Exhibit 4(a)(xiii)
Exhibit A-1 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT PARTICIPATION AGREEMENT
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PARTICIPATION AGREEMENT
(US Airways, Inc. Trust No. N___U_)
Dated as of
_________ __, ____
Among
US AIRWAYS, INC.,
Lessee,
[__________________],
Owner Participant,
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
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity
except as expressly provided herein,
but solely as Owner Trustee,
____________________________
One Airbus A___ (1) Aircraft
_____________________
(1) Insert A319, A320 or A330 as appropriate.
U.S. Registration No. N___U_
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Participation Agreement
N___U_
INDEX TO PARTICIPATION AGREEMENT
Page
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SECTION 1. DEFINITIONS AND CONSTRUCTION. . . . . . . . . . . . . 2
SECTION 2. PARTICIPATIONS IN LESSOR'S COST OF THE AIRCRAFT . . . 3
(a) Participation by Pass Through Trustees on the
Delivery Date; Issuance of Equipment Notes. . . . . . . . . . . 3
(b) Payment of Owner Participant's Commitment. . . . 3
(c) Lessee's Notice of Delivery Date. . . . . . . . . 4
(d) Default by Pass Through Trustee or Owner
Participant . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(e) Closing . . . . . . . . . . . . . . . . . . . . 4
(f) Postponement of Scheduled Closing Date. . . . . 4
SECTION 3. INSTRUCTIONS TO THE OWNER TRUSTEE . . . . . . . . . . 6
SECTION 4. CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . 6
(a) Conditions Precedent to the Participations
in the Aircraft . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) Conditions Precedent to the Obligations of
Lessee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5. EXTENT OF INTEREST OF NOTE HOLDERS . . . . . . . . 18
SECTION 6. REPRESENTATIONS AND WARRANTIES OF LESSEE;
INDEMNITIES . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Representations and Warranties . . . . . . . . . . 18
(b) General Tax Indemnity . . . . . . . . . . . . . . . 22
(i) Indemnity . . . . . . . . . . . . . . . . . . 22
(ii) Exclusions from General Tax Indemnity . . . . 23
(iii) Payments . . . . . . . . . . . . . . . . . . . 26
(iv) Contests. . . . . . . . . . . . . . . . . . 28
(v) Refund. . . . . . . . . . . . . . . . . . . . 31
(vi) Tax Filing . . . . . . . . . . . . . . . . . . 31
(vii) Forms. . . . . . . . . . . . . . . . . . . . . 32
(viii)Non-Parties. . . . . . . . . . . . . . . . . . 32
(ix) Subrogation. . . . . . . . . . . . . . . . . . 32
(x) Foreign Tax On Loan Payments . . . . . . . . . 32
(xi) Income Tax . . . . . . . . . . . . . . . . . . 33
(c) General Indemnity. . . . . . . . . . . . . . . . . . 33
(d) Special Indemnity. . . . . . . . . . . . . . . . . . 39
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS. . . . . . 38
(a) Covenants Regarding Citizenship. . . . . . . . . . 38
(b) Location of Records . . . . . . . . . . . . . . . . 39
(c) Securities Act . . . . . . . . . . . . . . . . . . 39
(d) Reregistration . . . . . . . . . . . . . . . . . . 39
(e) Owner Participant Representations and Warranties . 42
(f) Lessor Liens . . . . . . . . . . . . . . . . . . . 44
(g) Quiet Enjoyment . . . . . . . . . . . . . . . . . . 44
(h) Equipment Notes Acquired for Investment . . . . . . 44
(i) [Reserved] . . . . . . . . . . . . . . . . . . . . 44
(j) Representations, Warranties and Covenants of
Indenture Trustee . . . . . . . . . . . . . . . . . 45
(k) Owner Participant Transfers . . . . . . . . . . . . 46
(l) Reserved. . . . . . . . . . . . . . . . . . . . . . 48
(m) Compliance with Trust Indenture . . . . . . . . . . 48
(n) ERISA Matters . . . . . . . . . . . . . . . . . . . 48
(o) Confidentiality of Purchase Agreement . . . . . . . 49
(p) Margin Regulations . . . . . . . . . . . . . . . . 49
(q) Loan Participant Liens . . . . . . . . . . . . . . 49
(r) Indenture Trustee Liens . . . . . . . . . . . . . . 50
(s) Representations and Warranties of Owner Trustee . . 50
(t) Owner Participant Obligations on Lease Termination. 54
(u) Transfer of Title; Assumption of Equipment Notes . 54
(v) Lessee Merger Covenant. . . . . . . . . . . . . . . 55
(w) Further Assurances . . . . . . . . . . . . . . . . 56
(x) Rent Adjustments . . . . . . . . . . . . . . . . . 57
(y) Owner Participant Costs on Return . . . . . . . . . 57
(z) Transfer of Equipment Notes . . . . . . . . . . . . 57
(aa) Representations and Warranties of Pass Through
Trustee . . . . . . . . . . . . . . . . . . . . . . 57
(bb) Representations and Warranties of Subordination
Agent . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8. RELIANCE OF LIQUIDITY PROVIDER . . . . . . . . . . 62
SECTION 9. OTHER DOCUMENTS . . . . . . . . . . . . . . . . . . 62
SECTION 10. CERTAIN COVENANTS OF LESSEE . . . . . . . . . . . . 63
(a) Further Assurances . . . . . . . . . . . . . . . . 63
(b) Filings . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11. OWNER FOR FEDERAL TAX PURPOSES . . . . . . . . . . 64
SECTION 12. NOTICES; CONSENT TO JURISDICTION . . . . . . . . . 64
(a) Notices . . . . . . . . . . . . . . . . . . . . . . 64
(b) Consent to Jurisdiction . . . . . . . . . . . . . . 64
SECTION 13. CHANGE OF SITUS OF OWNER TRUST. . . . . . . . . . . 65
SECTION 14. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 66
(a) Consents Under Lease . . . . . . . . . . . . . . . 66
(b) Survival . . . . . . . . . . . . . . . . . . . . . 66
(c) Counterparts . . . . . . . . . . . . . . . . . . . 66
(d) Amendments and Waivers . . . . . . . . . . . . . . 67
(e) Successors and Assigns . . . . . . . . . . . . . . 67
(f) Governing Law . . . . . . . . . . . . . . . . . . . 67
(g) Trust Capacity . . . . . . . . . . . . . . . . . . 67
(h) Section 1110 . . . . . . . . . . . . . . . . . . . 68
SECTION 15. EXPENSES. . . . . . . . . . . . . . . . . . . . . . 68
(a) Invoices And Payment . . . . . . . . . . . . . . . 68
(b) Payment of Other Expenses. . . . . . . . . . . . . 68
SECTION 16. REFINANCINGS. . . . . . . . . . . . . . . . . . . . 69
(a) Refinancing Generally . . . . . . . . . . . . . . . 69
(b) Limitation on Redemption . . . . . . . . . . . . . 72
ANNEXES
ANNEX A - Definitions
SCHEDULES
SCHEDULE I Names and Addresses
SCHEDULE II Commitments
SCHEDULE III Pass Through Trust Agreement and Pass Through Trust
Supplements
SCHEDULE IV [Deferred Equity Payments] (2)
_________________________
(2) For Deferred Equity Transactions Only.
EXHIBITS
Exhibit A - Schedule of Countries Authorized for Reregistration
Exhibit B-1 - Form of Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
(Illinois), special counsel for Lessee
Exhibit B-3 - Form of Opinion of Lessee's Legal Department
Exhibit C - Form of Opinion of ▇▇▇▇▇▇▇▇ Chance Regarding Manufacturer
Documents
Exhibit D - Form of Opinion of Ray, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel
for the Owner Trustee
Exhibit E-1 - Form of Opinion of ______________, special counsel for the
Owner Participant
Exhibit E-2 - Form of Opinion of Owner Participant's in-house counsel
Exhibit F - Form of Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special FAA Counsel
Exhibit G - Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the
Indenture Trustee
Exhibit H - Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the
Pass Through Trustee
Exhibit I - Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the
Subordination Agent
Participation Agreement
N___U_
PARTICIPATION AGREEMENT
(US Airways, Inc. Trust No. N___U_)
THIS PARTICIPATION AGREEMENT (US Airways, Inc. Trust No. N___U_)
dated as of _______ ___, (as amended, supplemented or otherwise modified
from time to time, this "Agreement") among (i) US AIRWAYS, INC., a Delaware
corporation (together with its successors and permitted assigns, the
"Lessee", (ii) [_______________], a ______________ (together with its
successors and permitted assigns, the "Owner Participant"), (iii) 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 Trust Indenture (in
such capacity, together with any successor indenture trustee, the
"Indenture Trustee"), and (iv) FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity except as
expressly provided herein, but solely as Owner Trustee under the Trust
Agreement (herein, in such latter capacity, together with any successor
owner trustee, called the "Owner Trustee");
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Owner Participant is entering into the Trust Agreement with
the Owner Trustee, pursuant to which Trust Agreement the Owner Trustee
agrees, among other things, to hold the Trust Estate for the use and
benefit of the Owner Participant;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Indenture Trustee and the Owner Trustee are entering into
the Trust Indenture pursuant to which the Owner Trustee will issue to the
Loan Participants Equipment Notes in three series, which Equipment Notes
are to be secured by the mortgage and security interests created by the
Owner Trustee in favor of the Indenture Trustee;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Owner Trustee will execute and deliver a Trust and Indenture
Supplement covering the Aircraft, supplementing the Trust Agreement and the
Trust Indenture;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Owner Trustee and Lessee have entered into the Lease
whereby, subject to the terms and conditions set forth therein, the Owner
Trustee agrees to lease to Lessee, and Lessee agrees to lease from the
Owner Trustee, the Aircraft on the Delivery Date;
WHEREAS, on the Delivery Date for the Aircraft, the Lessee will
deliver a Lease Supplement covering the Aircraft;
WHEREAS, pursuant to the terms of the Note Purchase Agreement,
the Pass Through Trustee will purchase from the Owner Trustee on the
Delivery Date, on behalf of each Pass Through Trust, all of the Equipment
Notes bearing the same interest rate as the Certificates issued by such
Pass Through Trust;
WHEREAS, 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 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;
WHEREAS, the Equipment Notes will be held by the Subordination
Agent pursuant to the Intercreditor Agreement on behalf of the Pass Through
Trusts;
WHEREAS, the acquisition of the Aircraft by Lessee from the
Seller and the aforementioned sale and leaseback transaction are integrally
related and constitute a series of events designed to provide financing for
such Aircraft and a means of providing the Aircraft to the Lessee for use
in its business.
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. PARTICIPATIONS IN LESSOR'S COST OF THE AIRCRAFT.
(a) Participation by Pass Through Trustees on the Delivery Date;
Issuance of Equipment Notes. Subject to the terms and conditions of this
Agreement, the Pass Through Trustee for each Pass Through Trust agrees to
make a non-recourse (except as provided herein) secured loan to the Owner
Trustee on the Delivery Date to finance, in part, the Owner Trustee's
payment of Lessor's Cost for the Aircraft by paying to the Owner Trustee
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
the Owner Trustee on a date to be designated pursuant to Section 2(c) but
in no event later than __________________, by transferring to the account
of the Owner Trustee at State Street Bank and Trust Company of Connecticut,
National Association, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ABA
No. _________, Account No. __________, Reference: US Airways, Inc. ▇▇▇▇-▇
▇▇▇▇/▇▇ ▇▇▇▇▇▇▇, Inc. Trust No. 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 the Owner Trustee, the Owner
Trustee, at the direction of the Owner Participant, shall issue, pursuant
to Article II of the Trust 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) Payment of Owner Participant's Commitment. Subject to the
terms and conditions of this Agreement, the Owner Participant agrees with
the Lessee and only with the Lessee on behalf of the Owner Trustee, subject
to the terms and conditions of this Agreement, to make the amount of its
Commitment as set forth on Schedule II available for and on account of the
Owner Trustee on the Delivery Date specified in the Delivery Notice
pursuant to Section 2(c) by wire transfer of such amount in immediately
available funds, to the Owner Trustee for deposit in its account at State
Street Bank and Trust Company of Connecticut, National Association, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ABA No. _________, Account No.
__________, Reference: US Airways, Inc. ▇▇▇▇-▇ ▇▇▇▇/▇▇ ▇▇▇▇▇▇▇, Inc.
Trust No. N___U_, not later than 9:30 a.m., New York City time. The
amount of the Owner Participant's Commitment shall be held for the account
of the Owner Participant by the Owner Trustee until released by the Owner
Participant or its special counsel at closing or until returned to the
Owner Participant in accordance with Section 2(f).
(c) Lessee's Notice of Delivery Date. The Lessee agrees to give
the Owner Participant, the Indenture Trustee, the Owner Trustee, the Pass
Through Trustee and the Subordination Agent at least three (3) Business
Days written or facsimile notice prior to the Delivery Date, which notice
shall specify the Lessor's Cost for the Aircraft, the estimated amount of
the Owner Participant's Commitment, the Delivery Date for the Aircraft, the
serial number of the Airframe and each Engine, and the United States
registration number for the Aircraft.
(d) Default by Pass Through Trustee or Owner Participant. In
case any of the Pass Through Trustee or the Owner Participant shall default
in its obligation under the provisions of this Section 2, no other such
party shall have any obligation to make any portion of such defaulted
amount available or to increase the amount of its Commitment and the
obligation of such nondefaulting party shall remain subject to the terms
and conditions set forth in this Agreement.
(e) Closing. The closing of the transactions referred to in
this Agreement shall take place commencing at 9:30 a.m. local time, on the
Delivery Date, at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
in New York, New York.
(f) Postponement of Scheduled Closing 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(c) (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
Lessee shall specify by written notice to the Pass Through Trustee,
the Owner Participant, the Owner Trustee and the Indenture Trustee, in
which case the Owner Participant will keep its funds available.
(ii) If the closing fails to occur on the Scheduled Delivery
Date, the Owner Trustee shall promptly return to each Participant that
makes funds available to it in accordance with this Section 2 such
funds, together with interest or income earned thereon.
(iii) If the closing fails to occur on the Scheduled Delivery
Date and funds are not returned to each Participant that made funds
available as provided by clause (ii) above, the Owner Trustee shall,
if so instructed by Lessee, use reasonable efforts to invest, at the
risk of Lessee, the funds received by it from Participants in Cash
Equivalents. Any such obligations purchased by the Owner Trustee,
whether directly or through a repurchase agreement, shall be held in
trust by the Owner Trustee for the benefit of the respective
Participants that provided such funds, and not as part of the Trust
Estate or the Trust Indenture Estate.
(iv) If the closing fails to occur on the Scheduled Delivery
Date, unless the Owner Trustee returns all funds to the Participants
by 2:00 p.m., New York City time, on the Scheduled Delivery Date,
Lessee shall reimburse each Participant 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 Participant'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 Participant in respect
of interest or income earned by the Owner Trustee pursuant to clause
(iii) above.
(v) On the Delivery Date or on the date funds are required to be
returned to Participants pursuant to clause (ii) above, Lessee shall
reimburse the Owner Trustee, for the benefit of Participants that
provided funds which are invested by the Owner Trustee pursuant to
this subsection (f), 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 Participants, and the Owner Trustee
shall not be liable for failure to invest such funds or for any losses
incurred on such investments, except for its own negligence or willful
misconduct.
SECTION 3. INSTRUCTIONS TO THE OWNER TRUSTEE.
The Owner Participant agrees that its releasing the amount
of its Commitment for the Aircraft to the account of the Owner Trustee in
accordance with the terms of Section 2 and its instructions to the Owner
Trustee to release such funds shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee:
(i) to purchase the Aircraft from Lessee and to pay to Lessee
the Lessor's Cost for the Aircraft;
(ii) to the extent not previously accomplished by a prior
authorization, to authorize a representative or representatives of the
Owner Trustee (who shall be an employee or employees, or an agent or
agents, of Lessee designated by Lessee) to accept delivery of the
Aircraft on the Delivery Date pursuant to the Acceptance Certificate;
(iii) to accept from Lessee the ▇▇▇▇ of Sale and the FAA ▇▇▇▇ of
Sale for the Aircraft referred to in Section 4(a)(v)(8) and
4(a)(v)(9);
(iv) to execute an Aircraft Registration Application, the Lease
Supplement and the Trust Supplement, in each case covering the
Aircraft;
(v) to borrow from the Pass Through Trustee and issue the
Equipment Notes as provided in Section 2(a); and
(vi) to take such other action as may be required to be taken by
the Owner Trustee on the Delivery Date by the terms of any Operative
Document.
SECTION 4. CONDITIONS PRECEDENT.
(a) Conditions Precedent to the Participations in the Aircraft.
It is agreed that the obligations of the Owner Trustee, the Owner
Participant, the Indenture Trustee, the Subordination Agent and the Pass
Through Trustee on behalf of each Pass Through Trust to participate in the
transactions 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,
except that paragraphs (iii) and (v)(5), (xxi), (xxii) and (xxiii) shall
not be a condition precedent to the obligations of the Pass Through
Trustee, and paragraphs (iv), (vii) (insofar as it relates certificates and
documents to be delivered by the Owner Participant) and (xiv) shall not be
a condition precedent to the obligation of the Owner Participant and
paragraph (xxv) shall not be a condition precedent to the obligations of
the Subordination Agent:
(i) At least three (3) Business Days prior to the Delivery Date,
each of the parties hereto shall have received the Delivery Notice
pursuant to Section 2(c).
(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 or the
Owner Participant to make its Commitment available in accordance with
Section 2.
(iii) In the case of the Owner Participant, the Pass Through
Trustees shall have made available the amount of their Commitments
for the Aircraft in accordance with Section 2.
(iv) In the case of the Pass Through Trustees, the Owner
Participant shall have made available the amount of its Commitment
for the Aircraft in accordance with Section 2.
(v) 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 Owner
Trustee, the Owner Participant, 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 Owner Trustee, the Owner Participant, 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 Owner Trustee (but the
Indenture Trustee shall also retain an excerpted copy of the Purchase
Agreement which may be inspected by the Owner Participant and its
counsel prior to the Delivery Date and subsequent to the Delivery
Date may be inspected and reviewed by the Indenture Trustee if and
only if there shall occur and be continuing an Indenture Event of
Default), the chattel paper counterpart of the Lease and the Lease
Supplement covering the Aircraft dated the Delivery Date shall be
delivered to the Indenture Trustee, the Tax Indemnity Agreement need
only be satisfactory to the Owner Participant and Lessee and shall
only be delivered to Lessee and the Owner Participant and their
respective counsel:
(1) an excerpted copy of the Purchase Agreement
(insofar as it relates to the Aircraft);
(2) the Purchase Agreement Assignment;
(3) the Lease;
(4) a Lease Supplement covering the Aircraft dated the
Delivery Date;
(5) the Tax Indemnity Agreement;
(6) the Trust Agreement;
(7) a Trust Indenture and Trust Supplement covering
the Aircraft dated the Delivery Date;
(8) the ▇▇▇▇ of Sale;
(9) the FAA ▇▇▇▇ of Sale;
(10) an acceptance certificate covering the Aircraft in
the form agreed to by the Owner Participant and Lessee
(herein called the "Acceptance Certificate") duly completed
and executed by the Owner Trustee or its agent, which may be
a representative of Lessee, and by such representative on
behalf of Lessee;
(11) the Trust Indenture;
(12) the Equipment Notes;
(13) the Consent and Agreement; and
(14) the French Law Pledge Agreement.
In addition, the Pass Through Trustee and the Owner Participant
each 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.
(vi) A Uniform Commercial Code financing statement or statements
covering all the security interests created by or pursuant to the
Granting Clause of the Trust Indenture that are not covered by the
recording system established by the Transportation Code shall have
been executed and delivered by the Owner Trustee, and arrangements
satisfactory to the Owner Participant and 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
Owner Participant or the Pass Through Trustee shall have been
executed and delivered by Lessee or the Owner Trustee and
arrangements satisfactory to the Owner Participant and the Indenture
Trustee shall have been made for the filing of such financing
statements.
(vii) The Owner Trustee, the Owner Participant, the Indenture
Trustee, 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 Lessee as to the person or
persons authorized to execute and deliver the Operative
Documents to which the Lessee is a party and any other documents
to be executed on behalf of Lessee 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 Lessee or Lessee's executive committee, certified
by the Secretary or an Assistant Secretary of Lessee, 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 Lessee in connection with
the transactions contemplated hereby; and (3) a copy of the
certificate of incorporation of Lessee, certified by the
Secretary of State of the State of Delaware, a copy of the
by-laws of Lessee certified by the Secretary or Assistant
Secretary of Lessee, 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 closing, as to the due incorporation
and good standing of Lessee 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 closing, 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).
(C) (1) an incumbency certificate of the Owner Trustee as
to the person or persons authorized to execute and deliver
the Operative Documents to which the Owner Trustee is a
party and any other documents to be executed on behalf of
the Owner 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 Owner Trustee, certified by the Secretary
or an Assistant Secretary of the Owner 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 Owner Trustee in
connection with the transactions contemplated hereby;
(3) a copy of the articles of association of the Owner
Trustee certified by the Comptroller of the Currency, a copy
of the by-laws of the Owner Trustee certified by the
Secretary or an Assistant Secretary of the Owner Trustee and
a certificate or other evidence from the Comptroller of the
Currency, dated as of a date shortly prior to closing, as to
the good standing of the Owner Trustee; and
(4) a certificate signed by an authorized officer of
the Owner Trustee, dated the Delivery Date, certifying that
the representations and warranties contained herein of the
Owner Trustee (in its individual capacity and as 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).
(D) (1) an incumbency certificate of the Owner Participant
as to the person or persons authorized to execute and
deliver the Operative Documents to which the Owner
Participant is a party and any other documents to be
executed on behalf of the Owner Participant 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 Owner Participant, certified by the
Secretary or an Assistant Secretary of the Owner
Participant, 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 Owner Participant in connection with the transactions
contemplated hereby have been duly authorized;
(3) a copy of the certificate of incorporation of the
Owner Participant certified by the Secretary of State of the
State of __________, a copy of the by-laws of the Owner
Participant, each certified by the Secretary or an Assistant
Secretary of the Owner Participant, and a certificate or
other evidence from the Secretary of State of the State of
____________, dated as of a date shortly prior to closing,
as to the due incorporation and good standing of the Owner
Participant in such state; and
(4) a certificate signed by an authorized officer of
the Owner Participant, dated the Delivery Date, certifying
that the representations and warranties contained herein of
the Owner Participant 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).
(viii) 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.
(ix) The Owner Trustee, the Owner Participant, the Indenture
Trustee, the Pass Through Trustee and the Subordination Agent shall
have received a certificate signed by an authorized officer of Lessee
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 FAA ▇▇▇▇ of Sale, the Lease, the Lease
Supplement, the Trust Indenture and the Trust 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, and the Trust Agreement shall have been
filed (or shall be in the process of being so filed) with
the Federal Aviation Administration;
(3) application for registration of the Aircraft in
the name of the Owner Trustee (together with any required
affidavits) has been duly made with the Federal Aviation
Administration;
(4) the representations and warranties contained
herein of Lessee 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
(5) 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.
(x) 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.
(xi) The Owner Trustee, the Owner Participant, 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois),
special counsel for Lessee, and an opinion dated the Delivery Date
substantially in the form of Exhibit B-2 hereto from Lessee's legal
department.
(xii) The Pass Through Trustee and the Owner Participant shall
have received, addressed to the Pass Through Trustee, the Indenture
Trustee, the Owner Participant, the Owner Trustee and Lessee and
reasonably satisfactory as to scope and substance to the Pass Through
Trustee, the Owner Participant and Lessee, an opinion dated the
Delivery Date substantially in the form of Exhibit C hereto from
▇▇▇▇▇▇▇▇ Chance, with respect to the Manufacturer Documents.
(xiii) The Owner Participant, 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 Ray,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Owner Trustee.
(xiv) The Owner Trustee, 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 E-1 hereto from
________________, special counsel for the Owner Participant, and an
opinion dated the Delivery Date substantially in the form of Exhibit
E-2 hereto from the Owner Participant's in-house counsel.
(xv) The Owner Trustee, the Owner Participant, 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 F
hereto from ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special FAA counsel.
(xvi) The Owner Trustee, the Owner Participant, 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 G from ▇▇▇▇▇▇▇ ▇▇▇▇ LLP,
special counsel for the Indenture Trustee.
(xvii) [Reserved.]
(xviii) The Owner Trustee, the Owner Participant, 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 satisfactory to the
Owner Participant, as to the due compliance with the terms of Section
11 of the Lease relating to insurance with respect to the Aircraft.
(xix) The Owner Participant shall have received an appraisal
dated the Delivery Date from ______________ in form and substance
satisfactory to it.
(xx) 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.
(xxi) The Owner Participant shall have received from
____________________, special tax counsel to the Owner Participant, a
favorable opinion, in form and substance satisfactory to the Owner
Participant, with respect to certain Federal income tax aspects of
the transaction contemplated by the Operative Documents.
(xxii) There shall have been, since the date hereof, no
amendment, modification, addition, or change in or to the provisions
of the Code, the regulations promulgated under the Code (including
temporary regulations), Internal Revenue Service Revenue Procedures
or Revenue Rulings, or other administrative interpretations,
applicable judicial precedents or Executive Orders of the President
of the United States, all as in effect on the date hereof, the effect
of which might preclude the Owner Participant from obtaining any of
the anticipated income tax benefits with respect to the Aircraft.
(xxiii) The Owner Trustee, the Owner Participant, 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 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 H hereto addressed
to each such party of ▇▇▇▇▇▇▇ ▇▇▇▇ 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.
(xxiv) No Lease Event of Default has occurred and is continuing
and no Event of Loss has occurred with respect to the Airframe or any
Engine.
(xxv) The Owner Trustee, the Owner Participant, 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 I from ▇▇▇▇▇▇▇ ▇▇▇▇ LLP,
special counsel for the Subordination Agent.
Promptly upon the registration of the Aircraft and the recording of
the Trust Indenture, the Lease, the Lease Supplement covering the Aircraft
and the Trust Supplement covering the Aircraft pursuant to the
Transportation Code, Lessee will cause ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special FAA
counsel in Oklahoma City, Oklahoma, to deliver to the Pass Through Trustee,
the Indenture Trustee, the Owner Participant, the Owner Trustee and Lessee
an opinion as to the due and valid registration of the Aircraft in the name
of the Owner Trustee, the due recording of the FAA ▇▇▇▇ of Sale, the Trust
Indenture, such Lease Supplement, such Trust Supplement and the Lease and
the filing of the Trust Agreement and the lack of filing of any intervening
documents with respect to the Aircraft.
(b) Conditions Precedent to the Obligations of Lessee. It is
agreed that (A) the obligations of Lessee to sell the Aircraft to the Owner
Trustee and to accept delivery of the Aircraft under the Lease on the
Delivery Date, and (B) the obligations of Lessee to enter into the other
Operative Documents on the Delivery Date are all subject to the fulfillment
to the satisfaction of Lessee 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), 4(a)(iii) and
4(a)(iv) hereof shall have been satisfied.
(iii) Those documents described in Section 4(a)(v) shall have
been duly authorized, executed and delivered by the respective party
or parties thereto (other than Lessee) in the manner specified in
Section 4(a)(v), shall each be satisfactory in form and substance to
Lessee, 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 Lessee or its special counsel.
(iv) Lessee shall have received (A) each certificate referred to
in Section 4(a)(vii) (other than the certificate and documents
referred to in clause (A) thereof), (B) the certificate referred to in
Section 4(a)(xxiii)(A), and (C) such other documents and evidence with
respect to the Pass Through Trustee as Lessee 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) Lessee shall have received the opinions set forth in
Sections 4(a)(xii), 4(a)(xiii), 4(a)(xiv), 4(a)(xv), 4(a)(xvi),
4(a)(xxv), and 4(a)(xxiii)(B) in each case addressed to Lessee and
dated the Delivery Date and in each case in scope and substance
reasonably satisfactory to Lessee 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 Lessee to enter into any transaction
contemplated by the Operative Documents.
(viii) There shall have been, since the date hereof, no
amendment, modification, addition or change in or to the Code, the
regulations promulgated under the Code (including temporary
regulations), Internal Revenue Service Revenue Procedures or Revenue
Rulings, or other administrative interpretations, applicable judicial
precedents or Executive Orders of the President of the United States
which might give rise to an indemnity obligation of Lessee under any
of the Operative Documents.
(ix) Lessee shall have been paid Lessor's Cost for the Aircraft.
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 Trust 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 Trust
Indenture and under such Equipment Notes shall have been paid in full.
Each Pass Through Trustee and, by its acceptance of a Equipment Note, each
Note Holder agrees that it will look solely to the income and proceeds from
the Trust Indenture Estate to the extent available for distribution to such
Note Holder as provided in Article III of the Trust Indenture and that
neither the Owner Participant nor the Owner Trustee shall be personally
liable to the Pass Through Trustees or any Note Holder for any amounts
payable under the Equipment Notes, the Trust Indenture or hereunder, except
as expressly provided in the Operative Documents.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF LESSEE; INDEMNITIES.
(a) Representations and Warranties. Lessee represents and
warrants to the Pass Through Trustee, the Owner Trustee, the Indenture
Trustee, each Liquidity Provider, the Subordination Agent and the Owner
Participant that:
(i) Lessee 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 Lessee 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 Lessee and its subsidiaries considered as one
enterprise;
(ii) Lessee 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 Lessee of the Lessee
Documents, the Pass Through Trust Agreements and each other Operative
Document to which Lessee is a party, and the performance of the
obligations of Lessee under the Lessee Documents, the Pass Through
Trust Agreements and each other Operative Document to which Lessee is
a party, have been duly authorized by all necessary corporate action
on the part of Lessee, do not require any stockholder approval, or
approval or consent of any trustee or holder of any material
indebtedness or material obligations of Lessee, 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
Lessee or the certificate of incorporation or by-laws of Lessee, 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 Lessee under, any indenture, mortgage, contract or
other agreement to which Lessee 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 Lessee 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, warranties and covenants
set forth in Section 7(n) and the representations and warranties made
or deemed made by each purchaser of Certificates issued by a Pass
Through Trust;
(iv) neither the execution and delivery by Lessee of the Lessee
Documents, the Pass Through Trust Agreements or any other Operative
Document to which Lessee is a party, nor the performance of the
obligations of Lessee under the Lessee Documents, the Pass Through
Trust Agreements or the other Operative Documents to which Lessee 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 Lessee, other than (A) the registration of the Pass Through
Trust Certificates under the Securities Act and under the securities
laws of any state in which the Pass Through Trust Certificates may be
offered for sale if the laws of such state require such action, (B)
the qualification of the Pass Through Trust Agreements under the
Trust Indenture Act of 1939, as amended, pursuant to an order of the
Securities and Exchange Commission, (C) the orders, permits, waivers,
exemptions, authorizations and approvals of the regulatory
authorities having jurisdiction over the operation of the Aircraft by
Lessee or any Sublessee 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 application for registration of the
Aircraft referred to in Section 4(a)(ix)(3), (E) the registrations
and filings referred to in Section 6(a)(vi), and (F) 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 Lessee and its
subsidiaries considered as one enterprise;
(v) this Agreement, each of the other Lessee Documents and the
Pass Through Trust Agreements to which Lessee 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 Lessee
enforceable against Lessee in accordance with their respective terms,
except as the same may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting the rights of creditors or lessors generally
and by general principles of equity, whether considered in a
proceeding at law or in equity, and except, in the case of the Lease,
as limited by applicable laws which may affect the remedies provided
in the Lease;
(vi) except for (A) the filing of the Trust Agreement with the
FAA, (B) the registration of the Aircraft pursuant to the
Transportation Code, (C) the filing for recording pursuant to the
Transportation Code of the Lease with the Lease Supplement covering
the Aircraft, the Trust Indenture and the Trust Supplement attached
thereto and made a part thereof, the Trust Indenture with the Trust
Supplement attached thereto and made a part thereof and the FAA ▇▇▇▇
of Sale, (D) 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 Utah and such other states as may be specified in the
opinion furnished pursuant to Section 4(a)(xi) hereof, and (E) the
taking of possession by the Indenture Trustee of the original chattel
paper counterpart of each of the Lease and the Lease Supplement
covering the Aircraft, 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 Owner Trustee's
title to and interest in the Aircraft as against Lessee and any third
parties, or to perfect the security interest in favor of the Indenture
Trustee in the Owner Trustee's interest 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) and in the
Lease in any applicable jurisdiction in the United States;
(vii) neither Lessee nor any of its Affiliates has directly or
indirectly offered any interest in the Trust Estate, the Equipment
Notes or the Pass Through Trust Certificates for sale to any Person
other than in a manner permitted by the Securities Act and by the
rules and regulations thereunder;
(viii) Lessee 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
Lease Default or Lease 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) Lessee is solvent and will not be rendered insolvent by the
sale of the Aircraft; after the sale of the Aircraft the capital of
Lessee will not be unreasonably small for the conduct of the business
in which Lessee is engaged or is about to engage; Lessee has no
intention or belief that it is about to incur debts beyond its ability
to pay as they mature; and Lessee's sale of the Aircraft is made
without any intent to hinder, delay or defraud either present or
future creditors;
(xii) none of the proceeds from the issuance of the Equipment
Notes or from the acquisition by the Owner Participant of its
beneficial interest in the Trust Estate will be used directly or
indirectly by Lessee 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) on the Delivery Date, all sales or use tax then due and
for which Lessee is responsible pursuant to Section 6(b)(i) hereof
shall have been paid, other than such taxes which are being contested
by Lessee in good faith and by appropriate proceedings so long as
such proceedings do not involve any material risk of the sale,
forfeiture or loss of the Aircraft;
(xiv) except as may have been disclosed in the Lessee'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 Lessee and its subsidiaries considered as one
enterprise; and
(xv) the Owner Trustee will receive good and marketable title to
the Aircraft from Lessee free and clear of all Liens, except the
rights of Lessee under the Lease and the Lease Supplement covering the
Aircraft, the Lien of the Trust Indenture, the beneficial interest of
the Owner Participant in the Aircraft, and the Liens permitted by
clause (iv) (solely for Taxes not yet due but excluding any such Taxes
being contested) and clause (v) of Section 6 of the Lease (solely
securing obligations that are not yet due, but excluding any such
obligations being contested).
(b) General Tax Indemnity.
(i) Indemnity. Except as provided in Section 6(b)(ii) hereof,
Lessee hereby agrees to indemnify, protect, defend and hold harmless
each Indemnitee on an after-tax basis for all Taxes imposed by the
United States or any state, local or foreign government or taxing
authority upon or with respect to (A) the Aircraft, (B) the
manufacture, ownership, delivery, lease, sale, alteration, change in
registration, sublease, possession, use, operation, condition,
maintenance, financing, inspection, overhaul, testing, modification,
storage, manufacture, purchase, acceptance, rejection, or registration
of the Aircraft, (C) the rentals or receipts from the Aircraft, (D)
the payments made pursuant to any of the Operative Documents, (E) the
interest and principal paid with respect to the Equipment Notes and
(F) the income or proceeds from the property held in the Trust Estate
or the Trust Indenture Estate.
(ii) Exclusions from General Tax Indemnity. The provisions of
Section 6(b)(i) shall not apply to:
(1) Taxes on, based on, measured by or with respect to
the gross or net income, gross or net receipts, minimum or
alternative taxes, tax preferences, capital, net worth,
franchise or conduct of business (but not excluding sales,
use, license, rental, ad valorem, value added tax (to the
extent that such value added tax is not imposed as a
substitute for an income tax) or property taxes) (a) imposed
by the United States or by any state or local government or
taxing authority or (b) imposed by any foreign government or
taxing authority except where such Tax is imposed by reason
of the use, location, registration, subleasing, leasing or
operation of the Aircraft or the presence or activities of
Lessee in such jurisdiction and exceeds the Tax that would
have been imposed on the Indemnitee regardless of the use,
location, registration, subleasing, leasing or operation of
the Aircraft or the presence or activities of Lessee;
(2) Taxes that would not have been imposed but for a
Lessor's Lien;
(3) Taxes resulting from a voluntary transfer by the
Owner Participant of the Aircraft, the Trust Estate, or the
Operative Documents, or any interest therein, or a transfer
relating to bankruptcy or similar proceedings involving the
Owner Participant;
(4) Taxes resulting from the willful misconduct or
negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after the
expiration of the Lease or the earlier discharge in full of
Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax
would not have been imposed on the original Indemnitee, or
(b) to the extent such Tax exceeds the amount of Tax that
would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's
Cost;
(8) Taxes imposed by a government or taxing authority
of any jurisdiction that would have been imposed on the
Indemnitee for activities or property in such jurisdiction
unrelated to the transactions contemplated by the Operative
Documents;
(9) Taxes being contested pursuant to the contest
provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner
Participant based on, measured by or imposed with respect to
any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and
indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the
extent imposed as a result of the failure of the Owner
Participant to timely and properly file any return, unless
such failure is caused by Lessee's failure to timely provide
information required to be provided under the Operative
Documents;
(13) Taxes that would not have been imposed but for an
Indemnitee's breach of any covenant or the inaccuracy of any
representation or warranty of such Indemnitee in any of the
Operative Documents;
(14) Taxes in the nature of an intangible or similar
Tax imposed upon, or with respect to, (a) the value of the
Owner Participant's interest in the Trust or the Indenture
Trust or (b) the value or the principal amount of any
Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a
foreign person; and
(16) Taxes imposed by section 4975 of the Code or any
successor provision thereto.
References to the Owner Participant shall include such Person's
respective successors and permitted assigns, officers, directors, servants,
employees, agents and Affiliates.
(iii) Payments. The Lessee's indemnity obligation to an
Indemnitee under this Section 6(b) shall include any amount necessary
to hold such Indemnitee harmless (as determined in good faith by such
Indemnitee), after taking into account any tax benefits actually
realized by such Indemnitee (including, without limitation, any
benefits realized as a result of an indemnifiable Tax being utilized
by such Indemnitee as a credit against Taxes not indemnifiable under
this Section 6(b)), from the net amount of all Taxes actually
required to be paid by such Indemnitee by reason of the receipt or
accrual of the amounts payable under this Section 6(b). Each
Indemnitee shall provide Lessee with such certifications, information
and documentation as shall be reasonably requested by Lessee to
minimize any indemnity payment pursuant to this Section 6(b). At
Lessee's request, the computation of the amount of any indemnity
payment owed by Lessee or any amount owed by an Indemnitee to Lessee
pursuant to this Section 6(b) shall be verified and certified by a
nationally recognized independent public accounting firm selected by
the Indemnitee and reasonably acceptable to Lessee. The costs of such
verification (including the fee of such public accounting firm) shall
be borne by Lessee unless such verification shall result in an
adjustment in Lessee's favor of 5% or more of the net present value
of the payment as computed by such Indemnitee, in which case the
costs shall be paid by such Indemnitee.
Each Indemnitee shall promptly forward to Lessee any written notice,
▇▇▇▇ or advice received by it from any government or taxing authority
concerning any Tax for which it seeks indemnification under this Section
6(b); provided, however, the failure to provide such notice shall not
adversely affect such Indemnitee's right to indemnity under this Section
6(b) except to the extent such failure materially adversely affects the
contest of the Tax. The Lessee shall pay any amount for which it is liable
pursuant to this Section 6(b) directly to the appropriate government or
taxing authority if legally permissible or, upon demand of an Indemnitee,
to such Indemnitee within 30 days of such demand (or, if a contest occurs
in accordance with Section (6)(b)(iv), within 30 days after a Final
Determination (as defined below)), but in no event more than one business
day prior to the date the Tax to which such amount payable hereunder
relates is due, provided, Lessee shall not be required to make any payment
pursuant to this Section 6(b)(iii) unless the Indemnitee elects to pay such
Tax claimed and ▇▇▇ for a refund as provided in Section 6(b)(iv). If
requested by an Indemnitee in writing, Lessee shall furnish to the
appropriate Indemnitee the original or a certified copy of a receipt for
Lessee's payment of any Tax or such other evidence of payment of Tax. For
purposes of this Section 6(b), a "Final Determination" shall mean (A) a
decision, judgment, decree or other order by any court of competent
jurisdiction that occurs pursuant to the provisions of Section 6(b)(iv),
which decision, judgment, decree or other order has become final and
unappealable, (B) a closing agreement or settlement agreement entered into
in accordance with Section 6(b)(iv) that has become binding and is not
subject to further review or appeal absent fraud or misrepresentation or
(C) the termination of administrative proceedings and the expiration of the
time for instituting a claim in a court proceeding.
If any Indemnitee shall actually realize a tax savings by reason of
any Tax paid or indemnified by Lessee pursuant to this Section 6(b) and
such savings was not otherwise taken into account in computing such payment
or indemnity, such Indemnitee shall pay to Lessee an amount equal to the
lesser of (A) the amount of such tax savings, plus any additional tax
savings actually realized as the result of any payment made pursuant to
this sentence and (B) the amount of all payments made by Lessee to such
Indemnitee (reduced by any payments previously made by such Indemnitee to
Lessee pursuant to this Section 6(b)), and the excess, if any, of the
amount described in clause (A) over the amount described in clause (B)
shall be carried forward and applied to reduce pro tanto any subsequent
obligations of Lessee to make payments to such Indemnitee pursuant to this
Section 6(b)). No Indemnitee shall have any obligation to make any payment
while a Lease Event of Default has occurred and is continuing.
Any Taxes that are imposed on any Indemnitee as a result of the
disallowance or reduction of any tax benefit referred to in this Section
6(b) pursuant to a Final Determination by a tax authority as to which such
Indemnitee has made the payment to Lessee required hereby or which tax
benefit was otherwise taken into account in computing Lessee's indemnity
obligation pursuant to this Section 6(b) in a taxable year subsequent to
the utilization by such Indemnitee shall be treated as a Tax for which
Lessee is obligated to indemnify pursuant to this Section 6(b).
(iv) Contests. If a written claim is made against an Indemnitee
or if any proceeding is commenced against an Indemnitee (including a
written notice of such proceeding) for Taxes as to which Lessee could
be liable for payment or indemnity hereunder, or if an Indemnitee
makes a determination that a Tax is due for which Lessee could have
an indemnity obligation hereunder, such Indemnitee shall promptly
give Lessee notice in writing of such claim (provided, however, that
the failure to provide such notice shall not affect Lessee's
obligations hereunder to the Owner Participant unless such failure
shall materially adversely affect the right to contest such claim)
and shall not take any action with respect to such claim or Tax
without the consent of Lessee for 30 days following the receipt of
such notice by Lessee; provided, however, that, if such Indemnitee
shall be required by law to take action prior to the end of such
30-day period, such Indemnitee shall, in such notice to Lessee, so
inform Lessee, and such Indemnitee shall take no action for as long
as it is legally able to do so (it being understood that an
Indemnitee shall be entitled to pay the Tax claimed and ▇▇▇ for a
refund prior to the end of such 30-day period if (A)(I) the failure
to so pay the Tax would result in substantial penalties (unless
immediately reimbursed by Lessee) and the act of paying the Tax would
not prejudice the right to contest or (II) the failure to so pay
would result in criminal penalties and (B) such Indemnitee shall act
in connection with paying the Tax in the manner that is the least
prejudicial to the pursuit of the contest). In addition, such
Indemnitee shall (provided that Lessee shall have agreed to keep such
information confidential other than to the extent necessary in order
to contest the claim) furnish Lessee with copies of any requests for
information from any taxing authority relating to such Taxes with
respect to which Lessee may be required to indemnify hereunder. If
requested by Lessee in writing within 30 days after its receipt of
such notice, such Indemnitee shall, at the expense of Lessee
(including all reasonable out-of-pocket costs and reasonable attorney
and accountants fees), in good faith contest (or, if permitted by
applicable law, allow Lessee to contest) through appropriate
administrative and judicial proceedings the validity, applicability
or amount of such Taxes by (X) resisting payment thereof, (Y) not
paying the same except under protest if protest is necessary and
proper or (Z) if the payment is made, using reasonable efforts to
obtain a refund thereof in an appropriate administrative and/or
judicial proceeding. If requested to do so by Lessee, the Indemnitee
shall appeal any adverse administrative or judicial decision, except
that the Indemnitee shall not be required to pursue any appeals to
the United States Supreme Court. If and to the extent the Indemnitee
is able to separate the contested issue or issues from other issues
arising in the same administrative or judicial proceeding that are
unrelated to the transactions contemplated by the Operative Documents
without, in the good faith judgment of such Indemnitee, adversely
affecting such Indemnitee, such Indemnitee shall permit Lessee to
control the conduct of any such proceeding and shall provide to
Lessee such information or data that is in such Indemnitee's control
or possession that is reasonably necessary to conduct such contest.
In the case of a contest controlled by an Indemnitee, such Indemnitee
shall consult with Lessee in good faith regarding the manner of
contesting such claim and shall keep Lessee reasonably informed
regarding the progress of such contest. An Indemnitee shall not fail
to take any action expressly required by this Section 6(b)(iv)
(including, without limitation, any action regarding any appeal of an
adverse determination with respect to any claim) or settle or
compromise any claim without the prior written consent of Lessee
(except as contemplated by this Section 6(b)(iv)).
Notwithstanding the foregoing, in no event shall an Indemnitee be
required to pursue any contest (or to permit Lessee to pursue any contest)
unless (A) Lessee shall have agreed to pay such Indemnitee on demand all
reasonable out-of-pocket costs and reasonable attorney and accountants fees
that such Indemnitee shall incur in connection with contesting such claim,
(B) if such contest shall involve the payment of the claim, Lessee shall
advance the amount thereof plus (to the extent indemnified hereunder)
interest, penalties and additions to tax with respect thereto that are
required to be paid prior to the commencement of such contest on an
interest-free basis and with no additional net after-tax cost to such
Indemnitee (and such Indemnitee shall promptly pay to Lessee any net
realized tax benefits resulting from any imputed interest deduction arising
from such interest free advance from Lessee plus any tax benefits resulting
from making any such payment), (C) such Indemnitee shall have reasonably
determined that the action to be taken will not result in any material risk
of forfeiture, sale or loss of the Aircraft (unless Lessee shall have made
provisions to protect the interests of any such Indemnitee), (D) no Lease
Event of Default shall have occurred and be continuing at the time the
contest is begun unless Lessee has provided security for its obligations
hereunder by advancing to such Indemnitee before proceeding with such
contest, the amount of the Tax being contested, plus any interest and
penalties and an amount estimated in good faith by such Indemnitee for
reasonable expenses, and (E) in the case of a contest that is being pursued
by an Indemnitee, the aggregate amount of the claim (together with the
amount of all similar or logically related claims that have been or could
be raised with any or all of the other Aircraft leased by the Owner
Participant to Lessee or raised in any other audit for which Lessee would
have an indemnity obligation under this Section 6(b)(iv)) is at least
$3,000. Notwithstanding the foregoing, if any Indemnitee shall release,
waive, compromise or settle any claim which may be indemnifiable by Lessee
pursuant to this Section 6(b) without the written permission of Lessee,
Lessee's obligation to indemnify such Indemnitee with respect to such claim
(and all directly related claims and claims based on the outcome of such
claim) shall terminate, subject to this Section 6(b)(iv), and subject to
Section 6(b)(iii), such Indemnitee shall repay to Lessee any amount
previously paid or advanced to such Indemnitee with respect to such claim,
plus interest at the rate that would have been payable by the relevant
taxing authority with respect to a refund of such Tax.
Notwithstanding anything contained in this Section 6(b), an Indemnitee
will not be required to contest the imposition of any Tax and shall be
permitted to settle or compromise any claim without Lessee's consent if
such Indemnitee (A) shall waive its right to indemnity under this Section
6(b), with respect to such Tax (and any directly related claim and any
claim the outcome of which is determined based upon the outcome of such
claim) and (B) shall pay to Lessee any amount previously paid or advanced
by Lessee pursuant to this Section 6(b) with respect to such Tax, plus
interest at the rate that would have been payable by the relevant taxing
authority with respect to a refund of such Tax.
(v) Refunds. If any Indemnitee shall receive a refund or credit
(or would have received such refund or credit but for a counterclaim
or other claim not indemnified by Lessee hereunder (a "deemed refund
or credit")) with respect to all or any part of any Taxes paid,
reimbursed or advanced by Lessee, in each case, whether by means of a
deduction, credit, refund or otherwise, and which was not taken into
account in computing such payment or indemnity, such Indemnitee shall
pay to Lessee within 30 days of such receipt or, in the case of a
deemed refund or credit, within 30 days of the resolution of such
contest, an amount equal to the lesser of (A) the amount of such
refund or credit or deemed refund or credit actually realized by such
Indemnitee, plus any additional tax savings actually realized by such
Indemnitee as a result of any payment made pursuant to this sentence
(including clause (A)), and (B) such tax payment, reimbursement or
advance by Lessee to such Indemnitee theretofore made pursuant to this
Section 6(b) and the excess, if any, of the amount described in clause
(A) over the amount described in clause (B) shall be carried forward
and applied to reduce pro tanto any subsequent obligations of Lessee
to make payments to such Indemnitee pursuant to this Section 6(b)).
If, in addition to such refund or credit (or deemed refund or credit),
such Indemnitee shall receive or be credited with (or would have
received but for a counterclaim or other claim not indemnified by
Lessee hereunder) an amount representing interest on the amount of
such refund or credit or deemed refund or credit, as the case may be,
such Indemnitee shall pay to Lessee within 30 days of such receipt or,
in the case of a deemed refund or credit, within 30 days of the
resolution or such contest, that portion of such interest that shall
be fairly attributable to Taxes paid, reimbursed or advanced by Lessee
prior to the receipt of such refund or credit or deemed refund or
credit. Each Indemnitee agrees to reasonably cooperate with Lessee in
claiming and pursuing any such refunds or credits of any Taxes payable
or indemnifiable pursuant to this Section 6(b).
(vi) Tax Filing. If any report, return or statement is required
to be filed with respect to any Tax which is subject to
indemnification under this Section 6(b), Lessee shall timely file the
same (except for any such report, return or statement which an
Indemnitee has timely notified Lessee in writing that such Indemnitee
intends to file, or for which such Indemnitee is required by law to
file, in its own name); provided, that the relevant Indemnitee shall
furnish Lessee with any information in such Indemnitee's possession
or control that is reasonably necessary to file any such return,
report or statement and is reasonably requested in writing by Lessee,
but in no event shall be obligated to furnish tax returns, although
it may be required to furnish relevant information contained therein.
The Lessee shall either file such report, return or statement and
send a copy of such report, return or statement to such Indemnitee,
and the Owner Trustee if the Indemnitee is not the Owner Trustee, or,
where Lessee is not permitted to file such report, return or
statement, it shall notify such Indemnitee of such requirement and
prepare and deliver such report, return or statement to such
Indemnitee in a manner satisfactory to such Indemnitee within a
reasonable time prior to the time such report, return or statement is
to be filed.
(vii) Forms. Each Indemnitee agrees to furnish from time to time
to Lessee or the Indenture Trustee or to such other Person as Lessee
or the Indenture Trustee may designate, at Lessee's or the Indenture
Trustee's request, such duly executed and properly completed forms as
may be necessary or appropriate in order to claim any reduction of or
exemption from any withholding or other Tax imposed by any government
or taxing authority, if (A) such reduction or exemption is available
to such Indemnitee and (B) Lessee has provided such Indemnitee with
any information necessary to complete such form not otherwise
reasonably available to such Indemnitee.
(viii) Non-Parties. If an Indemnitee is not a party to this
Agreement, Lessee may require the Indemnitee to agree in writing, in
a form reasonably acceptable to Lessee, to the terms of this Section
6(b) prior to making any payment to such Indemnitee under this
Section 6(b).
(ix) Subrogation. Upon payment of any Tax by Lessee pursuant to
this Section 6(b) to or on behalf of an Indemnitee, Lessee, without
any further action, shall be subrogated to any claims that such
Indemnitee may have relating thereto. Such Indemnitee shall cooperate
with Lessee to permit Lessee to pursue such claims.
(c) General Indemnity. Lessee 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; (D) the offer or sale of any interest in the Trust Estate or
the Trust Agreement or any similar interest on or prior to the Delivery
Date (including any violation of securities laws or ERISA); or (E) 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 (other than during the continuance of a Lease Event of Default
or pursuant to and in accordance with Sections 9, 10, 15 or 19 of the
Lease), (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 (other than taxes under ERISA or Section 4975 of the Code that
are not excluded from the foregoing indemnity by reason of clause 18 below)
whether or not Lessee is required to indemnify for such Tax pursuant to
Section 6(b) hereof (it being understood that Section 6(b) hereof and the
Tax Indemnity Agreement exclusively provide for Lessee's liability with
respect to Taxes), or (6) in the case of the Owner Participant, the offer
or sale by the Owner Participant after the Delivery Date of any interest in
the Trust Estate or the Trust Agreement or any similar interest except
during the continuance of an Event of Default so long as such disposition
is made in accordance with Section 7(k), or (7) in the case of the Owner
Trustee in its individual and trust capacities, and the Affiliates,
successors and assigns thereof, a failure on the part of the Owner Trustee
to distribute in accordance with the Trust Agreement any amounts
distributable by it thereunder, or (8) in the case of the Indenture Trustee
in its individual and trust capacities, failure on the part of the
Indenture Trustee to distribute in accordance with the Trust Indenture any
amounts distributable by it thereunder, or (9) in the case of any Pass
Through Trustee, 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 (10) 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 Lessee or (b) are
not occasioned by a specific requirement of the Operative Documents, or
(11) except to the extent fairly attributable to acts or events occurring
during the Term or actions taken (or required to be taken and not taken)
during the Term, actions taken (or required to be taken and not taken) or
events occurring after the earlier of: (I) the return of possession of the
Aircraft to the Owner Trustee or its designee pursuant to the terms of the
Lease (other than pursuant to and in accordance with Section 15 thereof, in
which case Lessee's liability under this Section 6(c) shall survive for so
long as Lessor shall be entitled to exercise remedies under such Section
15), (II) the termination of the Term in accordance with Section 9 of the
Lease, (III) the payment by Lessee of all amounts required to be paid under
the Lease following an Event of Loss or (IV) termination of the Lease and
payment by Lessee of all amounts required to be paid by Lessee pursuant to
the terms of the Operative Documents or (12) 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 Lessee under the Operative Documents, or (13) 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 (14)
any amounts relating to the deregistration with the FAA of the Aircraft as
a result of the Owner Participant or the Owner Trustee, as the case may be,
not being a Citizen of the United States or any other act or omission of
the Owner Trustee, the Owner Participant or such Indemnitee, or (15) 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 (16) any loss of tax benefits or increases in tax liability
whether or not the Lessee is required to indemnify an Indemnitee elsewhere
in the Operative Documents, or (17) principal of, or interest or premium on
the Equipment Notes, or (18) any prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975(c)(1) of the Code, occurring with
respect to the purchase or holding of any Pass Through Certificate (i) over
which purchase or holding the Owner Participant or any Affiliate thereof
has discretion or control (other than in the capacity of a directed trustee
or custodian), or (ii) by an employee benefit plan, within the meaning of
Section 3(3) of ERISA, or individual retirement account or plan subject to
Section 4975 of the Code with respect to which the Owner Participant (or
any Affiliate thereof) has the power, directly or indirectly, to appoint or
terminate, or to negotiate the terms of the management agreement with, the
person or persons having discretion or control (other than in the capacity
of a directed trustee or custodian), over such purchase or holding, or (19)
without limiting any indemnification otherwise expressly provided under the
Operative Documents, any amount payable under the Pass Through Documents
(other than the Participation Agreement) to the extent not included in the
definition of Supplemental Rent.
Lessee's indemnity obligation to an Indemnitee under this Section
6(c) 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(c) 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(c).
If any Indemnitee shall realize a tax savings by reason of any
Tax paid or indemnified by Lessee pursuant to this Section 6(c) (whether
such tax savings shall be by means of a foreign tax credit, depreciation or
cost recovery deduction or otherwise) and such savings is not otherwise
taken into account in computing such payment or indemnity such Indemnitee
shall pay to Lessee 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(c)
by Lessee to such Indemnitee (less any payments previously made by such
Indemnitee to Lessee pursuant to this Section 6(c)) (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 Lessee to make payments to such Indemnitee
pursuant to this Section 6(c)).
Nothing in this Section 6(c) shall be construed as a guaranty by
Lessee of payments due pursuant to the Equipment Notes or of the residual
value of the Aircraft.
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 Lessee;
provided that the failure to give such notice shall not affect the
obligations of Lessee hereunder except to the extent Lessee is prejudiced
by such failure or the Lessee's indemnification obligations are increased
as a result of such failure. If no Lease Event of Default shall have
occurred and be continuing, Lessee 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
Lessee's sole expense, to participate therein. Notwithstanding any of the
foregoing to the contrary, Lessee 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 Trust Estate, the Trust Indenture Estate or any
part thereof unless in such an event Lessee 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 Lessee pursuant to the
preceding provisions.
The affected Indemnitee shall supply Lessee with such information
reasonably requested by Lessee as is necessary or advisable for Lessee to
control or participate in any proceeding to the extent permitted by this
Section 6(c). Such Indemnitee shall not enter into a settlement or other
compromise with respect to any Expense without the prior written consent of
Lessee, 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(c).
The Lessee 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(c).
Upon payment of any Expense pursuant to this Section 6(c),
Lessee, 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 Lessee to permit
Lessee to pursue such claims, if any, to the extent reasonably requested by
Lessee.
If an Indemnitee is reimbursed, in whole or in part, with respect
to any Expense paid by Lessee hereunder, it will promptly pay the amount
refunded, including interest received thereto (but not an amount in excess
of the amount Lessee or any of its insurers has paid in respect of such
Expense pursuant to this Section 6(c)) over to Lessee.
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 Lessee by any Person pursuant to
this Section 6 shall not be paid to Lessee if a Lease Event of Default has
occurred and is continuing or if any payment is due and owing by Lessee to
such Person under the Lease or any other Operative Document. Any such
amount shall be held by such Person (the Lessee hereby granting a security
interest in such amount to such Person) and, if a Lease Event of Default
shall have occurred and be continuing, shall be applied against Lessee's
obligations hereunder to such Person as and when due (and, to the extent
that Lessee has no obligations hereunder to such Person, such amount shall
be paid to Lessee). At such time as there shall not be continuing any such
Lease Event of Default or there shall not be due and owing any such
payment, such amount shall be paid to Lessee to the extent not previously
applied in accordance with the immediately preceding sentence.
(d) Special Indemnity. If a Class C Special Indemnity Event
shall be continuing at any time during any Lease Period, then on the last
day of such Lease Period, Lessee shall pay to the Pass Through Trustee on
behalf of the US Airways Pass Through Trust 1999 1C the amount which has
accrued during the period between [Rent Payment Dates] [Lease Period Dates]
in accordance with the following sentence and which remains unpaid on such
Lease Period Date (such amount, the "Class C Special Indemnity Payment").
The Class C Special Indemnity Payment shall accrue during each Lease Period
at a daily rate equal to the Multiplier, in effect from time to time during
the period between [Rent Payment Dates] [Lease Period Dates], 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) Covenants Regarding Citizenship. Each of the Owner
Participant and First Security Bank, National Association, in its
individual capacity, represents and warrants to the other parties to this
Agreement that it is, and on the Delivery Date will be, a Citizen of the
United States without making use of any voting trust, voting powers
agreement or similar arrangement. The Owner Participant agrees, solely for
the benefit of Lessee and the Loan Participants, that if (i) it shall cease
to be, or believes itself likely to cease to be, a Citizen of the United
States and (ii) the Aircraft shall or would therefore become ineligible for
registration in the name of the Owner Trustee under the Transportation Code
and regulations then applicable thereunder, then the Owner Participant
shall (at its own expense and without any reimbursement or indemnification
from Lessee) as soon as practicable, but in any event within 60 days of
obtaining knowledge of such ineligibility or loss of citizenship effect a
voting trust, voting powers agreement or other similar arrangement or take
any other action as may be necessary to prevent any deregistration and to
maintain the United States registration of the Aircraft. It is agreed
that: (A) the Owner Participant shall be liable to pay on request to each
of the other parties hereto and to each holder of a Equipment Note for any
damages suffered by any such other party or holder as the result of the
representation and warranty of the Owner Participant in the first sentence
of this Section 7(a) proving to be untrue as of the Delivery Date; and (B)
the Owner Participant shall be liable to Lessee, any Sublessee and the Loan
Participants for any damages which may be incurred by Lessee, any Sublessee
or the Loan Participants as a result of the Owner Participant's failure to
comply with its obligations pursuant to the second sentence of this Section
7(a). Each party hereto agrees, upon the request and at the sole expense
of the Owner Participant, to cooperate with the Owner Participant in
complying with its obligations under the provisions of the second sentence
of this Section 7(a). First Security Bank, National Association, in its
individual capacity, agrees that if at any time an officer or responsible
employee of the Corporate Trust Department of First Security Bank, National
Association, shall obtain actual knowledge that First Security Bank,
National Association, has ceased to be a Citizen of the United States
without making use of a voting trust, voting powers agreement or similar
arrangement, it will promptly resign as Owner Trustee (if and so long as
such citizenship is necessary under the Transportation Code as in effect at
such time or, if it is not necessary, if and so long as the Owner Trustee's
citizenship would have any material adverse effect on the Loan
Participants, Lessee or the Owner Participant), effective upon the
appointment of a successor Owner Trustee in accordance with Section 9.01 of
the Trust Agreement. If the Owner Participant or First Security Bank,
National Association, in its individual capacity, does not comply with the
requirements of this Section 7(a), the Owner Trustee, the Indenture Trustee
and the Participants hereby agree that a Lease Default or Lease Event of
Default shall not have occurred and be continuing due to non-compliance by
Lessee with the registration requirements in the Lease.
(b) Location of Records. First Security Bank, National
Association, in its individual capacity, agrees that it will not change
the location of its principal place of business or the office where it
maintains its books and records with respect to the Aircraft and the Trust
Estate to a location outside of Salt Lake City, Utah, without prior written
notice to all parties.
(c) 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.
(d) Reregistration. The Owner Participant, the Indenture
Trustee, the Pass Through Trustee and each Loan Participant agree that, at
any time after the Depreciation Period, so long as no Lease Event of
Default shall have occurred and be continuing, Lessee may elect to effect a
change in registration of the Aircraft, at Lessee's cost and expense, so
long as the country of registry of the Aircraft is a country listed on
Exhibit A. Upon the request of the Lessee, Exhibit A shall be amended from
time to time to include any other country which the Owner Participant and
the Indenture Trustee have determined, acting reasonably, would provide
substantially equivalent protection for the rights of owner participants,
lessors or lenders in similar transactions as provided under the laws of
the United States and the states thereof. In order for Lessee to effect a
change in the country of registry of the Aircraft, Lessee shall deliver to
the Owner Participant, the Owner Trustee (in its individual capacity) and
the Indenture Trustee the following:
(I) an Officer's Certificate certifying that (A) the insurance or
self-insurance required by Section 11 of the Lease 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 Owner Participant, the Owner Trustee
(in its individual capacity and as trustee under the Trust
Agreement) and the Indenture Trustee under any Operative Document
afford each such party substantially the same protection as
provided prior to such change of registry, (C) the lien of the
Trust Indenture in favor of the 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 Lessee is not required to indemnify, or is
not then willing to enter into a binding agreement to indemnify,
the Owner Participant, the Note Holders, the Indenture Trustee,
the Owner Trustee (in its individual capacity and as trustee
under the Trust Agreement), the Indenture Trustee or the Trust
Estate pursuant to this Agreement or the Tax Indemnity Agreement,
and (E) that the new country of registry imposes aircraft
maintenance standards not materially less stringent from those of
any Permitted Foreign Air Authority; and
(II) a favorable opinion (subject to customary exceptions) of counsel
(opinion and counsel reasonably acceptable to the Owner
Participant) addressed to the Owner Participant and the Indenture
Trustee, from counsel of recognized reputation qualified in the
laws of the relevant jurisdiction to the effect that: (A) the
obligations of Lessee, and the rights and remedies of the Owner
Trustee, under the Lease shall remain valid, binding and (subject
to customary bankruptcy and equitable remedies exceptions and to
other exceptions customary in foreign opinions generally)
enforceable under the laws of such jurisdiction (or the laws of
the jurisdiction to which the laws of such jurisdiction would
refer as the applicable governing law); (B) it is not necessary,
solely as a consequence of such change in registration and
without giving effect to any other activity of the Owner Trustee,
the Owner Participant or the Indenture Trustee (or any Affiliate
thereof), as the case may be, for the Owner Trustee, the Owner
Participant or the Indenture Trustee to register or qualify to do
business in such jurisdiction; (C) there is no tort liability of
the owner of an aircraft not in possession thereof under the laws
of such jurisdiction (it being agreed that, in the event such
latter opinion cannot be given in a form satisfactory to the
Owner Participant, such opinion shall be waived if insurance
reasonably satisfactory to the Owner Participant is provided to
cover such risk); (D) unless Lessee 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
(E) after giving effect to such change in registration, the Lien
of the Trust Indenture on the Owner Trustee's right, title and
interest in and to the Aircraft and the Lease 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 Owner Trustee and the Indenture Trustee shall have
received a certificate from Lessee 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 Owner Trustee and the Indenture Trustee on or
prior to the effective date of such change in registration).
Upon receipt of the foregoing certificate and opinion, the Owner
Participant and the Indenture Trustee will instruct the Owner Trustee to
make such change of registration.
Lessee shall pay all reasonable costs, expenses, fees, recording
and registration taxes, including the reasonable fees and expenses of
counsel to the Owner Trustee, the Owner Participant and the Indenture
Trustee, and other charges in connection with any such change in
registration.
(e) Owner Participant Representations and Warranties. The Owner
Participant represents and warrants to Lessee, the Owner Trustee, the
Indenture Trustee, the Pass Through Trustee, the Subordination Agent, the
Liquidity Provider and the Owner Trustee, in its capacity as such and in
its individual capacity, as follows:
(i) it is duly incorporated, validly existing and in good
standing under the laws of the State of __________ and has the
corporate power and authority to carry on its present business and
operations and to own or lease its properties, and has the corporate
power and authority to enter into and to perform its obligations under
the Owner Participant Documents; this Agreement and the other Owner
Participant Documents have been duly authorized, executed and
delivered by it; and this Agreement and each of the other Owner
Participant Documents constitute the legal, valid and binding
obligations of the Owner Participant enforceable against it in
accordance with its respective terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the rights of creditors generally and
by general principles of equity, whether considered in a proceeding at
law or in equity; and the Owner Participant is a Qualified Owner
Participant;
(ii) neither (A) the execution and delivery by the Owner
Participant of the Owner Participant Documents nor (B) compliance by
it with all of the provisions thereof, (x) will contravene any law or
order of any court or governmental authority or agency applicable to
or binding on the Owner Participant (it being understood that no
representation or warranty is made with respect to laws, rules or
regulations relating to aviation or to the nature of the equipment
owned by the Owner Trustee other than such laws, rules or regulations
relating to the citizenship requirements of the Owner Participant
under applicable law), or (y) will contravene the provisions of, or
constitutes or has constituted or will constitute a default under, or
result in the creation of any Lien (other than Liens provided for in
the Operative Documents) upon any property of the Owner Participant
under, its certificate of incorporation or by-laws or any indenture,
mortgage, contract or other agreement or instrument to which the Owner
Participant is a party or by which it or any of its property may be
bound or affected;
(iii) no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body (other than as required by the Transportation Code or the
regulations promulgated thereunder) is required for the due execution,
delivery or performance by it of the Owner Participant Documents;
(iv) there are no pending or, to its knowledge, threatened
actions or proceedings before any court or administrative agency or
arbitrator which would materially adversely affect the Owner
Participant's ability to perform its obligations under this Agreement,
the Participation Agreement, the Tax Indemnity Agreement and the Trust
Agreement;
(v) neither the Owner Participant nor anyone authorized by it to
act on its behalf (it being understood that in proposing, facilitating
and otherwise taking any action in connection with the financing
contemplated hereby and agreed to herein by the Owner Participant,
Lessee has not acted as agent of the Owner Participant) has directly
or indirectly offered any Equipment Note or Pass Through Trust
Certificate or any interest in and to the Trust Estate, the Trust
Agreement or any similar interest for sale to, or solicited any offer
to acquire any of the same from, any Person; the Owner Participant's
interest in the Trust Estate and the Trust Agreement is being acquired
for its own account and is being purchased for investment and not with
a view to any resale or distribution thereof;
(vi) on the Delivery Date, the Trust Estate shall be free of
Lessor Liens attributable to the Owner Participant; and
(vii) it is a Citizen of the United States (without making use
of a voting trust agreement, voting powers agreement or similar
arrangement).
(f) Lessor Liens. Each of First Security Bank, National
Association, in its individual capacity, and the Owner Participant
covenants and agrees that it shall not cause or permit to exist a Lessor
Lien attributable to it with respect to the Aircraft or any other portion
of the Trust Estate. Each of First Security Bank, National Association, in
its individual capacity, and the Owner Participant agrees that it will
promptly, at its own expense, take such action as may be necessary duly to
discharge such Lessor Lien attributable to it. Each of First Security
Bank, National Association, in its individual capacity, and the Owner
Participant agrees to make restitution to the Trust Estate for any actual
diminution of the assets of the Trust Estate resulting from Lessor Liens
attributable to it. The Owner Participant agrees to make restitution to
the Trust Estate for any actual diminution of the assets of the Trust
Estate resulting from any Taxes or Expenses imposed on the Trust Estate
against which Lessee is not required to indemnify the Trust Estate
pursuant to Section 6.
(g) Quiet Enjoyment. Each Loan Participant and each of the
Indenture Trustee, the Subordination Agent, the Owner Trustee, the Pass
Through Trustee and the Owner Participant covenants and agrees that, so
long as no Lease Event of Default shall have occurred and be continuing
and the Lessee has not been duly declared in default and, notwithstanding
default by any Loan Participant, the Indenture Trustee, the Owner Trustee,
the Pass Through Trustee or the Owner Participant, that such Person shall
not (and shall not permit any Affiliate or other Person claiming by,
through or under it to) interfere with Lessee's (or any Sublessee's)
continued possession, use and operation of, and quiet enjoyment of, the
Aircraft or Lessee's rights, benefits and obligations pursuant to the
Transactions during the Term of the Lease, and the Lease shall not be
terminated except as expressly provided therein.
(h) Equipment Notes Acquired for Investment. Each Loan
Participant represents and warrants that the Equipment Note to be issued to
it pursuant to the Trust 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.
(i) [Reserved.]
(j) Representations, Warranties and Covenants of 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 Lessee, the Owner Trustee, the Pass Through
Trustee, the Subordination Agent, the Liquidity Provider and the Owner
Participant 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 8.02 of the Trust Indenture promptly
after it obtains actual knowledge that it has ceased to be such a
Citizen of the United States (without making use of a voting trust,
voting powers agreement or similar arrangement), and has the full
corporate power, authority and legal right under the laws of the State
of Connecticut and the United States pertaining to its banking, trust
and fiduciary powers to execute and deliver each of this Agreement,
the Trust Indenture and each other Operative Document to which it is a
party and to carry out its obligations under this Agreement, the Trust
Indenture, each other Operative Document to which it is a party and to
authenticate the Equipment Notes;
(ii) the execution and delivery by the Indenture Trustee of the
Indenture Trustee Documents and the authentication of the Equipment
Notes and the performance by the Indenture Trustee of its obligations
under the Indenture Trustee Documents have been duly authorized by the
Indenture Trustee and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it is bound;
(iii) this Agreement and each of the other Indenture Trustee
Documents constitute the legal, valid and binding obligations of the
Indenture Trustee enforceable against it in accordance with their
respective terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general principles
of equity, whether considered in a proceeding at law or in equity;
(iv) there are no pending or, to its knowledge, threatened
actions or proceedings against the Indenture Trustee, either in its
individual capacity or as Indenture Trustee, before any court or
administrative agency which, if determined adversely to it, would
materially adversely affect the ability of the Indenture Trustee, in
its individual capacity or as Indenture Trustee as the case may be, to
perform its obligations under the Operative Documents to which it is a
party; and
(v) there are no Indenture Trustee Liens on the Aircraft or any
portion of the Trust Estate.
(k) Owner Participant Transfers. So long as the Aircraft shall
be leased to the Lessee under the Lease, the Owner Participant will not,
directly or indirectly, sell, assign, convey or otherwise transfer any of
its right, title or interest in and to this Agreement, the Trust Estate or
the Trust Agreement or any proceeds therefrom to any person or entity,
unless (i) the proposed transferee is a "Transferee" (as defined below),
(ii) Lessee shall have (1) received an opinion (in form and substance
reasonably satisfactory to Lessee) of counsel to the Owner Participant (who
shall be reasonably satisfactory to Lessee) to the effect that such
transfer will not result in any risk of loss of tax benefits to, or any
increase in the tax liability of, Lessee and (2) received from the Owner
Participant so seeking to transfer such right, title or interest reasonably
satisfactory indemnification for any loss of tax benefits to, and increase
in the tax liability of, Lessee, and (iii) the Owner Participant sells,
assigns, conveys or otherwise transfers all of its right, title and
interest in and to this Agreement, the Trust Estate, the Trust Agreement
and the proceeds therefrom to a single entity. A "Transferee" shall mean
either (A) a bank or other financial institution with a combined capital,
surplus and undivided profits of at least [$50,000,000] or a corporation
whose tangible net worth is at least [$50,000,000], exclusive of goodwill,
in either case as of the proposed date of such transfer, as determined in
accordance with generally accepted accounting principles, or (B) any
subsidiary of such a bank, financial institution or corporation, provided
that such bank, financial institution or corporation furnishes to the Owner
Trustee, the Indenture Trustee and Lessee a guaranty with respect to the
Owner Participant's obligations under the Operative Documents to which the
Owner Participant is a party in form and substance reasonably satisfactory
to Lessee, the Owner Trustee, and the Indenture Trustee, or (C) is an
affiliate of the Owner Participant and the Owner Participant agrees to
remain liable for all obligations of the Owner Participant under the
Operative Documents; provided, further, that any Transferee shall not be an
airline, a commercial aircraft operator, an air freight forwarder, an
entity engaged in the business of parcel transport by air or other similar
Person or an Affiliate thereof. Each such transfer to a Transferee shall
be subject to the conditions that (S) upon giving effect to such transfer,
the Transferee is a Citizen of the United States (without making use of a
voting trust agreement, voting powers agreement or other similar
arrangement unless approved by Lessee), and has full power and authority to
enter into the transactions contemplated hereby, (T) the Transferee has the
requisite power and authority to enter into and carry out the transactions
contemplated hereby and such Transferee shall have delivered to Lessee, the
Owner Trustee and the Indenture Trustee an opinion of counsel in form and
substance reasonably satisfactory to Lessee and the Owner Trustee as to the
due authorization, delivery, legal, valid and binding effect and
enforceability of the agreement or agreements referred to in the next
clause with respect to the Transferee and any guaranty provided pursuant to
the provisions of this Section 7(k) as to the guarantor, (U) the Transferee
enters into an agreement or agreements, in form and substance reasonably
satisfactory to the Owner Trustee and Lessee, whereby the Transferee
confirms that it shall be deemed a party to this Agreement and a party to
the Trust Agreement and agrees to be bound by all the terms of, and to
undertake all of the obligations of the transferor Owner Participant
contained in, the Owner Participant Documents (to the extent of the
participation so transferred to it) and makes the representations and
warranties made by the Owner Participant thereunder, (V) such transfer does
not affect registration of the Aircraft under the Transportation Code, or
any rules or regulations promulgated thereunder or create a relationship
which would be in violation thereof or violate any provision of the
Securities Act or any other applicable Federal or state law and the Lessee
shall be entitled to require an opinion of counsel to such effect, (W) the
transferor Owner Participant assumes the risk of any adverse tax
consequences with respect to the true lease nature of the transaction
(including, without limitation, loss of depreciation and amortization
deductions and interest deductions resulting from such transfer, (X) the
transferor Owner Participant pays all of the reasonable costs and expenses
(including, without limitation, the reasonable fees and expenses of
counsel) incurred in connection with such transfer, including the
reasonable costs and expenses of the Owner Trustee, the Indenture Trustee,
Lessee and the Loan Participants in connection therewith without the right
of indemnification or reimbursement by Lessee, (Y) the terms of the
Operative Documents and the Transactions shall not be altered and (Z) such
transfer will not give rise to a Default under the Trust Indenture or an
Indenture Event of Default. Upon any such transfer by the Owner
Participant as above provided, the Transferee shall be deemed the Owner
Participant for all purposes hereof and of the other Operative Documents
and each reference herein to the transferor Owner Participant shall
thereafter be deemed for all purposes to be to the Transferee and the
transferor Owner Participant shall be relieved of all obligations of the
transferor Owner Participant under the Owner Participant Documents arising
after the date of such transfer except to the extent fully attributable to
or arising out of acts or events occurring prior thereto and not assumed by
the Transferee. If the Owner Participant intends to transfer any of its
interests hereunder, it shall give thirty (30) days prior written notice
thereof to the Indenture Trustee, the Owner Trustee and Lessee, specifying
the name and address of the proposed Transferee and providing the financial
statements of such proposed Transferee.
(l) Reserved.
(m) Compliance with Trust Indenture. First Security Bank,
National Association, and State Street Bank and Trust Company of
Connecticut, National Association, each in its individual capacity, agrees
for the benefit of Lessee to comply with the terms of the Trust Indenture
which it is required to comply with in its individual capacity.
(n) ERISA Matters. The Owner Participant represents and
warrants as of the Delivery Date that either (i) no part of the source of
funds used to acquire and hold its interest in the Trust Estate constitutes
the assets of any "employee benefit plan" as defined in Section 3(3) of
ERISA or of any "plan" within the meaning of Section 4975(e)(1) of the
Code, including, without limitation, as applicable, an insurance company
general account ("Plan Assets") or (ii) the source of funds used to acquire
and hold its interest in the Trust Estate is an insurance company general
account (within the meaning of United States Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60 (issued July 12, 1995)), and as
of the date hereof and at all times while it holds such interest (x) less
than 25% of the assets of such general account do and will constitute Plan
Assets and (y) the amount of reserves and liabilities (as defined in the
annual statement for life insurance companies approved by the National
Association of Insurance Commissioners ("NAIC Annual Statement") (the
"Reserves and Liabilities")) for the general account contract(s) held by or
on behalf of any employee benefit plan subject to Title I of ERISA or any
plan subject to Section 4975 of the Code (an "ERISA Plan"), together with
the amount of the Reserves and Liabilities for the general account
contract(s) held by or on behalf of any other ERISA Plans maintained by the
same employer (or any "affiliate" thereof within the meaning of Section
V(a)(1) of PTCE 95-60) or by the same employee organization, do not and
will not exceed 10% of the total Reserves and Liabilities of such general
account (exclusive of separate account liabilities) plus surplus, as set
forth in the NAIC Annual Statement filed with the state of domicile of the
insurance company maintaining such general account (the conditions of this
clause (y) shall be referred to as the "Reserves and Liabilities
Conditions"). Each Loan Participant agrees that it will not transfer any
Equipment Note (or any part thereof) to any entity (except pursuant to
Section 2.14 of the Trust Indenture) unless such entity either (i) makes a
representation and warranty as of the date of transfer that no part of the
funds to be used by it for the purchase and holding of such Equipment Note
(or any part thereof) constitutes Plan Assets or that such purchase and
holding will not constitute or result in a non-exempt prohibited
transaction (as defined in Section 4975 of the Code and ERISA), provided,
that Equipment Notes may be transferred to a Pass Through Trustee in
connection with an offering of Certificates by the related Pass Through
Trust if, as a condition of such offering, each person or entity acquiring
such Certificates makes (or is deemed to make) the foregoing representation
and warranty with respect to its purchase and holding of such Certificates.
The Owner Participant agrees that it will not transfer any of its right,
title or interest in and to this Agreement, the Trust Estate or the Trust
Agreement or any proceeds therefrom to any entity unless such entity makes
(or is deemed to have made) a representation and warranty as of the date of
transfer that either no part of the funds to be used by it for the purchase
and holding of such right, title, interest and proceeds (or any part
thereof) constitutes Plan Assets or (ii) is an insurance company general
account that represents, warrants and covenants both as of the date it
acquires such right, title, interest and proceeds and at all times while it
holds such right, title, interest and proceeds that (x) less than 25% of
the assets of such general account will constitute Plan Assets and (y) the
Reserves and Liabilities Conditions will be satisfied, such that such
transfer will not constitute or result in a non-exempt prohibited
transaction (as defined in Section 4975 of the Code and ERISA). The Pass
Through Trustee agrees that it will not agree to any amendment,
modification or waiver of Section 1.01(e)(1) of the initial supplement to
each Pass Through Trust Agreement without the prior written consent of the
Owner Participant.
(o) Confidentiality of Purchase Agreement. Each Participant,
the Owner Trustee and the Indenture Trustee agrees for the benefit of the
Manufacturer and Lessee 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) or the Owner Participant's beneficial interest
in the Trust Estate and any exercise of remedies under the Lease and the
Trust Indenture), (C) with the prior written consent of the Manufacturer
and Lessee, (D) to the Owner Trustee's, the Indenture Trustee's and each
Participant's counsel or special counsel, independent insurance brokers or
other agents who agree to hold such information confidential, or (E) in the
case of the Owner Participant and/or the Owner Trustee, it may disclose so
much of the Purchase Agreement as has been assigned to the Owner Trustee
under the Purchase Agreement Assignment to bona fide potential purchasers
of the Aircraft.
(p) Margin Regulations. The Owner Trustee and the Owner
Participant severally, not jointly, represent and warrant, as of the
Delivery Date that none of the funds made available by the Pass Through
Trustee pursuant to Section 1 hereof will be used for the purpose of
purchasing or carrying any "margin security" as defined in Regulation U of
the Board of Governors of the Federal Reserve System or for the purpose of
reducing or retiring any indebtedness which was originally incurred to
purchase or carry such margin security or for any other purpose which might
cause the transaction contemplated by this Agreement to constitute a
"purpose credit" within the meaning of Regulation X of the Board of
Governors of the Federal Reserve System, assuming that the proceeds were
and are applied as contemplated by the provisions of this Agreement.
(q) 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 or any other portion of the
Trust Estate. 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 the Trust Estate for any actual diminution of the
assets of the Trust Estate resulting from such Loan Participant Lien
attributable to it.
(r) 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 Trust Indenture Estate or the
Trust 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 the Trust Estate for any actual diminution of the
assets of the Trust Indenture Estate or the Trust Estate resulting from
such Indenture Trustee's Liens.
(s) Representations and Warranties of Owner Trustee. The Owner
Trustee, in its individual capacity (except as provided in clauses (iii)
and (vii) below) and (but only as provided in clauses (iii) and (vii) and,
to the extent that it relates to the Owner Trustee, clauses (ii), (ix) and
(xi) below) as Owner Trustee, represents and warrants to Lessee, the Pass
Through Trustee, the Subordination Agent, the Liquidity Provider and the
Owner Participant as follows:
(i) the Owner Trustee, in its individual capacity, is a national
banking association duly organized and validly existing in good
standing under the laws of the United States, has full corporate power
and authority to carry on its business as now conducted, has the
corporate power and authority to execute and deliver the Trust
Agreement, has the corporate power and authority to carry out the
terms of the Trust Agreement, and has (assuming the authorization,
execution and delivery of the Trust Agreement by the Owner
Participant), as Owner Trustee, and to the extent expressly provided
herein or therein, in its individual capacity, the corporate power and
authority to execute and deliver and to carry out the terms of this
Agreement, the Trust Indenture, the Equipment Notes, the Lease and
each other Operative Document (other than the Trust Agreement) to
which it is a party;
(ii) the Owner Trustee in its trust capacity and, to the extent
expressly provided herein, in its individual capacity, has duly
authorized, executed and delivered this Agreement, in its individual
capacity, has duly authorized, executed and delivered the Trust
Agreement and in its trust capacity, except as expressly provided
therein, has duly authorized, executed and delivered (or, in the case
of Owner Trustee Documents to be executed on the Delivery Date, will
on the Delivery Date, execute and deliver) the other Owner Trustee
Documents and (assuming the due authorization, execution and delivery
of the Trust Agreement by the Owner Participant) this Agreement and
each of the other Owner Trustee Documents constitutes (or, in the case
of documents to be executed and delivered on the Delivery Date, upon
execution and delivery will constitute) the legal, valid and binding
obligations of the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, enforceable against it in its
individual capacity or as Owner Trustee, as the case may be, in
accordance with its 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) assuming the due authorization, execution and delivery of
the Trust Agreement by the Owner Participant, the Owner Trustee has
duly authorized, and on the Closing Date shall have duly issued,
executed and delivered to the Indenture Trustee for authentication,
the Equipment Notes pursuant to the terms and provisions hereof and
of the Trust Indenture, and each Equipment Note on the Closing Date
will constitute the valid and binding obligation of the Owner Trustee
and will be entitled to the benefits and security afforded by the
Trust Indenture in accordance with the terms of such Equipment Note
and the Trust Indenture;
(iv) neither the execution and delivery by the Owner Trustee, in
its individual capacity or as Owner Trustee, as the case may be, of
any Owner Trustee Document, nor the consummation by the Owner Trustee,
in its individual capacity or as Owner Trustee, as the case may be, of
any of the transactions contemplated thereby, nor the compliance by
the Owner Trustee, in its individual capacity or as Owner Trustee, as
the case may be, with any of the terms and provisions thereof, (A)
requires or will require any approval of its stockholders, or approval
or consent of any trustees or holders of any indebtedness or
obligations of it, or (B) violates or will violate its articles of
association or by-laws, or contravenes or will contravene any
provision of, or constitutes or will constitute a default under, or
results or will result in any breach of, or results or will result in
the creation of any Lien (other than as permitted under the Operative
Documents) upon its property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sale contract, bank loan or
credit agreement, license or other agreement or instrument to which it
is a party or by which it is bound, or contravenes or will contravene
any law, governmental rule or regulation of the United States of
America or the State of Utah governing the trust powers of the Owner
Trustee, or any judgment or order applicable to or binding on it;
(v) no consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any Utah state or local governmental authority or agency
or any United States Federal governmental authority or agency
regulating the trust powers of the Owner Trustee in its individual
capacity is required for the execution and delivery of, or the
carrying out by, the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of any of the transactions
contemplated hereby or by the Trust Agreement, the Participation
Agreement, the Trust Indenture, the Lease or the Equipment Notes, or
any other Operative Document to which it is or will be a party or by
which it is or will be bound, other than any such consent, approval,
order, authorization, registration, notice or action as has been duly
obtained, given or taken or which is described in Section 7(a)(iv);
(vi) there exists no Lessor Lien attributable to the Owner
Trustee, in its individual capacity;
(vii) there exists no Lessor Lien attributable to the Owner
Trustee, as lessor under the Lease;
(viii) there are no Taxes payable by the Owner Trustee, either
in its individual capacity or as Owner Trustee, imposed by the State
of Utah or any political subdivision thereof in connection with the
issuance of the Equipment Notes, or the execution and delivery in its
individual capacity or as Owner Trustee, as the case may be, of any
of the instruments referred to in clauses (i), (ii), (iii) and (iv)
above, that, in each case, would not have been imposed if the Trust
Estate were not located in the State of Utah and First Security Bank,
National Association had not (a) had its principal place of business
in, (b) performed (in its individual capacity or as Owner Trustee)
any or all of its duties under the Operative Documents in, and (c)
engaged in any activities unrelated to the transactions contemplated
by the Operative Documents in, the State of Utah;
(ix) there are no pending or, to its knowledge, threatened
actions or proceedings against the Owner Trustee, either in its
individual capacity or as Owner Trustee, before any court or
administrative agency which, if determined adversely to it, would
materially adversely affect the ability of the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, to
perform its obligations under any of the instruments referred to in
clauses (i), (ii), (iii) and (iv) above;
(x) both its chief executive office, and the place where its
records concerning the Aircraft and all its interests in, to and
under all documents relating to the Trust Estate, are located in Salt
Lake City, Utah;
(xi) the Owner Trustee has not, in its individual capacity or as
Owner Trustee, directly or indirectly offered any Equipment Note or
Pass Through Certificate or any interest in or to the Trust Estate,
the Trust Agreement or any similar interest for sale to, or solicited
any offer to acquire any of the same from, anyone other than the Pass
Through Trustee and the Owner Participant; and the Owner Trustee has
not authorized anyone to act on its behalf (it being understood that
in arranging and proposing the refinancing contemplated hereby and
agreed to herein by the Owner Trustee, the Lessee has not acted as
agent of the Owner Trustee) to offer directly or indirectly any
Equipment Note, any Certificate or any interest in and to the Trust
Estate, the Trust Agreement or any similar interest for sale to, or to
solicit any offer to acquire any of the same from, any person;
(xii) it is a Citizen of the United States (without making use
of a voting trust agreement, voting powers agreement or similar
arrangements);
(xiii) there has not occurred any event which constitutes (or,
to the best of its knowledge would, with the passing of time or the
giving of notice or both, constitute) an Indenture Event of Default
which has been caused by or relates to the Owner Trustee, in its
individual capacity, and which is presently continuing; and
(xiv) on the Delivery Date the Owner Trustee shall have received
whatever title to the Aircraft as was conveyed to it by Lessee.
(t) Owner Participant Obligations on Lease Termination. The
Owner Participant covenants and agrees that if (i) Lessee has elected
pursuant to Section 9(a)(1) of the Lease to terminate the Lease by causing
the Aircraft to be sold pursuant to Section 9(b) of the Lease and (ii) the
Owner Trustee has, pursuant to Section 9(b) of the Lease, given to Lessee
written notice of Lessor's election to retain title to the Aircraft and
(iii) the Owner Trustee has failed to make, on or before the Termination
Date, any payment required to be made by the Owner Trustee pursuant to
Section 9(b) of the Lease in connection with its retention of title to the
Aircraft, the Owner Participant will indemnify Lessee for any losses,
damages, costs or expenses of any kind (including any additional rents paid
by Lessee and any fees and expenses of lawyers, appraisers, brokers or
accountants) incurred as a consequence of such failure by the Owner
Trustee.
(u) Transfer of Title; Assumption of Equipment Notes. Each of
the Owner Participant, the Owner Trustee, the Indenture Trustee and Lessee
covenants and agrees that if Lessee elects (A) to purchase the Aircraft
pursuant to Section 19(b) or Section 20 of the Lease or (B) to terminate
the Lease and purchase the Aircraft pursuant to Section 19(c) of the Lease,
then each of the parties will execute and deliver appropriate documentation
transferring all right, title and interest in the Aircraft to Lessee
(including, without limitation, such bills of sale and other instruments
and documents as Lessee shall reasonably request to evidence (on the public
record or otherwise) such transfer and the vesting of all right, title and
interest in and to the Aircraft in Lessee), and if Lessee, in connection
with such purchase, elects to assume the obligations of the Owner Trustee
pursuant to the Trust Indenture and the Equipment Notes each of the parties
will execute and deliver appropriate documentation permitting Lessee to
assume such obligations on the basis of full recourse to Lessee,
maintaining the security interest in the Aircraft created by the Trust
Indenture, releasing the Owner Participant and the Owner Trustee from all
future obligations in respect of the Equipment Notes, the Trust Indenture
and all other Operative Documents and all such other actions as are
reasonably necessary to permit such assumption by Lessee. Notwithstanding
the provisions of this Section 7(u), unless waived by the Loan
Participants, Lessee shall not be entitled to assume the Equipment Notes on
the date for purchase of the Aircraft pursuant to Section 19(c) or 20 of
the Lease if on such date a Specified Default or Lease Event of Default
shall have occurred and be continuing.
Notwithstanding the foregoing, Lessee shall not be entitled to
assume the obligations of the Owner Trustee in respect of the Equipment
Notes unless Lessee causes to be delivered to the Indenture Trustee an
opinion of counsel to the effect that (i) the Lien of the Trust Indenture
continues to be a valid and duly perfected first priority security interest
in and to the Aircraft, (ii) the Indenture Trustee will be entitled to the
benefits of 11 U.S.C. Section 1110; provided that the opinion required by
subclause (ii) need only be given if immediately prior to such assumption
the Owner Trustee would have been entitled to the benefits of 11 U.S.C.
Section 1110 and (iii) the Pass Through Trusts will not be subject to
Federal income taxation and the Note Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such assumption
and will be subject to taxation in the same amounts, in the same manner,
and at the same times as would have been the case if such assumption had
not occurred.
(v) Lessee Merger Covenant. Lessee 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
Lessee is merged or the Person which acquires by conveyance, transfer
or lease substantially all of the assets of Lessee 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 Lease or the Aircraft;
(ii) the corporation formed by such consolidation or into which
Lessee is merged or the Person which acquires by conveyance, transfer
or lease substantially all of the assets of Lessee as an entirety
shall execute and deliver to the Owner Trustee, the Indenture Trustee
and the Owner Participant an agreement in form and substance
reasonably satisfactory to the Owner Participant 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 Lessee is a party to be performed or
observed by Lessee;
(iii) immediately after giving effect to such transaction, no
Lease Event of Default shall have occurred and be continuing; and
(iv) Lessee shall have delivered to the Owner Trustee, the
Indenture Trustee and the Owner Participant 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 Lessee, and an opinion of counsel (which may be Lessee's General
Counsel, Deputy General Counsel, Assistant General Counsel or
Associate General Counsel) reasonably satisfactory to the Owner
Participant, each to the effect that such consolidation, merger,
conveyance, transfer or lease and the assumption agreement mentioned
in clause (ii) above comply with this Section 7(v) 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 Lessee as an
entirety in accordance with this Section 7(v), the successor corporation or
Person formed by such consolidation or into which Lessee 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, Lessee under
this Agreement with the same effect as if such successor corporation or
Person had been named as Lessee herein. No such conveyance, transfer or
lease of substantially all of the assets of Lessee as an entirety shall
have the effect of releasing Lessee or any successor corporation or Person
which shall theretofore have become such in the manner prescribed in this
Section 7(v) from its liability in respect of any Operative Document to
which it is a party.
(w) Further Assurances. Lessee, at its expense, will take, or
cause to be taken, such action with respect to the recording, filing, re-
recording and refiling of the Lease, the Lease Supplement, the Trust
Agreement, the Trust Indenture, the Trust Supplement and any financing
statements or other instruments as are necessary to maintain, so long as
the Trust Indenture or the Lease is in effect, the perfection of the
security interests created by the Trust Indenture and any security interest
that may be claimed to have been created by the Lease and the ownership
interest of the Owner Trustee in the Aircraft or will furnish to the Owner
Trustee, the Owner Participant and 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. Lessee will notify the Owner Trustee, the Owner Participant
and 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.
(x) Rent Adjustments. Section 3 of the Lease contemplates that,
under certain circumstances, the Owner Participant will make certain
recalculations of Basic Rent, EBO Amount and Termination Value, and the
Owner Participant hereby agrees to make such recalculations as and when
contemplated by the Lease and subject to all the terms and conditions of
the Lease and promptly to take such further actions as may be necessary or
desirable to give effect to and to cause the Owner Trustee to give effect
to the provisions of Section 3 of the Lease.
(y) Owner Participant Costs on Return. The Owner Participant
hereby agrees with Lessee that it will pay, or cause to be paid, all costs
and expenses that are for the account of the Owner Trustee pursuant to
Section 5 of the Lease without the right of reimbursement or
indemnification from Lessee.
(z) 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 Lessee, the
Owner Trustee and the Owner Participant) 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 Trust Indenture (including,
without limitation, the representations and covenants set forth in Sections
7(c), 7(h), 7(n), and 7(q) hereof and this Section 7(z) and Sections 2.03,
2.14 and 4.03 of the Trust Indenture).
(aa) Representations and Warranties of Pass Through Trustee.
The Pass Through Trustee represents and warrants to Lessee, the Indenture
Trustee, the Subordination Agent, the Liquidity Provider, the Owner
Participant and the Owner Trustee, 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 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 Trust
Certificates contemplated hereby, the Pass Through Trustee has not
directly or indirectly offered any Equipment Note for sale to any
Person or solicited any offer to acquire any Equipment Notes from any
Person, nor has the Pass Through Trustee authorized anyone to act on
its behalf to offer directly or indirectly any Equipment Note for
sale to any Person, or to solicit any offer to acquire any Equipment
Note from any Person; and the Pass Through Trustee is not in default
under any Pass Through Trust Agreement; and
(viii) the Pass Through Trustee is not directly or indirectly
controlling, controlled by or under common control with the Owner
Participant, the Owner Trustee or Lessee.
(bb) Representations and Warranties of Subordination Agent. The
Subordination Agent represents and warrants to Lessee, the Indenture
Trustee, the Pass Through Trustee, the Liquidity Provider, the Owner
Participant and the Owner 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;
(viii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with the Owner
Participant, the Owner Trustee or Lessee; and
(ix) [Certain Other Covenants of the Owner Participant and the
Indenture Trustee. The Owner Participant hereby unconditionally
agrees with Lessee, and only with Lessee (and not with any other party
to this Participation Agreement), that on behalf of the Owner Trustee
it will make available to the Indenture Trustee funds sufficient to
pay the Indenture Trustee the amounts (the "Deferred Equity Amounts")
set forth on the dates (the "Deferred Equity Dates") set forth in
Schedule IV attached hereto; provided, that the Owner Participant
shall not be obligated to make such funds available if an event
specified in Section 14(e), (f) or (g) of the Lease which either does,
or with the giving of notice or passage of time, or both, would
constitute an Event of Default or Lease Event of Default shall have
occurred and be continuing on the date on which such funds are to be
made available. The Owner Participant and the Owner Trustee hereby
direct the Indenture Trustee, and the Indenture Trustee hereby agrees,
to apply any such payment of Deferred Equity Amounts to the payment of
principal and interest on the Equipment Notes, as appropriate, which
may be due and payable pursuant to the provisions of the Trust
Indenture on such Deferred Equity Date. The Owner Participant agrees
to make any such payment of Deferred Equity Amounts in immediately
available funds on or before 11:00 a.m. New York City time, on the
Deferred Equity Date. The Owner Participant agrees to give Lessee
notice by 11:00 a.m., New York City time, on the Deferred Equity Date
if it has failed to make the payment of the Deferred Equity Amount due
on such date. The Indenture Trustee agrees to give Lessee notice by
12:00 noon, New York City time, on the Deferred Equity Date if it has
failed to receive the payment of the Deferred Equity Amount due on
such date. In the event the Owner Participant fails to make such
payment, Lessee shall make the Advance under Section 3(g) of the Lease
and the Owner Participant shall cause Lessor to comply with all of its
obligations under said Section 3(g). The Owner Participant agrees to
repay the amount of any Advance made pursuant to Section 3(g) of the
Lease forthwith following the making thereof together with interest at
a rate per annum equal to the Base Rate plus 2% commencing on the date
of such Advances to the date of repayment and agrees that its
obligation shall be a full recourse obligation of the Owner
Participant. All amounts paid to the Lessee by the Owner Participant
in respect of an Advance or deducted by the Lessee pursuant to Section
3(g) of the Lease shall be applied first to payment to Lessee of
interest and then to payment to Lessee of amounts equal to the
Advance.] (3)
________________________
(3) For deferred equity transactions only.
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. Lessee agrees and acknowledges that the Liquidity Provider shall
be a third party beneficiary of the indemnities contained in Section 6(c)
hereof, and may rely on such indemnities to the same extent as if such
indemnities were made to the Liquidity Provider directly.
SECTION 9. OTHER DOCUMENTS. Each of the Owner Participant and the
Owner Trustee hereby (a) agrees with Lessee and the Loan Participants to
comply with all of the terms of the Trust Agreement (as the same may
hereafter be amended or supplemented from time to time in accordance with
the terms thereof) applicable to it; (b) agrees with Lessee and the
Indenture Trustee not to amend, supplement or otherwise modify any
provision of the Trust Agreement in a manner adversely affecting such party
without the prior written consent of such party; and (c) agrees with Lessee
and the Loan Participants not to revoke the Trust Agreement without the
prior written consent of Lessee and the Indenture Trustee. Notwithstanding
the foregoing, so long as the Lease has not been terminated, the
Subordination Agent, the Pass Through Trustee, the Indenture Trustee, the
Owner Participant and the Owner Trustee hereby agree for the benefit of
Lessee that without the consent of Lessee they will not amend, modify or
supplement the definition of "Secured Obligations" or Articles II, III, IX
or Section 5.02 of the Trust Indenture. Furthermore, so long as the Lease
has not been terminated, the Pass Through Trustee, the Subordination Agent,
the Indenture Trustee, the Owner Participant and the Owner Trustee hereby
agree for the benefit of Lessee that without Lessee's consent, each such
party will not amend any other provision of any Operative Document or Pass
Through Document in a manner adversely affecting Lessee. Each of the Owner
Participant, the Indenture Trustee, the Subordination Agent, the Pass
Through Trustee and the Owner Trustee agree to promptly furnish to Lessee
copies of any supplement, amendment, waiver or modification of any of the
Operative Documents or Pass Through Documents to which Lessee is not a
party. Each Loan Participant agrees that it will not take any action in
respect of the Trust Indenture Estate except through the Indenture Trustee
pursuant to the Trust Indenture or as otherwise permitted by the Trust
Indenture.
SECTION 10. CERTAIN COVENANTS OF LESSEE. Lessee covenants and
agrees with each of the Loan Participants, the Owner Participant, the
Indenture Trustee and the Owner Trustee, as follows:
(a) Further Assurances. Lessee will cause to be done, executed,
acknowledged and delivered all and every such further acts, conveyances and
assurances as the Owner Trustee, the Indenture Trustee or the Owner
Participant 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 Lessee will not expand any obligations or
limit any rights of Lessee in respect of the transactions contemplated by
any Operative Documents. Lessee, forthwith upon delivery of the Aircraft
under the Lease, shall cause the Aircraft to be duly registered, and at all
times thereafter to remain duly registered, in the name of the Owner
Trustee, except as otherwise required or permitted hereunder or under the
Lease, under the Transportation Code, or shall furnish to the Owner Trustee
such information as may be required to enable the Owner Trustee to make
application for such registration (at the expense of Lessee), and shall
promptly furnish to the Owner Trustee such information as may be required
to enable the Owner Trustee to timely file any reports required to be filed
by it as the lessor under the Lease or as the owner of the Aircraft with
any governmental authority (including tax authorities).
(b) Filings. Lessee, at its expense, will cause the Lease, all
Lease Supplements, all amendments to the Lease, the Trust Indenture, all
supplements and amendments to the Trust 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 FAA ▇▇▇▇ of Sale,
the Lease, the Lease Supplement covering the Aircraft, the Trust Supplement
and the Trust Indenture shall be filed for recording with the Federal
Aviation Administration in the following order of priority; First, the FAA
▇▇▇▇ of Sale, Second, the Lease, with the Lease Supplement covering the
Aircraft, the Trust Indenture and the Trust Supplement attached, and Third,
the Trust Indenture, with the Trust Supplement attached.
SECTION 11. OWNER FOR FEDERAL TAX PURPOSES. It is the intent of
the parties to this Agreement that the Lease be treated as a true lease,
the Owner Participant be treated as the owner of the Aircraft to be
delivered under the Lease, and Lessee be treated as the lessee thereof for
Federal income tax purposes.
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 Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent, the Indenture
Trustee or the Owner Participant, to the respective addresses set forth
below the signatures of such parties at the foot of this Agreement, or (B)
if to a subsequent Owner Participant, addressed to such subsequent Owner
Participant at such address as such subsequent Owner Participant shall have
furnished by notice to the parties hereto, or (C) 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 Trust
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, the Lease, the Tax Indemnity
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, the Lease, the Tax Indemnity 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. CHANGE OF SITUS OF OWNER TRUST. The Owner Participant
agrees that if, at any time, the Trust Estate becomes subject to any Taxes
for which it is indemnified pursuant to Section 6(b) hereof and if, as a
consequence thereof, Lessee should request that the situs of the trust be
moved to another state in the United States from the state in which it is
then located, the situs of the trust may be moved and the Owner Participant
will take whatever action may be reasonably necessary to accomplish such
removal; provided that (A) Lessee shall provide such additional tax
indemnification as the Owner Participant and the Indenture Trustee may
reasonably request, (B) the rights and obligations under the Operative
Documents of the Owner Participant and the Indenture Trustee shall not be
altered as a result of the taking of such action, (C) the lien of the Trust
Indenture on the Trust Indenture Estate shall not be adversely affected by
such action, and (D) the Owner Participant and the Indenture Trustee shall
have received an opinion or opinions of counsel (reasonably satisfactory to
the Owner Participant), in scope, form and substance satisfactory to the
Owner Participant to the effect that (I) the trust, as thus removed, shall
remain a validly established trust, (II) any amendments to the Trust
Agreement necessitated by such removal shall have been duly authorized,
executed and delivered by the parties thereto and shall constitute the
valid and binding obligations of such parties, enforceable in accordance
with their terms, (III) such removal will not result in the imposition of,
or increase in the amount of, any Tax for which Lessee is not required to
indemnify the Owner Participant, the Indenture Trustee, the Owner Trustee
or the Trust Estate pursuant to Section 6(b) hereof (taking into account
any additional indemnification provided by Lessee pursuant to clause (A) of
this sentence), and (IV) if such removal involves the replacement of the
Owner Trustee, an opinion of counsel to such successor Owner Trustee in
form and substance reasonably satisfactory to the Owner Participant
covering the matters described in the opinion delivered pursuant to Section
4(a)(xiii) and such other matters as the Owner Participant may reasonably
request, and (E) Lessee shall indemnify and hold harmless the Owner
Participant and the Indenture Trustee on a net after-tax basis against any
and all reasonable and actual costs and expenses including reasonable
counsel fees and disbursements, registration fees, recording or filing fees
and taxes incurred by the Owner Trustee, the Owner Participant and the
Indenture Trustee in connection with such change of situs. Notwithstanding
anything to the contrary contained herein or in any other Operative
Document, the Owner Participant agrees with Lessee that it will not consent
to or direct a change in the situs of the Trust Estate without the prior
consent of Lessee unless the Owner Trustee, the Indenture Trustee, the Note
Holders and the Trust Estate each waives its right to any indemnity payable
by the Lessee under Section 6(b) as a result of the change in situs.
SECTION 14. MISCELLANEOUS.
(a) Consents Under Lease. The Owner Participant covenants and
agrees that it shall not unreasonably withhold its consent to any consent
requested of the Owner Trustee, as Lessor, under the terms of the Lease
which by its terms is not to be unreasonably withheld by the Owner Trustee,
as Lessor.
(b) Survival. The representations, warranties, indemnities and
agreements of Lessee, the Owner Trustee, the Indenture Trustee, the
Subordination Agent, the Pass Through Trustee and the Owner Participant
provided for in this Agreement or any other Operative Document, and
Lessee's, the Owner Trustee's, the Indenture Trustee's, the Subordination
Agent's, the Pass Through Trustee's and the Owner Participant's obligations
under any and all thereof, shall survive the making available of the
respective Commitments by the Pass Through Trustee and the Owner
Participant, the delivery or return of the Aircraft, the transfer of any
interest of the Owner Participant in the Trust Estate or the Aircraft or
any Engine or the transfer of any interest by any Loan Participant in any
Equipment Note or the Trust Indenture Estate and the expiration or other
termination of this Agreement or any other Operative Document.
(c) 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.
(d) 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 and the Owner Trustee.
(e) Successors and Assigns. The terms of this Agreement shall
be binding upon, and inure to the benefit of, Lessee 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, the Owner Participant and, subject to the terms of this
Agreement, its successors and permitted assigns, each Note Holder and its
successors and registered assigns, the Indenture Trustee and its successors
as Indenture Trustee under the Trust Indenture and the Owner Trustee and
its successors as Owner Trustee under the Trust Agreement. The terms of
this Agreement shall inure to the benefit of the Liquidity Provider, its
successors and permitted assigns.
(f) 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.
(g) Trust Capacity. The parties hereto agree that all of the
statements, representations, covenants and agreements made by the Owner
Trustee (when made in such capacity) contained in this Agreement and any
agreement referred to herein other than the Trust Agreement, unless
expressly otherwise stated, are made and intended only for the purpose of
binding the Trust Estate and establishing the existence of rights and
remedies which can be exercised and enforced against the Trust Estate.
Therefore, anything contained in this Agreement or such other agreements to
the contrary notwithstanding (except for any express provisions that the
Owner Trustee is responsible for in its individual capacity), no recourse
shall be had with respect to this Agreement or such other agreements
against the Owner Trustee in its individual capacity or against any
institution or person which becomes a successor trustee or co-trustee or
any officer, director, trustee, servant or direct or indirect parent or
controlling person or persons of any of them; provided, however, that this
Section 14(g) shall not be construed to prohibit any action or proceeding
against any party hereto for its own willful misconduct or grossly
negligent conduct for which it would otherwise be liable; and provided,
further, that nothing contained in this Section 14(g) shall be construed to
limit the exercise and enforcement in accordance with the terms of this
Agreement or such other agreements of rights and remedies against the Trust
Estate. The foregoing provisions of this Section 14(g) shall survive the
termination of this Agreement and the other Operative Documents.
(h) Section 1110. It is the intention of the parties hereto
that the Owner Trustee, as Lessor under the Lease, and the Indenture
Trustee, as assignee of such Owner Trustee's rights under the Lease
pursuant to the Trust Indenture, will be entitled to the benefits of 11
U.S.C. Section 1110 in the event of any reorganization of Lessee under
such Section.
SECTION 15. EXPENSES.
(a) Invoices And Payment. Each of the parties hereto shall
promptly submit to the Owner Trustee and Lessee for their prompt approval
(which shall not be unreasonably withheld) copies of invoices in reasonable
detail of the Transaction Expenses for which it is responsible for
providing information as they are received. The Owner Participant agrees
to transfer to the Owner Trustee promptly such amount as shall be necessary
in order to enable the Owner Trustee to pay, or if previously paid by
Lessee, to reimburse Lessee for, Transaction Expenses. To the extent of
funds received by it, the Owner Trustee agrees to pay all invoices of
Transaction Expenses that have been approved by it and Lessee promptly upon
receipt thereof and, to the extent such invoices have previously been paid
by Lessee, to reimburse Lessee promptly therefor. Notwithstanding the
foregoing, to the extent that Transaction Expenses exceed __% of Lessor's
Cost, Lessee at its sole option shall have the right to pay directly any or
all Transaction Expenses which are in excess of __% of Lessor's Cost.
(b) Payment of Other Expenses. In the event that the
transaction contemplated by this Participation Agreement fails to close as
a result of the Owner Participant's failure to negotiate in good faith or
to comply with the terms and conditions upon which its participation in the
transaction was predicated, the Owner Participant will be responsible for
all of its fees and expenses, including but not limited to the fees,
expenses and disbursements of its special counsel.
SECTION 16. REFINANCINGS.
(a) Refinancing Generally. So long as no Lease Event of
Default shall have occurred and be continuing, Lessee shall have the right
to refinance all (but not less than all) of the Equipment Notes no more
than three times by giving written notice to the Owner Participant and the
Owner Trustee that there shall be effected a voluntary redemption of the
Equipment Notes by the Owner Trustee, whereupon the Owner Participant
agrees to negotiate promptly in good faith to conclude an agreement with
Lessee as to the terms of such refinancing operation (including the terms
of any debt to be issued in connection with such refinancing); provided
that no such refinancing shall require an increase in the amount of the
Owner Participant's investment in the beneficial ownership of the Aircraft
or in the principal amount of the Equipment Notes; and provided further
that the Owner Participant may reject any terms that, in its reasonable
judgment, materially and adversely affect the Owner Participant.
Upon such agreement:
(1) within ten (10) Business Days after the reaching
of such agreement, the Owner Participant will deliver to
Lessee a certificate of an authorized representative of the
Owner Participant (the "Refinancing Certificate") setting
forth (i) (based upon information provided by Lessee and on
the agreement reached between Lessee and the Owner
Participant) the proposed date on which the outstanding
Equipment Notes will be redeemed and a description of any
new debt to be issued and the other aspects of such
refinancing that will be consummated (such date, the
"Refinancing Date") and (ii) the following information
calculated pursuant to the provisions of paragraph (6) of
this Section 16(a): (A) the proposed adjusted debt/equity
ratio, (B) the principal amount of debt to be issued by the
Owner Trustee on the Refinancing Date, (C) the amount, if
any, by which the Owner Participant's aggregate investment
in the beneficial interest in the Aircraft is to be
decreased and (D) the proposed revised schedules of Basic
Rent percentages, debt amortization, EBO Amount, Termination
Value percentages and other purchase option or termination
percentages. The Refinancing Certificate shall not provide
for a debt/equity ratio of more than [_:1]. Within fourteen
days of its receipt of the Refinancing Certificate, Lessee
may demand a verification pursuant to Exhibit E to the Lease
of the information set forth in the Refinancing Certificate.
Upon the acceptance by Lessee of the accuracy of the
information set forth in the Refinancing Certificate (or the
determination pursuant to such verification procedures), as
to the debt/equity ratio, the principal amount of debt to be
issued by the Owner Trustee on the Refinancing Date and the
revised Basic Rent percentages, debt amortization, EBO
Amount, Termination Value percentages and other buyout and
termination percentages (such information, whether as set
forth or as so determined, the "Refinancing Information")
the appropriate parties will take the actions specified in
paragraphs (2) through (5) below;
(2) the appropriate parties will enter into
appropriate documentation (which may involve an underwriting
agreement in connection with such sale or the sale of the
Owner Trustee's interest in the Trust Estate and/or the
Aircraft and its resale to the Owner Trustee) with the
institution or institutions to be named therein providing
for (A) (i) the issuance and sale by the Owner Trustee to
such institution or institutions on the Refinancing Date of
debt securities in an aggregate principal amount specified
in the Refinancing Information which amount shall be equal
to the aggregate principal amount of all Equipment Notes
outstanding on the Refinancing Date (such debt securities,
the "New Debt") except that the principal amount of New Debt
may exceed the principal amount of all outstanding Equipment
Notes in connection with the first refinancing under this
Section 16, (ii) the application of the proceeds of the sale
of the New Debt to the redemption of all such Equipment
Notes on the Refinancing Date and (iii) the payment of the
excess, if any, of such proceeds over the amounts necessary
to effect such redemption to the Owner Trustee and (B)
pursuant to which the parties to the refinancing transaction
(including the Owner Participant, the Lessee, the Owner
Trustee and the Loan Participants, but excluding the holders
of the Pass Through Certificates) make such representations,
warranties and covenants as Lessee and Owner Participant
reasonably require;
(3) Lessee shall give the notice to the Indenture
Trustee pursuant to Section 2.11 of the Trust Indenture, and
Lessee and the Owner Trustee will amend the Lease to provide
that (i) Basic Rent payable in respect of the period from
and after the Refinancing Date shall be as provided in the
Refinancing Information and (ii) amounts payable in respect
of EBO Amount and Termination Value from and after the
Refinancing Date shall be as provided in the Refinancing
Information;
(4) the Owner Trustee will enter into an agreement to
provide for the securing thereunder of the New Debt in like
manner as the Equipment Notes and will enter into such
amendments and supplements to the Trust Indenture (or such
new indenture or other security agreement) as may be
necessary to effect such refinancing;
(5) the Lessee shall pay all of the reasonable
expenses of such refinancing (including, but not limited to,
the reasonable fees, expenses and disbursements of counsel
and any placement or underwriting fees); and
(6) when calculating any of the information required
to be set forth in a Refinancing Certificate, the Owner
Participant shall make such calculations in a manner which
(A) maintains the Owner Participant's Net Economic Return
(except to the extent the assumptions referred are the
subject of the recalculations being conducted by the Owner
Participant), and (B) minimizes the Net Present Value of
Rents to Lessee to the extent possible consistent with
clause (A).
(b) Limitation on Redemption. The Equipment Notes shall not be
subject to voluntary redemption by the Owner Trustee without the consent of
Lessee except as set forth in Section 2.14 of the Trust Indenture.
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.,
Lessee
By:_______________________________
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Telecopy:
[OWNER PARTICIPANT],
as Owner Participant
By:_______________________________
Name:
Title:
Address:
Attn:
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: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity, except
as expressly provided herein, but
solely as Owner Trustee
By:_______________________________
Name:
Title:
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ 84111
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: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ 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: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SCHEDULE I
NAMES AND ADDRESSES
Lessee: US Airways, Inc.
U.S. MAIL
2 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
OVERNIGHT COURIER
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
WIRE TRANSFER
[PNC Bank, N.A.]
ABA No.____________
Acct. No. ___________
Reference: __________
Owner Participant:
U.S. Mail
__________________________
__________________________
Attn:_____________________
Telecopy No.:_____________
OVERNIGHT COURIER
__________________________
__________________________
Attn:_____________________
Telecopy No.: (___) ___-____
WIRE TRANSFER
ABA No._________________
Acct. No._________________
Indenture Trustee, Pass State Street Bank and Trust Company of Connecticut,
Through Trustee and National Association
Subordination Agent:
U.S. MAIL
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Administration
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
State Street Bank and Trust Company
Corporate Trust Department
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
OVERNIGHT COURIER
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Administration
with a copy to:
State Street Bank and Trust Company
Corporate Trust Department
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
WIRE TRANSFER
State Street Bank and Trust Company of Connecticut,
National Association
ABA No. ___________
Acct. No. _____________
Attn: Corporate Trust Administration
_________________
Reference: US Airways, Inc. 1999-1/US Airways,
Inc. Trust No. N___U_
Owner Trustee: First Security Bank, National Association
U.S. MAIL
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
OVERNIGHT COURIER
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
WIRE TRANSFER
First Security Bank, National Association
ABA No. ___________
Acct. No. ___________
Re: US Airways, Inc. Trust No. N___U_
SCHEDULE II
COMMITMENTS
PERCENTAGE OF
PURCHASERS INTEREST RATE
LESSOR'S COST AND MATURITY PURCHASE PRICE
--------------- --------------- --------------
US Airways, Inc.
Pass Through Trust:
1999-1A
_______% 8.36% Series A Secured
Certificates due__________ $__________
1999-1B
_______% 9.01% Series B Secured
Certificates due _________ $__________
1999-1C
______% 7.96% Series C Secured
Certificates due __________ $__________
OWNER PARTICIPANT EQUITY INVESTMENT
_____% $__________
100% Total Commitments $__________
SCHEDULE III
PASS THROUGH TRUST AGREEMENT AND PASS THROUGH TRUST SUPPLEMENTS
---------------------------------------------------------------
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, and as
supplemented by Trust Supplement No. 1999-1C, dated as of August 31, 1999.
EXHIBIT A
TO PARTICIPATION AGREEMENT
(US Airways, Inc. Trust No. N___U_)
SCHEDULE OF COUNTRIES FOR REREGISTRATION
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Australia Malta
Austria Mexico
Bahamas Netherlands
Belgium New Zealand
Bermuda Norway
Brazil People's Republic of China
Canada Philippines
Denmark Portugal
Finland Republic of China (Taiwan)*
France Singapore
Germany South Korea
Grenada Spain
Greece Sweden
Iceland Switzerland
India Thailand
Ireland Tobago
Italy Trinidad
Jamaica Turkey
Japan United Kingdom
Luxembourg Venezuela
Malaysia
*So long as on the date of registration such country and the
United States have diplomatic relations at least as good as those in effect
on the Delivery Date.
Form Definitions
N___U_
ANNEX A
[FORM OF DEFINITIONS BASIC LEASE FORM]
DEFINITIONS
(US Airways, Inc. Trust No. 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 Lease.](1)
"Acceptance Certificate" has the meaning specified for such term
in Section 4(a)(v) of the Participation Agreement.
"Actual Knowledge" means, (i) as it applies to the Owner Trustee
or Indenture Trustee, as the case may be, actual knowledge of a Responsible
Officer in the Trust Office of the Owner Trustee or in the Corporate Trust
Office of the Indenture Trustee, as the case may be, and (ii) as it applies
to the Owner Participant, actual knowledge of a vice president or other
higher officer of the Owner Participant having responsibility for the
transactions contemplated by the Operative Documents.
"Additional Insured" means Lessor, in its individual capacity and
as owner of the Aircraft, the Indenture Trustee, the Owner Participant, the
Pass Through Trustee, the Liquidity Provider, Lessee in its capacity as
sublessor under any Sublease, and each of their respective Affiliates,
successors and permitted assigns, and the respective directors, officers,
employees and agents of the foregoing.
"Additional Parts" has the meaning specified for such term in
Section 8(c) of the Lease.
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(1) For A319 and A320 Aircraft; Definition for A330 Aircraft to be
determined.
"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 delivered and leased under
the Lease (or any airframe from time to time substituted for such Airframe
pursuant to Section 10(a) of the Lease) together with the two Engines
initially leased under the Lease (or any engine substituted for either of
such Engines pursuant to the terms of the Lease), in each case as specified
in the applicable Lease 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 Lease
Supplement, which aircraft shall be leased by Lessor to Lessee under the
Lease and under such Lease 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 clause (ii) of the first paragraph of
Section 10(a) of the Lease; and (ii) any and all Parts (A) 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), or (B) so
long as title thereto shall remain vested in Lessor in accordance with the
terms of Section 8 of the Lease after removal from 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 leased under
the Lease in substitution for the Airframe pursuant to the applicable
provisions of the Lease, the replaced Airframe shall cease to be an
Airframe under the Lease; 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 Trust 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 from time to time as its base rate.
"Basic Rent" means, for the Basic Term, the rent payable for the
Aircraft pursuant to Section 3(b) of the Lease as adjusted as provided in
Section 3(c) of the Lease but subject always to the provisions of Section
3(c)(v) of the Lease and, for any Renewal Term, Basic Rent determined
pursuant to Section 19 of the Lease.
"Basic Term" means the term for which the Aircraft is leased
pursuant to Section 3(a) of the Lease, commencing on the Delivery Date and
ending on the Basic Term Expiration Date.
"Basic Term Expiration Date" means ______________________, or
such earlier date as the Lease may be terminated in accordance with the
provisions thereof.
"▇▇▇▇ of Sale" means a full warranty ▇▇▇▇ of sale covering the
Aircraft, executed by Lessee in favor of the Owner Trustee, dated the
Delivery Date, specifically referring to the Airframe and each Engine,
which ▇▇▇▇ of Sale shall contain, among other things, a statement that such
▇▇▇▇ of Sale thereby conveys to the Owner Trustee good title to the
Airframe and each Engine described in such ▇▇▇▇ of Sale, free and clear of
all liens, encumbrances and rights of others except Permitted Liens
described in Section 6(a)(xv) of the Participation Agreement.
"Burdensome Termination Event" means an event which shall be
deemed to have occurred if (A) one or more events have occurred which give
rise to an obligation on the part of Lessee to pay or indemnify any costs
or expenses under Sections 6(b) or 6(c) of the Participation Agreement or
under the Tax Indemnity Agreement if the aggregate amount of such indemnity
or other payments would exceed (as to future payments on a present value
basis discounted at the Debt Rate) 2.50% of Lessor's Cost or (B) Lessee
plans non-severable improvements to the Aircraft which (i) are necessary or
desirable in Lessee's sole discretion, (ii) are expected to cost in excess
of $2.5 million and (iii) the Owner Participant will not permit to be
financed under similar terms then available in the market for similar
transaction.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in the
City of New York, New York, Hartford, Connecticut, Pittsburgh, Pennsylvania
or the city and state where the office of the Owner Trustee is located.
"Cash Equivalents" means (i) direct obligations of the United
States of America and agencies guaranteed by the United States government
having a final maturity of ninety (90) days or less from date of purchase
thereof; (ii) certificates of deposit issued by, bankers' acceptances of,
or time deposits with, any bank, trust company or national banking
association incorporated under the laws of the United States of America or
one of the states thereof having combined capital and surplus and retained
earnings as of its last report of condition of at least $500,000,000 and
having a rating of Aa or better by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") or AA or better by Standard & Poor's Corporation ("S&P") and
having a final maturity of ninety (90) days or less from date of purchase
thereof; and (iii) commercial paper of any holding company of a bank, trust
company or national banking association described in (ii) and commercial
paper of any corporation or finance company incorporated or doing business
under the laws of the United States of America or any state thereof having
a rating assigned to such commercial paper of A1 by S&P or P1 by Moody's
and having a final maturity of ninety (90) days or less from the date of
purchase thereof; provided, however, that the aggregate amount at any one
time so invested in certificates of deposit issued by any one bank shall
not be in excess of 5% of such bank's capital and surplus.
"Certificated Air Carrier" means a Citizen of the United States
holding 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 Lessee 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 or of the Owner Participant, as the
case may be, to finance the Owner Trustee's payment of Lessor's Cost for
the Aircraft.
"Consent and Agreement" means, collectively, each Consent and
Agreement (US Airways, Inc. Trust No. N___U_), dated as of the date of the
Lease, 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.
"Continuous Stay Period" has the meaning specified for such term
in Section 4.04(a) of the Trust Indenture.
"Corporate Trust Office" means the principal office of the
Indenture Trustee located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Square, Hartford,
Connecticut 06103, Attention: Corporate Trust Administration, or such
other office at which the Indenture Trustee's corporate trust business
shall be administered which the Indenture Trustee shall have specified by
notice in writing to Lessee, the Owner Trustee, the Loan Participants and
each Note Holder.
"Debt" means any liability for borrowed money, or any liability
for the payment of money in connection with any letter of credit
transaction, or other liabilities evidenced or to be evidenced by bonds,
debentures, notes or other similar instruments or for the deferred purchase
price of property, goods or services.
"Debt Rate" means, with respect to any Series, the rate per annum
specified for such Series under the heading "Interest Rate" in Schedule I
to the Trust 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 or
Lease Event of Default (excluding Lease Events of Default related to
Excluded Payments).
"Delivery Date" means the date of the initial Lease Supplement
for the Aircraft, which date shall be the date the Aircraft is leased by
Lessor to Lessee and accepted by Lessee under the Lease.
"Delivery Notice" means the notice of delivery delivered pursuant
to Section 2(c) of the Participation Agreement.
"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 successor thereto.
"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.
"Depreciation Period" means the period commencing on the Delivery
Date and ending at the end of the calendar year during which the seventh
(7th) anniversary of the Delivery Date occurs, or such earlier date as the
Lease may be terminated in accordance with the provisions of the Lease.
"Dollars" and "$" mean the lawful currency of the United States
of America.
"EBO Amount" means the applicable amount for the relevant EBO
Date set forth on Exhibit D to the Lease (as such Exhibit D may be adjusted
from time to time as provided in Section 3(c) of the Lease or as expressly
provided in any Operative Document).
"EBO Date" means the applicable date set forth on Exhibit D to
the Lease.
"Enforcement Date" has the meaning specified for such term in
Section 4.03 of the Trust Indenture.
"Engine" means (i) each of the two [CFM International 56-5](2)
[▇▇▇▇▇ & Whitney](3) type engines listed by manufacturer's serial number in
the initial Lease 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 Lease, 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 therefrom
so long as title thereto shall remain vested in Lessor in accordance with
the terms of Section 8 of the Lease after removal from such Engine;
provided, however, that at such time as an engine shall be deemed part of
the property leased under the Lease in substitution for an Engine pursuant
to the applicable provisions of the Lease, the replaced Engine shall cease
to be an Engine under the Lease. The term "Engines" means, as of any date
of determination, all Engines then leased under the Lease.
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(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 Trust 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" (i) when such term is used in or with respect
to the Lease has the meaning specified for such term in Section 14 of the
Lease and (ii) when such term is used in or with respect to the Trust
Indenture has the meaning specified for such term in Section 4.02 of the
Trust 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 Lessee (or any Sublessee)
for any reason whatsoever; (ii) any damage to such property which results
in an insurance settlement with respect to such property on the basis of a
total loss, or a constructive or compromised total loss; (iii) the theft or
disappearance of such property for a period in excess of one hundred eighty
(180) days or, if earlier, the expiration of the Term; (iv) the requisition
for use of such property by any governmental authority (other than a
requisition for use by the United States Government or any government of
registry of the Aircraft or any agency or instrumentality thereof) that
shall have resulted in the loss of possession of such property by Lessee
(or any Sublessee) for a period in excess of one hundred eighty (180)
consecutive days or, if earlier, the expiration of the Term; (v) the
requisition for use by the United States Government or any government of
registry of the Aircraft or any instrumentality or agency thereof, which
shall have occurred during the Basic Term (or any Renewal Term) and shall
have continued for a period of thirty (30) days beyond the Term, provided,
however, that no Event of Loss pursuant to this clause (v) shall exist if
Lessor shall have furnished to Lessee the written notice specified in
Section 10(d) of the Lease; (vi) condemnation, confiscation, requisition or
taking of title of the Aircraft or the Airframe for more than thirty (30)
days, or if earlier, the expiration of the Term; (vii) as a result of any
law, rule, regulation, order or other action by the Federal Aviation
Administration or other governmental body of the government of registry of
the Aircraft having jurisdiction, the use of such property in the normal
course of the business of air transportation shall have been prohibited for
a period of one hundred eighty (180) consecutive days, unless Lessee (or
Sublessee) 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 Lessee (or such Sublessee), but in any event an "Event of Loss"
shall occur if such "grounding" extends for a period of more than three
hundred sixty (360) days (or, if earlier, the expiration of the Term);
provided that no Event of Loss shall be deemed to occur if such "grounding"
is applicable to Lessee's entire fleet of [A319][A320][A330] aircraft and
Lessee, 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 Lessee (or such Sublessee), but in any event an "Event of Loss" shall be
deemed to have occurred if such use shall have been prohibited for a period
of two consecutive years or such use shall be prohibited at the expiration
of the Term; and (viii) with respect to an Engine only, any divestiture of
title to or interest in an Engine or any event with respect to an Engine
that is deemed to be an Event of Loss with respect to such Engine pursuant
to Section 7(b) of the Lease. An Event of Loss with respect to the
Aircraft shall be deemed to have occurred if an Event of Loss occurs with
respect to the Airframe.
"Excluded Payments" means (i) indemnity payments paid or payable
by Lessee to or in respect of the Owner Participant or the Owner Trustee in
its individual capacity, their respective Affiliates, successors and
permitted assigns and their directors, officers, employees, servants and
agents (collectively, the "Owner Indemnitees") pursuant to Sections 6(b),
6(c), 15 or 16 of the Participation Agreement, (ii) proceeds of public
liability insurance in respect of the Aircraft payable as a result of
insurance claims made, or losses suffered, by the Owner Trustee or the
Indenture Trustee in their respective individual capacities or by any of
the Owner Indemnitees, (iii) proceeds of insurance maintained with respect
to the Aircraft by the Owner Participant (whether directly or through the
Owner Trustee) or any other Owner Indemnitee and permitted under Section 11
of the Lease in Exhibit H thereto, (iv) all payments required to be made
under the Tax Indemnity Agreement by Lessee and all payments of
Supplemental Rent by Lessee in respect of any amounts payable under the Tax
Indemnity Agreement, (v) fees payable to the Owner Trustee or the Indenture
Trustee, (vi) provided that the Equipment Notes shall have been duly
assumed by Lessee pursuant to Section 2.13 of the Trust Indenture, the
amounts payable to the Owner Trustee pursuant to Section 19(b) of the Lease
plus all reasonable expenses incurred by the Owner Trustee and the Owner
Participant in connection with such assumption, as applicable, (vii)
interest accrued on any of the above, and (viii) any right to enforce the
payment of any amount described in clauses (i) through (vii) above
(provided the rights referred to in this clause (viii) shall not be deemed
to include the exercise of any remedies provided for in the Lease other
than the right to ▇▇▇ for specific performance of any covenant or to make
such payment or to ▇▇▇ for damages in respect of the breach of any such
covenant) and the right to declare an Event of Default in respect of any of
the foregoing amounts. Solely for purposes of the Granting Clause of the
Trust Indenture, amounts payable to AIFS under Section 6(d) of the
Participation Agreement shall be considered Excluded Payments.
"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).
"Fair Market Renewal Term" has the meaning specified for such
term in Section 19(a)(2) of the Lease.
"FAA ▇▇▇▇ of Sale" means a ▇▇▇▇ of sale for the Aircraft on AC
Form 8050-2 or such other form as may be approved by the Federal Aviation
Administration on the Delivery Date for the Aircraft, executed by Lessee in
favor of the Owner Trustee and dated the Delivery Date.
"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.
"Fixed Renewal Term" has the meaning specified for such term in
Section 19(a)(1) of the Lease.
"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 (US
Airways, Inc. Trust No. N___U_), dated as of the date of the Lease,
between the Owner Trustee 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 Owner Trustee, in its individual
capacity and as trustee under the Trust Agreement, (ii) the Indenture
Trustee, (iii) the Owner Participant, (iv) the Trust Estate, (v) the Loan
Participants and each other Note Holder, (vi) the Subordination Agent,
(vii) the Liquidity Provider, (viii) the Pass Through Trustees, (ix) each
Affiliate of the Persons described in clauses (i) through (iv), inclusive,
(x) each Affiliate of the Persons described in clauses (vi), (vii) and
(viii), (xi) the respective directors, officers, employees, agents and
servants of each of the Persons described in clauses (i) through (viii),
inclusive, (xii) the successors and permitted assigns of the Persons
described in clauses (i) through (iv), inclusive, and (xiii) the successors
and permitted assigns of the Persons described in clauses (v), (vi), (vii)
and (viii).
"Indemnity Agreement" means that certain Indemnity Agreement,
dated as of August 31, 1999, between the Depositary and Lessee.
"Indenture Agreements" means the Participation Agreement, the
Lease, the Purchase Agreement, the Purchase Agreement Assignment, the
Consent and Agreement, the Bills of Sale and any other contract, agreement
or instrument from time to time assigned or pledged under the Trust
Indenture.
"Indenture Event of Default" has the meaning given the term
"Event of Default" in the Trust Indenture.
"Indenture Excess Amount" has the meaning specified for such term
in Section 2.03(b) of the Trust Indenture.
"Indenture Indemnitees" means (i) State Street and the Indenture
Trustee, (ii) each separate or additional trustee appointed pursuant to the
Trust 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 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 Trust
Indenture.
"Indenture Trustee Documents" means the Participation Agreement,
the Trust Indenture and 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 Event" means either (i) the Equipment Notes
shall have become due and payable pursuant to Section 4.04(b) of the Trust
Indenture, (ii) the Indenture Trustee has taken action or notified Owner
Trustee that it intends to take action to foreclose the Lien of the Trust
Indenture or otherwise commence the exercise of any significant remedy
under the Trust Indenture or the Lease or (iii) in the event of a
reorganization proceeding involving Lessee under Chapter 11 of the
Bankruptcy Code, (A) the trustee in such proceeding or Lessee not assuming
or agreeing to perform its obligations under the Lease, as contemplated
under Section 1110, during the 60-day period under Section 1110(a)(1)(A) of
the Bankruptcy Code (or such longer period as may apply under Section
1110(b) of the Bankruptcy Code) or (B) at any time after agreeing to
perform or assuming such obligations, such trustee or Lessee ceasing to
perform such obligations with the result that the Continuous Stay Period
comes to an end.
"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 or the administration of the Trust Estate pursuant
to the Trust Indenture, (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 Trust Estate,
the Trust Indenture Estate or the Operative Documents other than a transfer
of the Aircraft pursuant to Section 9, 10 or 19 of the Lease or Article IV
or V of the Trust Indenture, or a transfer of the Aircraft pursuant to
Section 15 of the Lease while an Event of Default is continuing and prior
to the time that the Indenture Trustee has received all amounts due
pursuant to the Trust 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.
"Insurance Brokers" has the meaning specified for such term in
Exhibit H to the Lease.
"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 that certain Lease Agreement (US Airways, Inc.
Trust No. N___U_), dated as of _________ __, ____, entered into by the
Owner Trustee and Lessee concurrently with the execution and delivery of
the Trust Indenture, as said Lease Agreement has been, or may from time to
time be, supplemented or amended, or the terms thereof waived or modified,
to the extent permitted by, and in accordance with, the terms of the Trust
Indenture. The term "Lease" shall also include each Lease Supplement from
time to time entered into pursuant to the terms of the Lease.
"Lease Default" means any event which with the giving of notice
or the lapse of time or both would become a Lease Event of Default.
"Lease Event of Default" means an "Event of Default" as defined
in Section 14 of the Lease.
"Lease Period" means each of the consecutive periods throughout
the Basic Term and any Renewal Term ending on a Lease Period Date, the
first such period commencing on and including the Delivery Date.
"Lease Period Date" means ___________, 2000 and each succeeding
January 20 and July 20, to and including the last such date in the Term.
"Lease Supplement" means a Lease Supplement, substantially in the
form of Exhibit A to the Lease, to be entered into between Lessor and
Lessee on the Delivery Date for the purpose of leasing the Aircraft under
and pursuant to the terms of the Lease, and any subsequent Lease Supplement
entered into in accordance with the terms of the Lease.
"Lessee" means US Airways, Inc., a Delaware corporation.
"Lessee Documents" means the Participation Agreement, the Lease,
the Lease Supplement covering the Aircraft, the Purchase Agreement (insofar
as it relates to the Aircraft), the FAA ▇▇▇▇ of Sale, the ▇▇▇▇ of Sale, the
Purchase Agreement Assignment, the Tax Indemnity Agreement and each other
agreement between the Lessee and any other party to the Lease delivered on
the Delivery Date.
"Lessor" means First Security Bank, National Association, not in
its individual capacity, but solely as Owner Trustee, or any of its
successors and permitted assigns acting as lessor under the Lease.
"Lessor Liens" means any Lien or disposition of title or interest
arising as a result of (i) claims against Lessor, First Security Bank,
National Association, in its individual capacity, or the Owner Participant
not related to the transactions contemplated by the Operative Documents,
(ii) any act or omission of the Owner Participant, Lessor, or First
Security Bank, National Association, in its individual capacity, which is
not related to the transactions contemplated by the Operative Documents or
is in violation of any of the terms of the Operative Documents, (iii)
claims against the Owner Participant, Lessor, or First Security Bank,
National Association, in its individual capacity, with respect to Taxes or
Expenses against which Lessee is not required to indemnify the Owner
Participant, Lessor or First Security Bank, National Association, in its
individual capacity, pursuant to Section 6 of the Participation Agreement
or (iv) claims against Lessor or the Owner Participant arising out of any
transfer by Lessor or the Owner Participant of all or any portion of the
respective interests of Lessor or the Owner Participant in the Aircraft,
the Trust Estate or the Operative Documents other than the transfer of
possession of the Aircraft by Lessor pursuant to the Lease, the transfer
pursuant to the Trust Indenture or a transfer of the Aircraft pursuant to
Section 9, 10, 19 or 20 of the Lease or pursuant to the exercise of the
remedies set forth in Section 15 of the Lease.
"Lessor's Cost" for the Aircraft means the amount denominated as
such in Exhibit B to the Lease.
"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.
"Loss Payment Date" has the meaning specified for such term in
Section 10(a) of the Lease.
"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 the Owner Trustee or the Owner
Participant or any interests of the Owner Participant therein by reason of
subrogation pursuant to Section 4.03 of the Trust Indenture (unless all
Equipment Notes then outstanding shall be held by the Owner Trustee or the
Owner Participant) or Lessee or any affiliate of any thereof).
"Make-Whole Amount" means, with respect to any Equipment Note,
the amount (as determined by an independent investment banker selected by
Lessee and reasonably acceptable to the Indenture Trustee and the Owner
Participant) 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 Trust Indenture.
"Multiplier" means (i) on any date when no Class C Special
Indemnity Event is continuing , 0.00, (ii) on each day during the first
ninety (90)-day period immediately following the occurrence of a Class C
Special Indemnity Event, 0.0025, and (iii) thereafter, on each day during
each subsequent ninety (90)-day period for so long as such Class C Special
Indemnity Event exists, the Multiplier in effect for the immediately
preceding ninety (90)-day period plus 0.0025; provided, that (a)
notwithstanding the foregoing, the maximum Multiplier shall be 0.01, and
(b) the Multiplier shall reset after such Class C Special Indemnity Event
has ceased or no longer exists and clause (i) shall apply again to any
subsequent Class C Special Indemnity Event.
"Net Economic Return" has the meaning specified for such term in
paragraph 2 of Exhibit E to the Lease.
"Net Present Value of Rents" means the net present value, as of
the date of calculation, of Basic Rent set forth in Exhibit B to the Lease,
discounted at an annual interest rate of ten percent (10%) on a semi-annual
basis.
"New Debt" has the meaning specified for such term in Section
16(a) of the Participation Agreement.
"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 Lessee, the Pass Through
Trustee for the Class A, Class B and Class C Pass Through Trusts, the
Subordination Agent, First Security Bank, National Association, as Escrow
Agent, and State Street Bank and Trust Company of Connecticut, National
Association, as Paying Agent.
"Obsolete Parts" has the meaning specified for such term in
Section 8(c) of the Lease.
"Operative Documents" means, collectively, the Participation
Agreement, the Lease, the Trust Indenture, the Trust Agreement, an
acceptance certificate covering the Aircraft in the form agreed to by the
Participants and Lessee, the Tax Indemnity Agreement, the Lease Supplement
covering the Aircraft, the Trust Supplement covering the Aircraft, the
Equipment Notes, the ▇▇▇▇ of Sale, the FAA ▇▇▇▇ of Sale, the French Pledge
Agreement, the Purchase Agreement (insofar as it relates to the Aircraft),
the Purchase Agreement Assignment and the Consent and Agreement (each, an
"Operative Document").
"Operative Indentures" means each of the indentures under which
notes have been issued and purchased by the Pass Through Trustees.
"Owner Indemnitee" has the meaning specified for such term in the
definition of Excluded Payments.
"Owner Participant" means ___________________, a [_____________]
corporation, so long as such party shall have any interest in the Trust
Estate, and transferees thereof as permitted by Section 7(k) of the
Participation Agreement and Section 8.01 of the Trust Agreement.
"Owner Participant Documents" means the Participation Agreement,
the Trust Agreement, and the Tax Indemnity Agreement and each other
agreement between the respective parties thereto relating to the subject
matter thereof, delivered on the Delivery Date.
"Owner Trustee" means First Security Bank, National Association,
not in its individual capacity but solely as owner trustee, and any entity
appointed as successor Owner Trustee pursuant to Section 9.01 of the Trust
Agreement, and references to a predecessor Owner Trustee in its individual
capacity by name in the Operative Documents shall include such successor
Owner Trustee in its individual capacity from and after such succession.
"Owner Trustee Documents" means the Participation Agreement, the
Trust Agreement, the Trust Supplement covering the Aircraft, the Lease, the
Lease Supplement covering the Aircraft, the Purchase Agreement Assignment,
the French Pledge Agreement, the Trust Indenture and the Equipment Notes
and each other agreement between the respective parties thereto relating to
the subject matter thereof, delivered on the Delivery Date.
"Owner Trustee's pro rata share" has the meaning specified for
such term in the Trust Indenture.
"Participants" means the Loan Participants and the Owner
Participant, collectively (each individually, a "Participant").
"Participation Agreement" means that certain Participation
Agreement (US Airways, Inc. Trust No. N___U_), dated as of the dated of
the Lease, among the Owner Trustee, the Subordination Agent, the Indenture
Trustee, Lessee, the Owner Participant 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 Lessee from a
third party (other than Lessor) and (c) cargo containers) which may from
time to time be incorporated or installed in or attached to the Airframe or
any Engine or so long as title thereto shall remain vested in Lessor in
accordance with Section 8 of the Lease 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 Escrow 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 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 or electronic entertainment to passengers
aboard the Aircraft.
"Past Due Rate" has the meaning specified for such term in
Exhibit B to the Lease.
"Payment Date" means each January 20 and July 20, commencing on
________, ____ (or, if any such day is not a Business Day, the immediately
succeeding Business Day) until the Equipment Notes have been paid in full.
"Permitted Foreign Air Authority" means the Civil Aviation
Authority of the United Kingdom, the Direction Generale de l'Aviation
Civile of the French Republic, the Luftfahrt Bundesamt of the Federal
Republic of Germany, the Rijflauchtraatdienst of the Kingdom of the
Netherlands, the Ministry of Transportation of Japan or the Federal
Ministry of Transport of Canada (and any agency or instrumentality of the
applicable government succeeding to the functions of any of the foregoing
entities).
"Permitted Lien" means any Lien referred to in clauses (i)
through (viii) of Section 6 of the Lease.
"Permitted Sublessee" means any entity domiciled in a country
listed in Exhibit F to the Lease as in effect from time to time and as may
be modified in accordance with Section 7(d) of the Participation Agreement.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Principal Amount", with respect to 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, as the same has been assigned
to Lessee, relating to the purchase by Lessee of the Aircraft.
"Purchase Agreement Assignment" means the Purchase Agreement
Assignment (US Airways, Inc. Trust No. N___U_), dated as of the date of
the Lease, between Lessee and Lessor, 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.
"Purchase Option Date" has the meaning specified for such term in
Section 19(b) of the Lease.
"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 Trust Indenture.
"Qualified Owner Participant" means a Person (x) that is not an
Affiliate of Lessee and (y) that has a tangible net worth, calculated in
accordance with generally accepted accounting principles, greater than
$50,000,000 or such other amount as is acceptable to Lessee, or (z) whose
obligations under the Operative Documents are unconditionally guaranteed by
a Person meeting the requirements of clauses (x) and (y).
"Refinancing Certificate" has the meaning specified for such term
in Section 16(a) of the Participation Agreement.
"Refinancing Date" has the meaning specified for such term in
Section 16(a) of the Participation Agreement.
"Refinancing Information" has the meaning specified for such term
in Section 16(a) of the Participation Agreement.
"Registration Agreement" means the Registration Agreement dated
August 31, 1999 by Lessee, and confirmed and accepted by AIFS, in respect
of the 7.96% 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
----------------
(4) For A319 and A320 Aircraft transactions.
(5) For A330 Aircraft transactions
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.
"Renewal Term" means any Fixed Renewal Term or Fair Market
Renewal Term.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Replacement Airframe" means any airframe substituted for the
Airframe pursuant to Section 10 of the Lease.
"Replacement Engine" means any engine substituted for an Engine
pursuant to Sections 9(c) and 10 of the Lease.
"Responsible Officer" means with respect to the Owner Trustee, a
responsible officer in the Trust Office of the Owner Trustee (including,
without limitation, any authorized officer in the Trust Office of the Owner
Trustee), and with respect to the Indenture Trustee, a responsible officer
in the Corporate Trust Office of the Indenture Trustee.
"Scheduled Delivery Date" has the meaning specified for such term
in Section 2(f) of the Participation Agreement.
"Section 1110 Period" has the meaning specified for such term in
Section 4.04(a) of the Trust Indenture.
"Secured Obligations" has the meaning specified for such term in
the Granting Clause of the Trust 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 Trust Indenture.
"Series A" or "Series A Equipment Notes" means Equipment Notes
issued and designated as "Series A" under the Trust Indenture, in the
Principal Amount and maturities and bearing interest as specified in
Schedule I to the Trust Indenture under the heading "Series A."
"Series B" or "Series B Equipment Notes" means Equipment Notes
issued and designated as "Series B" under the Trust Indenture, in the
Principal Amount and maturities and bearing interest as specified in
Schedule I to the Trust Indenture under the heading "Series B."
"Series C" or "Series C Equipment Notes" means Equipment Notes
issued and designated as "Series C" under the Trust Indenture, in the
Principal Amount and maturities and bearing interest as specified in
Schedule I to the Trust Indenture under the heading "Series C."
"Significant Expenditure" means an expenditure or planned
expenditure of the type described in clause (B) of the definition of
Burdensome Termination Event.
"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 Trust Indenture, but in its
individual capacity.
"Sublease" means any sublease permitted by the terms of Section
7(b)(x) of the Lease.
"Sublessee" 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 Sublease which is then in effect pursuant to Section 7(b)(x)
of the Lease.
"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.
"Subsequent Owner Participant" means any entity to which the
Owner Participant or any transferee from the Owner Participant or any
Subsequent Owner Participant shall have transferred at any time after the
Delivery Date all of the undivided right, title and interest originally
held by the Owner Participant in the Trust Agreement, the Trust Estate and
the Participation Agreement, to the extent permitted by Section 8.01 of the
Trust Agreement and Section 7(k) of the Participation Agreement.
"Supplemental Rent" means, without duplication, (a) all amounts,
liabilities, indemnities and obligations (other than Basic Rent) that
Lessee assumes or becomes obligated to or agrees to pay under any Lessee
Document to or on behalf of Lessor or any other Person, including, without
limitation, payments of Termination Value, any amounts in respect of a
purchase price payable pursuant to Section 19(c) or 20 of the Lease and
payments of indemnities under Section 6 of the Participation Agreement, but
excluding any amount as to which Lessee is obligated to pay a pro rata
share pursuant to clause (d) or (e) of this definition, (b) (i) to the
extent not payable (whether or not in fact paid) under Section 7(a) of the
Note Purchase Agreement (as originally in effect or amended with the
consent of the Owner Participant), an amount or amounts equal to the fees
payable to the Liquidity Provider under Section 2.03 of each Liquidity
Facility and the related Fee Letter (as defined in the Intercreditor
Agreement) multiplied by a fraction the numerator of which shall be the
then outstanding aggregate principal amount of the Series A Equipment
Notes, Series B Equipment Notes and Series C Equipment Notes and the
denominator of which shall be the then outstanding aggregate principal
amount of all "Series A Equipment Notes", "Series B Equipment Notes" and
"Series C Equipment Notes" (in each case as defined in the relevant
Operative Indenture) issued under the Operative Indentures; (ii) (x) the
amount equal to interest on any Downgrade Advance (other than any Applied
Downgrade Advance) payable under Section 3.07 of each Liquidity Facility
minus Investment Earnings from such Downgrade Advance multiplied by (y)
the fraction specified in the foregoing clause (i); (iii) (x) the amount
equal to interest on any Non-Extension Advance (other than any Applied Non-
Extension Advance) payable under Section 3.07 of each Liquidity Facility
minus Investment Earnings from such Non-Extension Advance multiplied by (y)
the fraction specified in the foregoing clause (i); (iv) if any payment
default shall have occurred and be continuing with respect to interest on
any Series A Equipment Note, Series B Equipment Note or Series C Equipment
Note, (x) the excess, if any, of (1) an amount equal to interest on any
Unpaid Advance, Applied Downgrade Advance or Applied Non-Extension Advance
payable under Section 3.07 of each Liquidity Facility over (2) the sum of
Investment Earnings from any Final Advance plus any amount of interest at
the Past Due Rate actually payable (whether or not in fact paid) by Lessee
in respect of the overdue scheduled interest on the Equipment Notes in
respect of which such Unpaid Advance, Applied Downgrade Advance or Applied
Non-Extension Advance was made multiplied by (y) a fraction the numerator
of which shall be the then aggregate overdue amounts of interest on the
Series A Equipment Notes, Series B Equipment Notes and Series C Equipment
Notes (other than interest becoming due and payable solely as a result of
acceleration of any such Equipment Notes) and the denominator of which
shall be the then aggregate overdue amounts of interest on all "Series A
Equipment Notes", "Series B Equipment Notes" and "Series C Equipment
Notes" (in each case as defined in the relevant Operative Indenture) issued
under the Operative Indentures (other than interest becoming due and
payable solely as a result of acceleration of any such "Equipment Notes,"
(in each case as defined in the relevant Operative Indenture) issued under
the Operative Indentures); and (v) Lessee's pro rata share of any other
amounts owed to the Liquidity Provider by the Subordination Agent as
borrower under each Liquidity Facility (other than amounts due as
repayment of advances thereunder or as interest on such advances), except
to the extent payable pursuant to clause (i), (ii), (iii) or (iv) above,
(c) Lessee's pro rata share of all compensation and reimbursement of
expenses, disbursements and advances payable by Lessee under the Pass
Through Trust Agreements, (d) Lessee's pro rata share of all compensation
and reimbursement of expenses and disbursements payable to the
Subordination Agent under the Intercreditor Agreement except with respect
to any income or franchise taxes incurred by the Subordination Agent in
connection with the transactions contemplated by the Intercreditor
Agreement and (e) Lessee's pro rata share of any amount payable under
Section 6(c) of the Participation Agreement to any Pass Through Indemnitee
to the extent such amount relates to, results from or arises out of or in
connection with (i) the Pass Through Trust Agreement or the enforcement of
any of the terms of any Pass Through Document, (ii) the offer, sale, or
delivery of the Pass Through Certificates or any interest therein or
represented thereby or (iii) any breach of or failure to perform or
observe, or any other noncompliance with, any covenant or agreement or
other obligation to be performed by Lessee under any Pass Through Document
or the falsity of any representation or warranty of Lessee in any Pass
Through Document. As used herein, "Lessee's pro rata share" means as of
any time a fraction, the numerator of which is the principal balance then
outstanding of Equipment Notes and the denominator of which is the
aggregate principal balance then outstanding of all "Equipment Notes" (in
each case as defined in the relevant Operative Indenture) issued under the
Operative Indentures. For purposes of this definition, the terms "Applied
Downgrade Advance", "Applied Non-Extension Advance", "Cash Collateral
Account", "Downgrade Advance", "Final Advance", "Investment Earnings",
"Non-Extension Advance" and "Unpaid Advance" shall have the meanings
specified in each Liquidity Facility. For the avoidance of doubt, it is
understood and agreed that Supplemental Rent includes, without limitation,
any amounts payable under the third paragraph of Section 2.02 of the Trust
Indenture.
"Tax Indemnitee" means (i) the Owner Participant, the Owner
Trustee, in its individual capacity and as trustee under the Trust
Agreement, the Trust Estate, the Indenture Trustee, (ii) the respective
Affiliates, successors and permitted assigns of each of the entities
described in the preceding clause (i), and (iii) the Trust Indenture
Estate.
"Tax Indemnity Agreement" means that certain Tax Indemnity
Agreement (US Airways, Inc. Trust No. N___U_), dated as of the date of the
Lease, between the Owner Participant and Lessee, as originally executed or
as modified, amended or supplemented pursuant to the applicable provisions
thereof.
"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").
"Term" means the Basic Term and, if actually entered into, any
Renewal Term.
"Termination Date" has the meaning set forth in Section 9(a) of
the Lease.
"Termination Value" with respect to the Aircraft as of any date
during the Term means, but subject always to the provisions of Section
3(c)(v) of the Lease, the amount determined by multiplying Lessor's Cost
for the Aircraft by the percentage specified in Exhibit C to the Lease
opposite the Termination Date with respect to which the amount is
determined (as such Exhibit C may be adjusted from time to time as provided
in Section 3(c) of the Lease and as expressly provided in any other
Operative Document).
"Transaction Expenses" means: all of the reasonable out-of-pocket
costs, fees and expenses incurred by Lessee, the Owner Trustee, 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) ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the Pass Through
Trustee, the Subordination Agent and the Indenture Trustee, (B) Ray,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Owner Trustee, (C) Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the Underwriters, and (D)
▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special counsel in Oklahoma City, Oklahoma and (E)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to AIFS;
(b) the initial fees and reasonable and actual disbursements
of the Owner Trustee under the Trust Agreement;
(c) the initial fee and reasonable and actual disbursements
of the Indenture Trustee under the Trust Indenture;
(d) the initial fees and expenses of the Liquidity Provider,
the Pass Through Trustee and the Subordination Agent;
(e) underwriting fees and commissions;
(f) the fees and expenses with respect to the appraisal of
the Aircraft;
(g) the reasonable fees, expenses and disbursements of
_________________, special counsel to the Owner Participant, such fees not
to exceed the amount previously agreed to by the Owner Participant and
Lessee;
(h) the fees, expenses and disbursements of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and its affiliates, special counsel for Lessee;
(i) the costs of filing and recording documents with the FAA
and filing Uniform Commercial Code statements in the United States;
(j) the reasonable fees, expenses and disbursements of
special counsel to the Liquidity Provider;
(k) the expenses of the Depositary payable under Section
10(a) of each Indemnity Agreement; and
(l) the reasonable fees, expenses and disbursements of
special counsel to the Seller and the Manufacturer.
"Transactions" means the transactions contemplated by the
Participation Agreement and the other Operative Documents.
"Transferee" has the meaning specified for such term in Section
7(k) of the Participation Agreement.
"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.
"Trust Agreement" means that certain Trust Agreement (US Airways,
Inc. Trust No. N___U_), dated as of the date of the Lease, between the
Owner Participant and First Security Bank, National Association, in its
individual capacity, as originally executed or as modified, amended or
supplemented pursuant to the applicable provisions thereof, including,
without limitation, supplementation thereof by one or more Trust
Supplements entered into pursuant to the applicable provisions thereof.
"Trust Agreement and Indenture Supplement" or "Trust Supplement"
means a supplement to the Trust Agreement and the Trust Indenture,
substantially in the form of Exhibit A to the Trust Indenture, which shall
particularly describe the Aircraft, and any Replacement Airframe and
Replacement Engine included in the property of the Owner Trustee covered by
the Trust Agreement.
"Trust Estate" means all estate, right, title and interest of the
Owner Trustee in and to the Aircraft, the Lease, any Lease Supplement, the
Purchase Agreement, the Purchase Agreement Assignment, the ▇▇▇▇ of Sale and
the FAA ▇▇▇▇ of Sale, including, without limitation, all amounts of Basic
Rent and Supplemental Rent including without limitation insurance proceeds
(other than insurance proceeds payable to or for the benefit of the Owner
Trustee, for its own account or in its individual capacity, the Owner
Participant, the Loan Participants or the Indenture Trustee) and
requisition, indemnity or other payments of any kind for or with respect to
the Aircraft (except amounts owing to the Owner Participant, to the
Indenture Trustee, to the Owner Trustee, in its individual capacity, or to
the Loan Participants or any other holder of a Equipment Note, or to any of
their respective directors, officers, employees, servants and agents,
pursuant to Section 6 of the Participation Agreement). Notwithstanding the
foregoing, "Trust Estate" shall not include any Excluded Payments.
"Trust Indenture" means that certain Trust Indenture and Security
Agreement (US Airways, Inc. Trust No. N___U_), dated as of the date of the
Lease, between Lessor and the Indenture Trustee, as it may from time to
time be supplemented or amended as therein provided, including
supplementing by the Trust Agreement and Indenture Supplement pursuant to
the Trust Indenture.
"Trust Indenture Estate" means all estate, right, title and
interest of the Indenture Trustee in and to the properties referred to in
the Granting Clause of the Trust Indenture, excluding Excluded Payments.
"Underwriters" means Credit Suisse First Boston Corporation,
▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation,
Deutsche Bank Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 Lessee (or any
Sublessee) 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 Lessee (or any
Sublessee) 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 Lessee (or any Sublessee)) and (ii) shall be
maintained by Lessee (or any Sublessee) in accordance with its normal
maintenance practices.
Form Definitions
N___U__
ANNEX A
[FORM OF DEFINITIONS DEFERRED EQUITY/
PREPAID DEFERRED RENT STRUCTURE]
DEFINITIONS
(US Airways, Inc. Trust No. 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 Lease.] (1)
______________________
(1) For A319 and A320 Aircraft; Definition for A330
Aircraft to be determined.
"Acceptance Certificate" has the meaning specified for such term
in Section 4(a)(v) of the Participation Agreement.
"Actual Knowledge" means, (i) as it applies to the Owner Trustee
or Indenture Trustee, as the case may be, actual knowledge of a Responsible
Officer in the Trust Office of the Owner Trustee or in the Corporate Trust
Office of the Indenture Trustee, as the case may be, and (ii) as it applies
to the Owner Participant, actual knowledge of a vice president or other
higher officer of the Owner Participant having responsibility for the
transactions contemplated by the Operative Documents.
"Additional Insured" means Lessor, in its individual capacity and
as owner of the Aircraft, the Indenture Trustee, the Owner Participant, the
Pass Through Trustee, the Liquidity Provider, Lessee in its capacity as
sublessor under any Sublease, and each of their respective Affiliates,
successors and permitted assigns, and the respective directors, officers,
employees and agents of the foregoing.
"Additional Parts" has the meaning specified for such term in
Section 8(c) of the Lease.
"Advance" has the meaning specified for such term in Section 3(g)
of the Lease.
"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 delivered and leased under
the Lease (or any airframe from time to time substituted for such Airframe
pursuant to Section 10(a) of the Lease) together with the two Engines
initially leased under the Lease (or any engine substituted for either of
such Engines pursuant to the terms of the Lease), in each case as specified
in the applicable Lease 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 Lease
Supplement, which aircraft shall be leased by Lessor to Lessee under the
Lease and under such Lease 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 clause (ii) of the first paragraph of
Section 10(a) of the Lease; and (ii) any and all Parts (A) 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), or (B) so
long as title thereto shall remain vested in Lessor in accordance with the
terms of Section 8 of the Lease after removal from 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 leased under
the Lease in substitution for the Airframe pursuant to the applicable
provisions of the Lease, the replaced Airframe shall cease to be an
Airframe under the Lease; 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 Trust 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 from time to time as its base rate.
"Basic Rent" means, for the Basic Term, the rent payable for the
Aircraft pursuant to Section 3(b) of the Lease as adjusted as provided in
Section 3(c) of the Lease but subject always to the provisions of Section
3(c)(v) of the Lease and, for any Renewal Term, Basic Rent determined
pursuant to Section 19 of the Lease.
"Basic Term" means the term for which the Aircraft is leased
pursuant to Section 3(a) of the Lease, commencing on the Delivery Date and
ending on the Basic Term Expiration Date.
"Basic Term Expiration Date" means ____________________________,
or such earlier date as the Lease may be terminated in accordance with the
provisions thereof.
"▇▇▇▇ of Sale" means a full warranty ▇▇▇▇ of sale covering the
Aircraft, executed by Lessee in favor of the Owner Trustee, dated the
Delivery Date, specifically referring to the Airframe and each Engine,
which ▇▇▇▇ of Sale shall contain, among other things, a statement that such
▇▇▇▇ of Sale thereby conveys to the Owner Trustee good title to the
Airframe and each Engine described in such ▇▇▇▇ of Sale, free and clear of
all liens, encumbrances and rights of others except Permitted Liens
described in Section 6(a)(xv) of the Participation Agreement.
"Burdensome Termination Event" means an event which shall be
deemed to have occurred if (A) one or more events have occurred which give
rise to an obligation on the part of Lessee to pay or indemnify any costs
or expenses under Sections 6(b) or 6(c) of the Participation Agreement or
under the Tax Indemnity Agreement if the aggregate amount of such indemnity
or other payments would exceed (as to future payments on a present value
basis discounted at the Debt Rate) 2.50% of Lessor's Cost or (B) Lessee
plans non-severable improvements to the Aircraft which (i) are necessary or
desirable in Lessee's sole discretion, (ii) are expected to cost in excess
of $2.5 million and (iii) the Owner Participant will not permit to be
financed under similar terms then available in the market for similar
transaction.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in the
City of New York, New York, Hartford, Connecticut, Pittsburgh,
Pennsylvania or the city and state where the office of the Owner Trustee is
located.
"Cash Equivalents" means (i) direct obligations of the United
States of America and agencies guaranteed by the United States government
having a final maturity of ninety (90) days or less from date of purchase
thereof; (ii) certificates of deposit issued by, bankers' acceptances of,
or time deposits with, any bank, trust company or national banking
association incorporated under the laws of the United States of America or
one of the states thereof having combined capital and surplus and retained
earnings as of its last report of condition of at least $500,000,000 and
having a rating of Aa or better by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") or AA or better by Standard & Poor's Corporation ("S&P") and
having a final maturity of ninety (90) days or less from date of purchase
thereof; and (iii) commercial paper of any holding company of a bank, trust
company or national banking association described in (ii) and commercial
paper of any corporation or finance company incorporated or doing business
under the laws of the United States of America or any state thereof having
a rating assigned to such commercial paper of A1 by S&P or P1 by Moody's
and having a final maturity of ninety (90) days or less from the date of
purchase thereof; provided, however, that the aggregate amount at any one
time so invested in certificates of deposit issued by any one bank shall
not be in excess of 5% of such bank's capital and surplus.
"Certificated Air Carrier" means a Citizen of the United States
holding 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 Lessee 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 or of the Owner Participant, as the
case may be, to finance the Owner Trustee's payment of Lessor's Cost for
the Aircraft.
"Consent and Agreement" means, collectively, each Consent and
Agreement (US Airways, Inc. Trust No. N___U_), dated as of the date of the
Lease, 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.
"Continuous Stay Period" has the meaning specified for such term
in Section 4.04(a) of the Trust Indenture.
"Corporate Trust Office" means the principal office of the
Indenture Trustee located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Square, Hartford,
Connecticut 06103, Attention: Corporate Trust Administration, or such
other office at which the Indenture Trustee's corporate trust business
shall be administered which the Indenture Trustee shall have specified by
notice in writing to Lessee, the Owner Trustee, the Loan Participants and
each Note Holder.
"Debt" means any liability for borrowed money, or any liability
for the payment of money in connection with any letter of credit
transaction, or other liabilities evidenced or to be evidenced by bonds,
debentures, notes or other similar instruments or for the deferred purchase
price of property, goods or services.
"Debt Rate" means, with respect to any Series, the rate per annum
specified for such Series under the heading "Interest Rate" in Schedule I
to the Trust 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 or
Lease Event of Default (excluding Lease Events of Default related to
Excluded Payments).
["Deferred Equity Amounts" has the meaning set forth in Schedule
IV of the Participation Agreement.] (2)
["Deferred Equity Dates" has the meaning set forth in Schedule IV
of the Participation Agreement.] (3)
____________________
(2) For deferred equity deals only.
(3) For deferred equity deals only.
"Delivery Date" means the date of the initial Lease Supplement
for the Aircraft, which date shall be the date the Aircraft is leased by
Lessor to Lessee and accepted by Lessee under the Lease.
"Delivery Notice" means the notice of delivery delivered pursuant
to Section 2(c) of the Participation Agreement.
"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 successor thereto.
"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.
"Depreciation Period" means the period commencing on the Delivery
Date and ending at the end of the calendar year during which the seventh
(7th) anniversary of the Delivery Date occurs, or such earlier date as the
Lease may be terminated in accordance with the provisions of the Lease.
"Determination Date" has the meaning set forth in Section
10(a)(i) of the Lease.
"Dollars" and "$" mean the lawful currency of the United States
of America.
"EBO Amount" means the applicable amount for the relevant EBO
Date set forth on Exhibit D to the Lease (as such Exhibit D may be adjusted
from time to time as provided in Section 3(c) of the Lease or as expressly
provided in any Operative Document).
"EBO Date" means the applicable date set forth on Exhibit D to
the Lease.
"Enforcement Date" has the meaning specified for such term in
Section 4.03 of the Trust Indenture.
"Engine" means (i) each of the two [CFM International 56-5] (4)
[▇▇▇▇▇ & Whitney] (5) type engines listed by manufacturer's serial number in
the initial Lease 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 Lease, 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 therefrom
so long as title thereto shall remain vested in Lessor in accordance with
the terms of Section 8 of the Lease after removal from such Engine;
provided, however, that at such time as an engine shall be deemed part of
the property leased under the Lease in substitution for an Engine pursuant
to the applicable provisions of the Lease, the replaced Engine shall cease
to be an Engine under the Lease. The term "Engines" means, as of any date
of determination, all Engines then leased under the Lease.
____________________
(4) For A319 and A320 Aircraft
(5) 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 Trust 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" (i) when such term is used in or with respect
to the Lease has the meaning specified for such term in Section 14 of the
Lease and (ii) when such term is used in or with respect to the Trust
Indenture has the meaning specified for such term in Section 4.02 of the
Trust 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 Lessee (or any Sublessee)
for any reason whatsoever; (ii) any damage to such property which results
in an insurance settlement with respect to such property on the basis of a
total loss, or a constructive or compromised total loss; (iii) the theft or
disappearance of such property for a period in excess of one hundred eighty
(180) days or, if earlier, the expiration of the Term; (iv) the requisition
for use of such property by any governmental authority (other than a
requisition for use by the United States Government or any government of
registry of the Aircraft or any agency or instrumentality thereof) that
shall have resulted in the loss of possession of such property by Lessee
(or any Sublessee) for a period in excess of one hundred eighty (180)
consecutive days or, if earlier, the expiration of the Term; (v) the
requisition for use by the United States Government or any government of
registry of the Aircraft or any instrumentality or agency thereof, which
shall have occurred during the Basic Term (or any Renewal Term) and shall
have continued for a period of thirty (30) days beyond the Term, provided,
however, that no Event of Loss pursuant to this clause (v) shall exist if
Lessor shall have furnished to Lessee the written notice specified in
Section 10(d) of the Lease; (vi) condemnation, confiscation, requisition or
taking of title of the Aircraft or the Airframe for more than thirty (30)
days, or if earlier, the expiration of the Term; (vii) as a result of any
law, rule, regulation, order or other action by the Federal Aviation
Administration or other governmental body of the government of registry of
the Aircraft having jurisdiction, the use of such property in the normal
course of the business of air transportation shall have been prohibited for
a period of one hundred eighty (180) consecutive days, unless Lessee (or
Sublessee) 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 Lessee (or such Sublessee), but in any event an "Event of Loss"
shall occur if such "grounding" extends for a period of more than three
hundred sixty (360) days (or, if earlier, the expiration of the Term);
provided that no Event of Loss shall be deemed to occur if such "grounding"
is applicable to Lessee's entire fleet of [A319][A320][A330] aircraft and
Lessee, 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 Lessee (or such Sublessee), but in any event an "Event of Loss" shall be
deemed to have occurred if such use shall have been prohibited for a period
of two consecutive years or such use shall be prohibited at the expiration
of the Term; and (viii) with respect to an Engine only, any divestiture of
title to or interest in an Engine or any event with respect to an Engine
that is deemed to be an Event of Loss with respect to such Engine pursuant
to Section 7(b) of the Lease. An Event of Loss with respect to the
Aircraft shall be deemed to have occurred if an Event of Loss occurs with
respect to the Airframe.
"Excluded Payments" means (i) indemnity payments paid or payable
by Lessee to or in respect of the Owner Participant or the Owner Trustee in
its individual capacity, their respective Affiliates, successors and
permitted assigns and their directors, officers, employees, servants and
agents (collectively, the "Owner Indemnitees") pursuant to Sections 6(b),
6(c), 15 or 16 of the Participation Agreement, (ii) proceeds of public
liability insurance in respect of the Aircraft payable as a result of
insurance claims made, or losses suffered, by the Owner Trustee or the
Indenture Trustee in their respective individual capacities or by any of
the Owner Indemnitees, (iii) proceeds of insurance maintained with respect
to the Aircraft by the Owner Participant (whether directly or through the
Owner Trustee) or any other Owner Indemnitee and permitted under Section 11
of the Lease in Exhibit H thereto, (iv) all payments required to be made
under the Tax Indemnity Agreement by Lessee and all payments of
Supplemental Rent by Lessee in respect of any amounts payable under the Tax
Indemnity Agreement, (v) fees payable to the Owner Trustee or the Indenture
Trustee, (vi) provided that the Equipment Notes shall have been duly
assumed by Lessee pursuant to Section 2.13 of the Trust Indenture, the
amounts payable to the Owner Trustee pursuant to Section 19(b) of the Lease
plus all reasonable expenses incurred by the Owner Trustee and the Owner
Participant in connection with such assumption, as applicable, (vii)
interest accrued on any of the above, and (viii) any right to enforce the
payment of any amount described in clauses (i) through (vii) above
(provided the rights referred to in this clause (viii) shall not be deemed
to include the exercise of any remedies provided for in the Lease other
than the right to ▇▇▇ for specific performance of any covenant or to make
such payment or to ▇▇▇ for damages in respect of the breach of any such
covenant) and the right to declare an Event of Default in respect of any of
the foregoing amounts. Solely for purposes of the Granting Clause of the
Trust Indenture, amounts payable to AIFS under Section 6(d) of the
Participation Agreement shall be considered Excluded Payments.
"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).
"Fair Market Renewal Term" has the meaning specified for such
term in Section 19(a)(2) of the Lease.
"FAA ▇▇▇▇ of Sale" means a ▇▇▇▇ of sale for the Aircraft on AC
Form 8050-2 or such other form as may be approved by the Federal Aviation
Administration on the Delivery Date for the Aircraft, executed by Lessee in
favor of the Owner Trustee and dated the Delivery Date.
"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.
"Fixed Renewal Term" has the meaning specified for such term in
Section 19(a)(1) of the Lease.
"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 (US
Airways, Inc. Trust No. N___U_), dated as of the date of the Lease,
between the Owner Trustee 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 Owner Trustee, in its individual
capacity and as trustee under the Trust Agreement, (ii) the Indenture
Trustee, (iii) the Owner Participant, (iv) the Trust Estate, (v) the Loan
Participants and each other Note Holder, (vi) the Subordination Agent,
(vii) the Liquidity Provider, (viii) the Pass Through Trustees, (ix) each
Affiliate of the Persons described in clauses (i) through (iv), inclusive,
(x) each Affiliate of the Persons described in clauses (vi), (vii) and
(viii), (xi) the respective directors, officers, employees, agents and
servants of each of the Persons described in clauses (i) through (viii),
inclusive, (xii) the successors and permitted assigns of the Persons
described in clauses (i) through (iv), inclusive, and (xiii) the successors
and permitted assigns of the Persons described in clauses (v), (vi), (vii)
and (viii).
"Indemnity Agreement" means that certain Indemnity Agreement,
dated as of August 31, 1999, between the Depositary and Lessee.
"Indenture Agreements" means the Participation Agreement, the
Lease, the Purchase Agreement, the Purchase Agreement Assignment, the
Consent and Agreement, the Bills of Sale and any other contract, agreement
or instrument from time to time assigned or pledged under the Trust
Indenture.
"Indenture Event of Default" has the meaning given the term
"Event of Default" in the Trust Indenture.
"Indenture Excess Amount" has the meaning specified for such term
in Section 2.03(b) of the Trust Indenture.
"Indenture Indemnitees" means (i) State Street and the Indenture
Trustee, (ii) each separate or additional trustee appointed pursuant to the
Trust 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 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 Trust
Indenture.
"Indenture Trustee Documents" means the Participation Agreement,
the Trust Indenture and 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 Event" means either (i) the Equipment Notes
shall have become due and payable pursuant to Section 4.04(b) of the Trust
Indenture, (ii) the Indenture Trustee has taken action or notified Owner
Trustee that it intends to take action to foreclose the Lien of the Trust
Indenture or otherwise commence the exercise of any significant remedy
under the Trust Indenture or the Lease or (iii) in the event of a
reorganization proceeding involving Lessee under Chapter 11 of the
Bankruptcy Code, (A) the trustee in such proceeding or Lessee not assuming
or agreeing to perform its obligations under the Lease, as contemplated
under Section 1110, during the 60-day period under Section 1110(a)(1)(A) of
the Bankruptcy Code (or such longer period as may apply under Section
1110(b) of the Bankruptcy Code) or (B) at any time after agreeing to
perform or assuming such obligations, such trustee or Lessee ceasing to
perform such obligations with the result that the Continuous Stay Period
comes to an end.
"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 or the administration of the Trust Estate pursuant
to the Trust Indenture, (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 Trust Estate,
the Trust Indenture Estate or the Operative Documents other than a transfer
of the Aircraft pursuant to Section 9, 10 or 19 of the Lease or Article IV
or V of the Trust Indenture, or a transfer of the Aircraft pursuant to
Section 15 of the Lease while an Event of Default is continuing and prior
to the time that the Indenture Trustee has received all amounts due
pursuant to the Trust Indenture.
"Insurance Brokers" has the meaning specified for such term in
Exhibit H to the Lease.
["Initial Rent Payment Date" means ________, ____] (6)
______________________
(6) For deferred equity deals only.
"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 that certain Lease Agreement (US Airways, Inc.
Trust No. N___U_), dated as of _________ __, ____, entered into by the
Owner Trustee and Lessee concurrently with the execution and delivery of
the Trust Indenture, as said Lease Agreement has been, or may from time to
time be, supplemented or amended, or the terms thereof waived or modified,
to the extent permitted by, and in accordance with, the terms of the Trust
Indenture. The term "Lease" shall also include each Lease Supplement from
time to time entered into pursuant to the terms of the Lease.
"Lease Default" means any event which with the giving of notice
or the lapse of time or both would become a Lease Event of Default.
"Lease Event of Default" means an "Event of Default" as defined
in Section 14 of the Lease.
"Lease Period" means (i) with respect to the Basic Term the
"Lease Periods" identified on Exhibit B-3 to the Lease and (ii) with
respect to any Renewal Term, each of the consecutive periods throughout
such Renewal Term ending on a Rent Payment Date, the first such period
commencing on and including the first day of such Renewal.
"Lease Supplement" means a Lease Supplement, substantially in the
form of Exhibit A to the Lease, to be entered into between Lessor and
Lessee on the Delivery Date for the purpose of leasing the Aircraft under
and pursuant to the terms of the Lease, and any subsequent Lease Supplement
entered into in accordance with the terms of the Lease.
"Lessee" means US Airways, Inc., a Delaware corporation.
"Lessee Documents" means the Participation Agreement, the Lease,
the Lease Supplement covering the Aircraft, the Purchase Agreement (insofar
as it relates to the Aircraft), the FAA ▇▇▇▇ of Sale, the ▇▇▇▇ of Sale, the
Purchase Agreement Assignment, the Tax Indemnity Agreement and each other
agreement between the Lessee and any other party to the Lease delivered on
the Delivery Date.
"Lessor" means First Security Bank, National Association, not in
its individual capacity, but solely as Owner Trustee, or any of its
successors and permitted assigns acting as lessor under the Lease.
"Lessor Liens" means any Lien or disposition of title or interest
arising as a result of (i) claims against Lessor, First Security Bank,
National Association, in its individual capacity, or the Owner Participant
not related to the transactions contemplated by the Operative Documents,
(ii) any act or omission of the Owner Participant, Lessor, or First
Security Bank, National Association, in its individual capacity, which is
not related to the transactions contemplated by the Operative Documents or
is in violation of any of the terms of the Operative Documents, (iii)
claims against the Owner Participant, Lessor, or First Security Bank,
National Association, in its individual capacity, with respect to Taxes or
Expenses against which Lessee is not required to indemnify the Owner
Participant, Lessor or First Security Bank, National Association, in its
individual capacity, pursuant to Section 6 of the Participation Agreement
or (iv) claims against Lessor or the Owner Participant arising out of any
transfer by Lessor or the Owner Participant of all or any portion of the
respective interests of Lessor or the Owner Participant in the Aircraft,
the Trust Estate or the Operative Documents other than the transfer of
possession of the Aircraft by Lessor pursuant to the Lease, the transfer
pursuant to the Trust Indenture or a transfer of the Aircraft pursuant to
Section 9, 10 , 19 or 20 of the Lease or pursuant to the exercise of the
remedies set forth in Section 15 of the Lease.
"Lessor's Cost" for the Aircraft means the amount denominated as
such in Exhibit B-4 to the Lease.
"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 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.
"Loss Payment Date" has the meaning specified for such term in
Section 10(a) of the Lease.
"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 the Owner Trustee or the Owner
Participant or any interests of the Owner Participant therein by reason of
subrogation pursuant to Section 4.03 of the Trust Indenture (unless all
Equipment Notes then outstanding shall be held by the Owner Trustee or the
Owner Participant) or Lessee or any affiliate of any thereof).
"Make-Whole Amount" means, with respect to any Equipment Note,
the amount (as determined by an independent investment banker selected by
Lessee and reasonably acceptable to the Indenture Trustee and the Owner
Participant) 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 Trust Indenture.
"Multiplier" means (i) on any date when no Class C Special
Indemnity Event is continuing , 0.00, (ii) on each day during the first
ninety (90)-day period immediately following the occurrence of a Class C
Special Indemnity Event, 0.0025, and (iii) thereafter, on each day during
each subsequent ninety (90)-day period for so long as such Class C Special
Indemnity Event exists, the Multiplier in effect for the immediately
preceding ninety (90)-day period plus 0.0025; provided, that (a)
notwithstanding the foregoing, the maximum Multiplier shall be 0.01, and
(b) the Multiplier shall reset after such Class C Special Indemnity Event
has ceased or no longer exists and clause (i) shall apply again to any
subsequent Class C Special Indemnity Event.
"Net Economic Return" has the meaning specified for such term in
paragraph 2 of Exhibit E to the Lease.
"Net Present Value of Rents" means the net present value, as of
the date of calculation, of Basic Rent set forth in Exhibit B-2 to the
Lease, discounted at an annual interest rate of ten percent (10%) on a
semi-annual basis.
"New Debt" has the meaning specified for such term in Section
16(a) of the Participation Agreement.
"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 Lessee, the Pass Through
Trustee for the Class A, Class B and Class C Pass Through Trusts, the
Subordination Agent, First Security Bank, National Association, as Escrow
Agent, and State Street Bank and Trust Company of Connecticut, National
Association, as Paying Agent.
"Obsolete Parts" has the meaning specified for such term in
Section 8(c) of the Lease.
"Operative Documents" means, collectively, the Participation
Agreement, the Lease, the Trust Indenture, the Trust Agreement, an
acceptance certificate covering the Aircraft in the form agreed to by the
Participants and Lessee, the Tax Indemnity Agreement, the Lease Supplement
covering the Aircraft, the Trust Supplement covering the Aircraft, the
Equipment Notes, the ▇▇▇▇ of Sale, the FAA ▇▇▇▇ of Sale, the French Pledge
Agreement, the Purchase Agreement (insofar as it relates to the Aircraft),
the Purchase Agreement Assignment and the Consent and Agreement (each, an
"Operative Document").
"Operative Indentures" means each of the indentures under which
notes have been issued and purchased by the Pass Through Trustees.
"Owner Indemnitee" has the meaning specified for such term in the
definition of Excluded Payments.
"Owner Participant" means ___________________, a [_____________]
corporation, so long as such party shall have any interest in the Trust
Estate, and transferees thereof as permitted by Section 7(k) of the
Participation Agreement and Section 8.01 of the Trust Agreement.
"Owner Participant Documents" means the Participation Agreement,
the Trust Agreement, and the Tax Indemnity Agreement and each other
agreement between the respective parties thereto relating to the subject
matter thereof, delivered on the Delivery Date.
"Owner Trustee" means First Security Bank, National Association,
not in its individual capacity but solely as owner trustee, and any entity
appointed as successor Owner Trustee pursuant to Section 9.01 of the Trust
Agreement, and references to a predecessor Owner Trustee in its individual
capacity by name in the Operative Documents shall include such successor
Owner Trustee in its individual capacity from and after such succession.
"Owner Trustee Documents" means the Participation Agreement, the
Trust Agreement, the Trust Supplement covering the Aircraft, the Lease, the
Lease Supplement covering the Aircraft, the Purchase Agreement Assignment,
the French Pledge Agreement, the Trust Indenture and the Equipment Notes
and each other agreement between the respective parties thereto relating to
the subject matter thereof, delivered on the Delivery Date.
"Owner Trustee's pro rata share" has the meaning specified for
such term in the Trust Indenture.
"Participants" means the Loan Participants and the Owner
Participant, collectively (each individually, a "Participant").
"Participation Agreement" means that certain Participation
Agreement (US Airways, Inc. Trust No. N___U_), dated as of the dated of
the Lease, among the Owner Trustee, the Subordination Agent, the Indenture
Trustee, Lessee, the Owner Participant 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 Lessee from a
third party (other than Lessor) and (c) cargo containers) which may from
time to time be incorporated or installed in or attached to the Airframe or
any Engine or so long as title thereto shall remain vested in Lessor in
accordance with Section 8 of the Lease 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 Escrow 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 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" has the meaning specified for such term in
Exhibit B to the Lease.
"Payment Date" means each January 20 and July 20, commencing on
________, ____ (or, if any such day is not a Business Day, the immediately
succeeding Business Day) until the Equipment Notes have been paid in full.
"Permitted Foreign Air Authority" means the Civil Aviation
Authority of the United Kingdom, the Direction Generale de l'Aviation
Civile of the French Republic, the Luftfahrt Bundesamt of the Federal
Republic of Germany, the Rijflauchtraatdienst of the Kingdom of the
Netherlands, the Ministry of Transportation of Japan or the Federal
Ministry of Transport of Canada (and any agency or instrumentality of the
applicable government succeeding to the functions of any of the foregoing
entities).
"Permitted Lien" means any Lien referred to in clauses (i)
through (viii) of Section 6 of the Lease.
"Permitted Sublessee" means any entity domiciled in a country
listed in Exhibit F to the Lease as in effect from time to time and as may
be modified in accordance with Section 7(d) of the Participation Agreement.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Principal Amount", with respect to 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,
[Purchase Agreement dated as of November 24, 1998 between US
Inc., ] (7) [Purchase Agreement dated as of November 24, 1998 between US
Airways Group, Inc. and the Seller ] (8) (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, as the same has been assigned
to Lessee, relating to the purchase by Lessee of the Aircraft.
____________________
(7) For A319 and A320 Aircraft transactions.
(8) For A330 Aircraft transactions.
"Purchase Agreement Assignment" means the Purchase Agreement
Assignment (US Airways, Inc. Trust No. N___U_), dated as of the date of
the Lease, between Lessee and Lessor, 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.
"Purchase Option Date" has the meaning specified for such term in
Section 19(b) of the Lease.
"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 Trust Indenture.
"Qualified Owner Participant" means a Person (x) that is not an
Affiliate of Lessee and (y) that has a tangible net worth, calculated in
accordance with generally accepted accounting principles, greater than
$50,000,000 or such other amount as is acceptable to Lessee, or (z) whose
obligations under the Operative Documents are unconditionally guaranteed by
a Person meeting the requirements of clauses (x) and (y).
"Refinancing Certificate" has the meaning specified for such term
in Section 16(a) of the Participation Agreement.
"Refinancing Date" has the meaning specified for such term in
Section 16(a) of the Participation Agreement.
"Refinancing Information" has the meaning specified for such term
in Section 16(a) of the Participation Agreement.
"Registration Agreement" means the Registration Agreement dated
August 31, 1999 by Lessee, and confirmed and accepted by AIFS, in respect
of the 7.96% 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.
"Renewal Term" means any Fixed Renewal Term or Fair Market
Renewal Term.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Rent Payment Date" means ____________, 2000, each succeeding
January 20 and July 20 in the Term, the Basic Term Expiration Date, and the
last day of any Renewal Term.
"Replacement Airframe" means any airframe substituted for the
Airframe pursuant to Section 10 of the Lease.
"Replacement Engine" means any engine substituted for an Engine
pursuant to Sections 9(c) and 10 of the Lease.
"Responsible Officer" means with respect to the Owner Trustee, a
responsible officer in the Trust Office of the Owner Trustee (including,
without limitation, any authorized officer in the Trust Office of the Owner
Trustee), and with respect to the Indenture Trustee, a responsible officer
in the Corporate Trust Office of the Indenture Trustee.
"Scheduled Delivery Date" has the meaning specified for such term
in Section 2(f) of the Participation Agreement.
"Section 1110 Period" has the meaning specified for such term in
Section 4.04(a) of the Trust Indenture.
"Secured Obligations" has the meaning specified for such term in
the Granting Clause of the Trust 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 Trust Indenture.
"Series A" or "Series A Equipment Notes" means Equipment Notes
issued and designated as "Series A" under the Trust Indenture, in the
Principal Amount and maturities and bearing interest as specified in
Schedule I to the Trust Indenture under the heading "Series A."
"Series B" or "Series B Equipment Notes" means Equipment Notes
issued and designated as "Series B" under the Trust Indenture, in the
Principal Amount and maturities and bearing interest as specified in
Schedule I to the Trust Indenture under the heading "Series B."
"Series C" or "Series C Equipment Notes" means Equipment Notes
issued and designated as "Series C" under the Trust Indenture, in the
Principal Amount and maturities and bearing interest as specified in
Schedule I to the Trust Indenture under the heading "Series C."
"Significant Expenditure" means an expenditure or planned
expenditure of the type described in clause (B) of the definition of
Burdensome Termination Event.
"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 Trust Indenture, but in its
individual capacity.
"Sublease" means any sublease permitted by the terms of Section
7(b)(x) of the Lease.
"Sublessee" 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 Sublease which is then in effect pursuant to Section 7(b)(x)
of the Lease.
"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.
"Subsequent Owner Participant" means any entity to which the
Owner Participant or any transferee from the Owner Participant or any
Subsequent Owner Participant shall have transferred at any time after the
Delivery Date all of the undivided right, title and interest originally
held by the Owner Participant in the Trust Agreement, the Trust Estate and
the Participation Agreement, to the extent permitted by Section 8.01 of the
Trust Agreement and Section 7(k) of the Participation Agreement.
"Supplemental Rent" means, without duplication, (a) all amounts,
liabilities, indemnities and obligations (other than Basic Rent) that
Lessee assumes or becomes obligated to or agrees to pay under any Lessee
Document to or on behalf of Lessor or any other Person, including, without
limitation, payments of Termination Value, any amounts in respect of a
purchase price payable pursuant to Section 19(c) or 20 of the Lease and
payments of indemnities under Section 6 of the Participation Agreement, but
excluding any amount as to which Lessee is obligated to pay a pro rata
share pursuant to clause (d) or (e) of this definition, (b) (i) to the
extent not payable (whether or not in fact paid) under Section 7(a) of the
Note Purchase Agreement (as originally in effect or amended with the
consent of the Owner Participant), an amount or amounts equal to the fees
payable to the Liquidity Provider under Section 2.03 of each Liquidity
Facility and the related Fee Letter (as defined in the Intercreditor
Agreement) multiplied by a fraction the numerator of which shall be the
then outstanding aggregate principal amount of the Series A Equipment
Notes, Series B Equipment Notes and Series C Equipment Notes and the
denominator of which shall be the then outstanding aggregate principal
amount of all "Series A Equipment Notes", "Series B Equipment Notes" and
"Series C Equipment Notes" (in each case as defined in the relevant
Operative Indenture) issued under the Operative Indentures; (ii) (x) the
amount equal to interest on any Downgrade Advance (other than any Applied
Downgrade Advance) payable under Section 3.07 of each Liquidity Facility
minus Investment Earnings from such Downgrade Advance multiplied by (y)
the fraction specified in the foregoing clause (i); (iii) (x) the amount
equal to interest on any Non-Extension Advance (other than any Applied Non-
Extension Advance) payable under Section 3.07 of each Liquidity Facility
minus Investment Earnings from such Non-Extension Advance multiplied by (y)
the fraction specified in the foregoing clause (i); (iv) if any payment
default shall have occurred and be continuing with respect to interest on
any Series A Equipment Note, Series B Equipment Note or Series C Equipment
Note, (x) the excess, if any, of (1) an amount equal to interest on any
Unpaid Advance, Applied Downgrade Advance or Applied Non-Extension Advance
payable under Section 3.07 of each Liquidity Facility over (2) the sum of
Investment Earnings from any Final Advance plus any amount of interest at
the Past Due Rate actually payable (whether or not in fact paid) by Lessee
in respect of the overdue scheduled interest on the Equipment Notes in
respect of which such Unpaid Advance, Applied Downgrade Advance or Applied
Non-Extension Advance was made multiplied by (y) a fraction the numerator
of which shall be the then aggregate overdue amounts of interest on the
Series A Equipment Notes, Series B Equipment Notes and Series C Equipment
Notes (other than interest becoming due and payable solely as a result of
acceleration of any such Equipment Notes) and the denominator of which
shall be the then aggregate overdue amounts of interest on all "Series A
Equipment Notes", "Series B Equipment Notes" and "Series C Equipment
Notes" (in each case as defined in the relevant Operative Indenture) issued
under the Operative Indentures (other than interest becoming due and
payable solely as a result of acceleration of any such "Equipment Notes,"
(in each case as defined in the relevant Operative Indenture) issued under
the Operative Indentures); and (v) Lessee's pro rata share of any other
amounts owed to the Liquidity Provider by the Subordination Agent as
borrower under each Liquidity Facility (other than amounts due as
repayment of advances thereunder or as interest on such advances), except
to the extent payable pursuant to clause (i), (ii), (iii) or (iv) above,
(c) Lessee's pro rata share of all compensation and reimbursement of
expenses, disbursements and advances payable by Lessee under the Pass
Through Trust Agreements, (d) Lessee's pro rata share of all compensation
and reimbursement of expenses and disbursements payable to the
Subordination Agent under the Intercreditor Agreement except with respect
to any income or franchise taxes incurred by the Subordination Agent in
connection with the transactions contemplated by the Intercreditor
Agreement and (e) Lessee's pro rata share of any amount payable under
Section 6(c) of the Participation Agreement to any Pass Through Indemnitee
to the extent such amount relates to, results from or arises out of or in
connection with (i) the Pass Through Trust Agreement or the enforcement of
any of the terms of any Pass Through Document, (ii) the offer, sale, or
delivery of the Pass Through Certificates or any interest therein or
represented thereby or (iii) any breach of or failure to perform or
observe, or any other noncompliance with, any covenant or agreement or
other obligation to be performed by Lessee under any Pass Through Document
or the falsity of any representation or warranty of Lessee in any Pass
Through Document. As used herein, "Lessee's pro rata share" means as of
any time a fraction, the numerator of which is the principal balance then
outstanding of Equipment Notes and the denominator of which is the
aggregate principal balance then outstanding of all "Equipment Notes" (in
each case as defined in the relevant Operative Indenture) issued under the
Operative Indentures. For purposes of this definition, the terms "Applied
Downgrade Advance", "Applied Non-Extension Advance", "Cash Collateral
Account", "Downgrade Advance", "Final Advance", "Investment Earnings",
"Non-Extension Advance" and "Unpaid Advance" shall have the meanings
specified in each Liquidity Facility. For the avoidance of doubt, it is
understood and agreed that Supplemental Rent includes, without limitation,
any amounts payable under the third paragraph of Section 2.02 of the Trust
Indenture.
"Tax Indemnitee" means (i) the Owner Participant, the Owner
Trustee, in its individual capacity and as trustee under the Trust
Agreement, the Trust Estate, the Indenture Trustee, (ii) the respective
Affiliates, successors and permitted assigns of each of the entities
described in the preceding clause (i), and (iii) the Trust Indenture
Estate.
"Tax Indemnity Agreement" means that certain Tax Indemnity
Agreement (US Airways, Inc. Trust No. N___U_), dated as of the date of the
Lease, between the Owner Participant and Lessee, as originally executed or
as modified, amended or supplemented pursuant to the applicable provisions
thereof.
"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").
"Term" means the Basic Term and, if actually entered into, any
Renewal Term.
"Termination Date" has the meaning set forth in Section 9(a) of
the Lease.
"Termination Value" with respect to the Aircraft (a) as of any
date during the Basic Term means, but subject always to the provisions of
Section 3(c)(v) of the Lease, the amount determined by multiplying Lessor's
Cost for the Aircraft by the percentage specified in Exhibit C to the Lease
under the caption "Total Termination Payment" opposite the Termination
Value Date with respect to which the amount is determined (as such Exhibit
C may be adjusted from time to time as provided in Section 3(c) of the
Lease and as expressly provided in any other Operative Document) [(such
Termination Value shall equal the sum of, and represent, (i) a payment (or
reduction) of Basic Rent in an amount equal to the "Basic Rent Amount" set
forth on Exhibit C to the Lease (which includes all amounts of Basic Rent
allocated to any period prior to the termination and not yet paid and
reduced by all amounts paid prior to the termination and allocated to
periods after the termination and (ii) a payment of the "Termination
Amount" set forth on Exhibit C to the Lease)] and (b) as of any date during
the Renewal Term, shall have the meaning set forth in Section 19(a)(5) of
the Lease.
"Termination Value Date" means each date set forth on Exhibit C
to the Lease under the caption "Termination Date."
"Transaction Expenses" means: all of the reasonable out-of-pocket
costs, fees and expenses incurred by Lessee, the Owner Trustee, 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) ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the Pass Through
Trustee, the Subordination Agent and the Indenture Trustee, (B) Ray,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Owner Trustee, (C) Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the Underwriters, and (D)
▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special counsel in Oklahoma City, Oklahoma and (E)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to AIFS;
(b) the initial fees and reasonable and actual disbursements
of the Owner Trustee under the Trust Agreement;
(c) the initial fee and reasonable and actual disbursements
of the Indenture Trustee under the Trust Indenture;
(d) the initial fees and expenses of the Liquidity Provider,
the Pass Through Trustee and the Subordination Agent;
(e) underwriting fees and commissions;
(f) the fees and expenses with respect to the appraisal of
the Aircraft;
(g) the reasonable fees, expenses and disbursements of
_________________, special counsel to the Owner Participant, such fees not
to exceed the amount previously agreed to by the Owner Participant and
Lessee;
(h) the fees, expenses and disbursements of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and its affiliates, special counsel for Lessee;
(i) the costs of filing and recording documents with the FAA
and filing Uniform Commercial Code statements in the United States;
(j) the reasonable fees, expenses and disbursements of
special counsel to the Liquidity Provider;
(k) the expenses of the Depositary payable under Section
10(a) of each Indemnity Agreement; and
(l) the reasonable fees, expenses and disbursements of
special counsel to the Seller and the Manufacturer.
"Transactions" means the transactions contemplated by the
Participation Agreement and the other Operative Documents.
"Transferee" has the meaning specified for such term in Section
7(k) of the Participation Agreement.
"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.
"Trust Agreement" means that certain Trust Agreement (US Airways,
Inc. Trust No. N___U_), dated as of the date of the Lease, between the
Owner Participant and First Security Bank, National Association, in its
individual capacity, as originally executed or as modified, amended or
supplemented pursuant to the applicable provisions thereof, including,
without limitation, supplementation thereof by one or more Trust
Supplements entered into pursuant to the applicable provisions thereof.
"Trust Agreement and Indenture Supplement" or "Trust Supplement"
means a supplement to the Trust Agreement and the Trust Indenture,
substantially in the form of Exhibit A to the Trust Indenture, which shall
particularly describe the Aircraft, and any Replacement Airframe and
Replacement Engine included in the property of the Owner Trustee covered by
the Trust Agreement.
"Trust Estate" means all estate, right, title and interest of the
Owner Trustee in and to the Aircraft, the Lease, any Lease Supplement, the
Purchase Agreement, the Purchase Agreement Assignment, the ▇▇▇▇ of Sale and
the FAA ▇▇▇▇ of Sale, including, without limitation, all amounts of Basic
Rent and Supplemental Rent including without limitation insurance proceeds
(other than insurance proceeds payable to or for the benefit of the Owner
Trustee, for its own account or in its individual capacity, the Owner
Participant, the Loan Participants or the Indenture Trustee) and
requisition, indemnity or other payments of any kind for or with respect to
the Aircraft (except amounts owing to the Owner Participant, to the
Indenture Trustee, to the Owner Trustee, in its individual capacity, or to
the Loan Participants or any other holder of a Equipment Note, or to any of
their respective directors, officers, employees, servants and agents,
pursuant to Section 6 of the Participation Agreement). Notwithstanding the
foregoing, "Trust Estate" shall not include any Excluded Payments.
"Trust Indenture" means that certain Trust Indenture and Security
Agreement (US Airways, Inc. Trust No. N___U_), dated as of the date of the
Lease, between Lessor and the Indenture Trustee, as it may from time to
time be supplemented or amended as therein provided, including
supplementing by the Trust Agreement and Indenture Supplement pursuant to
the Trust Indenture.
"Trust Indenture Estate" means all estate, right, title and
interest of the Indenture Trustee in and to the properties referred to in
the Granting Clause of the Trust Indenture, excluding Excluded Payments.
"Underwriters" means Credit Suisse First Boston Corporation,
▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation,
Deutsche Bank Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 Lessee (or any
Sublessee) 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 Lessee (or any
Sublessee) 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 Lessee (or any Sublessee)) and (ii) shall be
maintained by Lessee (or any Sublessee) in accordance with its normal
maintenance practices.
[FORM OF SASM&F (ILLINOIS)
OPINION FOR LEASED 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, ____________, as Owner Participant, 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, and First Security Bank, National
Association, a national banking association, not in its individual capacity
except as otherwise stated, but solely as Owner Trustee, relating to the
Aircraft described in the Lease Supplement (as defined below); (ii) the
Lease Agreement (US Airways, Inc. Trust No. N______), dated as of ___ __,
[1999][2000], between the Owner Trustee, as Lessor, and US Airways, as
Lessee (the "Lease"); (iii) the Lease Supplement (US Airways, Inc. Trust
No. N_______), dated ___ ___, [1999][2000], between the Owner Trustee and
US Airways (the "Lease Supplement"); (iv) the Purchase Agreement
Assignment, dated as of ____ ___, [1999][2000], between the Owner Trustee
and US Airways (the "Purchase Agreement Assignment"); (v) the warranty ▇▇▇▇
of sale, dated the date hereof, executed by US Airways (the "Warranty ▇▇▇▇
of Sale"); (vi) the FAA ▇▇▇▇ of Sale on Form 8050-1 dated the date hereof
(the "FAA ▇▇▇▇ of Sale"); (vii) the acceptance certificate dated the date
hereof executed by US Airways (the "Acceptance Certificate"); (viii) the
Pass Through Trust Agreement, dated as of _____________, 1999, between the
Pass Through Trustee and US Airways (the "Pass Through Trust Agreement");
and (ix) 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 Owner Participant, the Owner Trustee, 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 Lease;
(c) the Lease Supplement;
(d) the Purchase Agreement Assignment;
(e) the Trust Indenture and Security Agreement (US Airways, Inc.
Trust No. N______), dated as of ____ ___, [1999][2000] (the "Trust
Indenture") between First Security Bank, National Association, not in its
individual capacity, except as expressly stated therein, but solely as
Owner Trustee, and State Street Bank and Trust Company of Connecticut,
National Association, as Indenture Trustee;
(f) the Trust Agreement and Indenture Supplement (US Airways, Inc.
Trust No. N_____) dated ______, [1999][2000] (the "Trust Supplement") of
First Security Bank, National Association, as Owner Trustee, in respect of
the Trust Indenture;
(g) the Warranty ▇▇▇▇ of Sale;
(h) the Tax Indemnity Agreement;
(i) the FAA ▇▇▇▇ of Sale;
(j) the Acceptance Certificate;
(k) the Equipment Notes;
(l) the Pass Through Trust Agreement;
(m) each of the Pass Through Trust Supplements;
(n) unfiled, but signed copies of financing statements naming
"First Security Bank, National Association, as Owner Trustee," 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 Statements, the "New York Financing
Statement");
(o) a certificate of US Airways, dated the date hereof, a copy of
which is attached as Exhibit A;
(p) certified copies of the Certificate of Incorporation and By-
laws of US Airways;
(q) certified copies of certain resolutions of the Board of
Directors of US Airways adopted on ________;
(r) 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
(s) such other documents as we have deemed necessary or
appropriate as a basis for the opinions set forth below.(1)
---------------
(1) For transactions involving subleases to Shuttle, include a
reference to Shuttle Sublease.
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.
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 (d), (g) through (h), (j), (l) and (m) above
shall hereinafter be referred to collectively as the "Transaction
Documents". The documents referred to in (e) and (f) above shall
hereinafter be referred to collectively as the "Indenture 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, the Indenture Documents and the
Equipment Notes, 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. Each of
the Indenture Documents constitutes the valid and binding obligation of
each of the parties thereto, enforceable against each such party in
accordance with its 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 (i) the FAA ▇▇▇▇ of Sale, (ii) the Trust
Agreement, (iii) the Lease (with the Lease Supplement covering the
Aircraft, the Indenture and the Trust Supplement covering the Aircraft
attached as exhibits) and (iv) the Trust Indenture (with the Trust
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 legal, valid and binding obligations of the Owner
Trustee enforceable against the Owner Trustee in accordance with their
terms and the terms of the Trust Indenture, as supplemented by the Trust
Supplement, and will be entitled to the benefits of the Trust Indenture, as
supplemented by the Trust Supplement.
6. The provisions of the Trust Indenture, as supplemented by the
Trust Supplement, are effective to create, in favor of the Indenture
Trustee to secure the Secured Obligations, a valid security interest in the
Owner Trustee's rights in that portion of the collateral described therein
which is subject to Article 9 of the New York UCC (the "UCC Collateral").
7. If the Lease and any Lease Supplement constitute "chattel
paper" within the meaning of Section 9-105 of the New York UCC (as to which
we express no opinion) then the security interest of the Indenture Trustee
therein will be perfected under the New York UCC upon the Indenture Trustee
taking possession of each original counterpart thereof in the State of New
York.
8. 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 the Owner Trustee's 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 paragraphs 6, 7 and 8 with respect to the security
interest of the Indenture Trustee are subject to the following
qualifications:
(a) We have assumed the Owner Trustee 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 the Owner Trustee's 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 opinions with respect to the validity and perfection of
the security interest of the Indenture Trustee is limited to Article 9 of
the New York UCC, and such opinions do 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 (i) an accession to, or commingled
or processed with other goods to the extent that the security interest of
the Indenture Trustee for the benefit of the Pass Through Trustee is
limited by Section 9-314 or 9-315 of the UCC or (ii) 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 if the Trust maintains any place of
business in the State of New York, then the Trust shall be deemed to do
business in more than one county in the State of New York.
9. It is not necessary, in connection with the creation of the
beneficial interest of the Owner Participant in the Trust Estate under the
circumstances contemplated by the Participation Agreement to register such
beneficial interest under the Securities Act of 1933, as amended, or to
qualify the Trust Agreement or the Trust Indenture under the Trust
Indenture Act of 1939, as amended.
10. 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.
11. [US Airways, as lessor under the sublease 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)
----------------
(2) All bracketed language is for Aircraft subleased to US Airways
Shuttle.
With respect to our opinion[s] in paragraph[s] 10 [and 11], 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. ▇. ▇▇▇▇▇ Management (In re Western Pacific Airlines, Inc.), 1999
WL ▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇. 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 a lessor 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] 10 [and
11], 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. We have
also assumed that where the Indenture Trustee is acting as secured party,
the security interest of the Indenture Trustee in the Aircraft is
perfected.
Our opinions are subject to the following assumptions and
qualifications:
(a) enforcement of the Transaction Documents and the Indenture
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 leased
property including waivers with respect to the exercise of remedies against
the leased property contained in the Lease, may be unenforceable in whole
or in part, but the inclusion of such provisions does not affect the
validity of the Lease, taken as a whole, and the Lease, taken as a whole,
together with applicable law, contains adequate provisions for the
practical realization of the benefits thereof;
(c) 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 Trust 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 Trust Supplement, taken
as a whole, and the Trust Indenture, as supplemented by the Trust
Supplement, taken as a whole, together with applicable law, contains
adequate provisions for the practical realization of the security thereof;
(d) 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 or the
Indenture 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;
(e) we express no opinion as to the enforceability of any rights
to contribution or indemnification provided for in the Transaction
Documents or the Indenture 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);
(f) we express no opinion as to any provision of any Transaction
Document or any Indenture 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 or
Indenture Document is invalid or terminated or such performance would be
illegal; and
(g) with respect to our opinion that the New York choice of law
provision in the Transaction Documents and the Indenture Documents which
are expressly governed by New York law is enforceable, we rely upon, among
other things, the Act of July 19, ▇▇▇▇, ▇▇. 421, 1984 ▇▇▇▇▇▇▇▇'▇ Sess. Laws
of N.Y. 1406, (codified at N.Y. Gen. Oblig. Law sections 5-1401, 5-1402
(▇▇▇▇▇▇▇▇ Supp. 1986) and N.Y. CPLR 327(b) (▇▇▇▇▇▇▇▇ 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)
enforceable against each such party (other than US Airways) in accordance
with its terms;
(b) each of (i) the Owner Participant, (ii) State Street Bank and
Trust Company of Connecticut, National Association, (iii) First Security
Bank, National Association, and (iv) US Airways is duly organized and
validly existing in good standing under the laws of the jurisdiction of its
organization;
(c) each of (i) the Owner Participant, (ii) State Street Bank and
Trust Company of Connecticut, National Association, individually and as
Indenture Trustee, Subordination Agent and Pass Through Trustee, (iii)
First Security Bank, National Association, individually and as Owner
Trustee, and (iv) 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 and the
Indenture Documents to which it is a party;
(d) each of (i) the Owner Participant, (ii) State Street Bank and
Trust Company of Connecticut, National Association, individually and as
Indenture Trustee, Subordination Agent and Pass Through Trustee, (iii)
First Security Bank, National Association, individually and as Owner
Trustee, and (iv) US Airways has duly authorized, executed and delivered
each of the Transaction Documents and the Indenture Documents to which it
is a party;
(e) the execution, delivery and performance of the Transaction
Documents and the Indenture 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;
(f) except for (i) the due and timely filing and, where
appropriate, recording of (A) the FAA ▇▇▇▇ of Sale, (B) the Trust
Agreement, (C) the Lease (with the Lease Supplement covering the Aircraft,
the Indenture and the Trust Supplement covering the Aircraft attached as
exhibits) and (D) the Trust Indenture (with the Trust 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
or the Indenture Documents with respect to any party to any Transaction
Document or any Indenture Document (provided that we make no such
assumption with respect to those required by Applicable Laws as such
Applicable Laws apply to US Airways); and
(g) the Trust Agreement duly creates, for the benefit of the Owner
Participant, the trust interest in the trust estate which the Trust
Agreement by its terms purports to create and the trust purported to be
created by the Trust Agreement has been duly formed and is validly
existing.
With respect to US Airways, we understand that you are separately
receiving an opinion with respect to certain matters set forth above from
▇▇▇▇▇▇ ▇. ▇▇, 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 ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special
Transportation Code counsel (the "TC Opinion"). With respect to the Owner
Trustee, we understand that you are separately receiving an opinion with
respect to certain matters set forth above from Ray, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
special counsel to the Owner Trustee (the "Owner Trustee 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 ▇▇▇▇▇▇▇ ▇▇▇▇
LLP, special counsel to the Indenture Trustee, the Pass Through Trustee and
the Subordination Agent (the "State Street Opinion"). With respect to the
Owner Participant, we understand that you are receiving separate opinions
with respect to certain matters set forth above from __________, special
counsel to the Owner Participant (the "OP Opinion;" and together with the
US Airways Opinion, the TC Opinion, the Owner Trustee Opinion and the State
Street 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
____________________, as Owner Participant
State Street Bank and Trust Company of Connecticut, National Association,
individually and as Indenture Trustee, Pass Through
Trustee and Subordination Agent
First Security Bank, National Association,
individually and as Owner Trustee
Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Officer's Certificate to SASM&F (Illinois) Opinion
N_________
EXHIBIT A
Certificate
The undersigned, ▇▇▇▇▇▇ ▇. ▇▇, 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ (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: ▇▇▇▇▇▇ ▇. ▇▇
Title: Associate General Counsel
[LETTERHEAD OF US AIRWAYS, INC.]
[LEASED AIRCRAFT OPINION]
------------, -----
To Each Person Listed
on Schedule I Hereto
Re: US Airways, Inc. Trust No. N____U_
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, as Lessee, __________________, as Owner Participant, 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, and First Security Bank, National Association, a
national banking association, not in its individual capacity except as
otherwise provided therein, but solely as Owner Trustee, 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
(other than the signatures of US Airways), 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 Owner Participant, the
Owner Trustee, 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 Lease;
(c) the Lease Supplement;
(d) the Tax Indemnity Agreement;
(e) the Purchase Agreement Assignment;
(f) the Trust Indenture;
(g) the Trust Supplement;
(h) the Warranty ▇▇▇▇ of Sale;
(i) the FAA ▇▇▇▇ of Sale;
(j) the Acceptance Certificate;
(k) the Equipment Notes;
(l) the Pass Through Trust Agreement;
(m) each of the Pass Through Trust Agreement Supplements;
(n) certified copies of the Certificate of Incorporation and By-laws
of US Airways;
(o) certified copies of certain resolutions of the Board of Directors
of US Airways adopted on ___________;
(p) 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
(q) 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, (iii) the registration in the Owner Trustee's name of the
Aircraft pursuant to the Transportation Code, and (iv) the filings and,
where appropriate, recording, pursuant to the Transportation Code, of each
of the FAA ▇▇▇▇ of Sale, the Trust Agreement, the Lease (with the Lease
Supplement covering the Aircraft, the Trust Indenture and the Trust
Supplement covering the Aircraft attached as exhibits) and 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. [Each of] US Airways [and Shuttle, Inc.] is a duly certificated
"air carrier" within the meaning of the Transportation Code, and [each of
US Airways and Shuttle, Inc. 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.
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 ▇▇▇▇▇▇▇▇ CHANCE
REGARDING MANUFACTURER DOCUMENTS]
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 First Security Bank, National Association
(not in its individual capacity but solely as owner trustee
(the "OWNER TRUSTEE") as assignee) (the "SECOND PURCHASE
AGREEMENT ASSIGNMENT");
(iv) the trust indenture and security agreement (US Airways, Inc.
Trust No. N[ ] U[ ]) dated as of [ ] between the Owner
Trustee and State Street Bank and Trust Company of Connecticut,
National Association as indenture trustee (the "INDENTURE
TRUSTEE") (the "TRUST INDENTURE AND SECURITY AGREEMENT");
(v) the consent and agreement of Airbus (to the Second Purchase
Agreement Assignment and the assignment named therein made under
the Trust Indenture and Security Agreement) dated as of [ ]
(the "AIRBUS CONSENT AND AGREEMENT");
(vi) the consent and agreement of AVSA (to the Second Purchase
Agreement Assignment and to the assignment named therein under
the Trust Indenture and Security Agreement) dated as of [ ]
(the "AVSA CONSENT AND AGREEMENT");
(vii) the pledge agreement dated [ ] made between the Owner Trustee
(as pledgor) and the Indenture Trustee (as pledgee, the "PLEDGE
AGREEMENT"),
the documents referred to in (i) to (vii) above are hereinafter
referred to collectively as the "DOCUMENTS", the documents referred to
in (i) and (iii) above are hereinafter referred to collectively as the
"ASSIGNMENTS" and the documents referred to in (v) and (vi) above are
hereinafter referred to collectively as the "SECOND CONSENTS".
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 Owner Trustee 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 the validity as against third parties of
the assignments made in the Assignment Agreements, it is
necessary that notice of such assignments 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
our such formalities which we intend to do upon receipt of
duly executed originals of the Assignment Agreements 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 pledge (nantissement) created by the Pledge Agreement in
accordance with the provisions of Article 2075 of the French
Civil Code, it is necessary for the Pledge Agreement 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 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 the Pledge
Agreement 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 of 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 agreement
evidencing an undertaking in 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,
▇▇▇▇▇▇▇▇ CHANCE
FORM OF OPINION OF SPECIAL COUNSEL
TO THE OWNER TRUSTEE
TO EACH OF THE PARTIES SET FORTH
IN SCHEDULE A HERETO:
Re: US AIRWAYS, INC. LEVERAGED LEASE N_______
Dear Sir or Madam:
We have acted as special counsel for First Security Bank, National
Association, a national banking association, in its individual capacity
("First Security") and in its capacity as trustee (the "Owner Trustee")
under Trust Agreement dated as of _________, 1999,
(the "Trust Agreement") between it and ___________, as owner participant
(the "Owner Participant"), in connection with the transactions contemplated
by the Participation Agreement (as defined below). Except as otherwise
defined herein, the terms used herein shall have the meanings set forth in
Annex A to Participation Agreement _____, dated as of _______________, 1999
among US Airways, Inc., as Lessee, the Owner Participant, First Security,
not in its individual capacity except as provided therein, and as Owner
Trustee, and State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity except as expressly provided
therein, but solely as Indenture Trustee, Subordination Agent and as Pass
Through Trustee under each of the Pass Through Trust Agreements (the
"Participation Agreement").
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records and other
instruments as we have deemed necessary or advisable for the purpose of
rendering this opinion.
Based upon the foregoing, we are of the opinion that:
1. First Security is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States, is a "citizen of the United States" within the meaning
of Section 40102(a)(15) of the Act and has the full power and
authority to enter into and perform its obligations under the Trust
Agreement and each other Operative Agreement to which it, in its
individual capacity or as Owner Trustee, as the case may be, is a
party and, as Owner Trustee, to issue, execute, and deliver and
perform the Equipment Notes.
2. The Owner Trustee is the duly appointed trustee under the
Trust Agreement and the Trust Agreement creates a legal and valid
trust under the laws of the State of Utah; the trust created by the
Trust Agreement has been duly created and exists for the benefit of
the Owner Participant, and the Trust Agreement creates for the benefit
of the Owner Participant the rights and interests in the Trust Estate
which the Trust Agreement by its terms purports to create; and
assuming the Trust Agreement was properly authorized, executed and
delivered by the Owner Participant and that the terms of the Trust
Agreement are not in violation of any laws, documents, judgments,
regulations or other provisions applicable to the Owner Participant,
the Trust Agreement constitutes, under the laws of the State of Utah,
a legal, valid and binding obligation of the Owner Participant
enforceable against the Owner Participant in accordance with its
terms.
3. The Trust Agreement, the Participation Agreement, and each
other Operative Agreement to which First Security or the Owner
Trustee, as the case may be, is a party, and the Equipment Notes, have
been duly authorized, executed and delivered by First Security, or the
Owner Trustee, as the case may be, and assuming due authorization,
execution and delivery by the other parties thereto is a legal, valid
and binding obligation of First Security, or the Owner Trustee, as the
case may be, enforceable in accordance with their respective terms.
4. The execution and delivery by First Security of the Trust
Agreement and the Participation Agreement and the execution and
delivery by the Owner Trustee of the Operative Agreements to which it
is a party is not, and the performance by First Security, or the Owner
Trustee, as the case may be, of its respective obligations under each
such agreements will not be, inconsistent with the articles of
association or by-laws of First Security, do not and will not
contravene any federal law or law of the State of Utah, or any rule or
regulation of the State of Utah or the federal government, or any
judgment or order of which we have knowledge and which is applicable
to it and do not and will not contravene any provision of, or result
in the creation of any lien upon any property of First Security, or
constitute a default under, any indenture, mortgage, contract or other
instrument of which we have knowledge and to which First Security or
the Owner Trustee is a party or by which either is bound or require
the consent or approval of, the giving of notice to, or the
registration with, or the taking of any action in respect of, or under
federal law or the laws of the State of Utah or any subdivision or
agency thereof.
5. There are no fees, taxes or other charges, except taxes
imposed on fees payable to First Security, required to be paid under
the laws, ordinances or regulations of the State of Utah or any
political subdivision thereof, including, without limitation, Salt
Lake City, in connection with the execution, delivery or performance
by the Lessee, Owner Trustee, Mortgagee or any Participant of the
Operative Agreements solely because First Security, or the Owner
Trustee as the case may be, performs certain of its obligations under
the Operative Agreements in the State of Utah.
6. There are no pending or threatened actions or proceedings
against or affecting First Security or the Owner Trustee, as the case
may be, before any court, governmental authority or administrative
agency which, if adversely determined, could materially adversely
affect the right, power or ability, either in its individual capacity
or as Owner Trustee, or both, as the case may be, to enter into or
perform its obligations under the Operative Agreements.
7. The Trust Indenture (or financing statements or other
notices with respect thereto) has been filed for record or recorded
with the Division of Corporations and Commercial Code in the State of
Utah and such offices are all the places in the State of Utah wherein
such filing or recordation is necessary and no other actions or
filings are necessary in the State of Utah to perfect the lien and
security interest of the Mortgagee in the Trust Estate as against
creditors of or purchasers from the Owner Trustee or the Lessee, or
both.
8. The Owner Trustee has received such right, title and
interest in and to the Aircraft as was conveyed to the Owner Trustee
on the date hereof, subject to (i) the rights of the Lessee under the
Lease and the Lease Supplement; (ii) the beneficial interest of the
Owner Participant in the Aircraft; and (iii) the Lien created pursuant
to the Trust Indenture and the Trust Indenture Supplement; and to our
knowledge there exist no Liens affecting the right, title or interest
of the Owner Trustee in and to the Trust Estate resulting from claims
against First Security, not related to the ownership of the Trust
Estate or the administration of the Trust Estate or any other
transaction contemplated by the Operative Agreements.
9. Assuming that (i) the Aircraft is not physically located in
the State of Utah at the commencement or termination of the Term, (ii)
in connection with any sale or lease of the Aircraft, such Aircraft
will not be physically delivered in the State of Utah, and (iii) the
Aircraft will be sold or leased for use in interstate commerce, and
(iv) the trust created by the Trust Agreement is treated as a grantor
trust for federal income tax purposes in accordance with Sections 671
through 678 of the Internal Revenue Code of 1986, as amended, there
are no sales or transfer fees, taxes or other charges (except taxes
imposed on fees payable to the Owner Trustee) payable to the State of
Utah or any political subdivision thereof in connection with the
execution, delivery or performance by the Owner Trustee, the
Mortgagee, the Lessee or any Participant of the Operative Agreements
or in connection with the making by the Owner Participant of its
investment in the Aircraft or its acquisition of the beneficial
interest in the Trust Estate or in connection with the issuance and
acquisition of the Equipment Notes. Neither the Owner Trustee, the
Trust Estate nor the trust created by the Trust Agreement will be
subject to any fee, tax or other governmental charge (except taxes on
fees payable to the Owner Trustee) under the laws of the State of Utah
or any political subdivision thereof on, based on or measured by,
directly or indirectly, the gross receipts, net income or value of the
Trust Estate by reason of the creation or continued existence of the
trust under the terms of the Trust Agreement pursuant to the laws of
the State of Utah or the Owner Trustee's performance of its duties
under the Trust Agreement within such State.
10. Neither a Utah court nor a federal court applying Utah law
or federal law, if properly presented with the issue and after having
properly considered such issue, would permit the Owner Participant to
terminate the Trust Agreement, except in accordance with its terms.
11. Although there is no Utah case directly on point, under the
laws of the State of Utah, so long as the Trust Agreement has not been
terminated in accordance with its terms, creditors of any person that
is an Owner Participant, holders of a lien against the assets of any
such person that is an Owner Participant, such as trustees, receivers
or liquidators (whether or not an insolvency proceeding has been
commenced) (collectively the "Creditors") may acquire valid claims and
liens, as to the Trust Estate, only against the rights of such Owner
Participant under the Trust Agreement or in the Trust Estate, and do
not have, and may not through the enforcement of such Creditors'
rights acquire, any greater rights than such Owner Participant with
respect to the Trust Agreement or the Trust Estate.
The foregoing opinions are subject to the following assumptions, exception
and qualifications:
A. The foregoing opinions are limited to the laws of the State of
Utah and the federal laws of the United States of America governing
the banking and trust powers of First Security and Title II of the
United States Code entitled "Bankruptcy." In addition, we express no
opinion with respect to (i) federal securities laws, including the
Securities Act of 1933, as amended, the Securities Exchange Act of
1934, as amended, and the Trust Indenture Act of 1939, as amended;
(ii) the Federal Aviation Act of 1958, as amended (except with respect
to the opinion set forth in paragraph 1 above concerning the
citizenship of First Security); or (iii) state securities or blue sky
laws. Insofar as the foregoing opinions relate to the legality,
validity, binding effect and enforceability of the documents involved
in these transactions, which by their terms are governed by the laws
of a state other than Utah, we have assumed that such documents
constitute legal, valid, binding and enforceable agreements under the
laws of such state, as to which we express no opinion.
B. The foregoing opinions regarding enforceability of any document
or instrument are subject (i) except as otherwise set forth in the
opinions in paragraphs 10 and 11, to applicable bankruptcy,
insolvency, moratorium, reorganization, receivership and similar laws
affecting the rights and remedies of creditors generally, and (ii)
general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law. We
call to your attention that bankruptcy courts are courts in equity
with wide discretion in applying the provisions of the Bankruptcy
Code.
C. As to the documents involved in these transactions, we have
assumed that each is a legal, valid and binding obligation of each
party thereto, other than First Security or the Owner Trustee, and is
enforceable against each such party in accordance with their
respective terms.
D. The opinion in paragraph 1 above concerning the citizenship of
First Security is based upon the facts contained in an affidavit of
First Security, made by its authorized officer, which facts we have
not independently verified.
E. We have assumed that all signatures, other than those of the
Owner Trustee or First Security, on documents and instruments involved
in these transactions are genuine, that all documents and instruments
submitted to us as originals are authentic, and that all documents and
instruments submitted to us conform with the originals, which facts we
have not independently verified.
F. We do not purport to be experts in respect of, or express any
opinion concerning laws, rules or regulations applicable to the
particular nature of the equipment involved in these transactions.
G. We have made no investigation of, and express no opinion
concerning, the nature of the title to any part of the equipment
involved in these transactions or the priority of any mortgage or
security interest.
H. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of
Section 406 of the Employee Retirement Income Security Act of 1974.
I. In addition to any other limitation by operation of law upon the
scope, meaning or purpose of this opinion, this opinion speaks only as
of the date hereof. We have no obligation to advise the recipients of
this opinion (or any third party) of changes of law or fact that may
occur after the date hereof, even though the change may effect the
legal analysis, a legal conclusion or any information contained
herein.
J. The opinions expressed in this letter are solely for the use of
the parties which it is addressed in matters directly related to the
Participation Agreement and the transactions contemplated thereunder
and these opinions may not be relied on by any other persons or for
any other purpose without our prior written approval. The opinions
expressed in this letter are limited to the matters set forth in this
letter and no other opinions should be inferred beyond the matters
expressly stated.
Very truly yours,
RAY, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
SCHEDULE A
----------
First Security Bank, National Association
US Airways, Inc.
State Street Bank and Trust Company of Connecticut, National
Association
[Owner Participant]
Standard & Poor's Rating Service
▇▇▇▇▇'▇ Investors Service, Inc.
[AIG Matched Funding Corp.]
[OWNER PARTICIPANT SPECIAL COUNSEL OPINION]
--------------, ----
To the Persons Listed on
Schedule A Attached Hereto
Re: N___U__
Ladies and Gentlemen:
We have acted as special counsel to __________________, a
____________________ (the "Owner Participant") in connection with the
transactions contemplated by the Participation Agreement N___U_ dated as of
______________, ____ (the "Participation Agreement"), among US Airways, a
Delaware corporation, as Lessee; the Owner Participant; First Security
Bank, National Association, a national banking association, not in its
individual capacity except as expressly provided therein, but solely as
Owner Trustee; State Street Bank and Trust Company of Connecticut, National
Association , a national banking association, not in its individual
capacity except as expressly stated therein, but solely as Pass Through
Trustee. Capitalized terms used in this opinion and not defined herein
shall have the, respective meanings assigned thereto in Annex A to the
Participation Agreement. Our opinion is being delivered, at the request of
the Owner Participant, pursuant to Section 4(a)(xiv) of the Participation
Agreement.
In connection with the opinions contained herein, we have
examined executed counterparts of each of the Operative Documents. The
Operative Documents to which the Owner Participant is a party are herein
referred to as the "Owner Participant Documents".
For purposes of the opinions expressed below, we have
examined the originals or conformed copies of such corporate records and
documents, certificates and statements of public officials and such other
documents and records, and such other matters of law, as we have deemed
appropriate as a basis for the opinions hereinafter expressed. We have made
no independent inquiry or investigation of any factual matters or
circumstances relevant to the opinions contained herein, but instead we
have relied upon representations in the Operative Documents and upon
certificates and statements of the parties thereto and of public officials.
For the purposes of the opinions expressed below, we have
assumed (i) the authenticity of all documents submitted as originals; (ii)
the conformity to the originals of all documents submitted as certified or
photostatic copies and the authenticity of the originals; (iii) the legal
capacity of all natural persons who are parties to the Operative Documents;
(iv) the due authorization, execution and delivery of the Owner Participant
Documents by all parties; and (v) the legality, validity and binding effect
of the Owner Participant Documents as to, and the enforceability of the
same against, all parties (other than the Owner Participant).
Based upon the foregoing and such other information as we
have deemed necessary for purposes hereof, and subject to the assumptions,
qualifications and reliances set forth herein, we are of the opinion that:
1. Each of the Owner Participant Documents to which the
Owner Participant is a party constitutes a legal, valid and
binding obligation of the Owner Participant, enforceable against
the Owner Participant in accordance with their respective terms.
2. Neither the execution, delivery or performance by the
Owner Participant of the Owner Participant Documents to which the
Owner Participant is a party, the consummation by the Owner
Participant of any of the transactions contemplated thereby, nor
compliance by the Owner Participant with the provisions thereof
(a) violates any New York or federal laws, rules or regulations or
(b) requires the consent, permit, authorization or approval of,
the giving of notice to, the registration or filing with, or the
taking of any other action in respect of any governmental
authority or agency of the United States or the State of New York
(except for compliance with the requirements of the Federal
Aviation Act, as to which we express no opinion).
Our opinion as to the enforceability of any Owner
Participant Document is qualified by and subject to:
(i) limitations imposed by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, and laws relating to
fraudulent transfers or conveyances, preferences and equitable
subordination;
(ii) general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith
and fair dealing (regardless of whether enforcement is sought in a
proceeding in equity or at law);
(iii) the unenforceability under certain circumstances of
provisions purporting to release or exculpate any party from
liability for its acts or omissions, or purporting to impose a
duty upon any party to indemnify any other party when any claimed
damages result from the gross negligence or willful misconduct of
the party seeking such indemnity; and
(iv) the unenforceability under certain circumstances of
waivers, and provisions imposing liquidated damages, late payment
charges or forfeitures, if such amounts are determined to be
penalties in light of the actual damages incurred.
Anything in this opinion to the contrary notwithstanding,
we express no opinion concerning (i) the enforceability of any
indemnification agreements or of any waivers of the benefits of any
constitutional, statutory or common law rights contained in any of the
Operative Documents to the extent such enforceability may be barred or
limited by public policy considerations; (ii) federal and state applicable
laws relating to environmental matters or the offering of securities; (iii)
the Employee Retirement Income Security Act of 1974, as amended; (iv)
federal or state laws, rules or regulations governing banking or trust
powers; (v) the ownership of, or legal or equitable title to any property;
or (vi) the priority of any security interest contemplated by the Operative
Documents.
We are members of the bar of the State of New York and,
accordingly, we do not purport to express any opinion on any laws other
than the laws of the State of New York and the federal laws of the United
States of America, in each case as such laws are in effect on the date
hereof With respect to the Owner Participant Documents which by their terms
are to be governed by and construed in accordance with laws other than the
laws of the state of New York, we have assumed for purposes hereof that
such laws are identical in all respects to the laws of the state of New
York.
This opinion is furnished by us at your request for your
sole benefit and no one but an addressee (and any permitted transferee) is
entitled to rely on this opinion without our express written consent. This
opinion shall not be published or reproduced in any manner or distributed
or circulated to any person or entity without our express written consent.
Our opinion is limited to the matters stated herein, and no opinion is
implied or may be inferred beyond the matters expressly stated herein.
Very truly yours,
------------------------
SCHEDULE A
__________________, as Owner Participant
First Security Bank, National Association in its individual capacity and as
Owner Trustee
State Street Bank and Trust Company of Connecticut, National Association,
as Pass Through Trustee
US Airways, Inc., as Lessee
FORM OF OPINION OF ▇▇▇▇▇ & ▇▇▇▇▇▇▇
_____________, 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 the following described
instruments with the Federal Aviation Administration (the "FAA") today at
the respective times noted below:
(a) AC Form 8050-2 Aircraft ▇▇▇▇ of Sale dated __________
__, 1999 (the "FAA ▇▇▇▇ of Sale") by US Airways, Inc. (the
"Lessee") to ____________, as Owner Trustee (the "Owner
Trustee") under Trust Agreement (US Airways, Inc. 1999-1 Series
N______) dated as of _________ __, 1999 (the "Trust Agreement")
between _______________ as Owner Participant and the Owner
Trustee, covering the Aircraft was filed at __:__.M., C._.T.;
(b) AC Form 8050-1 Aircraft Registration Application by the Owner
Trustee covering the Aircraft, to which were attached the
Affidavits required by Section 47.7(c)(2)(ii) of Part 47 of the
Federal Aviation Regulations, was filed at __:__.M., C._.T.;
(c) the Trust Agreement was filed at __:__.M., C._.T.;
(d) Trust Indenture and Security Agreement (US Airways, Inc. 1999-1
Series N_____) dated as of _______ __, 1999 (the "Indenture")
between the Owner Trustee 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"), was filed at
__:__.M., C._.T.; and
(e) Lease Agreement dated as of _________ __, 1999 (the
"Lease") between the Owner Trustee as lessor and the Lessee, to
which were attached Lease Supplement No. 1 (US Airways,
Inc.1999-1 Series N____) dated __________ __, 1999 (the "Lease
Supplement") covering the Aircraft and the Engines, the
Indenture and the Indenture Supplement, was filed at __:__.M.,
C._.T.
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 FAA ▇▇▇▇ of Sale, the Indenture with the Indenture
Supplement attached and the Lease with the Lease Supplement,
the Indenture and the Indenture Supplement attached are in due
form for recordation by and have 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 Owner
Trustee and all instruments necessary to cause the FAA in due
course to issue to the Owner Trustee an AC Form 8050-3
Certificate of Aircraft Registration covering the Aircraft have
been duly filed with the FAA 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 and the
Lease) other than such as are created by the Indenture, as
supplemented by the Indenture Supplement, and by the Lease, as
supplemented by the Lease 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 and in all of the right, title and
interest of the Owner Trustee in and to the Lease, as
supplemented by the Lease Supplement (insofar as such security
interest affects an interest covered by the recording system
established by the FAA pursuant to Section 44107 of Title 49 of
the United States Code);
(e) the rights of the Owner Trustee and the Lessee under the Lease,
as supplemented by the Lease Supplement, with respect to the
Aircraft and the Engines are perfected;
(f) 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;
(g) 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 Owner Trustee'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
(h) 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 Lease, the Lease Supplement, the
Trust Agreement, 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. This
opinion is rendered in reliance upon the opinion of the Aeronautical Center
Counsel dated _________ __, 1999 (a copy of which is attached hereto) and
upon the past practice of the FAA which is consistent with said opinion.
Very truly Yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
For the Firm
SCHEDULE
___________________________ as Owner Trustee
___________________________ as Indenture Trustee, Pass Through
Trustee and Subordination Agent
US Airways, Inc.
Standard & Poor's Ratings Services
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇, 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,
▇▇▇▇▇▇▇ ▇▇▇▇ 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
▇▇▇▇▇'▇ Investors Service, Inc.
Credit Suisse First Boston Corporation
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇, SPECIAL COUNSEL TO THE PASS
THROUGH TRUSTEE
-------------------- --, ----
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
RE: US Airways, Inc./Leveraged Lease Financing of One Airbus
[A320] [A300-300] Aircraft [N _________ US] - Pass
Through Trust
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 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., as Lessee (the "LESSEE"), [ ], as Owner Participant,
State Street, as Pass Through Trustee, State Street, as Subordination Agent
(the "SUBORDINATION AGENT") and First Security Bank, National Association,
as 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(a)(xxiii) 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,
▇▇▇▇▇▇▇ ▇▇▇▇ LLP
SCHEDULE A
----------
State Street Bank and Trust Company of
Connecticut, National Association
First Security Bank, National Association
______________________, as Owner Participant
US Airways, Inc.
US Airways Group, Inc.
Standard & Poor's Ratings Service
▇▇▇▇▇'▇ Investors Service, Inc.
Credit Suisse First Boston Corporation
-------------------------
-------------------------
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇, SPECIAL COUNSEL TO THE SUBORDINATION AGENT
-------------, --------
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
RE: US Airways, Inc./Leveraged Lease Financing of One Airbus
[A320] [A330-300] Aircraft [N _____ US] - Subordination
Agent
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 ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ 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., as Lessee (the "LESSEE"), [__________________], as Owner
Participant, State Street, as Pass Through Trustee (the "PASS THROUGH
TRUSTEE"), State Street, as Subordination Agent and First Security Bank,
National Association, as 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(a)(____) 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,
▇▇▇▇▇▇▇ ▇▇▇▇ LLP
SCHEDULE A
----------
State Street Bank and Trust Company of Connecticut, National Association
First Security Bank, National Association
[____________________], as Owner Participant
US Airways, Inc.
US Airways Group, Inc.
Standard & Poor's Ratings Service
▇▇▇▇▇'▇ Investors Service, Inc.
Credit Suisse First Boston Corporation