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Exhibit 4(a)(xii)
NOTE PURCHASE AGREEMENT
Dated as of August 31, 1999
Among
US AIRWAYS, INC.,
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Subordination Agent
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
and
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Paying Agent
INDEX TO NOTE PURCHASE AGREEMENT
Page
SECTION 1. Definitions...............................................3
SECTION 2. Financing of New Aircraft.................................3
SECTION 3. Conditions Precedent......................................8
SECTION 4. Representations and Warranties............................9
SECTION 5. Covenants................................................14
SECTION 6. Notices..................................................15
SECTION 7. Expenses.................................................15
SECTION 8. Further Assurances.......................................16
SECTION 9. Miscellaneous............................................16
SECTION 10. Governing Law............................................17
SCHEDULES
Schedule I New Aircraft and Scheduled Closing Months
Schedule II Trust Supplements
Schedule III Deposit Agreements
Schedule IV Escrow and Paying Agent Agreements
Schedule V Mandatory Document Terms
Schedule VI Mandatory Economic Terms
Schedule VII Aggregate Amortization Schedule
ANNEX
Annex A Definitions
EXHIBITS
Exhibit A-1 Form of Leased Aircraft Participation Agreement
Exhibit A-2-1 Form of Basic Lease
Exhibit A-2-2 Form of Deferred Equity/Prepaid-Deferred Rent Lease
Exhibit A-3 Form of Leased Aircraft Indenture
Exhibit A-4 Form of Leased Aircraft Purchase Agreement Assignment
Exhibit A-5 Form of Leased Aircraft Trust Agreement
Exhibit A-6 Form of Leased Aircraft French Pledge Agreement
Exhibit B Form of Closing Notice
Exhibit C-1 Form of Owned Aircraft Participation Agreement
Exhibit C-2 Form of Owned Aircraft Indenture
Exhibit C-3 Form of Owned Aircraft Purchase Agreement Assignment
Exhibit C-4 Form of Owned Aircraft French Pledge Agreement
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of August 31,
1999, among (i) US Airways, Inc., a Delaware corporation (the "Company"),
(ii) State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
except as otherwise expressly provided herein, but solely as trustee (in
such capacity together with its successors in such capacity, the "Pass
Through Trustee") under each of the three separate Pass Through Trust
Agreements (as defined below), (iii) State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, as
subordination agent and trustee (in such capacity together with its
successors in such capacity, the "Subordination Agent") under the
Intercreditor Agreement (as defined below), (iv) First Security Bank,
National Association, a national banking association, as Escrow Agent (in
such capacity together with its successors in such capacity, the "Escrow
Agent"), under each of the Escrow and Paying Agent Agreements (as defined
below) and (v) State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, as Paying Agent (in such
capacity together with its successors in such capacity, the "Paying Agent")
under each of the Escrow and Paying Agent Agreements.
W I T N E S S E T H:
WHEREAS, US Airways Group, Inc. ("Group") has obtained
commitments from the Seller pursuant to the Aircraft Purchase Agreement for
the delivery of the twenty (20) aircraft listed in Schedule I hereto
(together with any aircraft substituted therefor in accordance with the
Aircraft Purchase Agreement prior to the
delivery thereof, the "New Aircraft");
WHEREAS, pursuant to the Basic Pass Through Trust
Agreement and each of the Trust Supplements set forth in Schedule II
hereto, and concurrently with the execution and delivery of this Agreement,
separate grantor trusts (collectively, the "Pass Through Trusts" and,
individually, a "Pass Through Trust") have been created to facilitate
certain of the transactions contemplated hereby, including, without
limitation, the issuance and sale of pass through certificates pursuant
thereto (collectively, the "Certificates") to provide for a portion of the
financing of the New Aircraft;
WHEREAS, the Company has entered into the Underwriting
Agreement dated as of August 24, 1999 (the "Underwriting Agreement") with
the several underwriters (the "Underwriters") named therein, which provides
that the Company will cause the Pass Through Trustee of each of the Class A
Trust and the Class B Trust to issue and sell the Class A Certificates and
the Class B Certificates to the Underwriters;
WHEREAS, the Company has entered into a Class C Trust
Certificate Purchase Agreement, dated as of August 31, 1999 (the "Class C
Purchase Agreement") with Airbus Industrie Financial Services ("AIFS")
which provides that the Company will cause the Trustee of the Class C Trust
to issue and sell Class C Certificates to AIFS;
WHEREAS, concurrently with the execution and delivery of
this Agreement, (i) the Escrow Agent and the Depositary entered into the
Deposit Agreements set forth in Schedule III hereto (the "Deposit
Agreements") whereby the applicable Escrow Agent agreed to direct the
Underwriters and AIFS to make certain deposits referred to therein on the
Issuance Date (the "Initial Deposits") and to permit the applicable Pass
Through Trustee to make additional deposits from time to time thereafter
(the Initial Deposits together with such additional deposits are
collectively referred to as the "Deposits") and (ii) the Pass Through
Trustees, the Underwriters, AIFS, the Paying Agents and the Escrow Agents
entered into the Escrow and Paying Agent Agreements set forth in Schedule
IV hereto (the "Escrow and Paying Agent Agreements") whereby, among other
things, (a) the Underwriters and AIFS agreed to deliver an amount equal to
the amount of the Initial Deposits to the applicable Depositary on behalf
of the applicable Escrow Agent and (b) the applicable Escrow Agent, upon
the applicable Depositary receiving such amount, has agreed to deliver
escrow receipts to be affixed to each Certificate;
WHEREAS, the Company will determine whether to enter into
a leveraged lease transaction as lessee with respect to such New Aircraft
(a "Leased Aircraft") or to issue secured equipment notes in order to
finance such New Aircraft (an "Owned Aircraft") and will give to the Pass
Through Trustee a Closing Notice (as defined below) specifying its election;
WHEREAS, upon receipt of a Closing Notice with respect to
a New Aircraft, subject to the terms and conditions of this Agreement, the
applicable Pass Through Trustees will enter into the applicable Financing
Agreements relating to such New Aircraft;
WHEREAS, on the Closing Date under the applicable
Financing Agreements, each Pass Through Trustee will fund its purchase of
Equipment Notes with the proceeds of one or more Deposits withdrawn by the
applicable Escrow Agent under the related Deposit Agreement bearing the
same interest rate as the Certificates issued by such Pass Through Trust; and
WHEREAS, concurrently with the execution and delivery of
this Agreement, (i) AIG Matched Funding Corp., a Delaware corporation (the
"Liquidity Provider"), has entered into three (3) revolving credit
agreements (each, a "Liquidity Facility"), one each for the benefit of the
Certificate Holders of each Pass Through Trust, 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,
dated as of the date hereof (the "Intercreditor Agreement").
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual agreements herein contained and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used but not
defined herein shall have the respective meanings set forth or incorporated by
reference in Annex A.
Section 2. Financing of New Aircraft. (a) The Company
confirms that Group has entered into the Aircraft Purchase Agreement with
the Seller pursuant to which Group has agreed to purchase, and the Seller
has agreed to deliver, the New Aircraft in the months specified in Schedule
I hereto, all on and subject to terms and conditions specified in the
Aircraft Purchase Agreement. Group may, prior to the scheduled delivery
date for the New Aircraft, assign the right to purchase the New Aircraft to
the Company. The Company agrees that the New Aircraft will be financed in
the manner provided herein, all on and subject to the terms and conditions
hereof and of the relevant Financing Agreements.
(b) In furtherance of the foregoing, the Company
agrees to give the parties hereto, each Depositary and each of the Rating
Agencies not less than two (2) Business Day's prior notice (a "Closing Notice")
of the scheduled closing date (the "Scheduled Closing Date") (or, in the case
of a Substitute Closing Notice under Section 2(f) or (g) hereof, one (1)
Business Day's prior notice) of a financing in respect of each New
Aircraft, which notice shall:
(i) specify whether the Company has
elected to treat such New Aircraft as a Leased Aircraft or an
Owned Aircraft;
(ii) specify the Scheduled Closing
Date on which the financing therefor in the manner provided herein
shall be consummated, which Scheduled Closing Date shall be within
120 days of the delivery of such New Aircraft from the Seller to
the Company or Group (or, with Rating Agency Confirmation, a
longer period following delivery of such New Aircraft from Seller
to the Company or Group, but in no event on or after the Cut-Off
Date) and prior to the Cut-Off Date;
(iii) instruct the Pass Through
Trustees instruct each Escrow Agent to provide a Notice of
Purchase Withdrawal to the Depositary with respect to the
Equipment Notes to be issued in connection with the financing of
such New Aircraft;
(iv) instruct the Pass Through
Trustees enter into the Participation Agreement included in the
Financing Agreements with respect to such Aircraft in such form
and at such a time on or before the Scheduled Closing Date
specified in such Closing Notice and to perform its obligations
thereunder;
(v) specify the aggregate principal
amount of each series of Equipment Notes to be issued, and
purchased by the Pass Through Trustees, in connection with the
financing of such New Aircraft on such Scheduled Closing Date
(which shall in all respects comply with the Mandatory Economic
Terms); and
(vi) if such New Aircraft is to be
a Leased Aircraft, certify that the related Owner Participant (A)
is not an Affiliate of the Company and (B) based on the
representations of such Owner Participant, is either (1) a
Qualified Owner Participant or (2) any other person the
obligations of which under the Owner Participant Documents (as
defined in the applicable Participation Agreement) are guaranteed
by a Qualified Owner Participant.
Notwithstanding the foregoing, in the event the Scheduled Closing Date for
any Aircraft to be financed pursuant to the terms hereof is on or within 3
Business Days following the date of issuance of the Certificates, the
Closing Notice therefor may be delivered tothe parties hereto on such
Scheduled Closing Date.
(c) Upon receipt of a Closing Notice, the Pass
Through Trustees shall, and shall cause the Subordination Agent to, enter
into and perform their obligations under the Participation Agreement
specified in such Closing Notice, provided, however, that such
Participation Agreement and the other Financing Agreements to be entered
into pursuant to such Participation Agreement shall be in the forms thereof
annexed hereto in all material respects with such changes therein as shall
have been requested by the Company or the related Owner Participant (in the
case of Lease Financing Agreements), and agreed to by the Company and, if
modified in any material respect, as to which Rating Agency Confirmation
shall have been obtained from each Rating Agency by the Company (to be
delivered by the Company to the applicable Pass Through Trustee on or
before the relevant Closing Date, it being understood that if Rating Agency
Confirmation shall have been received with respect to any Financing
Agreements and such Financing Agreements are utilized for subsequent New
Aircraft (or Substitute Aircraft) without material modifications, no
additional Rating Agency Confirmation shall be required); provided,
however, that the relevant Financing Agreements as executed and delivered
shall not vary the Mandatory Economic Terms and shall contain the Mandatory
Document Terms (as such Mandatory Document Terms may be modified in
accordance with Schedule V hereto). Notwithstanding the foregoing, if any
Financing Agreement annexed hereto shall not have been reviewed by either
Rating Agency prior to the Issuance Date, then, prior to the use thereof in
connection with the financing of any Aircraft hereunder, the Company shall
obtain from each Rating Agency a confirmation that the use of such
Financing Agreement would not result in (A) a reduction of the rating for
any Class of Certificates below the then current rating for such Class of
Certificates or (B) a withdrawal or suspension of the rating of any Class
of Certificates.
(d) With respect to each New Aircraft, the
Company shall cause State Street Bank and Trust Company of Connecticut,
National Association (or such other person that meets the eligibility
requirements to act as loan trustee under the Leased Aircraft Indenture or
Owned Aircraft Indenture) to execute as Loan Trustee the Financing
Agreements relating to such Aircraft to which such Loan Trustee is intended
to be a party, and shall concurrently therewith execute such Financing
Agreements to which the Company is intended to be a party and perform its
respective obligations thereunder. Upon the request of either Rating
Agency, the Company shall deliver or cause to be delivered to each Rating
Agency a true and complete copy of each Financing Agreement relating to the
financing of each New Aircraft together with a true and complete set of the
closing documentation (including legal opinions) delivered to the related
Loan Trustee, Subordination Agent and Pass Through Trustee under the
related Participation Agreement.
(e) If after giving any Closing Notice, there
shall be a delay in the delivery of a New Aircraft, or if on the Scheduled
Closing Date of a New Aircraft the financing thereof in the manner
contemplated hereby shall not be consummated for whatever reason, the
Company shall give the parties hereto prompt notice thereof. Concurrently
with the giving of such notice of postponement or subsequently, the Company
shall give the parties hereto a substitute Closing Notice specifying the
date (the "Substitute Closing Date") to which the applicable financing
shall have been rescheduled (which shall be a Business Day before the
earlier of (x) the 120th day following the delivery of the Aircraft from
the Seller to the Company or Group, as the case may be (or, with Rating
Agency Confirmation, a longer period following delivery of such New
Aircraft from Seller to the Company or Group) and (y) the Cut-Off Date on
which the Escrow Agents shall be entitled to withdraw one or more Deposits
under each of the applicable Deposit Agreements to enable each applicable
Pass Through Trustee to fund its purchase of the related Equipment Notes).
Upon receipt of any such notice of postponement, each applicable Pass
Through Trustee shall comply with its obligations under Section 5.01 of
each of the Trust Supplements and thereafter the financing of the relevant
New Aircraft shall take place on the Substitute Closing Date therefor (all
on and subject to the terms and conditions of the relevant Financing
Agreements) unless further postponed as provided herein.
(f) Anything in this Section 2 to the contrary
notwithstanding, the Company shall have the right at any time on or before
the Scheduled Closing Date of any New Aircraft, and subsequent to its
giving a Closing Notice therefor, to postpone the Scheduled Closing Date of
such New Aircraft so as to enable the Company to change its election to
treat such New Aircraft as a Leased Aircraft or an Owned Aircraft by
written notice of such postponement to the other parties hereto. The
Company shall subsequently give the parties hereto a substitute Closing
Notice complying with the provisions of Section 2(b) hereof and specifying
the new Closing Date for such postponed New Aircraft (which shall be a
Business Day occurring before the earlier of (x) the 120th day following
the delivery of the Aircraft from the Seller to the Company or Group, as
the case may be (or, with Rating Agency Confirmation, a longer period
following delivery of such New Aircraft from Seller to the Company or
Group) and (y) the Cut-Off Date and on which the Escrow Agents shall be
entitled to withdraw Deposits under each of the applicable Deposit
Agreements sufficient to enable each applicable Pass Through Trustee to
fund its purchase of the related Equipment Notes). All other terms and
conditions of this Note Purchase Agreement shall apply to the financing of
any such New Aircraft on the re-scheduled Closing Date therefor except the
re-scheduled Closing Date shall be deemed the Closing Date of such New
Aircraft for all purposes of this Section 2.
(g) If the delivery date for any New Aircraft
under the Aircraft Purchase Agreement is delayed for more than 30 days
beyond the month scheduled for delivery or until on or after the Cut-Off
Date, the Company may identify for delivery a substitute aircraft therefor
meeting the following conditions (together with the substitute aircraft
referred to in the next sentence, a "Substitute Aircraft"): (i) a
Substitute Aircraft must be an Airbus Model A319, A320 or A330 aircraft
delivered by the Seller to the Company after the date of this Agreement,
(ii) the Substitute Aircraft must have been delivered after August 30, 1999
and (iii) the Company shall be obligated to obtain Rating Agency
Confirmation in respect of the replacement of any New Aircraft by
Substitute Aircraft. Upon the satisfaction of the conditions set forth
above with respect to a Substitute Aircraft, the New Aircraft to be
replaced shall cease to be subject to this Agreement and all rights and
obligations of the parties hereto concerning such New Aircraft shall cease,
and such Substitute Aircraft shall become and thereafter be subject to the
terms and conditions of this Agreement to the same extent as such New
Aircraft.
(h) The Company shall have no liability for the
failure of the Pass Through Trustees to purchase Equipment Notes with
respect to any New Aircraft or Substitute Aircraft, other than the
Company's obligation, if any, to pay the Deposit Make-Whole Amount pursuant
to Section 5(a)(i) of this Agreement.
(i) The parties agree that if, in connection
with the delivery of a New Aircraft or Substitute Aircraft, any Owner
Participant who is to be a party to any Lease Financing Agreements shall
not be a "citizen of the United States" within the meaning of Section
40102(a)(15) of the Act, then the applicable Lease Financing Agreements
shall be modified, consistent with the Mandatory Document Terms (as such
Mandatory Document Terms may be modified in accordance with Schedule V
hereto), to require such Owner Participant to enter into a voting trust,
voting powers or similar arrangement satisfactory to the Company that (A)
enables such New Aircraft or Substitute Aircraft to be registered in the
United States and (B) complies with the FAA regulations issued under the
Act applicable thereto.
(j) Anything herein to the contrary
notwithstanding, the Company shall not have the right, and shall not be
entitled, at any time to request the issuance of Equipment Notes of any
series to any Pass Through Trustee in an aggregate principal amount in
excess of the amount of the Deposits then available for withdrawal by the
Escrow Agent under and in accordance with the provisions of the related
Deposit Agreement.
(k) Anything herein to the contrary
notwithstanding, the Company and Group shall each have the right to accept
delivery of a New Aircraft under the Aircraft Purchase Agreement on the
delivery date therefor under the Aircraft Purchase Agreement (and in
connection therewith may utilize a bridge financing of such New Aircraft);
provided that the Company shall in any event, give the parties hereto a
Closing Notice specifying a Scheduled Closing Date not later than one
hundred twenty (120) days after the delivery of such New Aircraft under the
Aircraft Purchase Agreement (or, with Rating Agency Confirmation, a longer
period following delivery of such New Aircraft from Seller to the Company
or Group) and before the Cut-Off Date and otherwise complying with the
provisions of Section 2(b) hereof. All other terms and conditions of this
Note Purchase Agreement shall apply to the financing of any such New
Aircraft on the new Scheduled Closing Date therefor except (i) the
Scheduled Closing Date shall be deemed to be the Closing Date of such New
Aircraft for all purposes of this Section 2 and (ii) the related Financing
Agreements shall be amended to reflect the original delivery of such New
Aircraft to the Company.
Section 3. Conditions Precedent. The obligation of the
Pass Through Trustees to enter into, and to cause the Subordination Agent
to enter into, any Participation Agreement as directed pursuant to a
Closing Notice and to perform its obligations under such Participation
Agreement is subject to satisfaction of the following conditions:
(a) no Triggering Event shall have occurred;
(b) the Company shall have delivered a
certificate to each such Pass Through Trustee and each Liquidity Provider
stating that (i) such Participation Agreement and the other Financing
Agreements to be entered into pursuant to such Participation Agreement do
not vary the Mandatory Economic Terms and contain the Mandatory Document
Terms (as such Mandatory Document Terms may be modified in accordance with
Schedule V hereto) and (ii) any substantive modification of such Financing
Agreements from the forms thereof attached to this Agreement do not
materially and adversely affect the Certificate Holders, and such
certification shall be true and correct;
(c) if required by Section 2(c), Rating Agency
Confirmation from each Rating Agency; and
(d) in the case of the Class C Trust, on any
Closing Date that occurs at a time when AIFS is the record or beneficial
owner of any Class C Certificate, the Class C Trustee shall have received a
certificate signed by the Chief Financial Officer, Treasurer or Assistant
Treasurer of the Company, to the effect that (i) all of the conditions
precedent set forth in Section 6 the Aircraft Financing Letter Agreement
have been satisfied, (ii) no "Termination Event" has occurred under Section
7 of the Aircraft Financing Letter Agreement and (iii) the terms and
conditions of such Participation Agreement and the related Operative
Documents comply with the provisions of Section 13 of the Purchase
Agreement.
Anything herein to the contrary notwithstanding, the
obligation of each Pass Through Trustee to purchase Equipment Notes shall
terminate on the Cut-Off Date. In addition, the obligation of the Pass
Through Trustee of the Class C Trust to purchase Equipment Notes shall
terminate on the date on which a "Termination Event" under the Aircraft
Financing Letter Agreement occurs, if on such date AIFS is the record or
beneficial owner of any Class C Trust Certificate.
Section 4. Representations and Warranties.
(a) The Company represents and warrants on the
date hereof and on each Closing Date that:
(i) the Company is duly
incorporated, validly existing and in good standing under the laws
of the State of Delaware and is a "citizen of the United States"
as defined in Section 40102(a)(15) of the Act and has the full
corporate power, authority and legal right under the laws of the
State of Delaware to execute and deliver this Agreement and each
Financing Agreement to which it will be a party and to carry out
the obligations of the Company under this Agreement and each
Financing Agreement to which it will be a party;
(ii) the execution and delivery by
the Company of this Agreement and the performance by the Company
of its obligations under this Agreement have been duly authorized
by the Company and will not violate its Certificate of
Incorporation 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 constitutes the
legal, valid and binding obligation of the Company, enforceable
against it 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; and
(iv) if a certificate is required to
be delivered under Section 3(d), the statements contained therein
are true and correct.
(b) State Street Bank and Trust Company of
Connecticut, National Association represents and warrants on the date
hereof and on each Closing Date that:
(i) State Street Bank and Trust
Company of Connecticut, National Association is duly incorporated,
validly existing and in good standing under the laws of the State
of Connecticut and is a "citizen of the United States" as defined
in Section 40102(a)(15) of the Act, 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 and
each Financing Agreement to which it will be a party and to carry
out the obligations of State Street Bank and Trust Company of
Connecticut, National Association, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, under this Agreement and each Financing Agreement to
which it will be a party;
(ii) the execution and delivery by
State Street Bank and Trust Company of Connecticut, National
Association, in its capacity as Subordination Agent, Pass Through
Trustee or Paying Agent, as the case may be, of this Agreement and
the performance by State Street Bank and Trust Company of
Connecticut, National Association, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, of its obligations under this Agreement have been
duly authorized by State Street Bank and Trust Company of
Connecticut, National Association, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, 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;
and
(iii) this Agreement constitutes the
legal, valid and binding obligation of State Street Bank and Trust
Company of Connecticut, National Association, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, enforceable against it 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.
(c) The Pass Through Trustee hereby confirms to
each of the other parties hereto that its representations and warranties
set forth in Section 7.15 of the Basic Pass Through Trust Agreement and
Section 5.04 of each Trust Supplement are true and correct as of the date
hereof.
(d) The Subordination Agent represents and
warrants that:
(i) the Subordination Agent is 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 and each Financing
Agreement to which it is or will be a party and to perform its
obligations under this Agreement and each Financing Agreement to
which it is or will be a party;
(ii) this Agreement has been duly
authorized, executed and delivered by the Subordination Agent;
this Agreement constitutes the legal, valid and binding
obligations of the Subordination Agent enforceable against it 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) none of the execution,
delivery and performance by the Subordination Agent of 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 the Subordination
Agent's articles of association or by-laws or result in any breach
of, or constitute a default under, 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 this Agreement nor the
consummation by the Subordination Agent of any of the transactions
contemplated hereby 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 (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 United States or the State of
Connecticut or any political subdivision of either 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); and
(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.
(e) The Escrow Agent represents and warrants that:
(i) the Escrow Agent is a national
banking association duly incorporated, 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
United States pertaining to its banking, trust and fiduciary
powers to execute and deliver this Agreement, each Deposit
Agreement and each Escrow and Paying Agent Agreement
(collectively, the "Escrow Agent Agreements") and to carry out the
obligations of the Escrow Agent under each of the Escrow Agent
Agreements;
(ii) the execution and delivery by
the Escrow Agent of each of the Escrow Agent Agreements and the
performance by the Escrow Agent of its obligations hereunder and
thereunder have been duly authorized by the Escrow Agent 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; and
(iii) each of the Escrow Agent
Agreements constitutes the legal, valid and binding obligations of
the Escrow Agent enforceable against it 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.
(f) The Paying Agent represents and warrants that:
(i) the Paying Agent is duly
organized, incorporated, 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 United
States pertaining to its banking, trust and fiduciary powers to
execute and deliver this Agreement and each Escrow and Paying
Agent Agreement (collectively, the "Paying Agent Agreements") and
to carry out the obligations of the Paying Agent under each of the
Paying Agent Agreements;
(ii) the execution and delivery by
the Paying Agent of each of the Paying Agent Agreements and the
performance by the Paying Agent of its obligations hereunder and
thereunder have been duly authorized by the Paying Agent 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; and
(iii) each of the Paying Agent
Agreements constitutes the legal, valid and binding obligations of
the Paying Agent enforceable against it 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.
Section 5. Covenants. (a) The Company covenants with each
of the other parties hereto that:
(i) on the date that the Depositary
is obligated to pay the amount of the Final Withdrawal to the
Paying Agent pursuant to a Deposit Agreement relating to any
Trust, the Company shall pay to the Pass Through Trustee of such
Trust no later than 1:00 p.m. (New York time) an amount equal to
the Deposit Make-Whole Premium, if any, required to be paid in
respect of such Final Withdrawal amount;
(ii) subject to Section 5(a)(iv) of
this Agreement, the Company shall at all times maintain its
corporate existence and shall not wind up, liquidate or dissolve
or take any action, or fail to take any action, that would have
the effect of any of the foregoing;
(iii) the Company shall at all times
remain a U.S. Air Carrier (as defined in the Financing Agreements)
and shall at all times be otherwise certificated and registered to
the extent necessary to entitle (i) in the case of Leased
Aircraft, the Owner Trustee (and the Loan Trustee as assignee of
the Owner Trustee's rights under each Lease) to the rights
afforded to lessors of aircraft equipment under Section 1110 and
(ii) in the case of Owned Aircraft, the Loan Trustee to the rights
afforded to secured parties of aircraft equipment under Section
1110;
(iv) Section 7(v) of each
Participation Agreement is hereby incorporated by reference
herein;
(v) on any date the Company is
obligated to pay to the Pass Through Trustee on behalf of the
Class C Trust a Class C Special Indemnity Payment pursuant to the
Participation Agreement, the Company shall pay to the Pass Through
Trustee on behalf of the Class C Trust the amount which has
accrued during such Lease Period (as defined in the Participation
Agreement) in accordance with the following sentence and which
remains unpaid on such date (such amount, the "Class C Special
Deposit Payment"). The Class C Special Deposit Payment shall
accrue during the period between each Regular Distribution Date at
a daily rate equal to the Multiplier, in effect from time to time
during such period, multiplied by the aggregate principal amount
of the Deposit on such date divided by 360. The Pass Through
Trustee agrees that it will accept and receive the Class C Special
Deposit Payment on behalf of the Class C Trust and that it will
distribute the Class C Special Deposit Payment in accordance with
the Class C Trust;
(vi) the Company agrees to provide
written notice to each of the parties hereto of the occurrence of
the Cut-Off Date no later than one Business Day after the date
thereof; and
(vii) with respect to Owned
Aircraft, the Company agrees to provide each Rating Agency with
prompt written notice of any lease by the Company of any Aircraft
for a lease period of more than one (1) year.
(b) State Street Bank and Trust Company of
Connecticut, National Association, in its individual capacity, covenants
with each of the other parties to this Agreement that it will, immediately
upon obtaining knowledge of any facts that would cast doubt upon its
continuing status as a "citizen of the United States" as defined in 49
U.S.C. ss. 40102(a)(15) and promptly upon public disclosure of negotiations
in respect of any transaction which would or might adversely affect such
status, notify in writing all parties hereto of all relevant matters in
connection therewith. Upon State Street Bank and Trust Company of
Connecticut, National Association giving any such notice, State Street Bank
and Trust Company of Connecticut, National Association shall, subject to
Section 8.02 of any Indenture then entered into, resign as Loan Trustee in
respect of such Indenture.
Section 6. Notices. Unless otherwise specifically
provided herein, all notices required or permitted by the terms of this
Agreement shall be in English and in writing, and any such notice shall
become effective upon being delivered personally or, if promptly confirmed
by mail, when dispatched by facsimile or other written telecommunication,
addressed to such party hereto at its address or facsimile number set forth
below the signature of such party at the foot of this Agreement.
Section 7. Expenses and Indemnity. (a) The Company agrees
to pay to the Subordination Agent when due 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 amount of the Deposits under the
Deposit Agreements and the denominator of which shall be the sum of (x) the
then outstanding aggregate principal amount of the Series A Equipment
Notes, Series B Equipment Notes and Series C Equipment Notes issued under
all of the Indentures and (y) the then outstanding aggregate amount of the
Deposits under the Deposit Agreements.
(b) So long as no Equipment Notes have been
issued in respect of any Aircraft, the Company agrees to pay (i) to the
Subordination Agent when due (A) 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 while
such Downgrade Advance shall be outstanding, (B) 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 while such Non-Extension Advance shall be outstanding
and (C) 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 (A) or (B)), (ii)
all compensation and reimbursement of expenses, disbursements and advances
payable by the Company under the Pass Through Trust Agreements, (iii) 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 (iv) in the event the Company requests any amendment to any
Operative Document, all reasonable fees and expenses (including, without
limitation, fees and disbursements of counsel) of the Escrow Agent and/or
the Paying Agent in connection therewith. For purposes of this Section
7(b), the terms "Applied Downgrade Advance," "Applied Non-Extension
Advance," "Downgrade Advance", "Investment Earnings" and "Non-Extension
Advance" shall have the meanings specified in each Liquidity Facility.
(c) The Company hereby agrees to indemnify each
of the Escrow Agent and the Paying Agent from and against, and agrees to
protect, save and keep harmless each of them from any and all losses,
claims and expenses imposed on, incurred by or asserted against any of them
in any way relating to, based on or arising from the execution, delivery
and performance of this Agreement, the Deposit Agreements or the Escrow and
Paying Agent Agreements; provided, that the foregoing indemnity shall not
extend to any of the Escrow Agent or the Paying Agent with respect to any
loss, claim or expense to the extent such loss, claim or expense is
attributable to (i) a breach by any such party of this Agreement, the
Deposit Agreements or the Escrow and Paying Agent Agreements or (ii) such
party's gross negligence or wilfull misconduct.
Section 8. Further Assurances. Each party hereto shall
duly execute, acknowledge and deliver, or shall cause to be executed,
acknowledged and delivered, all such further agreements, instruments,
certificates or documents, and shall do and cause to be done such further
acts and things, in any case, as any other party hereto shall reasonably
request in connection with its administration of, or to carry out more
effectually the purposes of, or to better assure and confirm unto it the
rights and benefits to be provided under, this Agreement.
Section 9. Miscellaneous. (a) Provided that the
transactions contemplated hereby have been consummated, and except as
otherwise provided for herein, the representations, warranties and
agreements herein of the Company, the Subordination Agent, the Escrow
Agent, the Paying Agent and the Pass Through Trustee, and the Company's,
the Subordination Agent's, the Escrow Agent's, the Paying Agent's and the
Pass Through Trustee's obligations under any and all thereof, shall survive
the expiration or other termination of this Agreement and the other
agreements referred to herein.
(b) This Agreement may be executed in any number
of counterparts (and each of the parties hereto shall not be required to
execute the same counterpart). Each counterpart of this Agreement,
including a signature page executed by each of the parties hereto, shall be
an original counterpart of this Agreement, but all of such counterparts
together shall constitute one instrument. Neither this Agreement nor any of
the terms hereof may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement,
waiver or modification is sought. The index preceding this Agreement and
the headings of the various Sections of this Agreement are for convenience
of reference only and shall not modify, define, expand or limit any of the
terms or provisions hereof. The terms of this Agreement shall be binding
upon, and shall inure to the benefit of, the Company and 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 Escrow Agent and its successors as
Escrow Agent under the Escrow and Paying Agent Agreements, the Paying Agent
and its successors as Paying Agent under the Escrow and Paying Agent
Agreement and the Subordination Agent and its successors as Subordination
Agent under the Intercreditor Agreement.
(c) This Agreement is not intended to, and shall
not, provide any person not a party hereto (other than the Underwriters,
AIFS and each of the beneficiaries of Section 7 hereof) with any rights of
any nature whatsoever against any of the parties hereto, and no person not
a party hereto (other than the Underwriters, AIFS and each of the
beneficiaries of Section 7 hereof) shall have any right, power or privilege
in respect of, or have any benefit or interest arising out of, this
Agreement.
Section 10. Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
[This space intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this
Note Purchase Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above written.
US AIRWAYS, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Attention: Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
State Street Bank and
Trust Company ▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Attention: Corporate Trust Department
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
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:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
State Street Bank and Trust Company
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as
Escrow Agent
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as Paying
Agent
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
State Street Bank and Trust Company
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE I to
NOTE PURCHASE AGREEMENT
NEW AIRCRAFT AND SCHEDULED CLOSING MONTHS
New Aircraft Expected Manufacturer's Scheduled
Type Registration Number Serial Number Delivery Month
Airbus A320.............. N107US 1052 August, 1999
Airbus A320.............. N108UW 1061 August, 1999
Airbus A319.............. N717UW 1069 August, 1999
Airbus A319.............. N718UW 1077 August, 1999
Airbus A320.............. N109UW 1065 September, 1999
Airbus A319.............. N719US 1084 September, 1999
Airbus A319.............. N720US 1089 September, 1999
Airbus A319.............. N721UW 1095 October, 1999
Airbus A319.............. N722US 1097 October, 1999
Airbus A319.............. N723UW 1109 October, 1999
Airbus A320.............. N110UW 1112 November, 1999
Airbus A320.............. N111US 1114 November, 1999
Airbus A319.............. N724UW 1122 November, 1999
Airbus A319.............. N725UW 1135 November, 1999
Airbus A319.............. N726US 1136 December, 1999
Airbus A319.............. N727UW 1147 December, 1999
Airbus A319.............. N728UW 1169 January, 2000
Airbus A319.............. N729US 1178 February, 2000
Airbus A330.............. N670UW 315 March, 2000
Airbus A330.............. N671UW 323 April, 2000
SCHEDULE II to
NOTE PURCHASE AGREEMENT
TRUST SUPPLEMENTS
Trust Supplement dated as of the Issuance Date between
the Company and the Pass Through Trustee in respect of US Airways Pass
Through Trust, Series 1999-1A.
Trust Supplement dated as of the Issuance Date between
the Company and the Pass Through Trustee in respect of US Airways Pass
Through Trust, Series 1999-1B.
Trust Supplement dated as of the Issuance Date between
the Company and the Pass Through Trustee in respect of US Airways Pass
Through Trust, Series 1999-1C.
SCHEDULE III to
NOTE PURCHASE AGREEMENT
DEPOSIT AGREEMENTS
Deposit Agreement (Class A) dated as of the Issuance Date
between ABN AMRO Bank N.V., acting through its Chicago branch and the
Escrow Agent.
Deposit Agreement (Class B) dated as of the Issuance Date
between ABN AMRO Bank N.V., acting through its Chicago branch and the
Escrow Agent.
Deposit Agreement (Class C) dated as of the Issuance Date
between ABN AMRO Bank N.V., acting through its Chicago branch and the
Escrow Agent.
SCHEDULE IV to
NOTE PURCHASE AGREEMENT
ESCROW AND PAYING AGENT AGREEMENTS
Escrow and Paying Agent Agreement (Class A) dated as of
the Issuance Date among the Escrow Agent, the Underwriters, the Pass
Through Trustee and the Paying Agent.
Escrow and Paying Agent Agreement (Class B) dated as of
the Issuance Date among the Escrow Agent, the Underwriters, the Pass
Through Trustee and the Paying Agent.
Escrow and Paying Agent Agreement (Class C) dated as of
the Issuance Date among the Escrow Agent, AIFS, the Pass Through Trustee
and the Paying Agent.
SCHEDULE V to
NOTE PURCHASE AGREEMENT
MANDATORY DOCUMENT TERMS
The terms "Trust Indenture Form," "Lease Form" and
"Participation Agreement Form" shall have the respective meanings specified
in Schedule VI to the Note Purchase Agreement.
1. May not modify in any material adverse respect as
regards the interests of the Note Holders, the Subordination Agent, the
Liquidity Provider or the Loan Trustee, the Granting Clause of the Trust
Indenture Form so as to deprive the Note Holders of a first priority
security interest in and mortgage lien on the Aircraft, the rights of US
Airways under the Aircraft Purchase Agreement to the extent assigned under
the Indenture and in the case of a Leased Aircraft Indenture, the Lease or
to eliminate any of the obligations intended to be secured thereby or
otherwise modify in any material adverse respect as regards the interests
of the Note Holders, the Subordination Agent, the Liquidity Provider or the
Loan Trustee the provisions of Article II or III or Sections 4.02, 4.03,
4.04, 5.02, 5.06, 9.01, 10.04, 10.11 or 10.12 of the Trust Indenture Form
for the Leased Aircraft or Article II or III or Sections 4.02, 4.03, 4.04
5.02, 5.06, 10.01, 11.04, 11.11 or 11.12 of the Trust Indenture Form for
the Owned Aircraft.
2. May not modify in any material adverse respect as
regards the interests of the Note Holders, the Subordination Agent, the
Liquidity Provider or the Loan Trustee the provisions of Section 3(c)(v),
the proviso to the first sentence of Section 3(e), 7(a)(1)(A), clause (6)
of the final paragraph of Section 10(a), 18, 21, the penultimate sentence
of Section 25 or Section 27 of the Lease Form or otherwise modify the terms
of the Lease Form so as to deprive the Loan Trustee of rights expressly
granted to the "Loan Trustee" therein.
3. May not modify in any material adverse respect as
regards the interests of the Note Holders, the Subordination Agent, the
Liquidity Provider or the Loan Trustee the provisions of Sections 4(a)(vi),
4(a)(ix)(1), 4(a)(ix)(2), 4(a)(ix)(3), 4(a)(ix)(4) (but only to the extent
relating to the representations and warranties set forth in Sections
6(a)(vi) and 6(a)(xv)), Sections 4(a)(x), 4(a)(xi) (to the extent such
section requires special counsel for the Lessee to deliver an opinion
relating to Section 1110 of the Bankruptcy Code), 4(a)(xii), 4(a)(xiii),
4(a)(xv) and 4(a)(xvi) so as to eliminate the requirement to deliver to the
Loan Participant or the Loan Trustee, as the case may be, the legal
opinions to be provided to such Persons thereunder (recognizing that the
lawyers rendering such opinions may be changed), Sections 7(c), 7(h), the
second sentence of Section 7(n), 7(q), 7(z), 14(f) or 14(h) of the
Participation Agreement Form or of the provisions of Section 7(d)(II)(E) of
the Participation Agreement Form as regards the rights of the Loan Trustee
thereunder.
4. May not modify, in any material adverse respect as
regards the interests of the Note Holders, the Subordination Agent, the
Liquidity Provider or the Loan Trustee, the definition of "Make-Whole
Amount" in Annex A to the Participation Agreement Form.
Notwithstanding the foregoing, any such Mandatory
Document Term may be modified to correct or supplement any such provision
which may be defective or to cure any ambiguity or correct any mistake,
provided, however, that any such action shall not materially adversely
affect the interests of the Note Holders, the Subordination Agent, the
Liquidity Provider, the Loan Trustee or the Certificate Holders.
SCHEDULE VI to
NOTE PURCHASE AGREEMENT
MANDATORY ECONOMIC TERMS
PART I:
MANDATORY ECONOMIC TERMS OF THE EQUIPMENT NOTES
OBLIGOR: (i) in the case of Equipment Notes issued under an Owned Aircraft
Indenture, US Airways, Inc. or (ii) in the case of Equipment Notes issued
under a Leased Aircraft Indenture, an Owner Trust
MAXIMUM PRINCIPAL AMOUNT OF EQUIPMENT NOTES (ON AN AIRCRAFT-BY-AIRCRAFT
BASIS):
1. Series A Equipment Notes. The principal amount of the
Series A Equipment Notes issued with respect to an Aircraft must
equal the principal amount of Series A Equipment Notes indicated
for each such Aircraft as set forth in the Prospectus Supplement
in "Prospectus Supplement Summary-Secured Promissory Notes and the
Aircraft" under the column "Principal Amount of Series A Equipment
Notes."
2. Series B and Series C Equipment Notes. The maximum
principal amount of the Series B and Series C Equipment Notes
issued with respect to an Aircraft must not exceed the principal
amount of Series B and Series C Equipment Notes indicated for each
Aircraft as set forth in "Prospectus Supplement Summary-Secured
Promissory Notes and Aircraft" under the columns "Maximum
Principal Amount of Series B Secured Promissory Notes" and
"Maximum Principal Amount of Series C Secured Promissory Notes."
LOAN TO AIRCRAFT VALUE RATIO OF EQUIPMENT NOTES (ON AN AIRCRAFT-BY-AIRCRAFT
BASIS):
1. Initial Loan to Aircraft Value Ratio. Initial Loan to
Aircraft Value (with the value of any Aircraft for these purposes
equal to the value (the "Assumed Appraised Value") for such
Aircraft set forth in the Prospectus Supplement in "Prospectus
Supplement Summary-Secured Promissory Notes and the Aircraft"
under the column "Appraised Base Value") must not exceed the
percentages set forth in the following table:
Series A Series B Series C
Aircraft Type Equipment Notes Equipment Notes Equipment Notes
-------------- -------------- --------------- ---------------
Airbus A319 40.89% 48.02% 62.92%
Airbus A320 41.74% 49.93% 65.73%
Airbus A330 38.89% 57.07% 61.70%
2. Loan to Aircraft Value Ratios on Regular Distribution
Dates. The Loan to Aircraft Value for each series of Equipment
Notes issued in respect of each Aircraft (computed (i) after
aggregating the principal amount of all series of Equipment Notes
that ranks senior to the series of Equipment Notes for which Loan
to Aircraft Value is being calculated and (ii) as of the date of
the issuance thereof on the basis of the Assumed Appraised Value
of such Aircraft and the Depreciation Assumption (as defined in
the Prospectus Supplement in the Glossary) must not exceed as of
any Regular Distribution Date thereafter (assuming no default in
the payment of the Equipment Notes) the amounts set forth in the
following table:
Series A Series B Series C
Aircraft Type Equipment Notes Equipment Notes Equipment Notes
------------- --------------- --------------- ---------------
Airbus A319 43.22% 48.96% 66.00%
Airbus A320 44.09% 49.93% 67.00%
Airbus A330 38.89% 57.07% 61.70%
INITIAL AVERAGE LIFE OF EQUIPMENT NOTES (ON AN AIRCRAFT-BY-AIRCRAFT BASIS):
Initial Average Life (in years) of the Series A Equipment
Notes, the Series B Equipment Notes and the Series C Equipment Notes on any
Aircraft will not extend beyond 13.5 years, 10.5 years, and 13.5 years,
respectively, from the Issuance Date.
INTEREST RATE FOR EQUIPMENT NOTES (ON A TRUST-BY-TRUST BASIS):
The interest rate applicable to each Series of Equipment
Notes (the "Debt Rate") must be equal to the rate applicable to the
Certificates issued by the corresponding Trust. PAST DUE RATE APPLICABLE TO
EQUIPMENT NOTES: Not less than Debt Rate plus 1% per annum.
AGGREGATE PRINCIPAL AMOUNT OF EQUIPMENT NOTES (ON A TRUST-BY-TRUST BASIS):
The original aggregate principal amount of all of the
Equipment Notes of each Series shall not exceed the original aggregate face
amount of the Certificates issued by the corresponding Trust.
PAYMENT DATES APPLICABLE TO EQUIPMENT NOTES:
For Aircraft financed prior to January 20, 2000, payment
dates will be January 20 and July 20, commencing January 20, 2000. For
Aircraft financed on or after January 20, 2000, payment dates will be July
20 and January 20, commencing July
20, 2000.
MAKE-WHOLE AMOUNTS APPLICABLE TO EQUIPMENT NOTES:
As provided in Article II of the form of Leased Aircraft
Indenture marked as Exhibit A-3 of the Note Purchase Agreement (the "Leased
Aircraft Indenture Form") or the form of Owned Aircraft Indenture marked as
Exhibit C-2 of the Note Purchase Agreement (the "Owned Aircraft Indenture
Form," together with the Leased Aircraft Indenture Form, the "Trust
Indenture Form").
REDEMPTION AND PURCHASE OF EQUIPMENT NOTES: As provided in Article II of the
applicable Trust Indenture Form.
PART II:
MANDATORY ECONOMIC TERMS OF THE CERTIFICATES
AVERAGE LIFE (IN YEARS)
As of the Delivery Period Termination Date, the average
life of the Class A Certificates, the Class B Certificates and the Class C
Certificates, must not be more than 12.1 years, 9.6 years and 12.7 years,
respectively, from the Issuance Date (computed without regard to the
acceleration of any Equipment Notes and after giving effect to any special
distribution on the Certificates thereafter required in respect of unused
Deposits).
LOAN TO AIRCRAFT VALUE RATIO FOR CLASS OF CERTIFICATES
As of the Delivery Period Termination Date and each
Regular Distribution Date thereafter, the Loan to Aircraft Value for each
class of Certificates (computed (i) after aggregating the principal amount
of the class or classes of Certificates that rank senior to the class of
Certificates for which Loan to Aircraft Value is being calculated and (ii)
as of any such date on the basis of the Assumed Appraised Value of all
Aircraft that have been delivered and the Depreciation Assumption) must not
exceed (assuming no default in the payment of the Equipment Notes and after
giving effect to scheduled payments) the percentages set forth in the
following table:
Class A Class B Class C
Certificates Certificates Certificates
40.8% 51.0% 63.0%
FINAL EXPECTED DISTRIBUTION DATE
Class A Certificates: January 20, 2019
Class B Certificates: January 20, 2019
Class C Certificates: January 20, 2019
PART III:
MANDATORY ECONOMIC TERMS OF LEASE
TERM: The Basic Lease Term for each Lease shall
expire by its terms on or after latest maturity
date of the related Equipment Notes.
LEASE PERIOD DATES
(SOMETIMES REFERRED TO
AS RENT PAYMENT DATES): January 20 and July 20
MINIMUM PAYMENTS: Each installment of basic rent,
together with any advances or payments by
Lessee and any payments of deferred equity
amounts by an Owner Participant under a Lease
and the related agreements must be sufficient
for the Owner Trustee to pay in full, on the
date on which such installment of basic rent,
advance, other payment or deferred equity is
due, any payments scheduled to be made on
account of principal of, and interest on, the
related Equipment Notes. If an Owner
Participant is required to make a deferred
equity payment to be used by an Owner Trustee
to pay principal of, and interest on, the
Equipment Notes and the Owner Participant fails
to make the payment, Lessee will be required to
provide the Owner Trustee with funds sufficient
to make the payment.
TERMINATION VALUE
(SOMETIMES REFERRED TO AS
STIPULATED LOSS VALUES
OR TERMINATION AMOUNTS): Termination values (or other comparable termination
amounts), together with all other amounts
payable by Lessee upon termination of any
Lease, and the amount of premium, if any,
payable by the Owner Trustee, must be
sufficient to pay amounts due with respect to
the related Equipment Notes.
ALL-RISK HULL INSURANCE: Not less than Termination Value
(or, other comparable termination amount),
subject to Lessee's right to self-insure on
terms no more favorable to Lessee in any
material respect than those set forth in
Section (d) of Exhibit H to the Lease Forms.
MINIMUM LIABILITY
INSURANCE AMOUNT: As set forth in Exhibit H to the Lease Forms.
PAST DUE RATE: Not less than (i) with respect to any
portion of any payment of Rent that may be
required by the Trust Indenture to be paid by
the Loan Trustee to the holders of any
outstanding Equipment Notes, a rate per annum
equal to 1% over the interest rate then in
effect for such Equipment Notes, and (ii) with
respect to the remaining portion of any payment
of Rent (and the entire amount of any payment
of Rent after the satisfaction and discharge of
the Trust Indenture), a rate per annum equal to
1% over the rate of interest publicly announced
by The Chase Manhattan Bank, (or other major
commercial banking institutions) in New York,
New York from time to time as its base rate of
interest.
PART IV:
MANDATORY ECONOMIC TERMS FOR THE PARTICIPATION AGREEMENT
Loan Trustee, Subordination Agent, Liquidity Provider,
Pass Through Trustees and Note Holders shall be indemnified against
Expenses and Taxes in a manner not materially less favorable to the Loan
Trustees, the Subordination Agent, the Liquidity Provider, the Trustees and
the Note Holders than that set forth in Section 6 of the form of the
Participation Agreement (the "Participation Form") marked as Exhibit A-1 to
the Note Purchase Agreement for the Leased Aircraft or as Exhibit C-1 to
the Note Purchase Agreement for the Owned Aircraft.
SCHEDULE VII to
NOTE PURCHASE AGREEMENT
AGGREGATE AMORTIZATION SCHEDULE
ANNEX A to
NOTE PURCHASE AGREEMENT
DEFINITIONS
"Act" means 49 U.S.C. ▇▇.▇▇. 40101-46507.
"Affiliate" means, with respect to any person, any other
person directly or indirectly controlling, controlled by or under common
control with such person. For purposes of this definition, "control" means
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 and "controlling,"
"controlled by" and "under common control with" have correlative meanings.
"AIFS" has the meaning set forth in the fourth recital to
the Note Purchase Agreement.
"Aircraft Financing Letter Agreement" means the Aircraft
Financing Letter Agreement, dated as of October 31, 1997 between AVSA,
S.A.R.L., the Company and US Airways Group, Inc., as the same may be
amended or otherwise supplemented from time to time.
"Aircraft Purchase Agreement" means (i) with respect to
A319 and A320 Aircraft, the Purchase Agreement dated as of October 31,
1997, between US Airways Group, Inc. and the Seller (including all exhibits
thereto, together with all letter agreements entered into that by their
terms constitute part of any such Purchase Agreement), and (ii) with
respect to A330 Aircraft, the Purchase Agreement dated as of November 24,
1998 between US Airways Group, Inc. and the Seller (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.
"Aircraft Purchase Agreement Assignment" means a Purchase
Agreement Assignment substantially in the form of Exhibit A-4 for Leased
Aircraft, and Exhibit C-3 for Owned Aircraft, to the Note Purchase
Agreement.
"Assumed Amortization Schedule" means Schedule VII to the
Note Purchase Agreement.
"Average Life Date" means, for any Equipment Note, the
date which follows the time of determination by a period equal to the
Remaining Weighted Average Life of such Equipment Note.
"Bankruptcy Code" means the United States Bankruptcy Code, 11
U.S.C. ▇▇.▇▇. 101 et seq.
"Basic Pass Through Trust Agreement" means the Pass
Through Trust Agreement, dated as of July 30, 1999, among the Company, US
Airways Group, Inc. and Pass Through Trustee, as such agreement may be
supplemented, amended or modified, but does not include any Trust
Supplement.
"Business Day" means any day, other than a Saturday,
Sunday or other day on which commercial banks are authorized or required by
law to close in New York, New York, Pittsburgh, Pennsylvania, Hartford,
Connecticut or Salt Lake City,
Utah.
"Certificate" has the meaning set forth in the second
recital to the Note Purchase Agreement.
"Certificate Holder" means the Person in whose name a
Certificate is registered in the Register.
"Class" means the class of Certificates issued by each
Pass Through Trust.
"Class A Certificates" means the Class A Certificates
issued by the US Airways Pass Through Trust, Series 1999-1A.
"Class A Trust" means the US Airways Pass Through Trust,
Series 1999-1A formed pursuant to the Basic Pass Through Trust Agreement
and Class A Trust Supplement.
"Class B Certificates" means the Class B Certificates
issued by the US Airways Pass Through Trust, Series 1999-1B.
"Class B Trust" means the US Airways Pass Through Trust,
Series 1999-1B formed pursuant to the Basic Pass Through Trust Agreement
and Class B Trust Supplement.
"Class C Certificates" means the Class C Certificates
issued by the US Airways Pass Through Trust, Series 1999-1C.
"Class C Purchase Agreement" has the meaning set forth in
the fourth recital to the Note Purchase Agreement.
"Class C Special Deposit Payment" has the meaning set
forth in Section 5(a) of the Note Purchase Agreement.
"Class C Special Indemnity Payment" has the meaning set
forth in each Participation Agreement.
"Class C Trust" means the US Airways Pass Through Series
1999-1C formed pursuant to the Basic Pass Through Trust Agreement and Class
C Trust Supplement.
"Closing Date" means the Business Day on which a closing
occurs under the Financing Agreements.
"Company" means US Airways, Inc., a Delaware corporation
and its successors and permitted assigns.
"Cut-Off Date" means the earlier of (a) the day after the
Delivery Period Termination Date and (b) the date on which a Triggering
Event occurs.
"Delivery Period Termination Date" means the earlier of
(a) July 20, 2000, and (b) the date on which Equipment Notes issued with
respect to all of the New Aircraft (or Substitute Aircraft in lieu thereof)
have been purchased by the Pass Through Trustees in accordance with the
Note Purchase Agreement.
"Deposit" has the meaning set forth in the fifth recital
to the Note Purchase Agreement.
"Deposit Agreement" has the meaning set forth in the
fifth recital to the Note Purchase Agreement.
"Deposit Make-Whole Premium" means, with respect to the
distribution of unused Deposits to holders of any Class of Certificates, as
of any date of determination, an amount equal to the excess, if any, of (a)
the present value of the excess of (i) the scheduled payment of principal
and interest to maturity of the Equipment Notes, assuming the maximum
principal amount thereof (the "Maximum Amount") minus the Non-Premium
Amount and, in the case of the Class C Certificates, the Par Redemption
Amount (without duplication), were issued, on each remaining Regular
Distribution Date for such Class under the Assumed Amortization Schedule
over (ii) the scheduled payment of principal and interest to maturity of
the Equipment Notes actually acquired by the Trustee for such Class on each
such Regular Distribution Date, such present value computed by discounting
such excess on a semiannual basis on each Regular Distribution Date
(assuming a 360-day year of twelve 30-day months) using a discount rate
equal to the Treasury Yield plus [ ] basis points in the case of the Class
A Certificates, [ ] basis points in the case of the Class B Certificates
and [ ] basis points in the case of the Class C Certificates over (b) the
amount of such unused Deposits to be distributed to the holders of such
Certificates, minus the Non-Premium Amount and, in the case of the Class C
Certificates, the Par Redemption Amount (without duplication) plus accrued
and unpaid interest on such net amount to but excluding the date of
determination from and including the preceding Regular Distribution Date
(or if such date of determination precedes the first Regular Distribution
Date, the Issuance Date).
"Depositary" means ABN AMRO Bank N.V., acting through its
Chicago branch.
"Equipment Notes" means and includes any equipment notes
issued under any Indenture in the form specified in Section 2.01 thereof
(as such form may be varied pursuant to the terms of such Indenture) and
any Equipment Note issued under any Indenture in exchange for or
replacement of any other Equipment Note.
"Escrow Agent" has the meaning set forth in the first
paragraph of the Note Purchase Agreement.
"Escrow and Paying Agent Agreement" has the meaning set
forth in the fifth recital to the Note Purchase Agreement.
"FAA" means the Federal Aviation Administration of the
United States.
"Final Withdrawal" with respect to each Escrow and Paying
Agent Agreement, has the meaning set forth in Section 1.2 thereof.
"Financing Agreements" means, collectively, the Lease
Financing Agreements and the Owner Financing Agreements.
"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.
"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.
"Indentures" means, collectively, the Leased Aircraft
Indentures and the Owned Aircraft Indentures.
"Intercreditor Agreement" has the meaning set forth in
the ninth recital to the Note Purchase Agreement.
"Issuance Date" means the date of the original issuance
of the Certificates.
"Law" means (a) any constitution, treaty, statute, law,
decree, 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 a Lease Agreement substantially in the form
of either Exhibit A-2-1 (Basic Lease Form) or A-2-2 (Deferred
Equity/Prepaid--Deferred Rent Lease Form) to the Note Purchase Agreement.
"Lease Financing Agreements" means, collectively, the
Aircraft Purchase Agreement Assignment, the Leased Aircraft Participation
Agreement, the Lease, the Leased Aircraft Indenture, the Leased Aircraft
French Pledge Agreement, the Equipment Notes issued under the Leased
Aircraft Indenture and the Trust Agreement relating to the financing of a
Leased Aircraft.
"Lease Period" has the meaning set forth in the
Participation Agreement.
"Leased Aircraft" means a New Aircraft subject to a Lease.
"Leased Aircraft French Pledge Agreement" means a French
Pledge Agreement substantially in the form of Exhibit A-6 to the Note
Purchase Agreement.
"Leased Aircraft Indenture" means a Trust Indenture and
Security Agreement substantially in the form of Exhibit A-3 to the Note
Purchase Agreement.
"Leased Aircraft Participation Agreement" means a
Participation Agreement substantially in the form of Exhibit A-1 to the
Note Purchase Agreement.
"Liquidity Facility" has the meaning set forth in the
ninth recital to the Note Purchase Agreement.
"Liquidity Provider" has the meaning set forth in the
ninth recital to the Note Purchase Agreement.
"Loan Trustee" means the "Indenture Trustee" as defined
in the Financing Agreements.
"Mandatory Document Terms" means the terms set forth on
Schedule V to the Note Purchase Agreement.
"Mandatory Economic Terms" means the terms set forth on
Schedule VI to the Note Purchase Agreement.
"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.
"Multiplier" has the meaning set forth in each
Participation Agreement.
"New Aircraft" has the meaning set forth in the first
recital to the Note Purchase Agreement.
"Non-Premium Amount" means the amount equal to unused
Deposits to be distributed due to the failure of an Aircraft to be
delivered prior to the Delivery Period Termination Date due to any reason
not occasioned by US Airways' fault or negligence. Deposits comprising
Non-Premium Amounts will not be treated as unused Deposits in determining
whether the unused Deposits exceed the Par Redemption Amount.
"Note Purchase Agreement" means the Note Purchase
Agreement to which this Annex A is attached.
"Notice of Purchase Withdrawal" with respect to each
Deposit Agreement, has the meaning set forth in Section 2.3 thereof.
"Operative Documents" means, collectively, the Pass
Through Trust Agreements, the Escrow and Paying Agent Agreements, the
Deposit Agreements, the Liquidity Facilities, the Intercreditor Agreement,
the Trust Agreements, the Equipment Notes, the Certificates and the
Financing Agreements.
"Owned Aircraft" means a New Aircraft subject to an Owned
Aircraft Indenture.
"Owned Aircraft French Pledge Agreement" means a French
Pledge Agreement substantially in the form of Exhibit C-4 to the Note
Purchase Agreement.
"Owned Aircraft Indenture" means an Indenture and
Security Agreement substantially in the form of Exhibit C-2 to the Note
Purchase Agreement.
"Owned Aircraft Participation Agreement" means a
Participation Agreement substantially in the form of Exhibit C-1 to the
Note Purchase Agreement.
"Owner Financing Agreements" means, collectively, the
Aircraft Purchase Agreement Assignment, the Owned Aircraft Participation
Agreement, the Owned Aircraft Indenture, the Owned Aircraft French Pledge
Agreement and the Equipment Notes issued thereunder relating to the
financing of an Owned Aircraft.
"Owner Participant" means, with respect to any Leased
Aircraft, the Person named as the Owner Participant in the Participation
Agreement with respect to such Leased Aircraft.
"Owner Trust" means with respect to any Leased Aircraft,
the trust created by the "Trust Agreement" referred to in the Leased
Aircraft Indenture related thereto.
"Owner Trustee" means with respect to any Leased
Aircraft, the "Owner Trustee" party to the "Trust Agreement" referred to in
the Leased Aircraft Indenture related thereto.
"Par Redemption Amount" means (x) in the case where the
unused Deposits are returned due to the fault or negligence of the Company,
$0 and (y) in all other cases $15,000,000.
"Participation Agreements" means, collectively, the
Leased Aircraft Participation Agreements and the Owned Aircraft
Participation Agreements.
"Pass Through Trust" has the meaning set forth in the
second recital to the Note Purchase Agreement.
"Pass Through Trust Agreement" means each of the three
separate Trust Supplements, together in each case with the Basic Pass
Through Trust Agreement, each dated as of the Issuance Date, by and between
the Lessee and Pass Through Trustee.
"Pass Through Trustee" has the meaning set forth in the
first paragraph of the Note Purchase Agreement.
"Paying Agent" has the meaning set forth in the first
paragraph of the Note Purchase Agreement.
"Person" means any individual, firm, partnership, joint
venture, trust, trustee, Government Entity, organization, association,
corporation, government agency, committee, department, authority and other
body, corporate or incorporate, whether having distinct legal status or
not, or any member of any of the same.
"Qualified Owner Participant" has the meaning set forth
in Annex A to the Leased Aircraft Participation Agreement.
"Rating Agencies" means, collectively, at any time, each
nationally recognized rating agency that have been requested by the Company
to rate the Certificates and which shall then be rating the Certificates.
The initial Rating Agencies will be ▇▇▇▇▇'▇ Investors Service and Standard
& Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Rating Agency Confirmation" means, with respect to any
Financing Agreement that has been modified in any material respect from the
forms thereof attached to the Note Purchase Agreement or with respect to
Substitute Aircraft or with respect to the length of the period between the
delivery of a New Aircraft and its Scheduled Closing Date, a written
confirmation from each of the Rating Agencies that the use of such
Financing Agreement with such modifications or the substituting of such
Substitute Aircraft for a New Aircraft or the length of such period,
whichever of the foregoing shall in a particular case require Rating Agency
Confirmation, would not result in (i) a reduction of the rating for any
Class of Certificates below the then current rating for such Class of
Certificates or (ii) a withdrawal or suspension of the rating of any Class
of Certificates.
"Register" means the register maintained pursuant to
Sections 3.04 and 7.12 of the Basic Pass Through Trust Agreement with
respect to each Pass Through Trust.
"Regular Distribution Dates" shall mean January 20 and
July 20 of each year, commencing January 20, 2000.
"Remaining Weighted Average Life" means, on a given date
with respect to any Equipment Note, the number of days equal to the
quotient obtained by dividing (a) the sum of each of the products obtained
by multiplying (i) the amount of each then remaining scheduled payment of
principal of such Equipment Note, including the payment due on the maturity
of such Equipment Note by (ii) the number of days from and including such
determination date to but excluding the date on which such payment of
principal is scheduled to be made, by (b) the then outstanding principal
amount of such Equipment Note.
"Section 1110" means 11 U.S.C. ss. 1110 of the Bankruptcy
Code or any successor or analogous Section of the federal bankruptcy Law in
effect from time to time.
"Seller" means AVSA, S.A.R.L., a societe a responsabilite
limitee organized and existing under the laws of the Republic of France and
its successors and permitted assigns.
"Series A Equipment Notes" means Equipment Notes issued
under an Indenture and designated as "Series A" thereunder.
"Series B Equipment Notes" means Equipment Notes issued
under an Indenture and designated as "Series B" thereunder.
"Series C Equipment Notes" means Equipment Notes issued
under an Indenture and designated as "Series C" thereunder.
"Subordination Agent" has the meaning set forth in the
first paragraph of the Note Purchase Agreement.
"Substitute Aircraft" has the meaning set forth in
Section 2(g) of the Note Purchase Agreement.
"Substitute Closing Date" has the meaning set forth in
Section 2(e) of the Note Purchase Agreement.
"Taxes" means all license, recording, documentary,
registration and other similar fees and all taxes, levies, imposts, duties,
charges, assessments or withholdings of any nature whatsoever imposed by
any Taxing Authority, together with any penalties, additions to tax, fines
or interest thereon or additions thereto.
"Taxing Authority" means any federal, state or local
government or other taxing authority in the United States, any foreign
government or any political subdivision or taxing authority thereof, any
international taxing authority or any territory or possession of the United
States or any taxing authority thereof.
"Treasury Yield" means, as of any date of determination,
with respect to any Equipment Note (utilizing the Assumed Amortization
Schedule applicable thereto), the interest rate (expressed 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
semi-annual yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Equipment Note and trading in the
public securities markets 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 of such Equipment Note and (B) the other maturing as close as possible
to, but later than, the Average Life Date of such Equipment Note, 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 of such Equipment Note is reported on the most recent
H.15(519), such weekly average yield to maturity as published in such
H.15(519).
"Triggering Event" has the meaning assigned to such term
in the Intercreditor Agreement.
"Trust Agreement" means a Trust Agreement substantially
in the form of Exhibit A-5 to the Note Purchase Agreement.
"Trust Supplement" means an agreement supplemental to the
Basic Pass Through Trust Agreement pursuant to which (i) a separate trust
is created for the benefit of the holders of the Certificates of a class,
(ii) the issuance of the Certificates of such class representing fractional
undivided interests in such trust is authorized and (iii) the terms of the
Certificates of such class are established.
"Underwriters" has the meaning set forth in the fourth
recital to the Note Purchase Agreement.
EXHIBIT A-1
NOTE PURCHASE AGREEMENT
FORM OF LEASED AIRCRAFT PARTICIPATION AGREEMENT
[FILED SEPARATELY]
EXHIBIT A-2-1 to
NOTE PURCHASE AGREEMENT
FORM OF BASIC LEASE
[FILED SEPARATELY]
EXHIBIT A-2-2 to
NOTE PURCHASE AGREEMENT
FORM OF DEFERRED EQUITY/PREPAID-DEFERRED RENT LEASE
[FILED SEPARATELY]
EXHIBIT A-3 to
NOTE PURCHASE AGREEMENT
FORM OF LEASED AIRCRAFT INDENTURE
[FILED SEPARATELY]
EXHIBIT A-4 to
NOTE PURCHASE AGREEMENT
FORM OF LEASED AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT
[FILED SEPARATELY]
EXHIBIT A-5 to
NOTE PURCHASE AGREEMENT
FORM OF LEASED AIRCRAFT TRUST AGREEMENT
[FILED SEPARATELY]
EXHIBIT A-6 to
NOTE PURCHASE AGREEMENT
FORM OF LEASED AIRCRAFT FRENCH PLEDGE AGREEMENT
[FILED SEPARATELY
EXHIBIT B to
NOTE PURCHASE AGREEMENT
FORM OF CLOSING NOTICE
EXHIBIT B
Closing Notice
Dated as of __________
To each of the addressees listed
in Schedule A hereto
Re: Closing Notice in Accordance with Note Purchase
Agreement Referred to below
Gentlemen:
Reference is made to the Note Purchase Agreement, dated
as of August 31, 1999 among US Airways, Inc. (the "Company"), State Street
Bank and Trust Company of Connecticut, National Association, as Pass
Through Trustee under each of the Pass Through Trust Agreements (as defined
therein) (the "Pass Through Trustee"), State Street Bank and Trust Company
of Connecticut, National Association, as Subordination Agent (the
"Subordination Agent"), First Security Bank, National Association, as
Escrow Agent (the "Escrow Agent") and State Street Bank and Trust Company
of Connecticut, National Association, as Paying Agent (the "Paying Agent")
(as in effect from time to time, the "Note Purchase Agreement"). Unless
otherwise defined herein, capitalized terms used herein shall have the
meanings set forth in the Note Purchase Agreement or, to the extent not
defined therein, the Intercreditor Agreement.
Pursuant to Section 2(b) of the Note Purchase Agreement,
the undersigned hereby notifies you, in respect of the Airbus __________
aircraft with manufacturer's serial number __________ (the "Aircraft"), of
the following:
1. The Company has elected to treat the Aircraft as [a
Leased Aircraft] [an Owned Aircraft];
2. The Scheduled Closing Date for the financing of the
Aircraft is __________; and
3. The aggregate amount of each series of Equipment Notes
to be issued, and purchased by the respective Pass Through Trustees, on the
Closing Date, in connection with the financing of such Aircraft is as
follows: The Class A Trustee shall purchase Series A Equipment Notes in the
amount of $__________, the Class B Trustee shall purchase Series B
Equipment Notes in the amount of $__________ and the Class C Trustee shall
purchase Series C Equipment Notes in the amount of $_________.
The Company hereby instructs the Class A Trustee to (i)
execute a Withdrawal Certificate in the form of Annex A hereto dated as of
__________ and attach thereto a Notice of Purchase Withdrawal dated such
date completed as set forth on Exhibit A hereto and (ii) deliver such
Withdrawal Certificate and Notice of Purchase Withdrawal to the applicable
Escrow Agent.
The Company hereby instructs the Class B Trustee to (i)
execute a Withdrawal Certificate in the form of Annex A hereto dated as of
__________ and attach thereto a Notice of Purchase Withdrawal dated such
date completed as set forth on Exhibit B hereto and (ii) deliver such
Withdrawal Certificate and Notice of Purchase Withdrawal to the applicable
Escrow Agent.
The Company hereby instructs the Class C Trustee to (i)
execute a Withdrawal Certificate in the form of Annex A hereto dated as of
__________ and attach thereto a Notice of Purchase Withdrawal dated such
date completed as set forth on Exhibit C hereto and (ii) deliver such
Withdrawal Certificate and Notice of Purchase Withdrawal to the applicable
Escrow Agent.
The Company hereby instructs each Pass Through Trustee to
(i) purchase Equipment Notes of a series and in an amount set forth
opposite such Pass Through Trustee in clause (3) above with a portion of
the proceeds of the withdrawals of Deposits referred to in the applicable
Notice of Purchase Withdrawal referred to above and (ii) re-deposit with
the Depositary the excess, if any, of the amount so withdrawn over the
purchase price of such Equipment Notes.
The Company hereby instructs each Pass Through Trustee to
(a) enter into the Participation Agreement dated as of __________ among the
Company, as Lessee, the Subordination Agent, the Pass Through Trustee,
State Street Bank and Trust Company of Connecticut, National Association,
as Loan Trustee and Loan Participant, First Security Bank, National
Association, as Owner Trustee and __________, as Owner Participant, (b)
perform its obligations thereunder and (c) deliver such certificates,
documents and legal opinions relating to such Pass Through Trustee as
required thereby.
[The Company hereby certifies that the Owner Participant
with respect to the Aircraft is not an Affiliate of the Company and is (A)
a Qualified Owner Participant or (B) a Person the obligations of which
under the Financing Agreements are guaranteed by a Qualified Owner
Participant.]1
Yours faithfully,
US Airways, Inc.
By:_____________________________
Name:
Title:
--------
1 Use for Leased Aircraft only.
SCHEDULE A
State Street Bank and Trust Company
of Connecticut, National Association, as
Pass Through Trustee, Subordination
Agent and Paying Agent
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
State Street Bank and Trust Company
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
First Security Bank, National Association,
as Escrow Agent
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇'▇ Investors Service
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Annex A
WITHDRAWAL CERTIFICATE
First Security Bank, National Association,
as Escrow Agent
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent Agreement,
dated as of August 31, 1999 (the "Agreement"). We hereby certify to you
that the conditions to the obligations of the undersigned to execute a
Participation Agreement pursuant to the Note Purchase Agreement have been
satisfied. Pursuant to Section 1.2(c) of the Agreement, please execute the
attached Notice of Withdrawal and immediately transmit by facsimile to the
Depositary, at __________.
Capitalized terms used herein but not defined herein shall
have the meanings set forth in the Agreement.
Very truly yours,
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in
its individual capacity by
solely as Pass Through Trustee
By:______________________________
Name:
Title:
Dated: As of __________
Exhibit A
NOTICE OF PURCHASE WITHDRAWAL
ABN AMRO Bank, N.V.
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Attention: [ ]
Telecopier: [ ]
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class A) dated as of
August 31, 1999 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and ABN AMRO Bank, N.V., as
Depositary (the "Depositary").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the
Deposit, $__________, Account No. __________.
The undersigned hereby directs the Depositary to pay the proceeds
of the Deposit to _______________, Account No. __________, Reference:
__________ on _______________, _____, upon the telephonic request of a
representative of the Pass Through Trustee.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Escrow Agent
By______________________________
Name:
Title:
Dated:___________, ____
Exhibit B
NOTICE OF PURCHASE WITHDRAWAL
ABN AMRO Bank, N.V.
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Attention: [ ]
Telecopier: [ ]
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class B) dated as of
August 31, 1999 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and ABN AMRO Bank, N.V., as
Depositary (the "Depositary").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the
Deposit, $__________, Account No. __________.
The undersigned hereby directs the Depositary to pay the proceeds
of the Deposit to _______________, Account No. __________, Reference:
__________ on _______________, _____, upon the telephonic request of a
representative of the Pass Through Trustee.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Escrow Agent
By______________________________
Name:
Title:
Dated:___________, ____
Exhibit C
[NOTICE OF PURCHASE WITHDRAWAL]
ABN AMRO Bank, N.V.
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Attention: [ ]
Telecopier: [ ]
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class C) dated as of
August 31, 1999 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and ABN AMRO Bank, N.V., as
Depositary (the "Depositary").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the
Deposit, $__________, Account No. __________.
The undersigned hereby directs the Depositary to pay the proceeds
of the Deposit to _______________, Account No. __________, Reference:
__________ on _______________, _____, upon the telephonic request of a
representative of the Pass Through Trustee.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Escrow Agent
By________________________________
Name:
Title:
Dated:___________, ____
EXHIBIT C-1 to
NOTE PURCHASE AGREEMENT
FORM OF OWNED AIRCRAFT PARTICIPATION AGREEMENT
[FILED SEPARATELY]
EXHIBIT C-2 to
NOTE PURCHASE AGREEMENT
FORM OF OWNED AIRCRAFT INDENTURE
[FILED SEPARATELY]
EXHIBIT C-3 to
NOTE PURCHASE AGREEMENT
FORM OF OWNED AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT
[FILED SEPARATELY]
EXHIBIT C-4 to
NOTE PURCHASE AGREEMENT
FORM OF OWNED AIRCRAFT FRENCH PLEDGE AGREEMENT
[FILED SEPARATELY]