the Indenture
Trustee is provided to cover such risk); (C) 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 (D) after
giving effect to such change in registration, the Lien of the
Trust 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.
(c) Quiet Enjoyment. Each Loan Participant and each of the
Indenture Trustee, the Subordination Agent and the Pass Through Trustee
covenants and agrees that, so long as no Event of Default shall have
occurred and be continuing and Owner has not been duly declared in default
and, notwithstanding default by any Loan Participant, the Indenture
Trustee, the Pass Through Trustee or the Subordination Agent, that 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, Assistant
General Counsel or Associate 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(v) 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 represents, warrants (as of
the Delivery Date) and covenants, in its individual capacity, to Owner, the
Pass Through Trustee and the Subordination Agent, as follows:
(i) the Indenture Trustee is a Massachusetts trust company duly
incorporated, validly existing and in good standing under the laws of
the Commonwealth of Massachusetts, 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 Trust
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 Commonwealth of Massachusetts 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, 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; and
(v) there are no Indenture Trustee Liens on the Aircraft.
(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, 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, 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, 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 Trustee. The
Pass Through Trustee represents and warrants to Owner, the Indenture
Trustee and the Subordination Agent, in its capacity as such and in its
individual capacity, as follows:
(i) the Pass Through Trustee is a state chartered trust company
duly organized, validly existing and in good standing under the laws
of the Commonwealth of Massachusetts, and has the full corporate
power, authority and legal right under the laws of the Commonwealth
of Massachusetts 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 Certificates pursuant to the Pass Through Trust
Agreements, contravenes any law, rule or regulation of the
Commonwealth of Massachusetts 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 Massachusetts 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 Commonwealth of Massachusetts 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
Commonwealth of Massachusetts 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 Commonwealth of Massachusetts 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 Trust
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 Trustee, in its capacity as such and in its individual
capacity, as follows:
(i) the Subordination Agent is a state chartered trust company
duly organized, validly existing and in good standing under the laws
of the Commonwealth of Massachusetts, and has the full corporate
power, authority and legal right under the laws of the Commonwealth
of Massachusetts and the United States pertaining to its banking,
trust and fiduciary powers to execute and deliver this Agreement, the
Liquidity Facilities and the Intercreditor Agreement and to perform
its obligations under this Agreement, the Liquidity Facilities and
the Intercreditor Agreement;
(ii) this Agreement, each of the Liquidity Facilities and the
Intercreditor Agreement have been duly authorized, executed and
delivered by the Subordination Agent; this Agreement, each of the
Liquidity Facilities 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
Intercreditor Agreement or this Agreement contravenes any law, rule
or regulation of the Commonwealth of Massachusetts 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 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
Massachusetts 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 Commonwealth of Massachusetts 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 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 or any of the Liquidity Facilities), and
there are no Taxes payable by the Subordination Agent imposed by the
Commonwealth of Massachusetts 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 or any of the Liquidity Facilities);
(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 or any Liquidity Facility;
(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; 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. Each of the parties hereto
agrees and acknowledges that the Liquidity Provider shall be a third party
beneficiary of each of the representations, warranties and covenants made
herein by such party, and that the Liquidity Provider may rely on such
representations and warranties to the same extent as if such
representations and warranties were made to the Liquidity Provider
directly. Owner agrees and acknowledges that the Liquidity Provider shall
be a third party beneficiary of the indemnities contained in Section 6(b)
hereof, and may rely on such indemnities to the same extent as if such
indemnities were made to the Liquidity Provider directly.
SECTION 9. OTHER DOCUMENTS. So long as the Lien of the Trust
Indenture has not been terminated, the Pass Through Trustee, 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 Trustee 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 unde 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 Trustee, the Subordination Agent or the Indenture Trustee to the
respective addresses set forth below the signatures of such parties at the
foot of this Agreement, 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 Trustee 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 Trustee, the transfer of any interest by any Loan
Participant in any Equipment Note or the Trust 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 Trustee and its successors as Pass Through Trustee (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
Trust Indenture. The terms of this Agreement shall inure to the benefit of
the Liquidity Provider, its 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.
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:
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
STATE STREET BANK AND
TRUST COMPANY,
not in its individual capacity
except as otherwise provided herein,
but solely as Indenture Trustee
By:_________________________________
Name:
Title:
Address: Two International Place, 4th Floor
Boston, Massachusetts 02110
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity, except
as otherwise provided herein, but solely
as Pass Through Trustee
By:_________________________________
Name:
Title:
Address: Two International Place, 4th Floor
Boston, Massachusetts 02110
STATE STREET BANK AND
TRUST COMPANY, not in its
individual capacity, except as otherwise
provided herein, but solely as Subordination
Agent
By:__________________________________
Name:
Title:
Address: Two International Place, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
SCHEDULE I
NAMES AND ADDRESSES
Owner: US Airways, Inc.
U.S. MAIL
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
OVERNIGHT COURIER
____________________________
____________________________
Attn:
Telecopy No.: (___) ___-____
WIRE TRANSFER
____________________________
ABA No._________________
Acct. No._________________
Indenture Trustee, State Street Bank and Trust Company
Subordination Agent
and Pass Through U.S. MAIL
Trustee:
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Corporate Trust Department
Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
OVERNIGHT COURIER
____________________________
____________________________
Attn:
Telecopy No.: (___) ___-____
WIRE TRANSFER
State Street Bank and Trust Company
ABA No. 011-00-0028
for credit to State Street Bank and Trust
Company
Acct. No. 0000-000-0
Attn: Corporate Trust Department
Reference: U.S. Airways, Inc. 0000-0 XXXX/
X0__XX
X.X. MAIL
Two International Place, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Corporate Trust Department
Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
OVERNIGHT COURIER
____________________________
____________________________
Attn:_________________________
Telecopy No.: (___) ___ - ____
Subordination Agent
and Pass Through
Trustees:
SCHEDULE II
COMMITMENTS
PERCENTAGE OF
PURCHASERS INTEREST RATE
LESSOR'S COST AND MATURITY PURCHASE PRICE
------------- ------------- --------------
US Airways, Inc.
Pass Through Trust:
1998-1A _____% Series A Secured $__________
_______% Certificates due -----, ----
1998-1B _____% Series B Secured $__________
_______% Certificates due -----, ----
1998-1C _____% Series C Secured $__________
______% Certificates due -----, ----
SCHEDULE III
PASS THROUGH TRUST AGREEMENTS
Pass Through Trust Agreement, dated as of December 4, 1998, between
US Airways, Inc. and State Street Bank and Trust Company, as
supplemented by Trust Supplement No. 1998-1A, dated as of December
14, 1998, as supplemented by Trust Supplement No. 1998-1B, dated as
of December 14, 1998, and as supplemented by Trust Supplement No.
1998-1C, dated as of December 14, 1998.
EXHIBIT A
TO PARTICIPATION AGREEMENT
(N7__UW)
SCHEDULE OF COUNTRIES FOR REREGISTRATION
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 Venezuela
Malaysia
*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.
Owned Aircraft Form Definitions
N7__UW
ANNEX A
DEFINITIONS
(N7__UW)
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
56-5 (or improved type) engine having not less than 1,500 cycles left
before such engine's next scheduled maintenance overhaul 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 56-5 type
engine, assuming such engine is in the condition required by the Lease.
"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 Trustee, the Liquidity 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 Lease, 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.
"Amortization Amount" means, with respect to any Principal Amount
Repayment Date, the amount set forth opposite such Date as the Principal
Amount to be repaid on the Amortization Schedule.
"Amortization Schedule" means the amortization schedule for the
Equipment Notes delivered pursuant to Section 2.02 of the Indenture.
"Applicable Rate" means as of any date the weighted average of
the interest rates borne by the Equipment Notes then outstanding and, if no
Equipment Notes shall be outstanding, the Base Rate.
"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
Chase Manhattan, N.A. in New York, New York from time to time as its base
rate.
"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 the
City of New York, New York, Boston, Massachusetts 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 Xxxxx'x 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 a carrier operating certificate issued by the Secretary of
Transportation 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 11 U.S.C. Section 1110 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 A Liquidity Provider" means ABN AMRO Bank, N.V., a bank
organized under the laws of the Netherlands acting through its Chicago
branch, or any successor thereto.
"Class B Liquidity Provider" means ABN AMRO Bank, N.V., a bank
organized under the laws of the Netherlands acting through its Chicago
branch, or any successor thereto.
"Class C Liquidity Provider" means ABN AMRO Bank, N.V., a bank
organized under the laws of the Netherlands acting through its Chicago
branch, or any successor thereto.
"Class C Purchase Agreement" means that certain Purchase
Agreement, dated as of December 14, 1998, by and between Owner and AIFS.
"Class C Special Indemnity Event" means the existence of any
condition or event which, pursuant to Section 3 of the Registration
Agreement, requires US Airways, Inc. to pay liquidated damages to the US
Airways Pass Through Trust 1998-C in accordance with such Section 3,
subject to the last sentence of the first paragraph of Section 3 of the
Registration Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means the commitment pursuant to the Participation
Agreement of a Pass Through Trustee to finance Owner's Cost for the
Aircraft.
"Consent and Agreement" means the Consent and Agreement (N7__UW),
dated as of the date of the Participation Agreement, executed by the
Seller, as the same may be amended, modified or supplemented from time to
time in accordance with the applicable provisions thereof.
"Continuous Stay Period" has the meaning specified for such term
in Section 4.04(a) of the Indenture.
"Corporate Trust Office" means the principal office of the
Indenture Trustee located at Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Corporate Trust Department, 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" means any liability for borrowed money, or any liability
for the payment of money in connection with any letter of credit
transaction, or other liabilities evidenced or to be evidenced by bonds,
debentures, notes or other similar instruments or for the deferred purchase
price of property, goods or services.
"Debt Rate" means, with respect to any Series, 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(c) of the Participation Agreement.
"Depositaries" means collectively, Credit Suisse First Boston,
New York Branch and Citibank, N.A.
"Designated Interest Rate" has the meaning specified for such
term in Section 2.02 of the Indenture.
"Dollars" and "$" mean the lawful currency of the United States
of America.
"Enforcement Date" has the meaning specified for such term in
Section 4.03 of the Indenture.
"Engine" means (i) each of the two CFM International 56-5 type
engines 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 under the Indenture. The term "Engines" means,
as of any date of determination, all Engines then subject to the Lien of
the Indenture.
"Equipment Note Holder" has the meaning specified for such term
in Section 2.07 of the Indenture.
"Equipment Notes" means and include any 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 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.
"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 or, if earlier, the expiration of the Term; (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 or, if earlier, the expiration of the Term; (v) the requisition for
use by the United States Government or any government of registry of the
Aircraft or any instrumentality or agency thereof, which shall have
occurred during the Basic Term (or any Renewal Term) and shall have
continued for a period of thirty (30) days beyond the Term; (vi)
condemnation, confiscation, requisition or taking of title of the Aircraft
or the Airframe for more than thirty (30) days, or if earlier, the
expiration of the Term; (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 (or, if earlier, the expiration of the Term); provided that no Event
of Loss shall be deemed to occur if such "grounding" is applicable to
Owner's entire fleet of A319 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 or such use
shall be prohibited at the expiration of the Term; 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 7(b) of the Lease. 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).
"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.
"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 Provider, (v) the Pass Through Trustees, (vi) each
Affiliate of the Persons described in clauses (i) through (v), inclusive,
(vii) the respective directors, officers, employees, agents and servants of
each of the Persons described in clauses (i) through (vi), inclusive, and
(viii) the successors and permitted assigns of the Persons described in
clauses (i) through (vii), inclusive.
"Indemnity Agreements" means each of (i) that certain Indemnity
Agreement, dated as of December 14, 1998, between Citibank, N.A. and Owner
and (ii) that certain Indemnity Agreement, dated as of December 14, 1998,
between Credit Suisse First Boston, New York Branch, and Owner.
"Indenture" means that certain Indenture and Security Agreement
(N7__UW), 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 Consent and
Agreement and any other contract, agreement or instrument from time to time
assigned or pledged under the Indenture.
"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 Excess Amount" has the meaning specified for such term
in Section 2.03(b) 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 Provider, (v)
each Pass Through Trustee, and (vi) each of the respective directors,
officers, employees, agents and servants of each of the Persons described
in clauses (i) through (v), 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, a
Massachusetts trust company, 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
and the Indenture 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 6, 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.
"Intercreditor Agreement" means that certain Intercreditor
Agreement, dated as of the date of the Indenture, among the Pass Through
Trustees, the Liquidity 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 sublease permitted by the terms of Section
7(b)(x) of the Lease.
"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 7.03(c) of the
Indenture.
"Lien" means any mortgage, pledge, lien, charge, claim,
encumbrance, lease, sublease, sub-sublease or security interest.
"Liquidity Facilities" means the three Revolving Credit
Agreements between the Subordination Agent, as borrower, and the Liquidity
Provider, and any replacement thereof, in each case as the same may be
amended, modified or supplemented.
"Liquidity Provider" means ABN AMRO Bank, N.V., a bank organized
under the laws of the Netherlands acting through its Chicago branch, as
Class A Liquidity Provider, Class B Liquidity Provider and Class C
Liquidity Provider under the Liquidity Facilities, or any successor
thereto.
"Loan Participant" means each Purchaser and its respective
successors 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 more than 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 and the
Consent and Agreement.
"Mortgaged Property" has the meaning specified for such term in
Section 3.03 of the Indenture.
"Multiplier" means (i) on any date when no Class C Special
Indemnity Event is continuing , 0.00, (ii) on each day during the first
ninety (90)-day period immediately following the occurrence of a Class C
Special Indemnity Event, 0.0025, and (iii) thereafter, on each day during
each subsequent ninety (90)-day period for so long as such Class C Special
Indemnity Event exists, the Multiplier in effect for the immediately
preceding ninety (90)-day period plus 0.0025; provided, that (a)
notwithstanding the foregoing, the maximum Multiplier shall be 0.01, and
(b) the Multiplier shall reset after such Class C Special Indemnity Event
has ceased or no longer exists and clause (i) shall apply again to any
subsequent Class C Special Indemnity Event.
"Net Interest and Related Charges" has the meaning specified for
such term in Section 2.02 of the Indenture.
"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 Class A, Class B and Class C Pass Through Trusts, the
Subordination Agent, First Security Bank, National Association, as Escrow
Agent, and State Street Bank and Trust Company, 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 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.
"Participants" means the Loan Participants (each individually, a
"Participant").
"Participation Agreement" means that certain Participation
Agreement (N7__UW), dated as of , 199 in, among
the Subordination Agent, the Indenture Trustee, Owner and the Pass Through
Trustee, 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 or so long such
items remain subject to the Lien of the Indenture as 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 Trustee in connection with the
Transactions.
"Pass Through Documents" means the Participation Agreement, the
Pass Through Trust Agreements and the Intercreditor Agreement.
"Pass Through Indemnitees" means (i) the Subordination Agent, the
Liquidity Provider and the Pass Through Trustee, (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 three separate
grantor trusts set forth in Schedule III to the Participation Agreement
created, pursuant to the Pass Through Trust Agreements and each of the Pass
Through Trust Supplements set forth in Schedule III to the Participation
Agreement, to facilitate certain of the transactions contemplated by the
Operative Documents.
"Pass Through Trust Agreement" means the pass through trust
agreement and each of the three separate pass through trust supplements
referred to on Schedule III to the Participation Agreement.
"Pass Through Trust Closing Date" means December 14, 1998.
"Pass Through Trustee" means State Street Bank and Trust Company,
a Massachusetts trust company, 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 or electronic entertainment to passengers
aboard the Aircraft.
"Past Due Rate" means a rate per annum equal to 1% over the Debt
Rate.
"Payment Date" means each January 30 and July 30, commencing on
________ 30, ____ (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 Lien" means any Lien referred to in clauses (i)
through (viii) of Section 7.01 of the Indenture.
"Permitted Lessee" means any entity domiciled in a country listed
in Exhibit C to the Indenture as in effect from time to time and as may be
modified in accordance with Section 7(d) of the Participation Agreement.
"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.
"Principal Amount", with respect to a 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.
"Principal Amount Repayment Date" means each Payment Date on
which any portion of the Principal Amount is due and payable in accordance
with the Amortization Schedule.
"Purchase Agreement" means the Sale and Purchase Agreement, dated
as of October 31, 1997, between the Seller and US Airways Group, Inc., as
the same has been assigned to Owner, relating to the purchase by Owner of
the Aircraft, as originally executed or as modified, amended or
supplemented in accordance with the terms thereof, but only insofar as the
foregoing relates to the Aircraft.
"Purchase Agreement Assignment" means the Purchase Agreement
Assignment (N7 UW), 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 the Pass Through Trustees under each Pass
Through Trust Agreement.
"QIB" has the meaning specified for such term in Section 2.08 of
the Indenture.
"Registration Agreement" means the Registration Agreement dated
December 14, 1998 by Owner, and confirmed and accepted by AIFS, in respect
of the 6.82% Pass Through Certificates, Series 1998-1, Class C, as such
Registration Agreement may be amended, modified and supplemented from time
to time in accordance with the provisions thereof.
"Related Indemnitee Group" means, with respect to any Indemnitee,
any officer, director, servant, employee, agent or Affiliate thereof.
"Remaining Weighted Average Life" of a 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.
"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(f) 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 A" or "Series A Equipment Notes" means Equipment Notes
issued and designated as "Series A" under the Indenture, in the Principal
Amount and maturities and bearing interest as specified in Schedule I to
the Indenture under the heading "Series A."
"Series B" or "Series B Equipment Notes" means Equipment Notes
issued and designated as "Series B" under the Indenture, in the Principal
Amount and maturities and bearing interest as specified in Schedule I to
the Indenture under the heading "Series B."
"Series C" or "Series C Equipment Notes" means 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."
"State Street" means State Street Bank and Trust Company, a
Massachusetts trust company, not in its capacity as Indenture Trustee under
the Indenture, but in its individual capacity.
"Subordination Agent" means State Street Bank and Trust Company,
a Massachusetts trust company, 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").
"Transaction Expenses" means: all of the reasonable out-of-
pocket costs, fees and expenses incurred by Owner, the Pass Through
Trustee, the Subordination Agent and the Indenture Trustee in connection
with the transactions contemplated by the Participation Agreement, the
other Operative Documents, the Pass Through Trust Agreements, the Pass
Through Documents, the Intercreditor Agreement, the Liquidity Facilities
and the Underwriting Agreement (except, in each case, as otherwise provided
therein) including, without limitation:
(a) the reasonable and actual fees, expenses and disbursements of (A)
Xxxxxxx, Xxxx & Xxxxx LLP, special counsel for the Pass Through
Trustee, the Subordination Agent and the Indenture Trustee, (B)
Shearman & Sterling, special counsel for the Underwriters, and
(C) Xxxxx & Xxxxxxx, P.C., special counsel in Oklahoma City,
Oklahoma and (D) Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to
AIFS;
(b) the initial fee and reasonable and actual disbursements of the
Indenture Trustee under the Indenture;
(c) the initial fees and expenses of the Liquidity Provider, the Pass
Through Trustee and the Subordination Agent;
(d) underwriting fees and commissions;
(e) the fees and expenses with respect to the appraisal of the
Aircraft;
(f) the fees, expenses and disbursements of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP and its affiliates, special counsel for Owner;
(g) the costs of filing and recording documents with the FAA and
filing Uniform Commercial Code statements in the United States;
(h) the reasonable fees, expenses and disbursements of special
counsel to the Liquidity Provider;
(i) the expenses of the Depositaries payable under Section 10(a) of
each Indemnity Agreement; and
(j) the reasonable fees, expenses and disbursements of, special
counsel to the Seller and the Manufacturer.
"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 Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Xxxxx
Barney Inc., Xxxxxx Brothers Inc. and Credit Suisse First Boston Corporation.
"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.
"Wet Lease" means any arrangement whereby the 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.
