Exhibit C-3 to Note Purchase Agreement
FORM OF PURCHASE AGREEMENT ASSIGNMENT
(OWNED AIRCRAFT)
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE ASSUMPTION THAT BOTH SERIES
G AND SERIES C EQUIPMENT NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES
ARE NOT ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT SHALL BE
MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES AND TO MAKE OTHER
RELATED CHANGES.
PURCHASE AGREEMENT ASSIGNMENT
(N___U_)
PURCHASE AGREEMENT ASSIGNMENT (N___U_), dated as of ____________
__, ____ (this "Assignment"), between US AIRWAYS, INC., a Delaware
corporation ("Assignor"), and STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, a national banking association, not in
its individual capacity but solely as Indenture Trustee ("Assignee") under
the Indenture and Security Agreement (N___U_), dated as of _____________
__, ____, (as amended, modified or supplemented from time to time, the
"Indenture"), between Assignor and Assignee.
W I T N E S S E T H :
WHEREAS, US Airways Group, Inc. ("Parent") and AVSA (as
hereinafter defined) are parties to the Purchase Agreement (as hereinafter
defined), providing, among other things, for the delivery by AVSA to Parent
of certain aircraft, including the Aircraft (as hereinafter defined)
covered by the Participation Agreement (as hereinafter defined);
WHEREAS, pursuant to a Purchase Agreement Assignment, dated as of
__________ __, 2000, by and between Parent and Assignor (the "Parent
Assignment"), Parent assigned all of its right, title in and interest in
and to the Purchase Agreement to Assignor to the extent such right, title
and interest relate to certain aircraft, including the Aircraft covered by
the Participation Agreement;
WHEREAS, pursuant to a Consent and Agreement of AVSA and
Guarantor (as hereinafter defined), dated as of ________ __, 2000 (the
"Parent Consent and Agreement"), AVSA and Guarantor consented to the
assignment by Parent to Assignor of Parent's right, title in and interest
in and to the Purchase Agreement as provided for in the Parent Assignment;
WHEREAS, pursuant to the Parent Consent and Agreement, Guarantor
confirmed that its guarantee given in the Consent and Guaranty (as
hereinafter defined) remains in full force and effect and, to the extent
the same relates to the aircraft assigned to the Assignor pursuant to the
Parent Assignment, it inures to the benefit of the Assignor;
WHEREAS, pursuant to the Consent and Guaranty, Guarantor has
agreed, among other things, to unconditionally guarantee the due and
punctual performance by AVSA of all of its liabilities and obligations as
set forth in the Purchase Agreement;
WHEREAS, on the terms and conditions hereof and of the Consents
and Agreements (as hereinafter defined), Assignor desires to assign to
Assignee certain of the Assignor's remaining rights, title and interests
in, to and under the Purchase Agreement and the Consent and Guaranty as
security for the Secured Obligations (insofar as such obligations relate
to the Purchase Agreement and the Aircraft) and Assignee is willing to
accept such collateral assignment, as hereinafter set forth;
WHEREAS, such assignments and acceptances are intended to permit
consummation of the transactions contemplated by the Participation
Agreement;
WHEREAS, AVSA and Guarantor are willing to execute and deliver
their respective Consents and Agreements; and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Defined Terms. For all purposes of this Assignment, except as
otherwise expressly provided or unless the context otherwise requires,
the following terms shall have the following meanings:
"Aircraft" shall mean the Airbus A330 aircraft, bearing
manufacturer's serial number ___, delivered under the Purchase Agreement,
including the two ▇▇▇▇▇ & ▇▇▇▇▇▇▇ Model PW4168A engines installed on such
aircraft on the date of delivery thereof pursuant to the Purchase
Agreement.
"AVSA" shall mean AVSA, S.A.R.L., a French societe a
responsabilite limitee, and its successors and assigns.
"AVSA Consent and Agreement" shall mean the Consent and Agreement
of AVSA attached hereto, as amended, modified or supplemented from time to
time.
"Consent and Guaranty" shall mean the Consent and Guaranty of the
Guarantor attached to the Purchase Agreement, together with all amendments,
waivers, and consents heretofore entered into or heretofore granted
thereunder.
"Consents and Agreements" shall mean the AVSA Consent and
Agreement and the Guarantor Consent and Agreement.
"Equipment Notes" shall have the meaning ascribed thereto in the
Participation Agreement.
"Guarantor" shall mean Airbus Industrie G.I.E., a French
groupement d'interet economique, and its successors and assigns.
"Guarantor Consent and Agreement" shall mean the Consent and
Agreement of the Guarantor attached hereto, as amended, modified or
supplemented from time to time.
"Participation Agreement" shall mean the Participation Agreement
(N___U_), dated as of _____________ __, ____, between the Assignor and the
Assignee, as amended, modified or supplemented from time to time.
"Purchase Agreement" shall mean the Airbus A330/A340 Purchase
Agreement, dated as of November 24, 1998, between US Airways Group, Inc.
and AVSA, together with all exhibits, appendices and letter agreements
thereto and all amendments, waivers and consents granted thereunder.
All other terms used herein in capitalized form that are defined
in the Participation Agreement shall, when used herein, have the meanings
specified in the Participation Agreement.
2. Assignment. (a) Generally. To secure performance of the Secured
Obligations, Assignor has assigned, transferred and set over and does
hereby sell, assign, transfer and set over unto the Assignee a first
priority security interest and mortgage in, to and under (i) all of
the Assignor's right, title and interest in and to (x) Clauses 12, 13
and 17 of the Purchase Agreement (the "Assigned Rights") and (y) the
Consent and Guaranty (insofar as such Consent and Guaranty relates to
the Assigned Rights), as and to the extent that the same relates to
the Aircraft, except to the extent reserved below, including, without
limitation, in such assignment to Assignee (A) all claims for damages
in respect of such Aircraft arising as a result of any default by AVSA
under Clause 12, 13 or 17 of the Purchase Agreement, including,
without limitation, all warranty, service life policy and indemnity
provisions contained in Clause 12 of the Purchase Agreement in
respect of the Aircraft and all claims thereunder and under the
Consent and Guaranty in respect of the Aircraft and (B) any and all
rights of Assignor to compel performance of the terms of Clause 12, 13
and 17 of the Purchase Agreement and the Consent and Guaranty in
respect of the Aircraft; reserving to the Assignor, however, all
Assignor's rights and interests in and to Clauses 12, 13 and 17 of the
Purchase Agreement and the Consent and Guaranty as and to the extent
that Clause 12, 13 or 17 of the Purchase Agreement and the Consent and
Guaranty relate to aircraft other than the Aircraft and to the extent
that the Purchase Agreement and the Consent and Guaranty relate to any
other matters not directly pertaining to the Aircraft.
(b) Assignment of Rights. If and so long as there shall not
exist and be continuing an Event of Default and, if an Event of Default is
continuing, so long as Assignor remains in possession of the Aircraft,
Assignee hereby authorizes Assignor, to the exclusion of Assignee, to
exercise in Assignor's name all rights and powers related to the Assigned
Rights and to retain any recovery or benefit resulting from the enforcement
of any of the Assigned Rights in respect of the Aircraft, except that
Assignor may not enter into any change order or other amendment,
modification or supplement to the Purchase Agreement without the written
consent or countersignature of Assignee if such change order, amendment,
modification or supplement would result in any rescission, cancellation or
termination of the Assigned Rights in respect of the Aircraft or in any way
limit the rights assigned hereunder.
(c) Acceptance of Assignment. Subject to the terms hereof,
Assignee accepts the assignment contained in this Clause 2.
(d) Onward Transfer of Rights. Assignee agrees that it may not
sell, assign or otherwise transfer any of the Assigned Rights without the
prior written consent of AVSA.
(e) Requirement of Notice to AVSA. For all purposes of this
Assignment, AVSA shall not be deemed to have knowledge of and need not
recognize any Event of Default, unless and until AVSA shall have received
written notice thereof from Assignee addressed to its Chief Executive
Officer, ▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (telex
521155F) (fax: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇) and, in acting in accordance with the
terms of the Purchase Agreement and this Assignment, AVSA may act with
acquittance and conclusively rely upon any such notice.
3. Certain Rights and Obligations of the Parties. (a) Assignor Remains
Liable. It is expressly agreed that, anything herein contained to the
contrary notwithstanding: (a) Assignor shall at all times remain
liable to AVSA under the Purchase Agreement to perform all the duties
and obligations of the "Buyer" thereunder to the same extent as if
this Assignment had not been executed; (b) the exercise by Assignee of
any of the rights assigned hereunder shall not release Assignor from
any of its duties or obligations to AVSA under the Purchase Agreement
except to the extent that such exercise by Assignee shall constitute
performance of such duties and obligations; and (c) except as provided
in the next succeeding paragraph, neither Assignee nor any Loan
Participant shall have any obligation or liability under the Purchase
Agreement by reason of, or arising out of, this Assignment or be
obligated to perform any of the obligations or duties of Assignor
under the Purchase Agreement or to make any payment or to make any
inquiry as to the sufficiency of any payment received by any of them
or to present or file any claim or to take any other action to collect
or enforce any claim for any payment assigned hereunder.
(b) Assignee Bound by Purchase Agreement. Without in any way
releasing Assignor from any of its duties or obligations under the Purchase
Agreement, Assignee confirms for the benefit of AVSA that, insofar as the
provisions of the Purchase Agreement relate to the Aircraft, in exercising
any rights under the Purchase Agreement, or in making any claim with
respect to the Aircraft or other goods and services delivered or to be
delivered pursuant to the Purchase Agreement, the terms and conditions of
the Purchase Agreement disclosed to Assignee in writing shall apply to, and
be binding upon, Assignee to the extent of its respective interests
assigned hereunder to the same extent as Assignor.
(c) Limit of Effect of this Assignment. Nothing contained
herein shall (i) subject AVSA or the Guarantor to any liability to which it
would not otherwise be subject under the Purchase Agreement or (ii) modify
in any respect the contractual rights of AVSA or the Guarantor thereunder
(except, in each case, as provided in the attached Consents and
Agreements).
(d) Appointment as Attorney-in-Fact. Assignor does hereby
constitute, effective at any time after an Event of Default shall have
occurred and be continuing, Assignee and its successors and permitted
assigns to be Assignor's true and lawful attorney, irrevocably, with full
power (in the name of Assignor or otherwise) to ask, require, demand,
receive, compound and give acquittance for any and all monies and claims
for monies due and to become due under, or arising out of, the Purchase
Agreement and the Consent and Guaranty in respect of the Aircraft, to the
extent that the same have been assigned as provided in this Assignment and,
for such period as Assignee, its successors and assigns may exercise rights
with respect thereto under this Assignment, to endorse any checks or other
instruments or orders in connection therewith and to file any claims or
take any action or institute (or, if previously commenced, assume control
of) any proceedings and to obtain any recovery in connection therewith
which Assignee, its successors and assigns, may deem to be necessary or
advisable in the premises.
4. Further Assurances. Assignor and Assignee each agree that, at any
time and from time to time, upon the written request of any other
party hereto, it will promptly and duly execute and deliver any and
all such further instruments and documents and take such further
action as the other may reasonably request in order to obtain the full
benefits of this Assignment and of the rights and powers herein
granted.
5. No Amendment of Purchase Agreement. So long as any of the Secured
Obligations remain outstanding, Assignee agrees that it shall not
enter into any agreement that would amend, modify, supplement,
rescind, cancel or terminate the Purchase Agreement or the Consent and
Guaranty in any respect or in any way limit the rights of Assignor or
any of the other rights assigned hereunder (except as set forth above
when there has been an Event of Default), without the prior written
consent of Assignor.
6. Execution of Assignment. This Assignment is executed by Assignor and
Assignee concurrently with the execution and delivery of the
Participation Agreement.
7. Confidentiality. Assignee agrees that it will not disclose to any
third party the terms of the Purchase Agreement or this Assignment,
except (a) as required by applicable law or governmental regulation,
(b) as contemplated in the Participation Agreement (including as set
forth in Section 7(o) of the Participation Agreement) or (c) with the
consent of Assignor, Guarantor and AVSA.
8. Counterparts. This Assignment 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.
9. GOVERNING LAW. THIS ASSIGNMENT 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.
10. Successors and Assigns. This Assignment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
11. Notices. All notices with respect to the matters contained herein
shall be delivered (notices with respect to AVSA shall be sent to the
address for AVSA set forth in Clause 2(e) hereof) in the manner
provided in Section 12(a) of the Participation Agreement.
12. No Oral Amendments. Neither this Assignment nor any of the terms
hereof may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party
against whom the enforcement of such termination, amendment,
supplement, waiver or modification is sought.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment to be duly executed as of the day and year first above written.
US AIRWAYS, INC.
By: ____________________________
Name:
Title:
` STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Indenture
Trustee
By: ____________________________
Name:
Title:
AIRBUS INDUSTRIE CONSENT AND AGREEMENT
The undersigned, 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 ("Guarantor"), hereby acknowledges notice of and
consents to all of the terms of the Purchase Agreement Assignment between
US Airways, Inc., a Delaware corporation ("Assignor"), and State Street
Bank and Trust Company of Connecticut, National Association, a national
banking association, not in its individual capacity but solely as Indenture
Trustee ( "Assignee") under the Indenture and Security Agreement (N___U_),
dated as of ______________ (hereinafter called the "Assignment", the
defined terms therein being hereinafter used with the same meaning), and to
the assignment of the Assigned Rights to Assignee under the Indenture,
dated as of ______________, between Assignor and Assignee (hereinafter
called the "Indenture"), and hereby confirms to Assignor and Assignee and
their respective successors and assigns that:
(i) except as provided in the Assignment, all representations,
warranties, and agreements of Guarantor under the Consent and
Guaranty insofar as they relate to the Assigned Rights with
respect to the Aircraft shall inure to the benefit of Assignee
and its respective successors and permitted assigns, to the same
extent as if Assignee and its successors and permitted assigns
had originally been named the "Buyer" of the Aircraft therein;
(ii) Guarantor will pay to the person or entity entitled to
receive the corresponding payment from AVSA under the terms of
the Assignment all amounts required to be paid by Guarantor with
respect to the Aircraft;
(iii) Guarantor consents to the assignment of Assignor's rights
and interests under the Purchase Agreement and the Consent and
Guaranty to Assignee pursuant to the Assignment; and
(iv) from and after the purchase of the Aircraft pursuant to the
Participation Agreement and payment in full for the Aircraft,
Guarantor will not assert any lien or claim against the Aircraft
or any part thereof or against Assignor or Assignee arising on or
prior to such purchase or in respect of any work or services
performed on or prior thereto.
Guarantor hereby represents and warrants that:
(A) Guarantor is a groupement d'interet economique duly
organized and existing in good standing under the laws of the Republic of
France and has the requisite power and authority to enter into and perform
its obligations under the Consent and Guaranty and this Consent and
Agreement;
(B) the making and performance, in accordance with their terms,
of the Consent and Guaranty and this Consent and Agreement have been duly
authorized by all necessary corporate action on the part of Guarantor, do
not require the consent or approval of the members of Guarantor, do not
require the consent or approval of, or the giving of notice to, or
registration with, or the taking of any other action in respect of, any
French governmental authority or agency except for those that have already
been obtained and do not contravene any law binding on Guarantor or
contravene Guarantor's charter documents or any indenture, credit agreement
or other contractual agreement to which Guarantor is a party or by which it
is bound;
(C) the Consent and Guaranty constituted, as of the date thereof
and at all times thereafter to and including the date of this Consent and
Agreement, and each of this Consent and Agreement and the Consent and
Guaranty constitutes, binding obligations of Guarantor enforceable against
Guarantor in accordance with their respective terms, subject to: (i) the
limitations of applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally; and
(ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), which
principles do not make the remedies available at law or in equity with
respect to the Purchase Agreement and this Consent and Agreement inadequate
for the practical realization of the benefits intended to be provided
thereby; and
(D) the Consent and Guaranty is in full force and effect.
This Consent and Agreement is made subject to and with the
benefit of Clause 3 of the Assignment and Section 4.03 of the Indenture.
* * * * * *
THIS CONSENT AND AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
Dated as of ________________
AIRBUS INDUSTRIE G.I.E.
By: __________________________
Name:
Title:
AVSA CONSENT AND AGREEMENT
The undersigned, AVSA, S.A.R.L., a societe a responsabilite
limitee organized and existing under the laws of the Republic of France
("AVSA"), hereby acknowledges notice of and consents to all of the terms of
the Purchase Agreement Assignment between US Airways, Inc., a Delaware
corporation ("Assignor"), and State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, not in
its individual capacity but solely as Indenture Trustee (the "Assignee")
under the Indenture and Security Agreement (N___U_), dated as of
______________ (hereinafter called the "Assignment", the defined terms
therein being hereinafter used with the same meaning), and to the
assignment of the Assigned Rights to the Assignee under the Indenture,
dated as of ______________, between the Assignor and the Assignee
(hereinafter called the "Indenture"), and hereby confirms to Assignor and
Assignee and their respective successors and assigns that:
(i) except as provided in the Assignment, all representations,
warranties, indemnities and agreements of AVSA under the Purchase
Agreement insofar as they relate to the Assigned Rights with
respect to the Aircraft shall inure to the benefit of Assignee
and its respective successors and permitted assigns to the same
extent as if Assignee and its successors and permitted assigns
had originally been named the "Buyer" of the Aircraft therein;
(ii) AVSA will pay to Assignor all payments required to be paid
by it under the Purchase Agreement, unless and until AVSA shall
have received written notice from Assignee addressed to it at the
address and in the manner set forth in the Assignment that an
Event of Default has occurred and is continuing, whereupon AVSA
will make any and all payments thereafter required to be made by
it under the Purchase Agreement, to the extent that the right to
receive such payment has been assigned under the Assignment
("AVSA Payments"), directly to Assignee if AVSA shall have
received notice as aforesaid that an Event of Default has
occurred and is continuing;
(iii) Assignee shall not be liable for any of the obligations or
duties of Assignor under the Purchase Agreement, nor shall the
Assignment give rise to any duties or obligations whatsoever on
the part of Assignee owing to AVSA, except for the agreements of
Assignee set forth in the Assignment, including, but not limited
to Clause 3(b) of the Assignment;
(iv) AVSA consents to the assignment of Assignor's rights and
interests under the Purchase Agreement and the Consent and
Guaranty to Assignee pursuant to the Assignment; and
(v) from and after the purchase of the Aircraft pursuant to the
Participation Agreement and payment in full for the Aircraft,
AVSA will not assert any lien or claim against the Aircraft or
any part thereof arising on or prior to such purchase or in
respect of any work or services performed on or prior thereto.
AVSA hereby represents and warrants that:
(A) AVSA is a societe a responsabilite limitee duly organized
and existing in good standing under the laws of the Republic of France
and has the requisite power and authority to enter into and perform its
obligations under the Purchase Agreement and this Consent and Agreement;
(B) the making and performance, in accordance with their terms,
of the Purchase Agreement and this Consent and Agreement have been duly
authorized by all necessary corporate action on the part of AVSA, do not
require any approval of AVSA's shareholders, do not require the consent or
approval of, the giving notice to, or registration with, or the taking of
any other action in respect of, any French governmental authority or agency
except for those that have already been obtained and do not contravene any
law binding on AVSA or contravene AVSA's charter documents or any
indenture, credit agreement or other contractual agreement to which AVSA is
a party or by which it is bound;
(C) each of the Purchase Agreement and this Consent and
Agreement constitutes a binding obligation of AVSA enforceable against AVSA
in accordance with its terms, subject to: (i) the limitations of applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally; and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law), which principles do not make the remedies
available at law or in equity with respect to the Purchase Agreement and
this Consent and Agreement inadequate for the practical realization of the
benefits intended to be provided thereby; and
(D) the Purchase Agreement is in full force and effect as to
AVSA.
This Consent and Agreement is made subject to and with the
benefit of Clause 3 of the Assignment and Section 4.03 of the Indenture.
* * * * * *
THIS CONSENT AND AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
Dated as of ________________
AVSA, S.A.R.L.
By: _________________________
Name:
Title:
