Exhibit 4(a)(xx)
Owned Aircraft
Participation Agreement
N___U_
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PARTICIPATION AGREEMENT
(N___U_)
Dated as of
--------- --, ----
By and Between
US AIRWAYS, INC.,
Owner
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity except
as expressly provided herein, but solely as
Pass Through Trustee under each of the
Pass Through Trust Agreements,
Subordination Agent and Indenture Trustee
-----------------------------
One Airbus A3__ Aircraft
U.S. Registration No. N___U_
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INDEX TO PARTICIPATION AGREEMENT
Page
SECTION 1. Definitions and Construction.................................2
SECTION 2. Participation by Pass Through Trustees in Financing
of the Aircraft..............................................2
(a) Participation by Pass Through Trustees on the
Delivery Date; Issuance of Equipment Notes...................2
(b) Owner's Notice of Delivery Date..............................3
(c) Closing......................................................3
(d) Postponement of Scheduled Delivery Date......................3
SECTION 3. [Reserved.]..................................................4
SECTION 4. Conditions Precedent.........................................4
(a) Conditions Precedent to Purchase of Equipment Notes..........4
(b) Conditions Precedent to the Obligations of Owner............10
SECTION 5. Extent of Interest of Note Holders..........................12
SECTION 6. Representations and Warranties of Owner; Indemnities........12
(a) Representations and Warranties..............................12
(b) General Indemnity...........................................15
SECTION 7. Representations, Warranties and Covenants...................19
(a) Securities Act..............................................19
(b) Reregistration..............................................19
(c) Quiet Enjoyment.............................................20
(d) Equipment Notes Acquired for Investment.....................20
(e) Owner Merger Covenant.......................................21
(f) Representations, Warranties and Covenants of
the Indenture Trustee.......................................22
(g) Confidentiality of Purchase Agreement.......................23
(h) Loan Participant Liens......................................23
(i) Indenture Trustee Liens.....................................24
(j) Further Assurances..........................................24
(k) Transfer of Equipment Notes.................................24
(l) Representations and Warranties of Pass Through Trustee......24
(m) Representations and Warranties of Subordination Agent.......26
SECTION 8. Reliance of Liquidity Provider..............................28
SECTION 9. Other Documents.............................................29
SECTION 10. Certain Covenants of Owner..................................29
(a) Further Assurances..........................................29
(b) Filings.....................................................29
SECTION 11. [Reserved.].................................................29
SECTION 12. Notices; Consent to Jurisdiction............................29
(a) Notices.....................................................29
(b) Consent to Jurisdiction.....................................30
SECTION 13. [Reserved.].................................................30
SECTION 14. Miscellaneous...............................................30
(a) Survival....................................................30
(b) Counterparts................................................31
(c) Amendments and Waivers......................................31
(d) Successors and Assigns......................................31
(e) Governing Law...............................................31
EXHIBITS
Exhibit A - Schedule of Countries Authorized for Reregistration
Exhibit B-1 - Form of Opinion of Skadden, Arps, Slate,
Xxxxxxx & Xxxx (Illinois), 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
Owned Aircraft
Participation Agreement
N___U_
PARTICIPATION AGREEMENT
(N___U_)
THIS PARTICIPATION AGREEMENT (N___U_) dated as of _______
___, ____ (as amended, supplemented or otherwise modified from time to
time, this "Agreement") by and between US AIRWAYS, INC., a Delaware
corporation (together with its successors and permitted assigns, the
"Owner"), and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity
except as otherwise provided herein, but solely as pass through trustee
under each of 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 Pass Through
Certificates issued by such Pass Through Trust;
WHEREAS, on the Delivery Date for the Aircraft, Owner will
deliver an Indenture Supplement covering the Aircraft;
WHEREAS, pursuant to the terms of the Note Purchase
Agreement, the Pass Through Trustee will purchase from the Owner on the
Delivery Date, on behalf of each Pass Through Trust, all of the Equipment
Notes bearing the same interest rate as the Pass Through Certificates
issued by such Pass Through Trust;
WHEREAS, prior to the execution and delivery of this
Agreement, (i) the Liquidity Provider entered into three separate Liquidity
Facilities, one for the benefit of the holders of Pass Through Certificates
of each of the Class A Pass Through Trust, the Class B Pass Through Trust
and the Class C Pass Through Trust (each referenced on Schedule III
hereto), with the Subordination Agent, as agent for the Pass Through
Trustee on behalf of each such Pass Through Trust; and (ii) the Pass
Through Trustee, the Liquidity Provider and the Subordination Agent have
entered into the Intercreditor Agreement; and
WHEREAS, the Equipment Notes will be held by the
Subordination Agent pursuant to the Intercreditor Agreement on behalf of
the Pass Through Trusts.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND CONSTRUCTION.
Capitalized terms used but not defined herein shall have the
respective meanings set forth or incorporated by reference, and shall be
construed and interpreted
in the manner described, in Annex A.
SECTION 2. PARTICIPATION BY PASS THROUGH TRUSTEES IN FINANCING OF
THE AIRCRAFT.
(a) Participation by Pass Through Trustees on the Delivery
Date; Issuance of Equipment Notes. Subject to the terms and conditions of
this Agreement, the Pass Through Trustee for each Pass Through Trust agrees
to make a secured loan to Owner on the Delivery Date to finance, in part,
the Owner's acquisition of the Aircraft by paying to Owner the aggregate
purchase price of the Equipment Notes being issued to such Pass Through
Trustee as set forth on Schedule II opposite the name of such Pass Through
Trust. The Pass Through Trustees shall make such payments to Owner on a
date to be designated pursuant to Section 2(b) but in no event later than
__________________, by transferring to the account of Owner at State Street
Bank and Trust Company of Connecticut, National Association, 000 Xxxxxx
Xxxxxx, Xxxxxxx Square, Hartford, Connecticut 06103, ABA No. _________,
Account No. __________, Reference: US Airways, Inc. 1999-1 EETC/N___U_),
not later than 9:30 a.m., New York City time, on the Delivery Date in
immediately available funds in Dollars, the amount set forth opposite the
name of such Pass Through Trust on Schedule II hereto.
Upon the occurrence of the above transfers by the Pass
Through Trustee for each Pass Through Trust to Owner, Owner shall issue,
pursuant to Article II of the Indenture, to the Subordination Agent on
behalf of the Pass Through 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 one (1) Business Day written or facsimile notice prior to the
Delivery Date, which notice shall specify the amount of Equipment Notes to
be purchased by the Pass Through Trustees, the Delivery Date for the
Aircraft, the serial number of the Airframe and each Engine, and the United
States registration number for the Aircraft.
(c) Closing. The closing of the transactions referred to in
this Agreement shall take place commencing at 9:30 a.m. local time, on the
Delivery Date, at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
in New York, New York.
(d) Postponement of Scheduled Delivery Date.
(i) If for any reason whatsoever the closing of the
transactions contemplated hereby is not consummated on the Delivery
Date provided for pursuant to Section 2(b) (the "Scheduled Delivery
Date"), the closing shall be deemed adjourned to the next Business
Day or to such other Business Day on or prior to _______________ as
Owner shall specify by written notice to the Pass Through Trustee
and the Indenture Trustee.
(ii) If the closing fails to occur on the Scheduled Delivery
Date, Owner shall cause the Indenture Trustee to promptly return to
the Pass Through Trustees any funds provided by any such Pass
Through Trustee, together with interest or income earned thereon.
(iii) If the closing fails to occur on the Scheduled
Delivery Date and funds are not returned, as provided by clause
(ii) above, to each Pass Through Trustee that made funds available,
Owner shall use reasonable efforts to cause the Indenture Trustee
to invest, at the risk of Owner, the funds received by it from such
Pass Through Trustees in Cash Equivalents. Any such obligations
purchased by Owner, whether directly or through a repurchase
agreement, shall be held in trust by the Indenture Trustee for the
benefit of the respective Pass Through Trustees that provided such
funds.
(iv) If the closing fails to occur on the Scheduled Delivery
Date, unless Owner shall cause the Indenture Trustee to return all
funds to the Pass Through 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, 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 one (1) Business Day prior to the Delivery
Date, each of the parties hereto shall have received the Delivery
Notice pursuant to Section 2(b).
(ii) On the Delivery Date, no change shall have occurred
after the date of the execution and delivery of this Agreement in
applicable law or regulations or guidelines or interpretations
thereof by appropriate regulatory authorities which would make it a
violation of law or regulations or guidelines for the Pass Through
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 Indenture;
(3) the Indenture Supplement;
(4) the Equipment Notes;
(5) the FAA Xxxx of Sale;
(6) the Xxxx of Sale;
(7) the Purchase Agreement Assignment;
(8) the Consent and Agreement; and
(9) the French Pledge Agreement.
In addition, the Pass Through Trustee shall have
received executed counterparts or conformed copies of the following
documents:
(1) each of the Pass Through Trust Agreements;
(2) the Intercreditor Agreement; and
(3) the Liquidity Facility for each of the Class A,
Class B and Class C Pass Through Trusts.
(iv) A Uniform Commercial Code financing statement or
statements covering all the security interests created by or
pursuant to the Granting Clause of the Indenture that are not
covered by the recording system established by the Transportation
Code shall have been executed and delivered by Owner, and
arrangements satisfactory to the Indenture Trustee shall have been
made for the filing of such financing statement or statements in
all places necessary or advisable, and any additional Uniform
Commercial Code financing statements deemed advisable by the Pass
Through Trustee shall have been executed and delivered by Owner and
arrangements satisfactory to the Indenture Trustee shall have been
made for the filing of such financing statements.
(v) The Indenture Trustee, the Pass Through 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, a copy of the by-laws of Owner certified by the
Secretary or Assistant Secretary of Owner, and a certificate
or other evidence from the Secretary of State of the State
of Delaware, dated as of a date shortly prior to the
Delivery Date, as to the due incorporation and good standing
of Owner in such state.
(B) (1) an incumbency certificate of the Indenture Trustee
as to the person or persons authorized to execute and
deliver the Operative Documents to which the Indenture
Trustee is a party and any other documents to be executed on
behalf of the Indenture Trustee in connection with the
transactions contemplated hereby and the signatures of such
person or persons;
(2) a copy of the resolutions of the board of directors
of the Indenture Trustee, certified by the Secretary or an
Assistant Secretary of the Indenture Trustee, duly
authorizing the transactions contemplated hereby and the
execution and delivery of each of the documents required to
be executed and delivered on behalf of the Indenture Trustee
in connection with the transactions contemplated hereby;
(3) a copy of the articles of association of the
Indenture Trustee certified by the Comptroller of the
Currency, a copy of the by-laws of the Indenture Trustee
certified by the Secretary or an Assistant Secretary of the
Indenture Trustee, and a certificate or other evidence from
the Comptroller of the Currency, dated as of a date shortly
prior to the Delivery Date, as to the existence of the
Indenture Trustee under the laws of the United States of
America; and
(4) a certificate signed by an authorized officer of the
Indenture Trustee, dated the Delivery Date, certifying that
the representations and warranties contained herein of the
Indenture Trustee are correct in all material respects as
though made on and as of the Delivery Date, except to the
extent that such representations and warranties relate
solely to an earlier date (in which case such
representations and warranties are correct on and as of such
earlier date).
(vi) All appropriate action required to have been taken
prior to the Delivery Date in connection with the transactions
contemplated by this Agreement shall have been taken by the Federal
Aviation Administration, or any governmental or political agency,
subdivision or instrumentality of the United States, and all
orders, permits, waivers, authorizations, exemptions and approvals
of such entities required to be in effect on the Delivery Date in
connection with the transactions contemplated by this Agreement
shall have been issued, and all such orders, permits, waivers,
authorizations, exemptions and approvals shall be in full force and
effect on the Delivery Date.
(vii) The Indenture Trustee, the Pass Through 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); and
(4) the conditions to the purchase of the Equipment
Notes by the Pass Through Trustees under the Pass Through
Documents have been duly satisfied or waived in accordance
with their respective terms.
(viii) In the case of the Pass Through Trustees, the
conditions specified in Section 3 of the Note Purchase Agreement
shall have been satisfied or
waived.
(ix) The Indenture Trustee, the Pass Through 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 (Illinois), 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 and the Indenture 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, an opinion dated the
Delivery Date substantially in the form of Exhibit C hereto from
Xxxxxxxx Chance, 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 insurance
certificate together with an independent insurance broker's report,
in form and substance reasonably satisfactory to the Indenture
Trustee, as to the due compliance with the terms of Section 7.04 of
the Indenture relating to insurance with respect to the Aircraft.
(xvii) [Reserved.]
(xviii) No action or proceeding shall have been instituted
nor shall governmental action be threatened before any court or
governmental agency, nor shall any order, judgment or decree have
been issued or proposed to be issued by any court or governmental
agency at the time of the Delivery Date to set aside, restrain,
enjoin or prevent the completion and consummation of this Agreement
or the transactions contemplated hereby.
(xix) [Reserved.]
(xx) No Event of Default has occurred and is continuing and
no Event of Loss has occurred with respect to the Airframe or any
Engine.
(xxi) The Indenture Trustee and the Subordination Agent
shall have received (A) a certificate signed by an authorized
officer of the Pass Through 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 from Xxxxxxx Xxxx LLP, special counsel for the
Subordination Agent.
Promptly upon the recording of the Indenture and the
Indenture Supplement covering the Aircraft pursuant to the Transportation
Code, Owner will cause 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) 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. EXTENT OF INTEREST OF NOTE HOLDERS. No Note Holder shall
have any further interest in, or other right with respect to, the mortgage
and security interests created by the Indenture when and if the principal
of and interest on all Equipment Notes held by such holder and all other
sums payable to such holder hereunder, under the Indenture and under such
Equipment Notes shall have been paid in full.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF OWNER; INDEMNITIES.
(a) Representations and Warranties. Owner represents and
warrants to the Pass Through Trustee, the Indenture Trustee, each Loan
Participant 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 the Owner Documents, the Pass
Through Trust Agreements and the other Operative Documents to which
it is a party, and is duly qualified to do business as a foreign
corporation in each state in which its operations or the nature of
its business requires other than failures to so qualify which would
not have a material adverse effect on the condition (financial or
otherwise), business or properties of Owner and its subsidiaries
considered as one enterprise;
(ii) Owner is a Certificated Air Carrier, and its chief
executive office (as such term is used in Article 9 of the Uniform
Commercial Code in effect in the State of Virginia) is located at
Arlington, Virginia;
(iii) the execution and delivery by Owner of 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; provided, that insofar as the
representations and warranties set forth in this Section 6(a)(iii)
apply to the prohibited transaction rules of ERISA and Section 4975
of the Code, such representations and warranties are based upon and
subject to the truth and accuracy of the representations and
warranties made or deemed made by each purchaser of Pass Through
Certificates issued by a Pass Through Trust;
(iv) neither the execution and delivery by Owner of Owner
Documents, the Pass Through Trust Agreements or any other Operative
Document to which Owner is a party, nor the performance of the
obligations of Owner under Owner Documents, the Pass Through Trust
Agreements or the other Operative Documents to which Owner is a
party, requires the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in
respect of, the Department of Transportation, the FAA, or any other
Federal, state or foreign governmental authority having
jurisdiction over Owner, other than (A) the registration of the
Pass Through Certificates under the Securities Act and under the
securities laws of any state in which the Pass Through Certificates
may be offered for sale if the laws of such state require such
action, (B) the qualification of the Pass Through Trust Agreements
under the Trust Indenture Act of 1939, as amended, pursuant to an
order of the Securities and Exchange Commission, (C) the orders,
permits, waivers, exemptions, authorizations and approvals of the
regulatory authorities having jurisdiction over the operation of
the Aircraft by Owner required to be obtained on or prior to the
Delivery Date, which orders, permits, waivers, exemptions,
authorizations and approvals have been, or on the Delivery Date
will be, duly obtained and are, or on the Delivery Date will be, in
full force and effect, (D) the registrations and filings referred
to in Section 6(a)(vi), and (E) authorizations, consents,
approvals, actions, notices and filings required to be obtained,
taken, given or made either only after the date hereof or the
failure of which to obtain, take, give or make would not be
reasonably likely to have a material adverse effect on the
condition (financial or otherwise), business or properties of Owner
and its subsidiaries considered as one enterprise;
(v) this Agreement, each of the other Owner Documents and
the Pass Through Trust Agreements to which Owner is a party
constitute (or, in the case of documents to be executed on the
Delivery Date, will constitute) the legal, valid and binding
obligations of Owner enforceable against Owner in accordance with
their respective terms, except as the same may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(vi) except for (A) the filing for recording pursuant to the
Transportation Code of the Indenture and the Indenture Supplement
attached thereto and made a part thereof and (B) the filing of
financing statements (and continuation statements at periodic
intervals) with respect to the security interests created by such
documents under the Uniform Commercial Code of Virginia and such
other states as may be specified in the opinion furnished pursuant
to Section 4(a)(ix) hereof, no further filing or recording of any
document (including any financing statement in respect thereof
under Article 9 of the Uniform Commercial Code of any applicable
jurisdiction) or other action is necessary under the laws of the
United States of America or any State thereof in order to perfect
the security interest in favor of the Indenture Trustee in the
Aircraft (with respect to such portion of the Aircraft as is
covered by the recording system established by the FAA pursuant to
49 U.S.C. Section 44107);
(vii) neither Owner nor any of its Affiliates has directly
or indirectly offered any interest in the Equipment Notes or the
Pass Through Certificates for sale to any Person other than in a
manner permitted by the Securities Act and by the rules and
regulations thereunder;
(viii) Owner is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(ix) no event has occurred and is continuing which
constitutes a Default or an Event of Default;
(x) no event has occurred and is continuing which
constitutes an Event of Loss or would constitute an Event of Loss
with the lapse of time;
(xi) Owner is solvent and has no intention or belief that it
is about to incur debts beyond its ability to pay as they mature;
(xii) none of the proceeds from the issuance of the
Equipment Notes will be used directly or indirectly by Owner to
purchase or carry any "margin security" as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve
System;
(xiii) except as may have been disclosed in Owner's reports
filed with the Securities and Exchange Commission, there are no
pending or threatened actions or proceedings that individually or
in the aggregate which could be expected to have a material adverse
effect on the condition (financial or otherwise), business or
properties of Owner and its subsidiaries considered as one
enterprise; and
(xiv) Owner has good title (subject to filing and
recordation of the FAA Xxxx of Sale with the FAA) to the Aircraft,
free and clear of all Liens, except the Lien of the Trust Indenture
and Liens permitted by clauses (iv) (solely for Taxes not yet due
but excluding any such Taxes being contested) and (v) (solely
securing obligations that are not yet due but excluding any such
obligations being contested) of Section 7.01 of the Trust
Indenture.
(b) General Indemnity. Owner hereby agrees to indemnify each
Indemnitee against, and agrees to protect, save and keep harmless each of
them from (whether or not the transactions contemplated herein or in any of
the other Operative Documents are consummated), any and all expenses
imposed on, incurred by or asserted against any Indemnitee, in any way
relating to, based on or arising out of (A) the execution, delivery and
performance of the Operative Documents or the Pass Through Documents and
the transactions contemplated thereby; (B) the manufacture, purchase,
acceptance or rejection of the Airframe or any Engine or Parts; (C) the
Aircraft (or any portion thereof) or any engine installed on the Airframe
or any airframe on which an Engine is installed whether or not arising out
of the manufacture, purchase, registration, reregistration, financing,
refinancing, ownership, delivery, nondelivery, inspection, lease, sublease,
possession, storage, use or non-use, operation, maintenance, overhaul,
modification, alteration, condition, replacement, repair, substitution,
sale, return or other disposition of the Aircraft including, without
limitation, any violation of law relating to the Aircraft (including
environmental laws), latent or other defects, whether or not discoverable,
strict tort liability and any claim for patent, trademark or copyright
infringement; or (D) the offer or sale of any interest in the Equipment
Notes or the Pass Through Certificates (or other evidence of the debt
relating to the Aircraft) on the Delivery Date or in connection with a
refinancing in accordance with the terms hereof (including any violation of
securities laws or ERISA); provided, that the foregoing indemnity shall not
extend to an Indemnitee with respect to any Expense to the extent such
Expense is attributable to one or more of the following: (1) any
representation or warranty by such Indemnitee in the Operative Documents or
the Pass Through Documents being incorrect, or (2) the failure by such
Indemnitee to perform or observe any of its agreements, covenants or
conditions in any of the Operative Documents or the Pass Through Documents,
or (3) the willful misconduct or the gross negligence of such Indemnitee,
or (4) (A) in the case of any Indemnitee, the offer, sale or other
disposition (voluntary or involuntary) by such Indemnitee of all or any
part of its interest in the Airframe or any Engine, (B) in the case of a
Note Holder, the offer, sale or other disposition (voluntary or
involuntary) by such Note Holder of all or any part of its interest in any
Equipment Note or (C) in the case of any Indemnitee, the offer, sale or
other disposition by such Indemnitee of all or any part of such
Indemnitee's interest in the Operative Documents, or (5) any Tax, or (6) in
the case of the Indenture Trustee in its individual and trust capacities,
failure on the part of the Indenture Trustee to distribute in accordance
with the Indenture any amounts distributable by it thereunder, or (7) in
the case of any Pass Through Trustee or the Subordination Agent, failure on
the part of such Pass Through Trustee or the Subordination Agent to
distribute in accordance with the Intercreditor Agreement and the Pass
Through Trust Agreement amounts received and distributable thereunder, or
(8) the authorization or giving or withholding of any future amendments,
supplements, waivers or consents with respect to any of the Operative
Documents which amendments, supplements, waivers or consents (a) are not or
were not requested by Owner or (b) are not occasioned by a specific
requirement of the Operative Documents, or (9) any amount which any
Indemnitee expressly agrees to pay under any Operative Document or any
amount which is expressly stated to be an expense that is not reimbursable
by Owner under the Operative Documents, or (10) any amount that is an
ordinary and usual operating or overhead expense of any Indemnitee (it
being understood out-of-pocket expenses payable to third parties do not
constitute "ordinary and usual operating and overhead expenses"), or (11)
any amounts attributable to any Lien which such Indemnitee is required to
remove pursuant to the terms of the Operative Documents or the Pass Through
Documents, or (12) any loss of tax benefits or increases in tax liability
or (13) any amount that constitutes principal of, or interest or premium on
the Equipment Notes.
Owner's indemnity obligation to an Indemnitee under this
Section 6(b) shall equal the amount which, after taking into account any
Tax imposed upon the receipt or accrual of the amounts payable under this
Section 6(b) and any tax benefits realized by such Indemnitee as a result
of the accrual or payment of such Expense shall equal the amount of the
Expense indemnifiable under this Section 6(b).
If any Indemnitee shall realize a tax savings by reason of
any Tax paid or indemnified by Owner pursuant to this Section 6(b) (whether
such tax savings shall be by means of a foreign tax credit, depreciation or
cost recovery deduction or otherwise) and such savings are not otherwise
taken into account in computing such payment or indemnity such Indemnitee
shall pay to Owner an amount equal to the lesser of (i) the amount of such
tax savings, plus any additional tax savings recognized as the result of
any payment made pursuant to this sentence, when, as if, and to the extent,
realized or (ii) the amount of all payments pursuant to this Section 6(b)
by Owner to such Indemnitee (less any payments previously made by such
Indemnitee to Owner pursuant to this Section 6(b)) (and the excess, if any,
of the amount described in clause (i) over the amount described in clause
(ii) shall be carried forward and applied to reduce pro tanto any
subsequent obligations of Owner to make payments to such Indemnitee
pursuant to this Section 6(b)).
If a claim is made against an Indemnitee involving one or
more Expenses and such Indemnitee has notice thereof, such Indemnitee shall
promptly after receiving such notice give notice of such claim to Owner;
provided that the failure to give such notice shall not affect the
obligations of Owner hereunder except to the extent Owner is prejudiced by
such failure or Owner's indemnification obligations are increased as a
result of such failure. If no Event of Default shall have occurred and be
continuing, Owner shall be entitled, at its sole cost and expense, acting
through counsel reasonably acceptable to the respective Indemnitee, (A) in
any judicial or administrative proceeding that involves solely a claim for
one or more expenses, to assume responsibility for and control thereof, (B)
in any judicial or administrative proceeding involving a claim for one or
more expenses and other claims related or unrelated to the transactions
contemplated by the Operative Documents, to assume responsibility for and
control of such claim for Expenses to the extent that the same may be and
is severed from such other claims (and such Indemnitee shall use its best
efforts to obtain such severance), and (C) in any other case, to be
consulted by such Indemnitee with respect to judicial proceedings subject
to the control of such Indemnitee and to be allowed, at Owner's sole
expense, to participate therein. Notwithstanding any of the foregoing to
the contrary, Owner shall not be entitled to assume responsibility for and
control of any such judicial or administrative proceedings if such
proceedings will involve a material risk of the sale, forfeiture or loss
of, or the creation of any Lien (other than a Permitted Lien) on, the
Aircraft, the Indenture Estate or any part thereof unless in such an event
Owner shall have posted a bond or other security satisfactory to the
relevant Indemnitees in respect to such risk. The Indemnitee may
participate at its own expense and with its own counsel in any judicial
proceeding controlled by Owner pursuant to the preceding provisions.
The affected Indemnitee shall supply Owner with such
information reasonably requested by Owner as is necessary or advisable for
Owner to control or participate in any proceeding to the extent permitted
by this Section 6(b). Such Indemnitee shall not enter into a settlement or
other compromise with respect to any Expense without the prior written
consent of Owner, which consent shall not be unreasonably withheld or
delayed, unless such Indemnitee waives its right to be indemnified with
respect to such Expense under this Section 6(b).
Owner shall supply the Indemnitee with such information
reasonably requested by the Indemnitee as is necessary or advisable for the
Indemnitee to control or participate in any proceeding to the extent
permitted by this Section 6(b).
Upon payment of any Expense pursuant to this Section 6(b),
Owner, without any further action, shall be subrogated to any claims the
Indemnitee may have relating thereto. The Indemnitee agrees to give such
further assurances or agreements and to cooperate with Owner to permit
Owner to pursue such claims, if any, to the extent reasonably requested by
Owner.
If an Indemnitee is reimbursed, in whole or in part, with
respect to any Expense paid by Owner hereunder, it will promptly pay the
amount refunded, including interest received thereon (but not an amount in
excess of the amount Owner or any of its insurers has paid in respect of
such Expense pursuant to this Section 6(b)) over to Owner.
To the extent permitted by applicable law, interest at the
Base Rate plus one percent (1.0%) shall be paid, on demand, on any amount
or indemnity not paid when due pursuant to this Section 6 until the same
shall be paid. Such interest shall be paid in the same manner as the unpaid
amount in respect of which such interest is due.
Any amount which is payable to Owner by any Person pursuant
to this Section 6(b) shall not be paid to Owner if an Event of Default has
occurred and is continuing or if any payment is due and owing by Owner to
such Person under any Operative Document. Any such amount shall be held by
such Person (Owner hereby granting a security interest in such amount to
such Person) and, if an Event of Default shall have occurred and be
continuing, shall be applied against Owner's obligations hereunder to such
Person as and when due (and, to the extent that Owner has no obligations
hereunder to such Person, such amount shall be paid to Owner). At such time
as there shall not be continuing any such Event of Default or there shall
not be due and owing any such payment, such amount shall be paid to Owner
to the extent not previously applied in accordance with the immediately
preceding sentence.
(c) Special Indemnity. If a Class C Special Indemnity Event
shall be continuing as of any Payment Date, Owner shall pay on such Payment
Date to the Pass Through Trustee on behalf of the US Airways Pass Through
Trust 1999-1C the amount which has accrued through such Payment Date in
accordance with the following sentence and which remains unpaid on such
Payment 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 from the Payment
Date immediately preceding such Payment Date to such Payment Date,
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 1999-1C and that it
will distribute the Class C Special Indemnity Payment in accordance with
the Trust Agreement for the US Airways Pass Through Trust 1999-1C.
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Securities Act. Each Loan Participant represents and
warrants that neither it nor anyone acting in its behalf has offered any
Equipment Notes for sale to, or solicited any offer to buy any Equipment
Note from, any person or entity other than in a manner in compliance with,
and which does not require registration under, the Securities Act or the
rules and regulations thereunder.
(b) Reregistration. The Indenture Trustee and each Loan
Participant agree that, so long as no Event of Default shall have occurred
and be continuing, Owner may elect to effect a change in registration of
the Aircraft, at Owner's cost and expense, so long as the country of
registry of the Aircraft is a country listed on Exhibit A. Upon the request
of Owner, Exhibit A shall be amended from time to time to include any other
country which the Indenture Trustee has determined, acting reasonably,
would provide substantially equivalent protection for the rights of lenders
in similar transactions as provided under the laws of the United States of
America and the states thereof. In order for Owner to effect a change in
the country of registry of the Aircraft, Owner shall deliver to the
Indenture Trustee the following:
(I) an Officer's Certificate certifying that (A) the insurance
or self-insurance required by Section 7.04 of the Indenture
shall be in full force and effect at the time of such change
in registration after giving effect to such change in
registration, (B) all indemnities in favor of the Indenture
Trustee under any Operative Document afford the Indenture
Trustee substantially the same protection as provided prior
to such change of registry, (C) the Lien of the Indenture in
favor of the Indenture Trustee will continue as a first
priority lien following such change of registry, (D) such
change will not result in the imposition of, or increase in
the amount of, any Tax for which Owner is not required to
indemnify, or is not then willing to enter into a binding
agreement to indemnify, the Note Holders or the Indenture
Trustee, pursuant to this Agreement, and (E) that the new
country of registry imposes aircraft maintenance standards
not materially different from those of any Permitted Foreign
Air Authority; and
(II) a favorable opinion (subject to customary exceptions) of
counsel (reasonably acceptable to the Indenture Trustee)
addressed to the Indenture Trustee, from counsel of
recognized reputation qualified in the laws of the relevant
jurisdiction to the effect that: (A) it is not necessary,
solely as a consequence of such change in registration and
without giving effect to any other activity of the Indenture
Trustee (or any Affiliate thereof) for the Indenture Trustee
to register or qualify to do business in such jurisdiction;
(B) unless Owner shall have agreed to provide insurance
covering the risk of requisition of use of such Aircraft by
the government of such jurisdiction so long as such Aircraft
is registered under the laws of such jurisdiction, the laws
of such jurisdiction require fair compensation by the
government of such jurisdiction payable in currency freely
convertible into Dollars for the loss of use of such
Aircraft in the event of the requisition by such government
of such use; and (C) after giving effect to such change in
registration, the Lien of the Indenture on Owner's right,
title and interest in and to the Aircraft shall continue as
a valid and duly perfected first priority security interest
and all filing, recording or other action necessary to
protect the same shall have been accomplished (or, if such
opinion cannot be given at the time of such proposed change
in registration because such change in registration is not
yet effective, (1) the opinion shall detail what filing,
recording or other action is necessary, and (2) the
Indenture Trustee shall have received a certificate from
Owner that all possible preparations to accomplish such
filing, recording and other action shall have been done, and
such filing, recording and other action shall be
accomplished and a supplemental opinion to that effect shall
be delivered to the Indenture Trustee on or prior to the
effective date of such change in registration).
Owner shall pay all reasonable costs, expenses, fees,
recording and registration taxes, including the reasonable fees and
expenses of counsel to the Indenture Trustee, and other charges in
connection with any such change in registration.
(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 the Indenture has not been duly declared in
default, such Person shall not (and shall not permit any Affiliate or other
Person claiming by, through or under it to) interfere with Owner's
continued possession, use and operation of, and quiet enjoyment of, the
Aircraft.
(d) Equipment Notes Acquired for Investment. Each Loan
Participant represents and warrants that the Equipment Note to be issued to
it pursuant to the Indenture is being acquired by it for investment and not
with a view to resale or distribution (it being understood that such Loan
Participant may pledge or assign as security its interest in each Equipment
Note issued to it), except that the Loan Participants may sell, transfer or
otherwise dispose of any Equipment Note or any portion thereof, or grant
participations therein, in a manner which in itself does not require
registration under the Securities Act.
(e) Owner Merger Covenant. Owner will not consolidate with
or merge into any other corporation or convey, transfer or lease
substantially all of its assets as an entirety to any Person unless:
(i) the corporation formed by such consolidation or into
which Owner is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of Owner as an
entirety shall be (i) organized and validly existing under the laws
of the United States of America or any state thereof or the
District of Columbia, (ii) a "citizen of the United States" as
defined in 49 U.S.C. Section 40102(a)(15), as amended, and (iii) a
Certificated Air Carrier, if and so long as such status is a
condition of entitlement to the benefits of Section 1110 of the
Bankruptcy Code with respect to the Lien of the Indenture;
(ii) the corporation formed by such consolidation or into
which Owner is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of Owner as an
entirety shall execute and deliver to Indenture Trustee an
agreement in form and substance reasonably satisfactory to the
Indenture Trustee a duly authorized, valid, binding and enforceable
agreement containing an assumption by such successor corporation or
Person of the due and punctual performance and observance of each
covenant and condition of the Operative Documents to which Owner is
a party to be performed or observed by Owner;
(iii) immediately after giving effect to such transaction,
no Event of Default shall have occurred and be continuing; and
(iv) Owner shall have delivered to the Indenture Trustee a
certificate signed by the President, any Executive Vice President,
any Senior Vice President or any Vice President and by the
Secretary or an Assistant Secretary of Owner, and an opinion of
counsel (which may be Owner's General Counsel, Deputy General
Counsel, 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(e) from its liability in respect of any
Operative Document to which it is a party.
(f) Representations, Warranties and Covenants of the
Indenture Trustee. State Street Bank and Trust Company of Connecticut,
National Association represents, warrants (as of the Delivery Date) and
covenants, in its individual capacity, to Owner, the Pass Through Trustee
and the Subordination Agent, as follows:
(i) the Indenture Trustee is a national banking association
duly incorporated, validly existing and in good standing under the
laws of the United States, is a Citizen of the United States
(without making use of any voting trust, voting powers agreement or
similar arrangement), will notify promptly all parties to this
Agreement if in its reasonable opinion its status as a Citizen of
the United States (without making use of any voting trust, voting
powers agreement or similar arrangement) is likely to change and
will resign as Indenture Trustee as provided in Section 9.02 of the
Indenture promptly after it obtains actual knowledge that it has
ceased to be such a Citizen of the United States (without making
use of a voting trust, voting powers agreement or similar
arrangement), and has the full corporate power, authority and legal
right under the laws of the State of Connecticut and the United
States pertaining to its banking, trust and fiduciary powers to
execute and deliver each of this Agreement, the Indenture and each
other Operative Document to which it is a party and to carry out
its obligations under this Agreement, the Indenture and each other
Operative Document to which it is a party and to authenticate the
Equipment Notes;
(ii) the execution and delivery by the Indenture Trustee of
the Indenture Trustee Documents and the authentication of the
Equipment Notes and the performance by the Indenture Trustee of its
obligations under the Indenture Trustee Documents have been duly
authorized by the Indenture Trustee and will not violate its
articles of association or by-laws or the provisions of any
indenture, mortgage, contract or other agreement to which it is a
party or by which it is bound;
(iii) this Agreement and each of the other Indenture Trustee
Documents constitute the legal, valid and binding obligations of
the Indenture Trustee enforceable against it in accordance with
their respective terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity;
(iv) there are no pending or, to its knowledge, threatened
actions or proceedings against the Indenture Trustee, either in its
individual capacity or as Indenture Trustee, before any court or
administrative agency which, if determined adversely to it, would
materially adversely affect the ability of the Indenture Trustee,
in its individual capacity or as Indenture Trustee as the case may
be, to perform its obligations under the Operative Documents to
which it is a party; 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 of Connecticut, National Association, in its individual capacity,
covenants and agrees that it shall not cause or permit to exist any
Indenture Trustee's Liens with respect to the Indenture Estate. State
Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity, agrees that it will promptly, at its own expense, take
such action as may be necessary duly to discharge such Indenture Trustee's
Liens. State Street Bank and Trust Company of Connecticut, National
Association, in its individual capacity, agrees to make restitution to
Owner for any actual diminution of the assets of the Indenture Estate
resulting from such Indenture Trustee's Liens.
(j) Further Assurances. Owner, at its expense, will take, or
cause to be taken, such action with respect to the recording, filing,
re-recording and refiling of the Indenture, the Indenture Supplement and
any financing statements or other instruments as are necessary to maintain,
so long as the Indenture is in effect, the perfection of the security
interests created by the Indenture or will furnish to the Indenture Trustee
timely notice of the necessity of such action, together with such
instruments, in execution form, and such other information as may be
required to enable them to take such action. Owner will notify the
Indenture Trustee of any change in the location of its chief executive
office (as such term is used in Article 9 of the Uniform Commercial Code)
promptly after making such change or in any event within the period of time
necessary under applicable law to prevent the lapse of perfection (absent
refiling) of financing statements filed under the Operative Documents.
(k) Transfer of Equipment Notes. Each Loan Participant
hereby represents, warrants and agrees that it shall not transfer any
interest in any Equipment Note unless and until the transferee agrees in
writing (copies of which shall be provided by the Indenture Trustee to
Owner) to make the representations contemplated to be made by a Loan
Participant in this Agreement and to be bound by the terms of this
Agreement and the Indenture.
(l) Representations and Warranties of Pass Through 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 national banking
association duly organized, validly existing and in good standing
under the laws of the United States, and has the full corporate
power, authority and legal right under the laws of the State of
Connecticut and the United States pertaining to its banking, trust
and fiduciary powers to execute and deliver each of the Pass
Through Trust Agreements, the Intercreditor Agreement and this
Agreement and to perform its obligations under the Pass Through
Trust Agreements, the Intercreditor Agreement and this Agreement;
(ii) this Agreement, each of the Pass Through Trust
Agreements and the Intercreditor Agreement have been duly
authorized, executed and delivered by the Pass Through Trustee;
this Agreement, each of the Pass Through Trust Agreements and the
Intercreditor Agreement constitute the legal, valid and binding
obligations of the Pass Through Trustee enforceable against it in
accordance with their respective terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether considered
in a proceeding at law or in equity;
(iii) none of the execution, delivery and performance by the
Pass Through Trustee of any of the Pass Through Trust Agreements,
the Intercreditor Agreement or this Agreement, the purchase by the
Pass Through Trustee of the Equipment Notes pursuant to this
Agreement, or the issuance of the Pass Through Certificates
pursuant to the Pass Through Trust Agreements, contravenes any law,
rule or regulation of the State of Connecticut or any United States
governmental authority or agency regulating the Pass Through
Trustee's banking, trust or fiduciary powers or any judgment or
order applicable to or binding on the Pass Through Trustee and does
not contravene or result in any breach of, or constitute a default
under, the Pass Through Trustee's articles of association or
by-laws or any agreement or instrument to which the Pass Through
Trustee is a party or by which it or any of its properties may be
bound;
(iv) neither the execution and delivery by the Pass Through
Trustee of any of the Pass Through Trust Agreements, the
Intercreditor Agreement or this Agreement, nor the consummation by
the Pass Through Trustee of any of the transactions contemplated
hereby or thereby, requires the consent or approval of, the giving
of notice to, the registration with, or the taking of any other
action with respect to, any Connecticut governmental authority or
agency or any Federal governmental authority or agency regulating
the Pass Through Trustee's banking, trust or fiduciary powers;
(v) there are no Taxes payable by the Pass Through Trustee
imposed by the State of Connecticut or any political subdivision or
taxing authority thereof in connection with the execution, delivery
and performance by the Pass Through Trustee of this Agreement, any
of the Pass Through Trust Agreements or the Intercreditor Agreement
(other than franchise or other taxes based on or measured by any
fees or compensation received by the Pass Through Trustee for
services rendered in connection with the transactions contemplated
by any of the Pass Through Trust Agreements), and there are no
Taxes payable by the Pass Through Trustee imposed by the State of
Connecticut or any political subdivision thereof in connection with
the acquisition, possession or ownership by the Pass Through
Trustee of any of the Equipment Notes (other than franchise or
other taxes based on or measured by any fees or compensation
received by the Pass Through Trustee for services rendered in
connection with the transactions contemplated by any of the Pass
Through Trust Agreements), and, assuming that the trusts created by
the Pass Through Trust Agreements will not be taxable as
corporations, but rather, each will be characterized either as a
grantor trust under subpart E, Part I, of Subchapter J of the Code
or as a partnership, such trusts will not be subject to any Taxes
imposed by the State of Connecticut or any political subdivision
thereof;
(vi) there are no pending or threatened actions or
proceedings against the Pass Through Trustee before any court or
administrative agency which individually or in the aggregate, if
determined adversely to it, would materially adversely affect the
ability of the Pass Through Trustee to perform its obligations
under this Agreement, the Intercreditor Agreement or any Pass
Through Trust Agreement;
(vii) except for the issue and sale of the Pass Through
Certificates contemplated hereby, the Pass Through Trustee has not
directly or indirectly offered any Equipment Note for sale to any
Person or solicited any offer to acquire any Equipment Notes from
any Person, nor has the Pass Through Trustee authorized anyone to
act on its behalf to offer directly or indirectly any Equipment
Note for sale to any Person, or to solicit any offer to acquire any
Equipment Note from any Person; and the Pass Through Trustee is not
in default under any Pass Through Trust Agreement; and
(viii) the Pass Through Trustee is not directly or
indirectly controlling, controlled by or under common control with
Owner.
(m) Representations and Warranties of Subordination Agent.
The Subordination Agent represents and warrants to Owner, the Indenture
Trustee and the Pass Through Trustee, in its capacity as such and in its
individual capacity, as
follows:
(i) the Subordination Agent is a national banking
association duly organized, validly existing and in good standing
under the laws of the United States, and has the full corporate
power, authority and legal right under the laws of the State of
Connecticut and the United States pertaining to its banking, trust
and fiduciary powers to execute and deliver this Agreement, the
Liquidity Facilities 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 State of Connecticut or any United States
governmental authority or agency regulating the Subordination
Agent's banking, trust or fiduciary powers or any judgment or order
applicable to or binding on the Subordination Agent and do not
contravene or result in any breach of, or constitute a default
under, the Subordination Agent's articles of association or by-laws
or any agreement or instrument to which the Subordination Agent is
a party or by which it or any of its properties may be bound;
(iv) neither the execution and delivery by the Subordination
Agent of any of the Liquidity Facilities, the Intercreditor
Agreement or this Agreement nor the consummation by the
Subordination Agent of any of the transactions contemplated hereby
or thereby requires the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action
with respect to, any Connecticut governmental authority or agency
or any Federal governmental authority or agency regulating the
Subordination Agent's banking, trust or fiduciary powers;
(v) there are no Taxes payable by the Subordination Agent
imposed by the State of Connecticut or any political subdivision or
taxing authority thereof in connection with the execution, delivery
and performance by the Subordination Agent of this Agreement, any
of the Liquidity Facilities 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 State of Connecticut or any political subdivision thereof in
connection with the acquisition, possession or ownership by the
Subordination Agent of any of the Equipment Notes (other than
franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services
rendered in connection with the transactions contemplated by the
Intercreditor Agreement 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),
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 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 under any other
applicable law. Upon the execution and delivery of the Indenture, the
Indenture and the Indenture Supplement shall be filed for recording with
the Federal Aviation Administration.
SECTION 11. [RESERVED.]
SECTION 12. NOTICES; CONSENT TO JURISDICTION.
(a) Notices. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing and shall be personally delivered or sent by
registered or certified mail, postage prepaid, or by telecopier, or by
prepaid courier service, and shall be deemed to be given for purposes of
this Agreement on the day that such writing is delivered to the recipient
thereof in accordance with the provisions of this Section 12(a). Unless
otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section 12(a), notices, demands, instructions
and other communications in writing shall be given to or made upon the
respective parties hereto at their respective addresses (or to their
respective telecopier numbers) as follows: (A) if to Owner, the Pass
Through 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 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
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.
(f) References. Unless otherwise specified, references in
this Agreement to Sections, Exhibits, Schedules and Annexes are references
to Sections, Exhibits, Schedules and Annexes herein or hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
US AIRWAYS, INC.,
Owner
By:_______________________
Name:
Title:
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity
except as otherwise provided herein,
but solely as Indenture Trustee
By: ____________________________
Name:
Title:
Address: 000 Xxxxxx Xxxxxx
Xxxxxxx Square
Hartford, Connecticut 06103
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its
individual capacity, except as otherwise
provided herein, but solely as Pass
Through Trustee
By:_______________________________
Name:
Title:
Address: 000 Xxxxxx Xxxxxx
Xxxxxxx Square
Hartford, Connecticut 06103
STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its
individual capacity, except as otherwise
provided herein, but solely as
Subordination Agent
By: _____________________________
Name:
Title:
Address: 000 Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Owned Aircraft
Participation Agreement
N___U_
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 of Connecticut,
Subordination Agent National Association
and Pass Through
Trustee: U.S. MAIL
225 Asylum Street
Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Corporate Trust Administration
Telecopy No: (000) 000-0000
with a copy to
State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department
Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
OVERNIGHT COURIER
000 Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Corporate Trust Administration
Telecopy No: (000) 000-0000
with a copy to
State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department
Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
WIRE TRANSFER
State Street Bank and Trust Company of Connecticut,
National Association
ABA No._________
Acct. No. ________
Attn: Corporate Trust Administration
Reference: U.S. Airways, Inc. 1999-1 EETC/
N___U_
Owned Aircraft
Participation Agreement
N___U_
SCHEDULE II
COMMITMENTS
INTEREST RATE
PERCENTAGE AND MATURITY COMMITMENT
US Airways, Inc.
Pass Through Trust:
1999-1A 8.36% Series A Secured $__________
_______% Pass Through Certificates
due _____, ____
1999-1B 9.01% Series B Secured $__________
_______% Pass Through Certificates
due _____, ____
1999-1C 7.96% Series C Secured $__________
______% Pass Through Certificates
due _____, ____
Owned Aircraft
Participation Agreement
N___U_
SCHEDULE III
PASS THROUGH TRUST AGREEMENTS
Pass Through Trust Agreement, dated as of July 30, 1999, between US
Airways, Inc., US Airways Group, Inc. and State Street Bank and Trust
Company of Connecticut, National Association, as supplemented by Trust
Supplement No. 1999-1A, dated as of August 31, 1999, as supplemented by
Trust Supplement No. 1999-1B, dated as of August 31, 1999, as supplemented
by Trust Supplement No. 1999-1C, dated as of August 31, 1999.
Owned Aircraft
Participation Agreement
N___U_
EXHIBIT A
TO PARTICIPATION AGREEMENT
(N___U_)
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 United States
Malaysia Venezuela
*So long as on the date of registration such country and the
United States have diplomatic relations at least as good as those in effect
on the Delivery Date.
Owned Aircraft Form Definitions
N___U_
ANNEX A
DEFINITIONS
(N___U_)
The following terms shall have the following meanings for all
purposes of the Operative Documents referred to below, unless otherwise
defined in an Operative Document or the context thereof shall otherwise
require and such meanings shall be equally applicable to both the singular
and the plural forms of the terms herein defined. In the case of any
conflict between the provisions of this Annex A and the provisions of the
main body of any Operative Document, the provisions of the main body of
such Operative Document shall control the construction of such Operative
Document.
Except as otherwise provided herein, all references to any
agreement defined in this Annex A shall be deemed to include such agreement
as the same may from time to time be amended, supplemented or otherwise
modified in accordance with its terms and, where applicable, the terms of
the other Operative Documents. All references to statutes, rules and
regulations shall be deemed to include all amendments, replacements and
successors thereto unless otherwise specified herein.
["Acceptable Alternate Engine" means (i) a CFM International
Model 56-5 (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
Indenture.] (1)
-------------------
(1) For A319 and A320 Aircraft; Definition for A330 Aircraft
to be determined.
"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 Indenture,
the replaced Airframe shall cease to be an Airframe subject to the Lien of
the Indenture; provided further that the Airframe shall not include
Passenger Convenience Equipment.
"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 The
Chase Manhattan Bank in New York, New York from time to time as its base
rate.
"Xxxx of Sale" means a full warranty xxxx of sale covering the
Aircraft delivered by the Manufacturer or its Affiliate to Owner.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in New
York, New York, Hartford, Connecticut or Pittsburgh, Pennsylvania.
"Cash Equivalents" means (i) direct obligations of the United
States of America and agencies guaranteed by the United States government
having a final maturity of ninety (90) days or less from date of purchase
thereof; (ii) certificates of deposit issued by, bankers' acceptances of,
or time deposits with, any bank, trust company or national banking
association incorporated under the laws of the United States of America or
one of the states thereof having combined capital and surplus and retained
earnings as of its last report of condition of at least $500,000,000 and
having a rating of Aa or better by 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 AIG Matched Funding Corp., or
any successor thereto.
"Class B Liquidity Provider" means AIG Matched Funding Corp., or
any successor thereto.
"Class C Liquidity Provider" means AIG Matched Funding Corp., or
any successor thereto.
"Class C Purchase Agreement" means that certain Purchase
Agreement, dated as of August 31, 1999, 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 1999-1C 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 a portion of Owner's cost
for the Aircraft.
"Consent and Agreement" means, collectively, each Consent and
Agreement (N___U_), dated as of the date of the Participation Agreement,
executed by the Seller and the Manufacturer, respectively, as the same may
be amended, modified or supplemented from time to time in accordance with
the applicable provisions thereof.
"Corporate Trust Office" means the principal office of the
Indenture Trustee located at 000 Xxxxxx Xxxxxx, Xxxxxxx Square, Hartford,
Connecticut 06103, Attention: Corporate Trust Administration, or such other
office at which the Indenture Trustee's corporate trust business shall be
administered which the Indenture Trustee shall have specified by notice in
writing to Owner, the Loan Participants and each Note Holder.
"Debt Rate" means, 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(b) of the Participation Agreement.
"Deposit Agreements" means, collectively, (i) that certain
Deposit Agreement (Class A), dated as of August 31, 1999, between First
Security Bank, National Association, as escrow agent under the Escrow
Agreement referred to therein, and the Depositary, (ii) that certain
Deposit Agreement (Class B), dated as of August 31, 1999, between First
Security Bank, National Association, as escrow agent under the Escrow
Agreement referred to therein, and the Depositary and (iii) that certain
Deposit Agreement (Class C), dated as of August 31, 1999, between First
Security Bank, National Association, as escrow agent under the Escrow
Agreement referred to therein, and the Depositary.
"Depositary" means ABN AMRO Bank N.V., acting through its Chicago
branch, as Class A Depositary, Class B Depositary and Class C Depositary
under the Deposit Agreements, or any successors thereto.
"Dollars" and "$" mean the lawful currency of the United States
of America.
"Engine" means (i) each of the two [CFM International 56-5] (2)
[Xxxxx & Xxxxxxx] (3) 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 subject to the Lien of the
Indenture. The term "Engines" means, as of any date of determination, all
Engines then subject to the Lien of the Indenture.
-------------------
(2) For A319 and A320 Aircraft
(3) For A330 Aircraft
"Equipment Note Register" has the meaning specified for such term
in Section 2.07 of the Indenture.
"Equipment Note Registrar" has the meaning specified for such
term in Section 2.07 of the Indenture.
"Equipment Notes" means and include any 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.
"Escrow Agreements" means, collectively, (i) that certain Escrow
and Paying Agent Agreement (Class A), dated as of August 31, 1999, among
First Security Bank, National Association, as escrow agent, the
Underwriters, the Pass Through Trustee, and State Street Bank and Trust
Company of Connecticut, National Association, as paying agent thereunder,
(ii) that certain Escrow and Paying Agent Agreement (Class B), dated as of
August 31, 1999, among First Security Bank, National Association, as escrow
agent, the Underwriters, the Pass Through Trustee, and State Street Bank
and Trust Company of Connecticut, National Association, as paying agent
thereunder and (iii) that certain Escrow and Paying Agent Agreement (Class
C), dated as of August 31, 1999, among First Security Bank, National
Association, as escrow agent, the Underwriters, the Pass Through Trustee,
and State Street Bank and Trust Company of Connecticut, National
Association, as paying agent thereunder.
"Event of Default" has the meaning specified for such term in
Section 4.02 of the Indenture.
"Event of Loss" means, with respect to the Aircraft, Airframe
or any Engine, any of the following events with respect to such property:
(i) the loss of such property or of the use thereof due to the destruction
of or damage to such property which renders repair uneconomic or which
renders such property permanently unfit for normal use by Owner (or any
Lessee) for any reason whatsoever; (ii) any damage to such property which
results in an insurance settlement with respect to such property on the
basis of a total loss, or a constructive or compromised total loss; (iii)
the theft or disappearance of such property for a period in excess of one
hundred eighty (180) days; (iv) the requisition for use of such property by
any governmental authority (other than a requisition for use by the United
States Government or any government of registry of the Aircraft or any
agency or instrumentality thereof) that shall have resulted in the loss of
possession of such property by Owner (or any Lessee) for a period in excess
of one hundred eighty (180) consecutive days; (v) [intentionally omitted];
(vi) condemnation, confiscation, requisition or taking of title of the
Aircraft or the Airframe for more than thirty (30) days; (vii) as a result
of any law, rule, regulation, order or other action by the Federal Aviation
Administration or other governmental body of the government of registry of
the Aircraft having jurisdiction, the use of such property in the normal
course of the business of air transportation shall have been prohibited for
a period of one hundred eighty (180) consecutive days, unless Owner (or
Lessee) shall have undertaken and shall be diligently carrying forward all
steps which are necessary or desirable to permit the normal use of such
property by Owner (or such Lessee), but in any event an "Event of Loss"
shall occur if such "grounding" extends for a period of more than three
hundred sixty (360) days; provided that no Event of Loss shall be deemed to
occur if such "grounding" is applicable to Owner's entire fleet of
[A319][A320][A330] aircraft and Owner, prior to the expiration of one year
from the prohibition of such use, shall have conformed at least one such
aircraft in its fleet to the requirements of any such law, rule,
regulation, order or other action and commenced regular commercial use of
the same in such jurisdiction and shall be diligently carrying forward, on
a non-discriminatory basis, all steps which are necessary or desirable to
permit the normal use of the Aircraft by Owner (or such Lessee), but in any
event an "Event of Loss" shall be deemed to have occurred if such use shall
have been prohibited for a period of two consecutive years; and (viii) with
respect to an Engine only, any divestiture of title to or interest in an
Engine or any event with respect to an Engine that is deemed to be an Event
of Loss with respect to such Engine pursuant to Section 5.06(b) of the
Indenture. An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if an Event of Loss occurs with respect to the Airframe.
"Expenses" means all liabilities, obligations, losses, damages,
settlements, penalties, claims, actions, suits, costs, expenses and
disbursements (including, without limitation, reasonable fees and
disbursements of legal counsel, accountants, appraisers, inspectors or
other professionals and reasonable costs of investigation).
"FAA Xxxx of Sale" means a xxxx of sale for the Aircraft on AC
Form 8050-2 (or such other form as may be approved by the FAA) delivered to
Owner by the Manufacturer or its Affiliates.
"Federal Aviation Administration" and "FAA" mean the United
States Federal Aviation Administration and any agency or instrumentality of
the United States government succeeding to their functions.
"Federal Funds Rate" means a fluctuating interest rate per annum
in effect from time to time, which rate per annum shall at all times be
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by State Street from three Federal funds brokers of
recognized standing selected by it.
"Foreign Air Carrier" means any air carrier which is not a U.S.
Air Carrier and which performs, or contracts for the performance of,
maintenance, preventative maintenance and inspections for the Aircraft,
Airframe and/or any Engine or engine to standards which are approved by, or
which are substantially equivalent to those required by, the Federal
Aviation Administration or any Permitted Foreign Air Authority.
"French Pledge Agreement" means the French Pledge Agreement,
dated as of the date of the Participation Agreement, between the Owner and
the Indenture Trustee, as the same may be amended, supplemented or
modified from time to time.
"Government Entity" means (a) any federal, state, provincial or
similar government, and any body, board, department, commission, court,
tribunal, authority, agency or other instrumentality of any such government
or otherwise exercising any executive, legislative, judicial,
administrative or regulatory functions of such government or (b) any other
government entity having jurisdiction over any matter contemplated by the
Operative Documents or relating to the observance or performance of the
obligations of any of the parties to the Operative Documents.
"Indemnitee" means (i) the Indenture Trustee, (ii) the Loan
Participants and each other Note Holder, (iii) the Subordination Agent,
(iv) the Liquidity 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 Agreement" means that certain Indemnity Agreement,
dated as of August 31, 1999, between the Depositary and Owner.
"Indenture" means that certain Indenture and Security Agreement
(N___U_), dated as of the date of the Participation Agreement, between
Owner and the Indenture Trustee, as it may from time to time be
supplemented or amended as therein provided, including supplementing by the
Indenture Supplement pursuant to the Indenture.
"Indenture Agreements" means the Participation Agreement, the
Purchase Agreement, the Purchase Agreement Assignment, the French Pledge
Agreement, the Consent and Agreement and any other contract, agreement or
instrument from time to time assigned or pledged under the Indenture.
"Indenture Estate" means all estate, right, title and interest of
the Indenture Trustee in and to the properties referred to in the Granting
Clause of the Indenture.
"Indenture Indemnitees" means (i) State Street and the Indenture
Trustee, (ii) each separate or additional trustee appointed pursuant to the
Indenture, (iii) the Subordination Agent, (iv) the Liquidity 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 of
Connecticut, National Association, a national banking association, not in
its individual capacity, but solely as Indenture Trustee, and any entity
which may from time to time be acting as indenture trustee under the
Indenture.
"Indenture Trustee Documents" means the Participation Agreement,
the Indenture, the Purchase Agreement Assignment, the French Pledge
Agreement and any other agreements between the Indenture Trustee and any
other party to the Participation Agreement relating to the Transactions,
delivered on the Delivery Date.
"Indenture Trustee's Liens" means any Lien which arises as a
result of (A) claims against the Indenture Trustee not related to its
interest in the Aircraft, (B) acts of the Indenture Trustee not permitted
by, or failure of the Indenture Trustee to take any action required by, the
Operative Documents to the extent such acts arise or such failure arises
from or constitutes gross negligence or willful misconduct, (C) claims
against the Indenture Trustee relating to Taxes or Expenses which are
excluded from the indemnification provided by Section 6 of the
Participation Agreement pursuant to said Section 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.
"Insurance Brokers" has the meaning specified for such term in
Exhibit B to the Indenture.
"Intercreditor Agreement" means that certain Intercreditor
Agreement, dated as of August 31, 1999, 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 lease permitted by the terms of Section
7.02(b)(x) of the Indenture.
"Lessee" means any Person for so long, but only so long, as such
Person is in possession of the Airframe and/or any Engine pursuant to the
terms of a Lease which is then in effect pursuant to Section 7.02(b) of the
Indenture.
"Lien" means any mortgage, pledge, lien, charge, claim,
encumbrance, lease, sublease, sub-sublease or security interest.
"Liquidity Facilities" means the three Revolving Credit
Agreements, each dated as of August 31, 1999, 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 AIG Matched Funding Corp., 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.
"Non-U.S. Person" means any Person other than a U.S. Person.
"Note Holder" means any holder from time to time of one or more
Equipment Notes.
"Note Purchase Agreement" means the Note Purchase Agreement dated
as of the Pass Through Trust Closing Date among Owner, the Pass Through
Trustee for the Pass Through Trusts, the Subordination Agent, First
Security Bank, National Association, as Escrow Agent, and State Street Bank
and Trust Company of Connecticut, National Association, as Paying Agent.
"Obsolete Parts" has the meaning specified for such term in
Section 7.03(c) of the Indenture.
"Operative Documents" means, collectively, the Participation
Agreement, the Indenture, the Indenture Supplement covering the Aircraft,
the Equipment Notes, the Purchase Agreement (insofar as it relates to the
Aircraft), the Purchase Agreement Assignment, the French Pledge Agreement
and the Consent and Agreement (each, an "Operative Document").
"Operative Indentures" means each of the indentures under which
notes have been issued and purchased by the Pass Through Trustees.
"Owner" means US Airways, Inc., a Delaware corporation.
"Owner Documents" means the Participation Agreement, the French
Pledge Agreement, the Indenture and the Equipment Notes.
"Participants" means the Loan Participants (each individually, a
"Participant").
"Participation Agreement" means that certain Participation
Agreement (N___U_), dated as of , ____, 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 for so long as
such items remain subject to the Lien of the Indenture after removal
therefrom; provided that "Parts" shall not include Passenger Convenience
Equipment.
"Pass Through Certificates" means the pass through certificates
to be issued by the Pass Through Trustee in connection with the
Transactions.
"Pass Through Documents" means the Participation Agreement, the
Pass Through Trust Agreements, the Note Purchase Agreement, the Deposit
Agreements, the Liquidity Facilities 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 August 31, 1999.
"Pass Through Trustee" means State Street Bank and Trust Company
of Connecticut, National Association, a national banking association, in
its capacity as trustee under each Pass Through Trust Agreement, and each
other Person that may from time to time be acting as successor trustee
under any such Pass Through Trust Agreement.
"Passenger Convenience Equipment" means available components or
systems installed on or affixed to the Airframe that are used to provide
individual telecommunications to passengers aboard the Aircraft.
"Past Due Rate" means a rate per annum equal to 1% over the Debt
Rate.
"Payment Date" means each January 20 and July 20, commencing on
________ 20, ____ (or, if any such day is not a Business Day, the
immediately succeeding Business Day) until the Equipment Notes have been
paid in full.
"Permitted Foreign Air Authority" means the Civil Aviation
Authority of the United Kingdom, the Direction Generale de l'Aviation
Civile of the French Republic, the Luftfahrt Bundesamt of the Federal
Republic of Germany, the Rijflauchtraatdienst of the Kingdom of the
Netherlands, the Ministry of Transportation of Japan or the Federal
Ministry of Transport of Canada (and any agency or instrumentality of the
applicable government succeeding to the functions of any of the foregoing
entities).
"Permitted Foreign Air Carrier" means any air carrier with its
principal executive office in a country listed in Exhibit C to the
Indenture as in effect from time to time and as may be modified in
accordance with Section 7(b) of the Participation Agreement.
"Permitted Lien" means any Lien referred to in clauses (i)
through (viii) of Section 7.01 of the Indenture.
"Permitted Lessee" means any (i) manufacturer of airframes or
aircraft engines, or any Affiliate of a manufacturer of airframes or
aircraft engines, (ii) any Permitted Foreign Air Carrier, (iii) any person
approved in writing by the Indenture Trustee and (iv) any U.S. Air Carrier.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Principal Amount", with respect to an Equipment Note, means the
stated original principal amount of such Equipment Note and, with respect
to all Equipment Notes, means the aggregate stated original principal
amounts of all Equipment Notes.
"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., ] (4) [Purchase Agreement dated as of November 24, 1998 between US
Airways Group, Inc. and the Seller ] (5) (including all exhibits thereto,
together with all letter agreements entered into that by their terms
constitute part of any such Purchase Agreement), as the same may be amended
or otherwise supplemented from time to time, relating to the Aircraft.
-------------------
(4) For A319 and A320 Aircraft transactions.
(5) For A330 Aircraft transactions
"Purchase Agreement Assignment" means the Purchase Agreement
Assignment (N___U_), dated as of the date of the Participation Agreement,
between Owner and the Indenture Trustee, as the same may be amended,
supplemented or modified from time to time, with a form of Consent and
Agreement to be executed by the Seller attached thereto.
"Purchasers" means 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
August 31, 1999 by Owner, and confirmed and accepted by AIFS, in respect of
the ___% Pass Through Certificates, Series 1999-1, Class C, as such
Registration Agreement may be amended, modified and supplemented from time
to time in accordance with the provisions thereof.
"Remaining Weighted Average Life" of an Equipment Note, at the
redemption date of such Equipment Note, means the number of days equal to
the quotient obtained by dividing (a) the sum of the products obtained by
multiplying (i) the amount of each then remaining installment of principal,
including the payment due on the maturity date of such Equipment Note, by
(ii) the number of days from and including the redemption date to but
excluding the scheduled payment date of such principal installment; by (b)
the then unpaid principal amount of such Equipment Note.
"Replacement Airframe" means any airframe substituted for the
Airframe pursuant to Section 5.06 of the Indenture.
"Replacement Engine" means any engine substituted for an Engine
pursuant to Section 5.06 of the Indenture.
"Responsible Officer" means a responsible officer in the
Corporate Trust Office of the Indenture Trustee.
"Scheduled Delivery Date" has the meaning specified for such term
in Section 2(d) of the Participation Agreement.
"Secured Obligations" has the meaning specified for such term in
the Granting Clause of the Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means AVSA, S.A.R.L., a societE a responsabilite limitee
organized and existing under the laws of the Republic of France.
"Senior Holder" has the meaning specified for such term in
Section 2.15(c) of the Indenture.
"Series 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 of
Connecticut, National Association, a national banking association, not in
its capacity as Indenture Trustee under the Indenture, but in its
individual capacity.
"Subordination Agent" means State Street Bank and Trust Company
of Connecticut, National Association, a national banking association, as
subordination agent under the Intercreditor Agreement, or any successor
thereto.
"Taxes" means any and all fees (including, without limitation,
license, recording, documentation and registration fees), taxes (including,
without limitation, income, gross receipts, sales, rental, use, turnover,
value added, property (tangible and intangible), excise and stamp taxes),
license, levies, imposts, duties, recording charges and assessments of any
kind whatsoever that are in the nature of taxes or other governmental
charges including interest, penalties and additions to tax (each,
individually a "Tax").
"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 LLP, special counsel for the Pass Through Trustee,
the Subordination Agent and the Indenture Trustee, (B) Milbank,
Tweed, Xxxxxx & XxXxxx LLP, 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 Depositary payable under Section 10(a) of
each Indemnity Agreement; and
(j) the reasonable fees, expenses and disbursements of, Xxxxxxxx
Chance, 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 Credit Suisse First Boston Corporation,
Xxxxxxx, Xxxxx & Co., Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation,
Deutsche Bank Securities Inc. and Xxxxxxx Xxxxx Barney Inc.
"U.S. Air Carrier" means any Certificated Air Carrier as to which
there is in force an air carrier operating certificate issued pursuant to
Part 121 of the regulations under the Transportation Code, or which may
operate as an air carrier by certification or otherwise under any successor
or substitute provisions therefor or in the absence thereof.
"U.S. Person" means any Person that qualifies as a "United States
person" under Section 7701(a)(30) of the Code.
"Wet Lease" means any arrangement whereby 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.
[FORM OF SASM&F (ILLINOIS)
OPINION FOR OWNED AIRCRAFT]
__________, [1999][2000]
To Each Person Listed on
Schedule I Hereto
Re: US Airways, Inc. Trust No. N
Ladies and Gentlemen:
We have acted as special counsel to US Airways, Inc., a
Delaware corporation ("US Airways"), in connection with the execution and
delivery of (i) the Participation Agreement (US Airways, Inc. Trust No.
N______), dated as of __________, [1999][2000] (the "Participation
Agreement"), among US Airways, as Lessee and State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association, not in its individual capacity except as otherwise provided
therein, but solely as Pass Through Trustee, Indenture Trustee and
Subordination Agent relating to the Aircraft described in the Indenture
Supplement (as defined below); (ii) the issuance and sale of the Equipment
Notes (as defined below) pursuant to the Trust Indenture and Security
Agreement (N ____), dated as of ________, [1999][2000] by and between US
Airways and the Indenture Trustee ("the Trust Indenture"), as supplemented
by the Trust Indenture and Security Agreement Supplement (N_____), dated
_________, [1999][2000] of US Airways (the "Indenture Supplement"); (iii)
the Purchase Agreement Assignment, dated as of ____ ___, [1999][2000],
between the Indenture Trustee and US Airways (the "Purchase Agreement
Assignment"); (iv) the Pass Through Trust Agreement, dated as of
_____________, 1999, between the Pass Through Trustee and US Airways (the
"Pass Through Trust Agreement"); and (v) each of the Pass Through Trust
Supplements dated as of ________, 1999 (collectively, the "Pass Through
Trust Supplements"). This opinion is being delivered pursuant to Section
[4(a)(xi)] of the Participation Agreement.
In our examination, we have assumed the genuineness of all
signatures, including indorsements, the legal capacity of natural persons,
the authenticity of all documents submitted to us as originals, the
conformity to original documents of all copies submitted to us as
telefacsimile, certified or photostatic copies, and the authenticity of the
originals of such copies. As to any facts material to this opinion, we have
relied solely upon statements, representations and warranties of US
Airways, the Indenture Trustee, the Subordination Agent, the Pass Through
Trustee and their respective officers and representatives, and others in
the Operative Documents and of public officials, including the facts set
forth in the Company's Certificate described below, and we have made no
independent investigation or inquiry with respect to such factual matters.
In rendering the opinions set forth herein, we have examined
and relied on originals or copies of the following:
(a) the Participation Agreement;
(b) the Purchase Agreement Assignment;
(c) the Trust Indenture;
(d) the Indenture Supplement;
(e) the Equipment Notes;
(f) the Pass Through Trust Agreement;
(g) each of the Pass Through Trust Supplements;
(h) unfiled, but signed copies of financing statements naming
"U.S. Airways, Inc." as debtor and "State Street Bank and Trust Company of
Connecticut, as Indenture Trustee" as secured party, which we understand
will be filed within ten (10) days of the transfer of the security interest
in the Offices of the Secretary of State of the State of New York (such
filing Office, the "New York Filing Office" and such financing Statement,
the "New York Financing Statement");
(i) unfiled, but signed financing statements naming "US
Airways, Inc." as debtor and "State Street Bank and Trust Company of
Connecticut, as Indenture Trustee" as secured party, which we understand
will be filed within ten (10) days of the transfer of the security interest
in the offices of State Corporation Commission, Virginia and the Arlington
County Clerk (such filing offices, the "Non-Admitted State Filing Offices"
and such financing statements, the "Non-Admitted State Financing
Statements");
(j) a certificate of US Airways, dated the date hereof, a copy
of which is attached as Exhibit A;
(k) certified copies of the Certificate of Incorporation and
By-laws of US Airways;
(l) certified copies of certain resolutions of the Board of
Directors of US Airways adopted on _______;
(m) a certificate of good standing from the Secretary of State
of the State of Delaware as to the good standing of US Airways in such
jurisdiction; and
(n) such other documents as we have deemed necessary or
appropriate as a basis for the opinions set forth below.(1)
We express no opinion as to the laws of any jurisdiction other
than (i) the Applicable Laws of the State of New York , (ii) the General
Corporation Law of the State of Delaware and (iii) the Applicable Laws of
the United States of America. In this respect, we call to your attention
that certain of the Operative Documents are governed by laws of
jurisdictions other than those described above and we express no opinion as
to the effect of any such laws on the opinions expressed herein. In
addition, we express no opinion with respect to the Transportation Code or
the rules and regulations of the Federal Aviation Administration or the
effect thereof on the opinions herein stated. In addition, we call to your
attention that we are not admitted to practice in the State of Virginia
(the "Non-Admitted State") and our opinions in paragraph 8 with respect to
the laws of such State is based solely on our review of Sections 9-401 and
9-402 of the Uniform Commercial Code in effect in the State of Virginia
(the "Non-Admitted State UCC") as published in the CCH Secured Transactions
Guide without regard to case law decided thereunder.
--------
(1) For transactions involving leases to Shuttle, include a
reference to Shuttle Lease.
Capitalized terms not otherwise defined herein have the
meanings assigned thereto in Annex A to the Participation Agreement. The
documents referred to in (a) through (g) above shall hereinafter be
referred to collectively as the "Transaction Documents." "Applicable Laws"
shall mean those laws, rules, regulations which, in our experience, are
normally applicable to transactions of the type contemplated by the
Transaction Documents, without our having made any special investigation as
to the applicability of any special law, rule or regulation, and which are
not the subject of a specific opinion herein referring to a particular law
or laws. "Governmental Approval" means any consent, approval, license,
authorization or validation of, or filing, recording or registration with,
any governmental authority pursuant to Applicable Laws. Unless otherwise
indicated, the "New York UCC" means the Uniform Commercial Code as in
effect on the date hereof in the State of New York.
Based upon the foregoing, and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. Each of the Transaction Documents constitutes the valid and
binding obligation of US Airways enforceable against US Airways in
accordance with its terms under the laws of the State of New York. The
Trust Indenture and the Indenture Supplement constitute valid and binding
obligations of the Indenture Trustee enforceable against the Indenture
Trustee in accordance with their terms under the laws of the State of New
York.
2. Neither the execution and delivery by US Airways of the
Transaction Documents nor the compliance by US Airways with the terms and
provisions thereof will contravene any Applicable Law of the State of New
York or any Applicable Law of the United States of America.
3. Except for (a) the due and timely filing and, where
appropriate, recording of the Trust Indenture (with the Indenture
Supplement covering the Aircraft attached as an exhibit), pursuant to the
Transportation Code, (b) the registration of the issuance and sale of the
Pass Through Certificates under the Securities Act, (c) compliance with the
securities law of each applicable state and (d) filing of appropriate UCC
Financing Statements and continuation statements, no Governmental Approval,
which has not been obtained or taken and is not in full force
and effect, is required in connection with the execution, delivery or
enforceability by US Airways of any of the Transaction Documents.
4. No registration of US Airways or any of the Pass Through
Trusts under the Investment Company Act of 1940, as amended, is required.
5. The Equipment Notes, when issued to and acquired by the
Pass Through Trustee, will be valid and binding obligations of US Airways
enforceable against US Airways in accordance with their terms and the terms
of the Trust Indenture, as supplemented by the Indenture Supplement, and
will be entitled to the benefits of the Trust Indenture, as supplemented by
the Indenture Supplement.
6. The provisions of the Trust Indenture, as supplemented by
the Indenture Supplement, are effective to create, in favor of the
Indenture Trustee to secure the Secured Obligations, a valid security
interest in US Airways' rights in that portion of the collateral described
therein which is subject to Article 9 of the New York UCC (the "UCC
Collateral").
7. The New York Financing Statement is in appropriate form for
filing in the New York Filing Office. To the extent that the New York UCC
governs the perfection of a security interest in US Airways' rights in the
UCC Collateral, as to which we express no opinion, the security interest in
favor of the Indenture Trustee in the UCC Collateral described in the New
York Financing Statement will be perfected upon filing of the New York
Financing Statement in the New York Filing Office.
Our opinions in paragraph 6 and 7 with respect to the security
interest of the Indenture Trustee is subject to the following
qualifications:
(a) We have assumed the US Airways owns, or with respect to
after-acquired property will own, the UCC Collateral, and we express no
opinion as to the nature or extent of US Airways' rights in or title to any
of the UCC Collateral and we note that with respect to after-acquired
property, the security interest will not attach until US Airways acquires
ownership thereof.
(b) Our opinion with respect to the validity of the security
interest of the Indenture Trustee is limited to Article 9 of the New York
UCC, and such opinion does not address (i) laws of jurisdictions other than
New York, and of New York except for Article 9 of the UCC, (ii) collateral
of a type not subject to Article 9 of the Applicable UCC, and (iii) what
law governs perfection or priority of the security interests granted in the
collateral covered by this opinion.
(c) We call your attention that under the UCC, events occurring
subsequent to the date hereof may affect any security interest subject to
the UCC including, but not limited to, factors of the type identified in
Section 9-306 with respect to proceeds; Section 9-103 with respect to
changes in the location of the collateral and the location of a debtor; and
Sections 9-307, 9-308 and 9-309 with respect to subsequent purchasers of
the collateral. In addition, actions taken by a secured party (e.g.,
releasing or assigning the security interest, delivering possession of the
collateral to a debtor or another person and voluntarily subordinating a
security interest) may affect any security interest subject to the UCC.
(d) We express no opinion with respect to the priority of the
security interest of the Indenture Trustee.
(e) We call to your attention that with respect to any goods
which is an accession to, or commingled or processed with other goods, the
security interest of the Indenture Trustee may be limited by Section 9-314
or 9-315 of the New York UCC.
(f) In the case of any instrument, chattel paper, account or
general intangible which is itself secured by other property, we express no
opinion with respect to the Indenture Trustee's rights in and to such
underlying property.
(g) In the case of chattel paper, accounts or general
intangibles, we call to your attention that the security interest of the
Indenture Trustee for the benefit of the Pass Through Trustee may be
subject to the rights of account debtors, claims and defenses of account
debtors and the terms of agreements with account debtors.
(h) In the case of goods, we express no opinion regarding the
security interest of the Indenture Trustee for the benefit of the Pass
Through Trustee in any goods which are subject to a certificate of title or
a document of
title.
(i) We express no opinion regarding the security interest of
the Indenture Trustee for the benefit of the Pass Through Trustee in any
items which are subject to a statute, regulation or treaty of the United
States of America which provides for a national or international
registration or a national or international certificate of title for the
perfection of a security interest therein or which specifies a place of
filing different from the place specified in the UCC for filing to perfect
such security interest.
(j) We express no opinion regarding the security interest of
the Indenture Trustee for the benefit of the Pass Through Trustee in any of
the UCC Collateral consisting of claims against any government or
governmental agency (including without limitation the United States of
America or any state thereof or any agency or department of the United
States of America or any state thereof).
(k) We have assumed that US Airways maintains a place of
business in more than one county in the State of New York.
8. You have asked our opinion whether the Non-Admitted State
UCC Financing Statements are in a form acceptable for filing under the
Non-Admitted State UCC and also whether the filing of any additional county
filings would be necessary under the Non-Admitted State UCC. We call to
your attention that we are not admitted to practice in the State of
Virginia and our opinion is limited to the review described below. We
express no opinion with respect to the perfection or priority of the
security interest of the Indenture Trustee for the benefit of the Note
Holders.
A. Based solely on our review of Section 9-402 of the Non-Admitted State
UCC as published in the CCH Secured Transaction Guide (without
consideration of case law decided thereunder), we are of the opinion
that no additional information is required on the face of the
Non-Admitted State Financing Statements for the Non-Admitted State
Financing Statements to be accepted for filing in the Non-Admitted
State Filing offices.
B. Based solely on our review of Section 9-401 of the Non-Admitted State
UCC as published in the CCH Secured Transaction Guide (without
consideration of case law decided thereunder), we are of the opinion
that the Indenture Trustee for the benefit of the Note Holders is not
required to file UCC financing statements in any additional county
filing offices in the State of Virginia.
Our opinion in paragraph 8 with respect to the security interest in the
Non-Admitted State is subject to the following qualifications:
(a) our opinions are limited to Sections 401 and 402 of Article
9 of the Non-Admitted State UCC, and therefore such opinions do not address
(i) laws of jurisdictions other than the Non-Admitted State, and of the
Non-Admitted State except for Sections 401 and 402 of Article 9 of the
Non-Admitted State UCC, (ii) collateral of a type not subject to Article 9
of the Non-Admitted State UCC and (iii) under Section 9-103 of the
Non-Admitted State UCC, what law governs perfection of the security
interests granted in the collateral covered by this opinion;
(b) we express no opinion as to collateral of a type perfected
by means other than the filing of a financing statement under the
Non-Admitted State UCC;
(c) we express no opinion with respect to collateral consisting
of goods which are or are to become fixtures, equipment used in farming
operations, or farm products, or accounts or general intangibles arising
from or relating to the sale of farm products by a xxxxxx, consumer goods,
crops growing or to be grown, timber to be cut or minerals or the like
(including oil and gas), or accounts subject to subsection 5 of Section
9-103 of the Non-Admitted State UCC;
(d) we call to your attention that we have not considered the
effect of any tax laws or other similar laws of the Non-Admitted State
which may require the payment of a tax or fee in connection with the filing
of the Non-Admitted State Financing Statements and we express no opinion
regarding any tax or fee payable in connection with the filing of the
Non-Admitted State Financing Statement (including, without limitation, the
existence or calculation of any such tax or fee); and
(e) we have assumed that the Company's only place of business
in Virginia is and will be located at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX
00000.
9. The Indenture Trustee acting in behalf of the holders of
the Equipment Notes will be entitled to the benefits of Section 1110 of the
Bankruptcy Code with respect to the Aircraft if US Airways is a debtor in a
case under Chapter 11 of the Bankruptcy Code.
10. [US Airways, as lessor under the lease to US Airways
Shuttle, will be entitled to the benefits of Section 1110 of the Bankruptcy
Code with respect to the Aircraft if US Airways Shuttle is a debtor in a
case under Chapter 11 of the Bankruptcy Code.](2)
With respect to our opinion[s] in paragraph[s] 9 [and 10], we
note that a 1998 decision, Western Pacific Airlines, Inc. v. GATX (In re
Western Pacific Airlines, Inc.), 219 B.R. 305, on rehearing, 221 B.R. 1 (D.
Colo. 1998), appeal dismissed as moot, vacatur denied, Boullioun Aircraft
Holding Co., Inc. x. Xxxxx Management (In re Western Pacific Airlines,
Inc.), 1999 WL 000000 (00xx Xxx. July 7, 1999), ruled that Section 1110
does not apply in a case after the trustee timely makes the agreement
specified in Section 1110(a)(1)(A) and timely cures defaults outstanding as
of the date of the Chapter 11 petition or that occur during the first sixty
days of the case, with the result, among others, that the ability of an
Indenture Trustee to exercise remedies based on a default that occurs after
the first sixty days of the Chapter 11 case would be subject to the
automatic stay. We believe that this decision construes Section 1110 in a
manner that is inconsistent with both the language of Section 1110 and the
legislative history explaining the purpose and operation of Section 1110.
Accordingly, we believe that the decision is an incorrect interpretation of
Section 1110.
In addition, with respect to our opinion[s] in paragraph[s] 9
[and 10], we have, with your consent, relied on the US Airways Opinion to
the effect that [each of] US Airways [and US Airways Shuttle] is a "citizen
of the United States," as defined in Section 40102 of Title 49 of the
United States Code, and [each of US Airways and US Airways Shuttle] holds
an air carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of the United States Code for
aircraft capable of carrying ten or more individuals or 6,000 pounds or
more of cargo and we have assumed that the security interest of the
Indenture Trustee in the Aircraft is perfected.
Our opinions are subject to the following assumptions and
qualifications:
--------------------
(2) All bracketed language is for Aircraft leased to US Airways Shuttle.
(a) enforcement of the Transaction Documents may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in equity
or at law);
(b) certain of the remedial provisions with respect to the
security including waivers with respect to the exercise of remedies against
the Trust Indenture Estate contained in the Trust Indenture, as
supplemented by the Indenture Supplement, may be unenforceable in whole or
in part, but the inclusion of such provisions does not affect the validity
of each of the Trust Indenture, as supplemented by the Indenture
Supplement, taken as a whole, and the Trust Indenture, as supplemented by
the Indenture Supplement, taken as a whole, together with applicable law,
contains adequate provisions for the practical realization of the security
thereof;
(c) we express no opinion as to the effect on the opinions
expressed herein of (i) the compliance or non-compliance of any party
(without in any way limiting other qualifications and assumptions made
herein, other than US Airways) to the Transaction Documents with any state,
federal or other laws or regulations applicable to it or (ii) the legal or
regulatory status or the nature of the business of any such party;
(d) we express no opinion as to the enforceability of any
rights to contribution or indemnification provided for in the Transaction
Documents to the extent any such rights are violative of the public policy
(including, without limitation, the public policy underlying any federal or
state securities law, rule or regulation);
(e) we express no opinion as to any provision of any
Transaction Document that provides a penalty or to the extent that it
provides for an absolute and unconditional obligation to perform such
Transaction Document even though such Transaction Document is invalid or
terminated or such performance would be illegal; and
(f) with respect to our opinion that the New York choice of law
provision in the Transaction Documents which are expressly governed by New
York law is enforceable, we rely upon, among other things, the Act of July
19, 0000, Xx. 421, 1984 XxXxxxxx'x Sess. Laws of N.Y. 1406, (codified at
N.Y. Gen. Oblig. Law xx.xx. 5-1401, 5-1402 (XxXxxxxx Supp. 1986) and N.Y.
CPLR 327(b) (XxXxxxxx Supp. 1986) (the "Act"), and our opinion is subject
to the qualifications that such enforceability (i) may be limited by public
policy considerations of any jurisdiction, other than the courts of the
State of New York, in which enforcement of such provisions, or of a
judgement upon an agreement containing such provisions, is sought, and (ii)
as specified in the Act, does not apply to the extent provided to the
contrary in subsection two of Section 1-105 of the Uniform Commercial Code
for the State of New York.
In rendering the foregoing opinions, we have assumed, with your
consent, that:
(a) each of the Transaction Documents constitutes the legal,
valid and binding obligation of each party thereto (other than US Airways
and, in the case of the Trust Indenture, the Indenture Trustee) enforceable
against each such party (other than US Airways and, in the case of the
Trust Indenture, the Indenture Trustee) in accordance with its terms;
(b) each of (i) State Street Bank and Trust Company of
Connecticut, National Association and (ii) US Airways is duly organized and
validly existing in good standing under the laws of the jurisdiction of its
organization;
(c) each of (i) State Street Bank and Trust Company of
Connecticut, National Association, individually and as Indenture Trustee,
Subordination Agent and Pass Through Trustee, (ii) US Airways has full
power, authority and legal right to enter into and perform its respective
obligations under, and consummate the transactions contemplated by, each of
the Transaction Documents to which it is a party;
(d) each of (i) State Street Bank and Trust Company of
Connecticut, National Association, individually and as Indenture Trustee,
Subordination Agent and Pass Through Trustee, and (ii) US Airways has duly
authorized, executed and delivered each of the Transaction Documents to
which it is a party;
(e) the execution, delivery and performance of the Transaction
Documents by each of the parties thereto and the consummation of the
transactions contemplated thereby does not and will not conflict with,
contravene, violate or constitute a default under (i) the respective
certificate of incorporation, by-laws or other organizational documents of
any such party, (ii) any indenture, mortgage, lease, agreement or other
instrument to which any such party is a party or by which it or any of its
property may be bound or subject, (iii) any law, rule or regulation of any
jurisdiction (provided that we make no such assumption with respect to
Applicable Laws of the State of New York and Applicable Laws of the United
States of America insofar as such Applicable Laws apply to US Airways, as
to which we express our opinion in paragraph 2 herein) or (iv) any judicial
or administrative order or decree of any governmental authority; and
(f) except for (i) the due and timely filing and, where
appropriate, recording of the Trust Indenture and the Indenture Supplement
covering the Aircraft attached as an exhibit pursuant to the Transportation
Code, (ii) the registration of the issuance and sale of the Pass Through
Certificates under the Securities Act, (iii) compliance with the securities
law of each applicable state and (iv) the filing of appropriate UCC
financing statements, no consent, license, permit or approval of, or giving
of notice to, or registration with, or taking of any action in respect of,
any governmental authority of any jurisdiction is required in connection
with (X) the execution, delivery and performance by any party to any
Transaction Document of the respective Transaction Documents to which it is
a party, (Y) the consummation of the transactions contemplated thereby or
(Z) the legality, validity or enforceability of the Transaction Documents
with respect to any party to any Transaction Document (provided that we
make no such assumption with respect to those required by Applicable Laws
as such Applicable Laws apply to US Airways).
With respect to US Airways, we understand that you are
separately receiving an opinion with respect to certain matters set forth
above from Xxxxxx X. Xx, Esq., Associate General Counsel to US Airways (the
"US Airways Opinion"). With respect to Transportation Code matters, we
understand that you are separately receiving an opinion with respect to
certain matters set forth above from Xxxxx & Xxxxxxx, P.C., special
Transportation Code counsel (the "TC Opinion"). With respect to the
Indenture Trustee, the Pass Through Trustee and the Subordination Agent, we
understand that you are separately receiving an opinion with respect to
certain matters set forth above from Xxxxxxx Xxxx LLP, special counsel to
the Indenture Trustee, the Pass Through Trustee and the Subordination Agent
(the "State Street Opinion;"and together with the US Airways Opinion and
the TC Opinion, the "Other Counsel's Opinions"). We are advised that such
Other Counsel's Opinions contain qualifications. Our opinions herein stated
are based upon the assumptions specified above, and we express no opinion
as to the effect on the opinions herein stated of the qualifications stated
in the Other Counsel's Opinions.
This opinion is being furnished only to you and is solely for
your benefit and is not to be used, circulated, quoted, relied upon or
otherwise referred to by any other Person or for any other purpose without
our prior written consent.
Very truly yours,
SCHEDULE I
State Street Bank and Trust Company of Connecticut, National Association,
individually and as Indenture Trustee, Pass Through
Trustee and Subordination Agent
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Officer's Certificate to SASM&F (Illinois) Opinion
N_________
EXHIBIT A
Certificate
The undersigned, Xxxxxx X. Xx, is the Associate General Counsel
of US Airways, Inc., a Delaware corporation (the "Lessee"), and understands
that pursuant to certain of the Transaction Documents (as defined in the
Opinion referred to below), Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
("SASM&F") is rendering an opinion dated the date hereof (the "Opinion") to
each of the Persons listed on Schedule I thereto. Capitalized terms used
herein but not otherwise defined shall have the meanings set forth in the
Opinion. The undersigned further understands that SASM&F is relying on this
officer's certificate and the statements made herein in rendering such
Opinion.
With regard to the foregoing, on behalf of the Lessee, the
undersigned certifies that:
1. Due inquiry has been made of all persons deemed necessary or
appropriate to verify or confirm the statements contained herein.
2. SASM&F may rely upon the representations and warranties that
the Lessee has made in each of the Transaction Documents to which it is a
party. The undersigned has made a careful review of the representations and
warranties of the Lessee contained in each of the Transaction Documents and
hereby confirms, to the best of his knowledge and belief, that such
representations and warranties are true, correct and complete on and as of
the date of this certificate.
3. Less than 25 percent of the assets of Lessee and its
subsidiaries on a consolidated basis and on an unconsolidated basis consist
of margin stock (as such term is defined in Regulation U of the Board of
Governors of the Federal Reserve System).
4. Lessee is engaged primarily, directly and through its
wholly-owned subsidiaries and its Majority-Owned Subsidiaries (as
hereinafter defined), in the airline transportation business and (i) is not
and does not hold itself out as being, engaged primarily nor does it
propose to engage primarily, in the business of investing, reinvesting or
trading in Securities (as hereinafter defined), (ii) has not and is not
engaged in, and does not propose to engage in, the business of issuing
Face-Amount Certificates of the Installment Type (as hereinafter defined)
and has no such certificate outstanding and (iii) is not engaged and does
not propose to engage in the business of investing, reinvesting, owning,
holding or trading in Securities, whether or not as its primary activity,
and does not own or propose to acquire Investment Securities (as
hereinafter defined) having a Value exceeding 40% of the Value of the total
assets of the Lessee (exclusive of Government Securities (as hereinafter
defined)) on an unconsolidated basis.
5. Neither the Lessee nor any of its subsidiaries or
affiliates owns or operates facilities that are used for the generation,
transmission, or distribution of electric energy for sale ("electric
utility facilities").
6. Neither the Lessee nor any of its subsidiaries or
affiliates owns or operates facilities that are used for the distribution
at retail of natural or manufactured gas for heat, light, or power ("gas
utility facilities").
7. Neither the Lessee nor any of its subsidiaries or
affiliates, directly or indirectly, or through one or more intermediary
companies, owns, controls or holds with power to vote (a) five percent (5%)
or more of the outstanding securities, such as notes, drafts, stock,
treasury stock, bonds, debentures, certificates of interest or
participation in any profit sharing agreements or in oil, gas, other
mineral royalties or leases, collateral-trust certificates, preorganization
certificates or subscriptions, transferable shares, investment contracts,
voting-trust certificates, certificate of deposit for a security,
receiver's or trustee's certificates, or any other instrument commonly
known as a "security" (including certificates of interest or participation
in, temporary or interim certificates for, receipt for, guaranty of,
assumption of liability on, or warrants or right to subscribe to or
purchase any of the foregoing) presently entitling it to vote in the
direction or management of, or any such instrument issued under or pursuant
to any trust, agreement, or arrangement whereby a trustee or trustees or
agent or agents for the owner or holder of such instrument is presently
entitled to vote in the direction or management of, any corporation,
partnership, association, joint-stock Company, joint venture or trust that
owns or operates any electric utility facilities or gas utility facilities,
or (b) any other interest, directly or indirectly, or through one or more
intermediary entities, in any corporation, partnership, association,
joint-stock Company, joint venture or trust that owns or operates any
electric utility facilities or gas utility facilities.
8. Neither the Lessee nor any of its subsidiaries or affiliates
has received notice that the Securities and Exchange Commission has
determined, or may determine, that the Lessee or any of its subsidiaries or
affiliates exercises a controlling influence over the management or
direction of the policies of a gas utility Company or an electric utility
Company as to make it subject to the obligations, duties and liabilities
imposed on holding companies by the Public Utility Holding Company Act of
1935, as amended.
9. As used in paragraph 4 of this certificate, the following
terms shall have the following meanings:
"Control" means the power to exercise a controlling influence
over the management or policies of a Company, unless such power is solely
the result of an official position with such Company;
"Face-Amount Certificate of the Installment Type" means any
certificate, investment contract, or other Security that represents an
obligation on the part of its issuer to pay a stated or determinable sum or
sums at a fixed or determinable date or dates more than 24 months after the
date of issuance, in consideration of the payment of periodic installments
of a stated or determinable amount;
"Government Securities" means all Securities issued or
guaranteed as to principal or interest by the United States, or by a person
controlled or supervised by and acting as an instrumentality of the
government of the United States pursuant to authority granted by the
Congress of the United States; or any certificate of deposit for any of the
foregoing;
"Investment Securities" includes all Securities except (A)
Government Securities, (B) Securities issued by employees' securities
companies, and (C) Securities issued by Majority-Owned Subsidiaries of the
Lessee which are not engaged and do not propose to be engaged in activities
within the scope of clause (i), (ii) or (iii) of paragraph 4 of this
Certificate;
"Majority-Owned Subsidiary" of a person means a Company 50% or
more of the outstanding Voting Securities of which are owned by such
person, or by a Company which, within the meaning of this paragraph, is a
Majority-Owned Subsidiary of such person. Notwithstanding the foregoing, a
Company shall not be considered a Majority-Owned Subsidiary of a person if
Control of such Company rests with someone other than such person;
"Security" means any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or
participation in any profit-sharing agreement, collateral-trust
certificate, preorganization certificate or subscription, transferrable
share, investment contract, voting-trust certificate, certificate of
deposit for a security, fractional undivided interest in oil, gas, or other
mineral rights, any put, call, straddle, option, or privilege on any
security (including a certificate of deposit) or on any group or index of
securities (including any interest therein or based on the value thereof),
or any put, call, straddle, option, or privilege entered into on a national
securities exchange relating to foreign currency, or, in general, any
interest or instrument commonly known as a "security," or any certificate
of interest or participation in, temporary or interim certificate for,
receipt for, guarantee of, or warrant or right to subscribe to or purchase,
any of the foregoing;
"Value" means (i) with respect to Securities owned at the end
of the last preceding fiscal quarter for which market quotations are
readily available, the market value at the end of such quarter; (ii) with
respect to other Securities and assets owned at the end of the last
preceding fiscal quarter, fair value at the end of such quarter, as
determined in good faith by or under the direction of the board of
directors; and (iii) with respect to securities and other assets acquired
after the end of the last preceding fiscal quarter, the cost thereof;
"Voting Security" means any security presently entitling the
owner or holder hereof to vote for the election of directors of a Company.
IN WITNESS WHEREOF, the undersigned has executed this
certificate this ___ day of ______, 1999.
__________________________________
Name: Xxxxxx X. Xx
Title: Associate General Counsel
Exhibit B-2
[LETTERHEAD OF US AIRWAYS, INC.]
[OWNED AIRCRAFT OPINION]
-------------- --, ----
To Each Person Listed on
Schedule I Hereto
Re: US Airways, Inc. Trust No. N___US
Ladies and Gentlemen:
I am the _____________________ of US Airways, Inc., a Delaware
corporation ("US Airways"), and am familiar with the transactions
contemplated by the Participation Agreement (US Airways, Inc. Trust No.
N___U_), dated as of ______________ __, ____ (the "Participation
Agreement"), among US Airways, State Street Bank and Trust Company of
Connecticut, a national banking association, not in its individual capacity
except as otherwise provided therein but solely as Pass Through Trustee,
Indenture Trustee and Subordination Agent relating to the Aircraft (as
defined below). Capitalized terms not otherwise defined herein have the
meanings assigned thereto in Annex A to the Participation Agreement.
This opinion is being delivered pursuant to Section 4[(a)(xi)]
of the Participation Agreement.
In my examination, I have assumed the genuineness of all
signatures, including endorsements, the legal capacity of natural persons,
the authenticity of all documents submitted to me as originals, the
conformity to original documents of all copies submitted to me as
telefacsimile, certified or photostatic copies, and the authenticity of the
originals of such copies. As to any facts material to this opinion, I have
relied solely upon statements, representations and warranties of US
Airways, the Indenture Trustee, the Subordination Agent, the Pass Through
Trustee and their respective officers and representatives, and others in
the Operative Documents and of public officials, and I have made no
independent investigation or inquiry with respect to such factual matters.
In rendering the opinions set forth herein, I have examined and
relied on executed originals or copies of the following:
(a) the Participation Agreement;
(b) the Trust Indenture;
(c) the Trust Supplement;
(d) the Equipment Notes;
(e) the Pass Through Trust Agreement;
(f) each of the Pass Through Trust Supplements;
(g) certified copies of the Certificate of
Incorporation and By-laws of US Airways;
(h) certified copies of certain resolutions of the Board
of Directors of US Airways adopted on ____________;
(i) a certificate of good standing from the Secretary of
State of the State of Delaware as to the good standing of
US Airways in such jurisdiction; and
(j) such other documents as I have deemed necessary or
appropriate as a basis for the opinions set forth below.
Based on the foregoing, it is my opinion that:
1. US Airways is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under
each of the Operative Documents to which it is a party. US Airways is duly
qualified to do business and is in good standing in the State of Virginia
and each other state of the United States in which its operations or the
nature of its business requires US Airways to so qualify, except where the
failure to so qualify would not have a material adverse effect on US
Airways or its business.
2. US Airways possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material
to the operation of the routes flown by it and the conduct of its business
and operations as currently conducted, and each such certificate,
franchise, license, permit, right and concession and consent is in full
force and effect, except where any failure would not have a material
adverse effect on US Airways or its business.
3. Each of the Operative Documents to which US Airways is a
party has or had, on the date of execution thereof, been duly authorized,
executed and delivered by US Airways.
4. Neither the execution and delivery by US Airways of any of
the Operative Documents to which US Airways is a party, nor the
consummation of any of the transactions by US Airways contemplated thereby,
nor the performance of the obligations thereunder by US Airways, did at the
time of execution and delivery, or does presently (a) require any
stockholder approval or violate the certificate of incorporation or By-laws
of US Airways or (b) conflict with or contravene the provisions of, or
constitute a default under, or result in the creation of any Lien (other
than any Permitted Lien) upon the property of US Airways under any law,
governmental rule or regulation, or the charter or By-laws of US Airways or
any order, writ, injunction or decree of any court or governmental
authority against US Airways or by which any of its properties may be bound
or any material indenture, mortgage, contract or other agreement known to
me to which US Airways is a party or by which it may be bound, or require
the approval or consent of any trustee or the holders of any indebtedness
or material obligations of US Airways.
5. Neither the execution and delivery by US Airways of any of
the Operative Documents to which it is a party, nor the consummation of any
transactions by US Airways contemplated thereby, nor the performance of the
obligations thereunder by US Airways, did or does, as the case may be, (a)
require the consent or approval of, the giving of notice to, or (except as
described or contemplated in the Operative Documents, all of which were or
are required to be performed on or prior to the Delivery Date and which
were or shall have been accomplished on or prior to the Delivery Date) the
registration with, or the taking of any other action in respect of, the
FAA, the Securities and Exchange Commission or any other authority or
agency of the federal government or of the State of Virginia other than (i)
the registration of the issuance and sale of the Pass Through Certificates
under the Securities Act, (ii) compliance with the securities laws of each
applicable state and (iii) the filings and, where appropriate, recording,
pursuant to the Transportation Code, of the Trust Indenture (with the Trust
Indenture and Trust Supplement covering the Aircraft attached as an
exhibit), or (b) contravene any judgment or order applicable to or binding
on US Airways or any law or governmental rule or regulation of the United
States or of the State of Virginia.
6. There is no pending or, to my knowledge, threatened action
or proceeding before any court or administrative agency which individually
(or in the aggregate in the case of any group of related lawsuits) (i) is
expected to have a material adverse effect on (A) the financial condition
of US Airways except for the matters described under "Legal Proceedings" in
US Airways' Annual Report on Form 10-K for the fiscal year ended December
31, 1998 and US Airways' Quarterly Report on Form 10-Q for the quarter
ended ______________, as to all of which I can express no opinion at this
time concerning US Airways' liability (if any) or the effect of any adverse
determination upon the business, condition (financial or otherwise) or
operations of US Airways, or (B) the ability of US Airways to perform its
obligations under the Operative Documents, or (ii) involves the Aircraft.
7. US Airways is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Sections 41102(a) and 41103 of the Transportation Code, and an "air carrier
operating certificate" issued under Chapter 447 of the Transportation Code
for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, and each such certificate is in full force and
effect.
8. US Airways is not, and is not directly or indirectly
controlled by or acting on behalf of any Person which is, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
[9. Shuttle, Inc. ("US Airways Shuttle") is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware and is a "citizen of the United States" within the
meaning of Section 40102(a)(15) of the Transportation Code.
10. US Airways Shuttle is a duly certificated "air carrier"
within the meaning of the Transportation Code, and is a holder of a
certificate under Sections 41102(a) and 41103 of the Transportation Code,
and an "air carrier operating certificate" issued under Chapter 447 of the
Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and each such certificate is
in full force and effect.]1
I do not express any opinion as to matters governed by
any law other than the federal laws of the United States of America and the
corporation law of the State of Delaware.
This opinion is delivered to you solely for your use in
connection with the transaction described herein, and may not be used for
any other purpose, and may not be relied upon by any other person, without
my prior written consent.
Very truly yours,
-----------------------------
1 For transactions with Aircraft leased or subleased to US
Airways Shuttle only.
FORM OF OPINION OF XXXXXXXX CHANCE
FOR THE MANUFACTURER
To: US Airways Inc.
US Airways Group, Inc.
First Security Bank, National Association
[ ]
RE: ONE AIRBUS [ ] AIRCRAFT
MANUFACTURER'S SERIAL NO. [ ]
US REGISTRATION NO. [ ]
Dear Sirs,
1. We have been requested by US Airways Inc. (the "COMPANY"), to act
as special French counsel with respect, and to render this opinion
in connection with certain of the transactions contemplated in a
certain Participation Agreement dated as of [ ] (the
"PARTICIPATION AGREEMENT") among [ ].
2. We have examined copies (which we assume conform to the originals) of:
(i) the purchase agreement assignment (Scheduled August, 1999
through April, 2000 Deliveries) dated as of August 1,
[1999] between US Airways Group, Inc. (as assignor) and
the Company (as assignee) (the "FIRST PURCHASE AGREEMENT
ASSIGNMENT");
(ii) the consent and agreement of AVSA S.A.R.L. ("AVSA") and
Airbus Industrie G.I.E. ("AIRBUS") to the First Purchase
Agreement Assignment as acknowledged and accepted by US
Airways Group, Inc. and the Company dated as of August 1,
[1999] (the "FIRST CONSENT");
(iii) the purchase agreement assignment (US Airways, Inc. Trust
No. N[ ]U[ ]), dated as of [ ], between the Company (as
assignor) and State Street Bank and Trust company of
Connecticut, National Association (the "INDENTURE
TRUSTEE") as assignee) (the "SECOND
PURCHASE AGREEMENT ASSIGNMENT");
(iv) the consent and agreement of Airbus (to the Second
Purchase Agreement Assignment) dated as of [ ] (the
"AIRBUS CONSENT AND AGREEMENT");
(v) the consent and agreement of AVSA (to the Second Purchase
Agreement Assignment) dated as of [ ] (the "AVSA CONSENT
AND AGREEMENT");
(vi) the pledge agreement dated [ ] made between the Company
(as pledgor) and the Indenture Trustee (as pledgee, the
"PLEDGE AGREEMENT"),
the documents referred to in (i) to (vi) above are hereinafter
referred to collectively as the "DOCUMENTS."
3. In considering the above, we have assumed:
(i) that the Documents have been duly executed by the parties
thereto (other than Airbus and AVSA);
(ii) the genuineness of all signatures;
(iii) the completeness and conformity to the originals of all
documents supplied to us as copies or as facsimiles;
(iv) that the Documents expressed to be governed by New York
law constitute the legal, valid and binding obligations
of the parties thereto under New York law.
4. Having considered the Documents we are of the opinion, subject to
the qualifications and reservations set out in paragraph 5 below,
that:
(i) Airbus is a groupement d'interet economique duly
organised and existing under the laws of the French
Republic and has the power and authority to carry on its
business as now conducted. The present members of Airbus
are (i) Aerospatiale, Societe Nationale Industrielle,
(ii) DaimlerChrysler Aerospace Airbus GmbH, (iii) British
Aerospace (Operations) Ltd. and (iv) Construcciones
Aeronauticas S.A. and each of such corporations is,
without the need to proceed against any collateral
security for the indebtedness of Airbus or to take any
other legal action or process (except for service
on Airbus by huissier of notice to perform and subsequent
failure by Airbus to do so), jointly and severally liable
with the other members for the debts of Airbus arising
out of obligations contracted by Airbus while such
corporation is a member of Airbus;
(ii) AVSA is a societe a responsabilite limitee duly
established and existing under the laws of the French
Republic and has the power and authority to carry on its
business as now conducted;
(iii) each of Airbus and AVSA has full power and authority to
enter into and to execute, deliver and perform its
obligations under the Documents to which it is a party;
such obligations are legal, valid and binding upon them
respectively, are enforceable in accordance with their
respective terms and rank pari passu with the other
unsecured obligations of Airbus and AVSA, as the case may
be;
(iv) assuming that under New York law the Indenture Trustee
would be entitled to take proceedings in its own name and
on its own account to recover from the Company the full
amount of all amounts secured by the Pledge Agreement,
the Pledge Agreement:
(a) duly creates for the benefit of the Indenture
Trustee the security interests which the Pledge
Agreement purports to create and the Indenture
Trustee is entitled to the benefits and security
afforded thereby; and
(b) subject to the registration and huissier
requirements of paragraph 5(d) hereof and the
observation set forth in paragraph 5(f) hereof
and with respect to non-monetary claims, should
be effective as against Airbus, AVSA and third
parties to perfect the pledge of the obligations
of Airbus and AVSA that are the subject of the
Pledge Agreement; and
(c) subject to the registration and huissier
requirements of paragraph 5(d) hereof and with
respect to monetary claims, would be effective
as against Airbus, AVSA and third parties to
perfect the pledge of the obligations of Airbus
and AVSA that are the subject of the Pledge
Agreement;
(v) the choice of the laws of the State of New York to govern
the Documents (which are expressed to be so governed) is
valid under the laws of the French Republic, and a French
court would uphold such choice of law in any suit on the
Documents brought in a French court.
5. This opinion must be read subject to the following qualifications
and observations as to French law:
(a) the remedy of specific performance may not be
available in a French court;
(b) in respect of payment obligations, a French
court has power under Article 1244-1 of the
French Civil Code to grant time to a debtor (not
in excess of two years), taking into account the
position of the debtor and the needs of the
creditor;
(c) in order to ensure that the validity as against
third parties of the assignment made in the
First Purchase Agreement Assignment, it is
necessary that notice of such assignment be
served on Airbus and AVSA by huissier in
accordance with the provisions of Article 1690
of the French Civil Code. We have been
instructed by the Company to assist in carrying
out such formalities which we intend to do upon
receipt of duly executed originals of such
assignment and we anticipate that there will be
no difficulty in accomplishing these
formalities;
(d) in order to ensure the validity as against third
parties of the assignment and the pledge
(nantissement) created by the Second Purchase
Agreement Assignment and the Pledge Agreement
respectively in accordance with the provisions
of Article 2075 of the French Civil Code, it is
necessary for each such document to be
registered with the French tax administration in
a form duly translated in French by a sworn
translator, involving payment of a stamp duty of
a nominal amount. In addition, the assignment
created by the Second Purchase Agreement
Assignment and the nantissement created by the
Pledge Agreement will need to be served on each
of the obligors by huissier, in accordance with
the provisions of Article 2075 of the French
Civil Code. We have been instructed by the
Company to carry out such formalities on its
behalf which we intend to do upon receipt of
duly executed originals of each such document
and we anticipate that there will be no
difficulty in accomplishing these formalities;
(e) in the event of any proceedings being brought in
a French court in respect of a monetary
obligation expressed to be payable in a currency
other than French Francs or euros, a French
court would probably give judgment expressed as
an order to pay, not such currency, but its
French Franc or euro equivalent at the time of
payment or enforcement of judgment. With respect
to a bankruptcy, insolvency, liquidation,
moratorium, reorganization, reconstruction or
similar proceedings, French law may require that
all claims or debts be converted into French
Francs or euros at an exchange rate determined
by the court at a date related thereto, such as
the date of commencement of a winding-up;
(f) pledges over non-monetary claims are unusual
under French law. In principal, pledges over
claims of this type should be effective against
AVSA and third parties but in the absence of
case law, there is a lack of certainty about the
pledge being effective;
(g) a determination or certificate as to any matter
provided for in the Documents might be held by a
French court not to be final, conclusive or
binding, if such determination or certificate
could be shown to have an unreasonable,
incorrect or arbitrary basis or not to have been
given or made in good faith;
(h) claims may become barred by effluxion of time or
may be or become subject to defense of set-off
or counterclaim;
(i) a French court may stay proceedings if
concurrent proceedings are being brought
elsewhere;
(j) we express no opinion as to whether any
provision in the documents conferring a right of
set-off or similar right would be effective
against a liquidator or a creditor;
(k) the enforcement against Airbus of any of the
Documents to which it is a party may be limited
by applicable bankruptcy, insolvency,
arrangement, moratorium or similar laws relating
to or affecting the enforcement of creditors'
rights generally, as such laws are applied to
Airbus. The enforcement against AVSA of any of
the Documents to which it is a party may be
limited to such laws, as such laws are applied
to AVSA. The enforcement against any member of
Airbus of any obligation of Airbus contained in
the Documents may be limited to such laws, as
such laws are applied to such member;
(l) our opinion as to the enforceability of the
Documents relates only to their enforceability
in France in circumstances where the competent
French court has and accepts jurisdiction. The
term "enforceability" refers to the legal
character of the obligations assumed by the
parties under the Documents, i.e., that they are
of a character which French law enforces or
recognizes. It does not mean that the Documents
will be enforced in all circumstances or in
foreign, jurisdictions or by or against third
parties or that any particular remedy will be
available; and
(m) article 899 of the French Tax Code provides that
agreements evidencing an undertaking to pay a
sum of money are subject to stamp tax (droit de
timbre) of a nominal amount if made in the
French Republic, if made in a foreign country,
such agreements are subject to a stamp tax of a
nominal amount before certain use thereof can be
made in the French Republic (Article 897 of the
French Tax Code). However non-payment of such
stamp tax does not affect the legality, validity
or enforceability of the Documents.
We are qualified as French Avocats.
No opinion is expressed herein as to laws other than the laws of the French
Republic as of the date hereof. This opinion is for your use and that of no
one else, and is limited to (i) the matters specifically mentioned herein,
and (ii) the purpose set out above.
Yours faithfully,
XXXXXXXX CHANCE
DRAFT OPINION OF XXXXX & XXXXXXX
__________ __, 1999
To the Addressees on the
Schedule Attached Hereto
Re: Airbus Industrie model A319-____ [A320____ or A330___] aircraft
with manufacturer's serial number __________ and United States
nationality and registration marks N________ (the "Aircraft")
Ladies and Gentlemen:
This letter confirms that we filed with the Federal Aviation
Administration (the "FAA") today at __:__.M., C._.T., the Trust Indenture
and Security Agreement (US Airways, Inc. 1999-1 Series N____) dated as of
__________ __, 1999 (the "Indenture") between U.S. Airways, Inc. (the
"Company") and _____________________ as Indenture Trustee (the "Indenture
Trustee"), to which was attached Trust Agreement and Indenture Supplement
No. 1 (US Airways, Inc. 1999-1 Series N___) dated __________ __, 1999 (the
"Indenture Supplement") covering the aircraft and the _______________ model
______________ Aircraft engines with manufacturer's serial numbers
______________ and _______________ (the "Engines")
Based upon our examination of the above described instruments and
of such records of the FAA as we deemed necessary to render this opinion
and as were made available to us by the FAA, it is our opinion that:
(a) the Indenture with the Indenture Supplement attached is in due
form for recordation by and has been duly filed for recordation
with the FAA pursuant to and in accordance with the provisions of
Section 44107 of Title 49 of the United States Code;
(b) legal title to the Aircraft is vested in the Company and the
Aircraft is duly registered in the name of the Company pursuant
to and in accordance with the provisions of Sections 44102 and
44103 of Title 49 of the United States Code.
(c) the Aircraft and the Engines are free and clear of Liens (as such
term is defined in Annex A to the Indenture) other than such as
are created by the Indenture, as supplemented by the Indenture
Supplement;
(d) the Indenture, as supplemented by the Indenture Supplement,
creates a duly and validly perfected first priority security
interest in favor of the Indenture Trustee in the Aircraft and
the Engines;
(e) the Indenture, as supplemented by the Indenture Supplement, is
not required to be refiled with the FAA or filed or recorded in
any other place within the United States in order to perfect or
maintain the perfection of the security interest created thereby
in the Aircraft and the Engines under the applicable laws of any
jurisdiction within the United States;
(f) no other registration of the Aircraft and no filings or
recordings (other than the filings and recordings with the FAA
which have been effected) are necessary to perfect in any
jurisdiction within the United States the Company's title to the
Aircraft or the security interest created by the Indenture, as
supplemented by the Indenture Supplement, in the Aircraft and the
Engines under the applicable laws of any jurisdiction within the
United States; and
(g) no authorization, approval, consent, license or order of, or
registration with, or giving of notice to, the FAA Aircraft
Registry is required for the valid authorization, delivery or
performance of the Indenture and the Indenture Supplement except
for such authorizations, approvals, consents, licenses, orders,
registrations and notices as have been effected.
No opinion is herein expressed as to; (i) laws other than the
federal laws of the United States; (ii) the validity or enforceability
under local law of the Indenture, as supplemented by the Indenture
Supplement; (iii) the recognition of the perfection of the security
interest created by the Indenture, as supplemented by the Indenture
Supplement, as against third parties in any legal proceedings outside the
United States; and (iv) the record status of the Aircraft prior to the
commencement of its United States registration. Since our examination was
limited to records maintained by the FAA Aircraft Registry, our opinion
does not cover liens which are perfected without the filing of notice
thereof with the FAA, such as federal tax liens, liens arising under
Section 1368(a) of Title 29 of the United States Code and possessory
artisans' liens, and was subject to the accuracy of FAA personnel in the
filing, indexing and recording of instruments filed with the FAA and in the
search for encumbrance cross-reference index cards for the Engines.
Very truly Yours,
XXXXX X. XXXXXX
For the Firm
SCHEDULE
________________________ as Indenture Trustee, Pass Through Trustee and
Subordination Agent
US Airways, Inc.
Standard & Poor's Ratings Services
FORM OF OPINION OF XXXXXXX XXXX, SPECIAL COUNSEL
TO THE INDENTURE TRUSTEE
-------------, ------
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
RE: US Airways, Inc./Secured Financing of One Airbus [A320] [A330-300]
Aircraft [N _____ US] - Indenture Trustee, Owned Aircraft
Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and Trust
Company of Connecticut, National Association, in its individual capacity
("STATE STREET") and as Indenture Trustee (the "INDENTURE TRUSTEE") under
the Trust Indenture and Security Agreement [N ____ US] dated as of
[________________] (the "INDENTURE") between US Airways, Inc., and State
Street, as Indenture Trustee, in connection with the execution and delivery
of the Participation Agreement [N ____ US] dated as of [________________]
(the "PARTICIPATION AGREEMENT") by and among the Indenture Trustee, US
Airways, Inc., State Street, as Pass Through Trustee (the "PASS THROUGH
TRUSTEE"), State Street, as Subordination Agent (the "SUBORDINATION AGENT")
and the Owner Trustee and the transactions contemplated thereby.
Capitalized terms not otherwise defined herein shall have the meanings
specified in the Lease and Annex A of the Participation Agreement. This
opinion is being delivered pursuant to Section 4( )( ) of the Participation
Agreement.
Our representation of State Street and the Indenture Trustee has been
as special counsel for the limited purposes stated above. As to all matters
of fact (including factual conclusions and characterizations and
descriptions of purpose, intention or other state of mind), we have relied,
with your permission, entirely upon (i) the representations and warranties
of the parties set forth in the Operative Documents and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations, warranties and
certificates.
We have examined the Participation Agreement and the Indenture (the
"OPERATIVE DOCUMENTS"), the Certificate of the Comptroller of the Currency
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other records, documents,
certificates, or other instruments as we have deemed necessary or advisable
for the purposes of this opinion. For purposes of our opinion rendered in
paragraph 1 below, with respect to the authority of State Street to operate
as a state-chartered trust company and exercise trust powers, our opinion
relies upon and is limited by such Certificate of the Comptroller of the
Currency.
We have assumed the genuineness of all signatures (other than those
on behalf of State Street and the Indenture Trustee), the conformity to the
originals of all documents reviewed by us as copies, and the authenticity
and completeness of all original documents reviewed by us in original or
copy form and the legal competence of each individual executing any
document (other than on behalf of State Street and the Indenture Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we
are aware or which are known to us, or with another similar qualification,
the relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion,
the individual lawyers in the firm who have participated directly in the
specific transactions to which this opinion relates and the partner of the
firm responsible for State Street corporate trust matters, and without any
special or additional investigation undertaken for the purposes of this
opinion.
Subject to the limitation set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth below are limited solely to the internal
substantive laws of the State of Connecticut as applied by courts located
in Connecticut and the federal laws of the United States. No opinion is
given herein as to the choice of law or internal substantive rules of law
that any court or other tribunal may apply to the transactions contemplated
by the Operative Documents. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by any law, statute, rule or
regulation of the United States relating to the acquisition, ownership,
registration, use, operation, maintenance, repair, replacement or sale of
or the nature of the Aircraft.
To the extent to which this opinion deals with matters governed by or
relating to the laws of the State of New York, or other jurisdiction other
than the State of Connecticut, by which the Operative Documents are stated
to be governed, we have assumed, with your permission that the Operative
Documents are governed by the internal substantive laws of the State of
Connecticut.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
(a) We have assumed without any independent investigation that
(i) each party to the Operative Documents, other than State Street, in its
individual capacity or as Indenture Trustee, as applicable, at all times
relevant thereto, is validly existing and in good standing under the laws
of the jurisdiction in which it is organized, and is qualified to do
business and in good standing under the laws of each jurisdiction where
such qualification is required generally or necessary in order for such
party to enforce its rights under such Operative Documents, and (ii) each
party to the Operative Documents, at all times relevant thereto, had and
has the full power, authority and legal right under its certificate of
incorporation, partnership agreement, by-laws, and other governing
organizational documents, and the applicable corporate, partnership, or
other enterprise legislation and other applicable laws, as the case may be
(other than State Street and the Indenture Trustee with respect to the laws
of the United States of America and the internal substantive laws of the
State of the Connecticut, but only in each case to the limited extent the
same may be applicable to State Street or the Indenture Trustee, and
relevant to our opinions expressed below) to execute, and to perform its
obligations under, the Operative Documents, and (iii) each party to the
Operative Documents (other than State Street or the Indenture Trustee, as
applicable) has duly executed and delivered each of such agreements and
instruments to which it is a party and that (other than with respect to
State Street and the Indenture Trustee, as applicable) the execution and
delivery of such agreements and instruments and the transactions
contemplated thereby have been duly authorized by proper corporate or other
organizational proceedings as to such party.
(b) We have assumed without any independent investigation (i)
that each of the Operative Documents is a valid, binding and enforceable
obligation of each party thereto other than State Street or the Indenture
Trustee, as applicable, and (ii) that each of the Operative Documents is a
valid, binding and enforceable obligation of State Street or the Indenture
Trustee, as applicable, to the extent that laws other than those of the
State of Connecticut are relevant thereto (other than the laws of the
United States of America, but only to the limited extent the same may be
applicable to State Street or the Indenture Trustee, as applicable, and
relevant to our opinions expressed below).
(c) The enforcement of any obligations of State Street or the
Indenture Trustee, as applicable, under any of the Operative Documents may
be limited by the receivership, conservatorship and supervisory powers of
bank regulatory agencies generally, as well as by bankruptcy, insolvency,
reorganization, moratorium, marshaling or other laws and rules of law
affecting the enforcement generally of creditors' rights and remedies
(including such as may deny giving effect to waivers of debtors' or
guarantors' rights); and we express no opinion as to the status under any
fraudulent conveyance laws or fraudulent transfer laws of any of the
obligations of State Street or the Indenture Trustee, as applicable, under
any of the Operative Documents.
(d) We express no opinion as the availability of any specific
or equitable relief of any kind.
(e) The enforcement of any of your rights may in all cases be
subject to an implied duty of good faith and fair dealing and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity) and, as to any of your
rights to collateral security, will be subject to a duty to act in a
commercially reasonable manner.
(f) We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating to (i)
waivers of rights to object to jurisdiction or venue, or consents to
jurisdiction or venue, (ii) waivers of rights to (or methods of) service of
process, or rights to trial by jury, or other rights or benefits bestowed
by operation of law, (iii) waivers of any applicable defenses, setoffs,
recoupments, or counterclaims, (iv) the grant of powers of attorney to any
person or entity, (v) exculpation or exoneration clauses, indemnity
clauses, and clauses relating to releases or waivers of unmatured claims or
rights, (vi) the imposition or collection of interest on overdue interest
or providing for a penalty rate of interest or late charges on overdue or
defaulted obligations, or the payment of any premium, liquidated damages,
or other amount which may be held by any court to be a "penalty" or a
"forfeiture," or (vii) so-called "usury savings clauses" purporting to
specify methods of (or otherwise assure) compliance with usury laws or
other similar laws of any jurisdiction.
(g) We express no opinion as to the effect of events occurring,
circumstances arising, or changes of law becoming effective or occurring,
after the date hereof on the matters addressed in this opinion letter, and
we assume no responsibility to inform you of additional or changed facts,
or changes in law, of which we may become aware.
(h) No opinion is given herein as to the effect of usury laws
(or other similar laws) of any jurisdiction with respect to the Operative
Documents.
This opinion is rendered solely for the benefit of those institutions
listed on Schedule A hereto and their successors and assigns in connection
with the transactions contemplated by the Operative Documents and may not
be used or relied upon by any other person or for any other
purpose.
1. State Street is a national banking association, validly formed and
authorized to operate as a national banking association under the laws of
the United States of America and, in its individual capacity or as
Indenture Trustee, as the case may be, has the requisite corporate and
trust power and authority to execute, deliver and perform its obligations
under the Operative Documents and in its capacity as Indenture Trustee, to
authenticate the Equipment Notes issued on the date hereof.
2. State Street, in its individual capacity or as Indenture Trustee,
as the case may be, has duly authorized the Operative Documents by all
necessary corporate or trust action and has duly executed and delivered the
Operative Documents, and the Operative Documents constitute valid and
binding obligations of State Street, in its individual capacity or as
Indenture Trustee, as the case may be, enforceable against State Street, in
its individual capacity or as Indenture Trustee, as the case may be, in
accordance with their respective terms.
3. The Equipment Notes issued as of the date hereof have been duly
authenticated and delivered by State Street as Indenture Trustee pursuant
to the terms of the Indenture.
4. The authorization, execution, delivery and performance by State
Street, in its individual capacity or as Indenture Trustee, as the case may
be, of the Operative Documents and the consummation of the transactions
therein contemplated and compliance with the terms thereof do not and will
not result in the violation of the provisions of the charter documents or
by-laws of State Street and, to the best of our knowledge, do not conflict
with, or result in a breach of any terms or provisions of, or constitute a
default under, or result in the creation or the imposition of any lien,
charge or encumbrance upon any property or assets of State Street under any
indenture, mortgage or other agreement or instrument, in each case known to
us, to which State Street is a party or by which it is bound, or violates
any applicable Connecticut or federal law, rule or regulation governing
State Street's banking or trust powers, or, to the best of our knowledge,
of any judgment, order or decree, in each case known to us, applicable to
State Street of any court, regulatory body, administrative agency,
government or governmental body having jurisdiction over State Street.
5. No authorization, approval, consent, license or order of, giving
of notice to, registration with, or taking of any other action in respect
of, any federal or state governmental authority or agency pursuant to any
federal or Connecticut law governing the banking or trust powers of State
Street is required for the authorization, execution, delivery and
performance by State Street, in its individual capacity or as Indenture
Trustee, as the case may be, of the Operative Documents or the consummation
of any of the transactions by State Street, in its individual capacity or
as Indenture Trustee, as the case may be, contemplated thereby (except as
shall have been duly obtained, given or taken); and such authorization,
execution, delivery, performance, consummation and issuance do not conflict
with or result in a breach of the provisions of any such law.
6. There are no taxes, fees or other governmental charges payable
under the laws of the State of Connecticut or any political subdivision of
such State in connection with the execution and delivery by State Street,
in its individual capacity or as Indenture Trustee, as the case may be, of
the Operative Documents (except for taxes on any fees payable to State
Street in its individual capacity) which are imposed solely because State
Street has its principal place of business in Connecticut or performs its
administrative duties under the Operative Documents in Connecticut.
7. To our knowledge, but without having investigated any governmental
records or court dockets, and without having made any other independent
investigation, there are no proceedings pending or overtly threatened in
writing against or affecting State Street in any court or before any
governmental authority, agency, arbitration board or tribunal which, if
adversely determined, individually or in the aggregate, could reasonably be
expected to affect materially and adversely the trust related to the
Indenture or affect the right, power and authority of State Street, in its
individual capacity or as Indenture Trustee, as the case may be, to enter
into or perform its obligations under the Operative Documents.
Very truly yours,
XXXXXXX XXXX LLP
SCHEDULE A
----------
State Street Bank and Trust Company of
Connecticut, National Association
US Airways, Inc.
US Airways Group, Inc.
Standard & Poor's Ratings Service
Xxxxx'x Investors Service, Inc.
Credit Suisse First Boston Corporation
FORM OF OPINION OF XXXXXXX XXXX, SPECIAL COUNSEL TO THE
PASS THROUGH TRUSTEE
-------------------- --, ----
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
RE: US Airways, Inc./Secured Financing of One Airbus [A320]
[A300-300] Aircraft [N _________ US] - Pass Through Trust,
Owned Aircraft
Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and Trust
Company of Connecticut, National Association, in its individual capacity
("STATE STREET") and as Pass Through Trustee (the "PASS THROUGH TRUSTEE")
under the Pass Through Trust Agreement dated as of June __, 1999, among US
Airways Group, Inc., US Airways, Inc. and State Street, as supplemented by
Trust Supplement No. [ ], Trust Supplement No. and [ ] and Trust Supplement
No. [ ] each dated as of [ ] and each among US Airways Group, Inc., US
Airways, Inc. and State Street (collectively, the "PASS THROUGH TRUSTS"
and, individually, a "PASS THROUGH TRUST") in connection with the execution
and delivery of the Participation Agreement [N ] dated as of [ ] (the
"PARTICIPATION AGREEMENT") by and among State Street, as Indenture Trustee,
US Airways, Inc., State Street, as Pass Through Trustee and State Street,
as Subordination Agent (the "SUBORDINATION AGENT") and the transactions
contemplated thereby. Capitalized terms not otherwise defined herein shall
have the meanings specified in the Lease and Annex A of the Participation
Agreement. This opinion is being delivered pursuant to Section 4( )( ) of
the Participation Agreement.
Our representation of State Street and the Pass Through Trustee has
been as special counsel for the limited purposes stated above. As to all
matters of fact (including factual conclusions and characterizations and
descriptions of purpose, intention or other state of mind), we have relied,
with your permission, entirely upon (i) the representations and warranties
of the parties set forth in the Operative Documents and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations, warranties and
certificates.
We have examined the Participation Agreement, the Liquidity Facility
for each of the Class A, Class B and Class C Trusts, the Intercreditor
Agreement, the Note Purchase Agreement, the Escrow and Paying Agent
Agreement for each of the Class A, Class B and Class C Trusts each dated as
of ______________ __, ____ and each among First Security Bank, National
Association, as Escrow Agent, the underwriters named therein, State Street,
as Pass Through Trustee and State Street, as Paying Agent, and each of the
Pass Through Trusts (the "OPERATIVE DOCUMENTS"), the Certificate of the
Comptroller of the Currency relating to State Street and originals, or
copies certified or otherwise identified to our satisfaction, of such other
records, documents, certificates, or other instruments as we have deemed
necessary or advisable for the purposes of this opinion. For purposes of
our opinion rendered in paragraph 1 below, with respect to the authority of
State Street to operate as a national banking association and exercise
trust powers, our opinion relies upon and is limited by such Certificate of
the Comptroller of the Currency.
We have assumed the genuineness of all signatures (other than those
on behalf of State Street and the Pass Through Trustee), the conformity to
the originals of all documents reviewed by us as copies, and the
authenticity and completeness of all original documents reviewed by us in
original or copy form and the legal competence of each individual executing
any document (other than on behalf of State Street and the Pass Through
Trustee).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we
are aware or which are known to us, or with another similar qualification,
the relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion,
the individual lawyers in the firm who have participated directly in the
specific transactions to which this opinion relates and the partner of the
firm responsible for State Street corporate trust matters, and without any
special or additional investigation undertaken for the purposes of this
opinion.
Subject to the limitation set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth below are limited solely to the internal
substantive laws of the State of Connecticut as applied by courts located
in Connecticut and the federal laws of the United States. No opinion is
given herein as to the choice of law or internal substantive rules of law
that any court or other tribunal may apply to the transactions contemplated
by the Operative Documents. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by any law, statute, rule or
regulation of the United States relating to the acquisition, ownership,
registration, use, operation, maintenance, repair, replacement or sale of
or the nature of the Aircraft.
To the extent to which this opinion deals with matters governed by or
relating to the laws of the State of New York, or other jurisdiction other
than the State of Connecticut, by which the Operative Documents are stated
to be governed, we have assumed, with your permission that the Operative
Documents are governed by the internal substantive laws of the State of
Connecticut.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
I. We have assumed without any independent investigation
that (i) each party to the Operative Documents, other than
State Street, in its individual capacity or as Pass Through
Trustee, as applicable, at all times relevant thereto, is
validly existing and in good standing under the laws of the
jurisdiction in which it is organized, and is qualified to do
business and in good standing under the laws of each
jurisdiction where such qualification is required generally or
necessary in order for such party to enforce its rights under
such Operative Documents, and (ii) each party to the Operative
Documents, at all times relevant thereto, had and has the full
power, authority and legal right under its certificate of
incorporation, partnership agreement, by-laws, and other
governing organizational documents, and the applicable
corporate, partnership, or other enterprise legislation and
other applicable laws, as the case may be (other than State
Street and the Pass Through Trustee with respect to the laws of
the United States of America and the internal substantive laws
of the State of Connecticut, but only in each case to the
limited extent the same may be applicable to State Street or
the Pass Through Trustee, and relevant to our opinions
expressed below) to execute, and to perform its obligations
under, the Operative Documents, and (iii) each party to the
Operative Documents (other than State Street or the Pass
Through Trustee, as applicable) has duly executed and delivered
each of such agreements and instruments to which it is a party
and that (other than with respect to State Street and the Pass
Through Trustee, as applicable) the execution and delivery of
such agreements and instruments and the transactions
contemplated thereby have been duly authorized by proper
corporate or other organizational proceedings as to such party.
II. We have assumed without any independent investigation (i)
that each of the Operative Documents is a valid, binding and
enforceable obligation of each party thereto other than State
Street or the Pass Through Trustee, as applicable, and (ii)
that each of the Operative Documents is a valid, binding and
enforceable obligation of State Street or the Pass Through
Trustee, as applicable, to the extent that laws other than
those of the State of Connecticut are relevant thereto (other
than the laws of the United States of America, but only to the
limited extent the same may be applicable to State Street or
the Pass Through Trustee, as applicable, and relevant to our
opinions expressed below).
III. The enforcement of any obligations of State Street
or the Pass Through Trustee, as applicable, under any of the
Operative Documents may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory
agencies generally, as well as by bankruptcy, insolvency,
reorganization, moratorium, marshaling or other laws and rules
of law affecting the enforcement generally of creditors' rights
and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights); and we express no
opinion as to the status under any fraudulent conveyance laws
or fraudulent transfer laws of any of the obligations of State
Street or the Pass Through Trustee, as applicable, under any of
the Operative Documents.
IV. We express no opinion as the availability of any
specific or equitable relief of any kind.
V. The enforcement of any of your rights may in all cases be
subject to an implied duty of good faith and fair dealing and
to general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity) and, as to any of your rights to collateral security,
will be subject to a duty to act in a commercially reasonable
manner.
VI. We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating
to (i) waivers of rights to object to jurisdiction or venue, or
consents to jurisdiction or venue, (ii) waivers of rights to
(or methods of) service of process, or rights to trial by jury,
or other rights or benefits bestowed by operation of law, (iii)
waivers of any applicable defenses, setoffs, recoupments, or
counterclaims, (iv) the grant of powers of attorney to any
person or entity, (v) exculpation or exoneration clauses,
indemnity clauses, and clauses relating to releases or waivers
of unmatured claims or rights, (vi) the imposition or
collection of interest on overdue interest or providing for a
penalty rate of interest or late charges on overdue or
defaulted obligations, or the payment of any premium,
liquidated damages, or other amount which may be held by any
court to be a "penalty" or a "forfeiture," or (vii) so-called
"usury savings clauses" purporting to specify methods of (or
otherwise assure) compliance with usury laws or other similar
laws of any jurisdiction.
VII. We express no opinion as to the effect of events
occurring, circumstances arising, or changes of law becoming
effective or occurring, after the date hereof on the matters
addressed in this opinion letter, and we assume no
responsibility to inform you of additional or changed facts, or
changes in law, of which we may become aware.
VIII. No opinion is given herein as to the effect of
usury laws (or other similar laws) of any jurisdiction with
respect to the Operative Documents.
In rendering the opinion set forth below in paragraph 6 as to certain
Connecticut tax matters, we have assumed that, for federal income tax
purposes, the trust created by the Trust Agreement will not be taxable as a
corporation, but, rather, will be classified as a grantor trust under
subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of the
Internal Revenue Code of 1986, as amended or as a partnership.
This opinion is rendered solely for the benefit of those institutions
listed on Schedule A hereto and their successors and assigns in connection
with the transactions contemplated by the Operative Documents and may not
be used or relied upon by any other person or for any other purpose.
1. State Street is a national banking association, validly formed and
authorized to operate as a national banking association under the laws of
the United States of America and, in its individual capacity or as Pass
Through Trustee, as the case may be, has or had, as the case may be, the
requisite corporate and trust power and authority to execute, deliver and
perform its obligations under the Operative Documents and in its capacity
as Pass Through Trustee, to issue and execute the Pass Through Certificates
delivered on the Pass Through Trust Closing Date.
2. State Street, in its individual capacity or as Pass Through
Trustee, as the case may be, has duly authorized by all necessary corporate
or trust action the Operative Documents and has duly executed and delivered
the Operative Documents, and the Operative Documents constitute valid and
binding obligations of State Street, in its individual capacity or as Pass
Through Trustee, as the case may be, enforceable against State Street, in
its individual capacity or as Pass Through Trustee, as the case may be, in
accordance with their respective terms.
3. The Pass Through Certificates issued and dated on the Pass Through
Trust Closing Date have been duly issued, authenticated and delivered by
State Street as Pass Through Trustee pursuant to the terms of the Operative
Documents and are enforceable against the Pass Through Trustee and are
entitled to the benefits of the applicable Pass Through Trusts.
4. The authorization, execution, delivery and performance by State
Street, in its individual capacity or as Pass Through Trustee, as the case
may be, of the Operative Documents and the consummation of the transactions
therein contemplated and compliance with the terms thereof do not and will
not result in the violation of the provisions of the charter documents or
by-laws of State Street and, to the best of our knowledge, do not conflict
with, or result in a breach of any terms or provisions of, or constitute a
default under, or result in the creation or the imposition of any lien,
charge or encumbrance upon any property or assets of State Street under any
indenture, mortgage or other agreement or instrument, in each case known to
us, to which State Street is a party or by which it is bound, or violates
any applicable Connecticut or federal law, rule or regulation governing
State Street's banking or trust powers, or, to the best of our knowledge,
of any judgment, order or decree, in each case known to us, applicable to
State Street of any court, regulatory body, administrative agency,
government or governmental body having jurisdiction over State Street.
5. No authorization, approval, consent, license or order of, giving
of notice to, registration with, or taking of any other action in respect
of, any federal or state governmental authority or agency pursuant to any
federal or Connecticut law governing the banking or trust powers of State
Street is required for the authorization, execution, delivery and
performance by State Street, in its individual capacity or as Pass Through
Trustee, as the case may be, of the Operative Documents or the consummation
of any of the transactions by State Street, in its individual capacity or
as Pass Through Trustee, as the case may be, contemplated thereby (except
as shall have been duly obtained, given or taken); and such authorization,
execution, delivery, performance, consummation and issuance do not conflict
with or result in a breach of the provisions of any such law.
6. There are no taxes, fees or other governmental charges payable
under the laws of the State of Connecticut or any political subdivision of
such State in connection with the execution and delivery by State Street,
in its individual capacity or as Pass Through Trustee, as the case may be,
of the Operative Documents (except for taxes on any fees payable to State
Street in its individual capacity) or in connection with the issuance,
execution and delivery of the Pass Through Certificates by State Street, as
Pass Through Trustee, pursuant to the Pass Through Trusts which are imposed
solely because State Street has its principal place of business in
Connecticut or performs its administrative duties under the Operative
Documents in Connecticut. Neither State Street, in its individual capacity
or as the Pass Through Trustee, as the case may be, the Indenture Trustee,
the Owner Participant, the Owner Trustee, nor the trust created by the
Trust Agreement will, as a result of the transactions contemplated thereby,
be subject to any Taxes under the laws of the State of Connecticut or any
political subdivision thereof (except for Taxes on any fees payable to
State Street in its individual capacity) which are imposed because State
Street has its principal place of business in Connecticut or performs its
administrative duties under the Operative Documents in Connecticut, and
there are no Taxes under the laws of the State of Connecticut or any
political subdivision thereof (except for Taxes on any fees payable to
State Street in its individual capacity) upon or with respect to the
Aircraft or any Engine or any part of any interest therein, or the
purchase, ownership, delivery, lease, sublease, possession, presence, use,
operation, condition, storage, maintenance, modification, alteration,
repair, sale, return, transfer or other disposition of the Aircraft or any
Engine which are imposed because State Street has its principal place of
business in Connecticut or performs its administrative duties under the
Operative Documents in Connecticut.
7. To our knowledge, but without having investigated any governmental
records or court dockets, and without having made any other independent
investigation, there are no proceedings pending or overtly threatened in
writing against or affecting State Street in any court or before any
governmental authority, agency, arbitration board or tribunal which, if
adversely determined, individually or in the aggregate, could reasonably be
expected to affect materially and adversely the trust related to the
Indenture or affect the right, power and authority of State Street, in its
individual capacity or as Pass Through Trustee, as the case may be, to
enter into or perform its obligations under the Operative Documents.
Very truly yours,
XXXXXXX XXXX LLP
SCHEDULE A
----------
State Street Bank and Trust Company of
Connecticut, National Association
US Airways, Inc.
US Airways Group, Inc.
Standard & Poor's Ratings Service
Xxxxx'x Investors Service, Inc.
Credit Suisse First Boston Corporation
-------------------------
-------------------------
FORM OF OPINION OF XXXXXXX XXXX, SPECIAL COUNSEL TO THE
SUBORDINATION AGENT
-------, --------
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
RE: US Airways, Inc./Secured Financing of One Airbus [A320]
[A330-300] Aircraft [N _____ US] - Subordination Agent,
Owned Aircraft
Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and Trust
Company of Connecticut, National Association, in its individual capacity
("STATE STREET") and as Subordination Agent (the "SUBORDINATION AGENT")
under the Intercreditor Agreement dated as of [________________] (the
"INTERCREDITOR AGREEMENT") among State Street Bank , in its capacity as
Pass Through Trustee under the XX Xxxxxxx Xxxx Xxxxxxx Xxxxx 0000-0X, XX
Xxxxxxx Xxxx Through Trust 1999-1B and US Airways Pass Through Trust
1999-1C, [_______________], as Class A Liquidity Provider, Class B
Liquidity Provider and Class C Liquidity Provider and State Street, as
Subordination Agent in connection with the execution and delivery of the
Participation Agreement [N ____ US] dated as of [________________] (the
"PARTICIPATION AGREEMENT") by and among State Street, as Indenture Trustee,
US Airways, Inc., State Street, as Pass Through Trustee (the "PASS THROUGH
Trustee"), and State Street as Subordination Agent and the transactions
contemplated thereby. Capitalized terms not otherwise defined herein shall
have the meanings specified in Annex A of the Participation Agreement. This
opinion is being delivered pursuant to Section 4( )(____) of the
Participation Agreement.
Our representation of State Street and the Subordination Agent has
been as special counsel for the limited purposes stated above. As to all
matters of fact (including factual conclusions and characterizations and
descriptions of purpose, intention or other state of mind), we have relied,
with your permission, entirely upon (i) the representations and warranties
of the parties set forth in the Operative Documents and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations, warranties and
certificates.
We have examined the Participation Agreement, the Note Purchase
Agreement and the Intercreditor Agreement (the "OPERATIVE DOCUMENTS"), the
Certificate of the Comptroller of the Currency relating to State Street and
originals, or copies certified or otherwise identified to our satisfaction,
of such other records, documents, certificates, or other instruments as we
have deemed necessary or advisable for the purposes of this opinion. For
purposes of our opinion rendered in paragraph 1 below, with respect to the
authority of State Street to operate as a national banking association and
exercise trust powers, our opinion relies upon and is limited by such
Certificate of the Comptroller of the Currency.
We have assumed the genuineness of all signatures (other than those
on behalf of State Street and the Subordination Agent), the conformity to
the originals of all documents reviewed by us as copies, and the
authenticity and completeness of all original documents reviewed by us in
original or copy form and the legal competence of each individual executing
any document (other than on behalf of State Street and the Subordination
Agent).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we
are aware or which are known to us, or with another similar qualification,
the relevant knowledge or awareness is limited to the actual knowledge or
awareness of the individual lawyer in the firm that signed this opinion,
the individual lawyers in the firm who have participated directly in the
specific transactions to which this opinion relates and the partner of the
firm responsible for State Street corporate trust matters, and without any
special or additional investigation undertaken for the purposes of this
opinion.
Subject to the limitation set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth below are limited solely to the internal
substantive laws of the State of Connecticut as applied by courts located
in Connecticut and the federal laws of the United States. No opinion is
given herein as to the choice of law or internal substantive rules of law
that any court or other tribunal may apply to the transactions contemplated
by the Operative Documents. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by any law, statute, rule or
regulation of the United States relating to the acquisition, ownership,
registration, use, operation, maintenance, repair, replacement or sale of
or the nature of the Aircraft.
To the extent to which this opinion deals with matters governed by or
relating to the laws of the State of New York, or other jurisdiction other
than the State of Connecticut, by which the Operative Documents are stated
to be governed, we have assumed, with your permission that the Operative
Documents are governed by the internal substantive laws of the State of
Connecticut.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
I. We have assumed without any independent investigation
that (i) each party to the Operative Documents, other than
State Street, in its individual capacity or as Subordination
Agent, as applicable, at all times relevant thereto, is validly
existing and in good standing under the laws of the
jurisdiction in which it is organized, and is qualified to do
business and in good standing under the laws of each
jurisdiction where such qualification is required generally or
necessary in order for such party to enforce its rights under
such Operative Documents, and (ii) each party to the Operative
Documents, at all times relevant thereto, had and has the full
power, authority and legal right under its certificate of
incorporation, partnership agreement, by-laws, and other
governing organizational documents, and the applicable
corporate, partnership, or other enterprise legislation and
other applicable laws, as the case may be (other than State
Street and the Subordination Agent with respect to the laws of
the United States of America and the internal substantive laws
of the State of Connecticut, but only in each case to the
limited extent the same may be applicable to State Street or
the Subordination Agent, and relevant to our opinions expressed
below) to execute, and to perform its obligations under, the
Operative Documents, and (iii) each party to the Operative
Documents (other than State Street or the Subordination Agent,
as applicable) has duly executed and delivered each of such
agreements and instruments to which it is a party and that
(other than with respect to State Street and the Subordination
Agent, as applicable) the execution and delivery of such
agreements and instruments and the transactions contemplated
thereby have been duly authorized by proper corporate or other
organizational proceedings as to such party.
II. We have assumed without any independent investigation (i)
that each of the Operative Documents is a valid, binding and
enforceable obligation of each party thereto other than State
Street or the Subordination Agent, as applicable, and (ii) that
each of the Operative Documents is a valid, binding and
enforceable obligation of State Street or the Subordination
Agent, as applicable, to the extent that laws other than those
of the State of Connecticut are relevant thereto (other than
the laws of the United States of America, but only to the
limited extent the same may be applicable to State Street or
the Subordination Agent, as applicable, and relevant to our
opinions expressed below).
III. The enforcement of any obligations of State Street
or the Subordination Agent, as applicable, under any of the
Operative Documents may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory
agencies generally, as well as by bankruptcy, insolvency,
reorganization, moratorium, marshaling or other laws and rules
of law affecting the enforcement generally of creditors' rights
and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights); and we express no
opinion as to the status under any fraudulent conveyance laws
or fraudulent transfer laws of any of the obligations of State
Street or the Subordination Agent, as applicable, under any of
the Operative Documents.
IV. We express no opinion as the availability of any
specific or equitable relief of any kind.
V. The enforcement of any of your rights may in all cases be
subject to an implied duty of good faith and fair dealing and
to general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity) and, as to any of your rights to collateral security,
will be subject to a duty to act in a commercially reasonable
manner.
VI. We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating
to (i) waivers of rights to object to jurisdiction or venue, or
consents to jurisdiction or venue, (ii) waivers of rights to
(or methods of) service of process, or rights to trial by jury,
or other rights or benefits bestowed by operation of law, (iii)
waivers of any applicable defenses, setoffs, recoupments, or
counterclaims, (iv) the grant of powers of attorney to any
person or entity, (v) exculpation or exoneration clauses,
indemnity clauses, and clauses relating to releases or waivers
of unmatured claims or rights, (vi) the imposition or
collection of interest on overdue interest or providing for a
penalty rate of interest or late charges on overdue or
defaulted obligations, or the payment of any premium,
liquidated damages, or other amount which may be held by any
court to be a "penalty" or a "forfeiture," or (vii) so-called
"usury savings clauses" purporting to specify methods of (or
otherwise assure) compliance with usury laws or other similar
laws of any jurisdiction.
VII. We express no opinion as to the effect of events
occurring, circumstances arising, or changes of law becoming
effective or occurring, after the date hereof on the matters
addressed in this opinion letter, and we assume no
responsibility to inform you of additional or changed facts, or
changes in law, of which we may become aware.
VIII. No opinion is given herein as to the effect of
usury laws (or other similar laws) of any jurisdiction with
respect to the Operative Documents.
This opinion is rendered solely for the benefit of those institutions
listed on Schedule A hereto and their successors and assigns in connection
with the transactions contemplated by the Operative Documents and may not
be used or relied upon by any other person or for any other purpose.
1. State Street is a national banking association, validly formed and
authorized to operate as a national banking association under the laws of
the United States of America and, in its individual capacity or as
Subordination Agent, as the case may be, has the requisite corporate and
trust power and authority to execute, deliver and perform its obligations
under the Operative Documents.
2. State Street, in its individual capacity or as Subordination
Agent, as the case may be, has duly authorized the Operative Documents by
all necessary corporate or trust action and has duly executed and delivered
the Operative Documents, and the Operative Documents constitute valid and
binding obligations of State Street, in its individual capacity or as
Subordination Agent, as the case may be, enforceable against State Street,
in its individual capacity or as Subordination Agent, as the case may be,
in accordance with their respective terms.
3. The authorization, execution, delivery and performance by State
Street, in its individual capacity or as Subordination Agent, as the case
may be, of the Operative Documents and the consummation of the transactions
therein contemplated and compliance with the terms thereof do not and will
not result in the violation of the provisions of the charter documents or
by-laws of State Street and, to the best of our knowledge, do not conflict
with, or result in a breach of any terms or provisions of, or constitute a
default under, or result in the creation or the imposition of any lien,
charge or encumbrance upon any property or assets of State Street under any
indenture, mortgage or other agreement or instrument, in each case known to
us, to which State Street is a party or by which it is bound, or violates
any applicable Connecticut or federal law, rule or regulation governing
State Street's banking or trust powers, or, to the best of our knowledge,
of any judgment, order or decree, in each case known to us, applicable to
State Street of any court, regulatory body, administrative agency,
government or governmental body having jurisdiction over State Street.
4. No authorization, approval, consent, license or order of, giving
of notice to, registration with, or taking of any other action in respect
of, any federal or state governmental authority or agency pursuant to any
federal or Connecticut law governing the banking or trust powers of State
Street is required for the authorization, execution, delivery and
performance by State Street, in its individual capacity or as Subordination
Agent, as the case may be, of the Operative Documents or the consummation
of any of the transactions by State Street, in its individual capacity or
as Subordination Agent, as the case may be, contemplated thereby (except as
shall have been duly obtained, given or taken); and such authorization,
execution, delivery, performance, consummation and issuance do not conflict
with or result in a breach of the provisions of any such law.
5. There are no taxes, fees or other governmental charges payable
under the laws of the State of Connecticut or any political subdivision of
such State in connection with the execution and delivery by State Street,
in its individual capacity or as Subordination Agent, as the case may be,
of the Operative Documents (except for taxes on any fees payable to State
Street in its individual capacity) which are imposed solely because State
Street has its principal place of business in Connecticut or performs its
administrative duties under the Operative Documents in Connecticut.
6. To our knowledge, but without having investigated any governmental
records or court dockets, and without having made any other independent
investigation, there are no proceedings pending or overtly threatened in
writing against or affecting State Street in any court or before any
governmental authority, agency, arbitration board or tribunal which, if
adversely determined, individually or in the aggregate, could reasonably be
expected to affect materially and adversely the trust related to the
Indenture or affect the right, power and authority of State Street, in its
individual capacity or as Subordination Agent, as the case may be, to enter
into or perform its obligations under the Operative Documents.
7. Assuming that the Subordination Agent holds each of the Equipment
Notes delivered to and registered in its name pursuant to and as required
by the Intercreditor Agreement, it holds such Equipment Notes in trust as
trustee for the related Pass Through Trustee in the exercise of the
fiduciary powers conferred upon State Street by Connecticut law.
Very truly yours,
XXXXXXX XXXX LLP
SCHEDULE A
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State Street Bank and Trust Company of Connecticut, National Association
US Airways, Inc.
US Airways Group, Inc.
Standard & Poor's Ratings Service
Xxxxx'x Investors Service, Inc.
Credit Suisse First Boston Corporation
