EXHIBIT 4.1
PURCHASE AGREEMENT
Dated as of
October 26, 2000
BETWEEN
US AIRWAYS, INC.
AND
AIRBUS INDUSTRIE FINANCIAL SERVICES
CLASS C PASS THROUGH CERTIFICATES, SERIES 2000-3
US AIRWAYS, INC.
CLASS C PASS THROUGH CERTIFICATES, SERIES 2000-3
PURCHASE AGREEMENT
October 26, 2000
Airbus Industrie Financial Services
2nd Floor
George's Dock House
International Financial Services Centre
Xxxxxx 0, Xxxxxxx
Dear Sirs:
US AIRWAYS, INC., a Delaware corporation (the "Company"),
proposes that State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, acting not in its individual
capacity but solely as pass through trustee (the "Trustee") under the Pass
Through Trust Agreement referred to below, issue and sell to Airbus
Industrie Financial Services, a corporation formed under the laws of
Ireland ("AIFS" or "Purchaser"), its Class C Pass Through Certificates,
Series 2000-3 in the aggregate principal amount and with the interest rate
and final expected distribution date set forth on Schedule I hereto (the
"Class C Certificates") on the terms and conditions stated herein.
The Certificates will be issued pursuant to the Pass
Through Trust Agreement dated as of October 5, 2000 (the "Basic
Agreement"), between the Company and the Trustee, as supplemented with
respect to the Class C Certificates by a separate Pass Through Trust
Supplement to be dated as of the Closing Date (as defined below) (the
"Series C Supplement"), between the Company and the Trustee (the Basic
Agreement as supplemented by the Series C Supplement being referred to
herein as the "Pass Through Agreement" and the trust created thereby being
referred to as the "Class C Trust").
The cash proceeds of the offering of Class C Certificates
will be paid to First Security Bank, National Association, a national
banking association, as escrow agent (the "Escrow Agent"), under an Escrow
and Paying Agent Agreement among the Escrow Agent, AIFS, the Trustee and
State Street Bank and Trust Company, as paying agent (the "Paying Agent"),
for the benefit of the holders of the Class C Certificates (the "Escrow
Agreement"). The Escrow Agent will deposit such cash proceeds (each, a
"Deposit") with ABN AMRO Bank N.V., Chicago Branch (the "Depositary"), in
accordance with the Deposit Agreement between the Escrow Agent and the
Depositary (each, a "Deposit Agreement"), and will withdraw Deposits upon
request to allow the Trustee to purchase Equipment Notes from time to time
pursuant to a Note Purchase Agreement to be dated as of the Closing Date
(the "Note Purchase Agreement") among the Company, State Street Bank and
Trust Company of Connecticut, National Association, a national banking
association, as Trustee, as Subordination Agent (as hereinafter defined)
and as Paying Agent, and the Escrow Agent. The Escrow Agent will issue
receipts to be attached to Class C Certificates ("Escrow Receipts")
representing each holder's fractional undivided interest in amounts
deposited with such Escrow Agent and will pay to such holders through the
related Paying Agent interest accrued on the Deposits and received by such
Paying Agent pursuant to the related Deposit Agreement at a rate per annum
equal to the interest rate applicable to the corresponding Certificates.
Certain amounts of interest payable on the Class C
Certificates will be entitled to the benefits of a liquidity facility.
Xxxxxx Xxxxxxx Capital Services, Inc., a Delaware corporation (the
"Liquidity Provider"), will enter into a revolving credit agreement with
respect to the Class C Trust (the "Liquidity Facility") to be dated as of
the Closing Date for the benefit of the holders of the Class C
Certificates. The Liquidity Provider and the holders of the Class C
Certificates (as well as the Company's Class G Pass Through Certificates,
Series 2000-3 (the "Class G Certificates") and together with the Class C
Certificates, the "Pass Through Certificates") will be entitled to the
benefits of an Intercreditor Agreement to be dated as of the Closing Date
(the "Intercreditor Agreement") among the Trustees, State Street Bank and
Trust Company of Connecticut, National Association, as subordination agent
and trustee thereunder (the "Subordination Agent"), the Policy Provider and
the Liquidity Provider.
The Class C Certificates will be offered and sold to the
Purchaser without being registered under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance upon an exemption therefrom.
The Company has prepared an offering memorandum dated the date hereof (the
"Offering Memorandum") setting forth information concerning the Company and
the Class C Certificates. Copies of the Offering Memorandum have been
delivered by the Company to the Purchaser pursuant to the terms of this
Agreement. Any references herein to the Offering Memorandum shall be deemed
to include all amendments and supplements thereto, unless otherwise noted.
The Company hereby confirms that it has authorized the use of the Offering
Memorandum in connection with the resale of the Class C Certificates by the
Purchaser.
Holders of the Class C Certificates (including the
Purchaser and their direct and indirect transferees) will be entitled to
the benefits of a Registration Agreement, substantially in the form
attached hereto as Annex A (the "Registration Agreement") on the terms and
to the extent specifically set forth therein, pursuant to which the Company
will agree to file, upon receipt of a written demand notice by AIFS (and no
other Holder), as contemplated by the Registration Agreement, with the
Securities and Exchange Commission (the "Commission") (i) up to two (2)
registration statements under the Securities Act (each an "Exchange Offer
Registration Statement") registering an issue of Certificates (the
"Exchange Certificates") which are identical in all material respects to
the Class C Certificates (except that the Exchange Certificates will not
contain terms with respect to transfer restrictions) and (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under
the Securities Act (the "Shelf Registration Statement").
As used herein, the term Offering Memorandum shall
include in each case the documents, if any, incorporated by reference
therein. The terms "supplement", "amendment", and "amend" as used herein
with respect to the Offering Memorandum shall include all documents deemed
to be incorporated by reference in the Offering Memorandum that are filed
with the Commission pursuant to the Exchange Act after the issue date of
such Offering Memorandum and on or prior to the completion of the offering.
Capitalized terms not otherwise defined in this Agreement
shall have the meanings specified therefor in the Pass Through Agreement,
the Note Purchase Agreement or the Intercreditor Agreement referred to in
the Pass Through Agreement; provided that, as used in this Agreement, the
term "Operative Documents" shall mean the Purchase Agreement, the Deposit
Agreement, the Escrow Agreement, the Intercreditor Agreement, the Liquidity
Facility, the Indentures, the Leases, the Note Purchase Agreement, the
Participation Agreements, the Trust Agreements, the Pass Through Agreement,
the Pass Through Certificates, the Equipment Notes and the Registration
Agreement.
As used in this Agreement, the term "Financing
Agreements" shall mean with respect to each Aircraft the related FAA Xxxx
of Sale, Trust Indenture and Lease (each as defined in the Participation
Agreements).
1. Representations and Warranties. The Company hereby
represents and warrants to, and agrees with, you that:
(a) The Offering Memorandum, as of its date, did
not, and the Offering Memorandum will not, contain any untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(b) The Offering Memorandum, as of its date,
contains or incorporates by reference all of the information that, if
requested by a prospective purchaser of the Class C Certificates, would be
required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations
and warranties of the Purchaser contained in Section 4 and its compliance
with the agreements set forth therein, it is not necessary, in connection
with the issuance and sale of the Class C Certificates to the Purchaser in
the manner contemplated by this Agreement and the Offering Memorandum, to
register the Class C Certificates under the Securities Act or to qualify
the Pass Through Agreement under the Trust Indenture Act of 1939, as
amended (the "1939 Act").
(d) The accountants who certified the financial
statements included in or incorporated by reference in the Offering
Memorandum are independent public accountants as required by the Securities
Act.
(e) None of the Company or any Trust is an
"investment company", within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act"); and after giving effect to
the offering and sale of the Pass Through Certificates and the application
of the proceeds therefor as described in the Offering Memorandum, no Trust
will be, nor will the escrow arrangements relating to any Trust
contemplated by the respective Escrow Agreement result in the creation of,
an "investment company", as defined in the Investment Company Act.
(f) The Company has complied with all provisions
of Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida) or
is exempt therefrom.
(g) The execution and delivery by the Company of
this Agreement, the Pass Through Agreement and the other Operative
Documents to which the Company is or will be a party, the consummation by
the Company of the transactions contemplated herein and therein and in the
Offering Memorandum and compliance with the terms hereof and thereof do not
and will not result in any violation of the charter or by-laws of the
Company and do not and will not conflict with or violate, or result in a
breach of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any impermissible lien, charge
or encumbrance upon any property or assets of the Company under: (i) any
indenture, mortgage or loan agreement, or any other agreement or instrument
to which the Company is a party or by which it may be bound or to which any
of its properties may be subject (except for such conflicts, breaches,
violations, defaults, liens, charges or encumbrances that, individually or
in the aggregate, would not have a material adverse effect on the financial
condition or on the earnings or business affairs of the Company and its
subsidiaries considered as a single entity); (ii) any existing applicable
law, rule or regulation; or (iii) any judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its properties.
(h) No authorization, approval, consent,
license, order of or registration or filing with, or the giving of notice
to, any government, governmental instrumentality or court, domestic or
foreign, or other regulatory body or authority (other than, in the case of
the Class G Pass Through Certificates, with respect to the effectiveness of
the Registration Statement under the Securities Act or the qualification of
the Pass Through Agreements under the 1939 Act and other than with respect
to the securities or Blue Sky laws of the various states) is required to be
obtained or made by the Company for the valid authorization, execution,
delivery and performance by the Company of this Agreement or any of the
Operative Documents to which the Company is or will be a party or the
consummation of the transactions contemplated by this Agreement or any such
Operative Documents, except such as may be required under (i) in the case
of the Class G Pass Through Certificates, the securities or Blue Sky laws
of the various states or (ii) the Transportation Code and the Uniform
Commercial Code as in effect in Utah and Virginia, which filings or
recordings referred to in this clause (ii), with respect to any particular
set of Financing Agreements, shall have been made or duly presented for
filing or recordation in all material respects or shall be in the process
of being duly filed or filed for recordation in all material respects, on
or prior to the applicable Delivery Date (as defined in the Participation
Agreements) for the Aircraft related to such Financing Agreements.
(i) This Agreement has been duly authorized by
all necessary corporate action and duly executed and delivered by the
Company. The Operative Documents to which the Company will be a party will
be duly executed and delivered by the Company on or prior to the Closing
Date (as defined herein) or the applicable Delivery Date (as defined in the
Participation Agreements), as the case may be.
(j) The Operative Documents to which the Company
is or will be a party have been duly authorized by all necessary corporate
action, will each be substantially in the form heretofore supplied to you
and will constitute, when duly executed and delivered by the Company
(assuming that such Operative Documents constitute valid and binding
obligations of each other party thereto), valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except to the extent that enforceability thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). The Basic Agreement as
executed is substantially in the form filed as an exhibit to the
Registration Statement and has been duly qualified under the 1939 Act. The
Class C Certificates and the Operative Documents to which the Company is,
or is to be, a party, will conform in all material respects to the
descriptions thereof in the Offering Memorandum.
(k) When executed, issued, authenticated and
delivered pursuant to the provisions of the Pass Through Agreement and sold
and paid for as provided in this Agreement, the Class C Certificates will
constitute valid and legally binding obligations of the Trustee enforceable
in accordance with their terms, except to the extent that enforceability
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity); and the Class C Certificates will be entitled to the
benefits provided by the Pass Through Agreement. When executed,
authenticated, issued and delivered in the manner provided for in the
Escrow Agreement to which the Class C Pass Through Trustee is a party, the
Escrow Receipt will be legally and validly issued and will be entitled to
the benefits of the related Escrow Agreement.
(l) The Equipment Notes to be issued under each
applicable Indenture, when duly executed and delivered by the related Owner
Trustee or the Company, as the case may be, and duly authenticated by the
Indenture Trustee in accordance with the terms of such Indenture, will be
duly issued under such Indenture and will constitute the valid and binding
obligations of such Owner Trustee or the Company, as the case may be,
enforceable in accordance with their terms, except that enforceability
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity); and the holders thereof will be entitled to the benefits of
such Indenture.
(m) No Appraiser (as defined in the Offering
Memorandum) is an affiliate of the Company or has a substantial interest,
direct or indirect, in the Company. None of the officers and directors of
any Appraiser is connected with the Company or any of its affiliates as an
officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
(n) The Class C Certificates satisfy the
eligibility requirements of Rule 144A(d)(3) under the Securities Act.
(o) Neither the Company nor any of its
affiliates has, directly or through any agent, sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security
(as such term is defined in the Securities Act), which is or will be
integrated with the sale of the Class C Certificates in a manner that would
require registration of the Class C Certificates under the Securities Act.
(p) None of the Company or any of its affiliates
or any other person acting on its or their behalf has engaged, in
connection with the offering of the Class C Certificates, in any form of
general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act.
The parties agree that any certificate signed by a duly
authorized officer of the Company and delivered to Purchaser, or to counsel
for the Purchaser, on the Closing Date and in connection with this
Agreement or the offering of the Certificates, shall be deemed a
representation and warranty by (and only by) the Company to the Purchaser
as to the matters covered thereby.
2. Purchase and Delivery. (a) On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company hereby agrees to
cause the Trustee to sell to AIFS, and AIFS agrees to purchase from the
Trustee the principal amount of Class C Certificates at a purchase price of
100% of the aggregate stated principal amount thereof (the "Purchase
Price"). Concurrently with the issuance and sale of the Class C
Certificates, the Company shall cause the Escrow Agent to issue and deliver
to the Trustee the Escrow Receipts in accordance with the terms of the
Escrow Agreement, which Escrow Receipts shall be attached to the related
Class C Certificates.
(b) Delivery of and payment of the Purchase
Price for the Class C Certificates to be purchased by you (with attached
Escrow Receipts) shall be made at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, 0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at such
other place as shall be agreed upon by you and the Company) at 10:00 A.M.,
New York City time, on the date hereof or such other date (which date shall
be no later than the seventh business day after the date hereof), time and
place as may be agreed upon by the Company and you (such date and time of
delivery and payment for the Class C Certificates (with attached Escrow
Receipts) being herein called the "Closing Date"). Delivery of the Class C
Certificates (with attached Escrow Receipts) issued by the Class C Trust
shall be made to an account designated by you in writing to the Company at
the Depository Trust Company ("DTC") against payment by you of the Purchase
Price therefor by wire transfer of immediately available funds to the
account and in the manner specified in the related Escrow Agreement. The
Class C Certificates (with attached Escrow Receipts) issued by the Class C
Trust shall be in the form of one or more fully registered global
certificates, and shall be deposited with the Class C Trustee as custodian
for DTC and registered in the name of Cede & Co.
(c) The Company agrees to have the Certificates
(with attached Escrow Receipts) available for inspection and checking by
you in New York, New York not later than 1:00 P.M. on the business day
prior to the Closing Date.
3. Conditions to Closing. The obligation of AIFS to
purchase and pay for the Class C Certificates pursuant to this Agreement
are subject to the accuracy of and compliance with the representations and
warranties of the Company contained herein as of the date hereof and the
Closing Date, to the accuracy of the statements of the officers of the
Company made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of its covenants and other
obligations hereunder and to the following further conditions:
(a) Subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, there shall not have occurred
any downgrading in the rating accorded the Class C Certificates by Xxxxx'x
Investor Service or Standard & Poor's Ratings Service set forth in the
Offering Memorandum other than a downgrade caused by a downgrade in the
rating of the Company.
(b) (i) Each of the representations and
warranties of the Company contained herein shall be true and correct as of
the Closing Date (except to the extent that a representation or warranty
expressly relates to an earlier or later date, in which case it will be
true and correct as of such date); (ii) each of the conditions precedent
set forth in Section 6 of that certain Letter Agreement, dated as of
October 31, 1997, as amended, (the "Letter Agreement") among AVSA, S.A.R.L.
("AVSA"), the Company and US Airways Group, Inc. ("Group") shall have been
satisfied; (iii) no Termination Event as described in Section 7 of the
Letter Agreement shall have occurred; and (iv) the Company shall have
performed in all material respects all of its obligations to be performed
hereunder on or prior to the Closing Date; provided that the condition set
forth in Section 6(b) of the Letter Agreement shall be deemed satisfied if
the Company delivers to the Indenture Trustee an opinion with respect to
Section 1110 of the U.S. Bankruptcy Code meeting the requirements described
in the section of the Offering Memorandum captioned "Description of
Equipment Notes-Remedies"; and AIFS shall have received on the Closing Date
a certificate, dated the Closing Date and signed by a Vice President or
Treasurer of the Company, to the effect that each of the foregoing clauses
(i) through (iv) is true as of the Closing Date. The officer signing and
delivering such certificate may rely on the best of his or her knowledge.
(c) AIFS shall have received on the Closing Date
an opinion, dated the Closing Date, from the General Counsel, Deputy
General Counsel or Associate General Counsel of the Company, in form
satisfactory to AIFS and AIFS' counsel, to the effect that:
(i) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has all
necessary corporate power and authority under such laws to own its
properties, to conduct its business as described in the Offering
Memorandum, to enter into this Agreement and each of the Operative
Documents to which it is a party and to perform its obligations
hereunder and thereunder (except where the failure to have such
power or authority would not have a material adverse effect on the
Company); and the Company is duly qualified to transact business
as a foreign corporation in good standing in each jurisdiction in
which its ownership of property or the conduct of its business
requires such qualification (except where the failure to so
qualify would not have a material adverse effect upon the
Company);
(ii) The Company is an "air carrier"
and a "citizen of the United States" within the meaning of the
Transportation Code, and holds an air carrier operating
certificate issued pursuant to chapter 447 of Title 49 of the
United States Code; the descriptions in the Offering Memorandum
with respect to statutes, contracts, administrative orders and
regulations and legal and governmental proceedings are accurate
and fairly summarize the information that would be required to be
shown (if the Offering Memorandum were subject to the Securities
Act of 1933, as amended (the "1933 Act")); and there are, to the
best of our counsel's knowledge, no statutes, administrative
orders or regulations or pending or threatened legal or
governmental proceedings which would be required to be described
in the Offering Memorandum (if the Offering Memorandum were
subject to the 0000 Xxx) which are not described as required, nor
any contracts or documents of a character that would be required
to be described or referred to in the Offering Memorandum (if the
Offering Memorandum were subject to the 1933 Act), that are not so
described, referred to or filed as would be so required;
(iii) The statements in the Offering
Memorandum as to the routes that the Company presently operate or
is authorized to operate are correct in all material respects.
Except as disclosed in the Offering Memorandum, no action or
proceeding has been instituted or to such counsel's knowledge, has
been threatened by the United States Department of Transportation,
the Federal Aviation Administration or the aeronautical
authorities of any other country that would impair the Company's
ability to operate such routes;
(iv) This Agreement has been duly
authorized, executed and delivered by the Company;
(v) No authorization, approval,
consent, license, order of, or registration with, or the giving of
notice to, any government, governmental instrumentality, or court,
domestic or foreign, or other regulatory body or authority (other
than, in the case of the Class C Certificates, with respect to the
qualification of the Basic Agreement under the 1939 Act and other
than, in the case of the Class C Certificates, with respect to the
securities or Blue Sky laws of the various states and with respect
to any registration, filing or recording that may be required
under the Transportation Code and the Uniform Commercial Code as
in effect in various jurisdictions) is required to be obtained or
made by the Company for the valid authorization, issuance, sale
and delivery of the Class C Certificates and the Equipment Notes
relating thereto or for the valid authorization, execution,
delivery and performance by the Company of this Agreement and each
of the Operative Documents to which the Company is or will be a
party or the consummation of the transactions contemplated by this
Agreement and such Operative Documents;
(vi) The execution and delivery by the
Company of this Agreement and the Operative Documents to which the
Company is or will be a party, the issuance and sale of the Class
C Certificates and the related Equipment Notes, the issuance of
the Escrow Receipts attached to the Class C Certificates, the
consummation by the Company of the transactions contemplated
herein and therein and in the Offering Memorandum and compliance
with the terms hereof and thereof do not and will not result in
any violation of the charter or by-laws of the Company and do not
and will not conflict with or violate, or result in a breach of
any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any impermissible lien,
charge or encumbrance upon any property or assets of the Company
under (A) any indenture, mortgage or loan agreement, or any other
agreement or instrument known to such counsel, to which the
Company is a party or by which either it be bound or to which any
of its properties may be subject (except for such conflicts,
breaches, defaults, violations, liens, charges or encumbrances
that, individually or in the aggregate, would not have a material
adverse effect on the financial condition or on the earnings or
business affairs of the Company and its subsidiaries considered as
a single entity); (B) any existing applicable law, rule or
regulation (other than the securities or Blue Sky laws of the
various states, as to which such counsel need express no opinion);
or (C) any judgment, order or decree known to such counsel of any
government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its
properties;
(vii) No default exists in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, loan
agreement, note, lease or other agreement or instrument that is
described or referred to in the Offering Memorandum or filed as an
exhibit to the Registration Statement on Form S-3 (File No.
333-47348) filed by the Company with the Securities and Exchange
Commission (the "Registration Statement");
(viii) Except as disclosed in the
Offering Memorandum, there is no action, suit or proceeding before
or by any government, governmental instrumentality or court,
domestic or foreign, now pending or, to the knowledge of such
counsel, threatened against or affecting the Company that might
reasonably be expected to result in any material adverse change in
the financial condition or in the earnings or business affairs of
the Company, or that could adversely affect the consummation of
the transactions contemplated by this Agreement or any of the
other Operative Documents to which the Company is or will be a
party; and
(ix) Such counsel has participated in
the preparation of the Offering Memorandum and the documents
incorporated by reference in the Offering Memorandum and such
counsel has no reason to believe that the Offering Memorandum or
any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, and except
for the Statement of Eligibility on Form T-1 of the Trustee as to
which such counsel need express no opinion), at the time the
Offering Memorandum was issued, at the time any amended or
supplemental Offering Memorandum was issued or as of the Closing
Date, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) You shall have received on the Closing Date
an opinion, dated the Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, counsel for the Company, in form and substance reasonably satisfactory
to you and substantially to the effect set forth in Exhibit A hereto.
(e) You shall have received on the Closing Date
an opinion of Xxxxxxx Xxxx, LLP, counsel for State Street Bank and Trust
Company of Connecticut, National Association, individually and as Trustee,
Subordination Agent and Paying Agent, dated the Closing Date, in form and
substance reasonably satisfactory to you and substantially to the effect
set forth in Exhibit B hereto.
(f) You shall have received on the Closing Date
an opinion of Ray, Xxxxxxx & Xxxxxxx, counsel for the Escrow Agent, dated
the Closing Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit C hereto.
(g) You shall have received an the Closing Date
an opinion of Shearman & Sterling, counsel for the Liquidity Provider,
dated the Closing Date, in form and substance reasonably satisfactory to
you and substantially to the effect set forth in Exhibit D hereto.
(h) You shall have received on the Closing Date
an opinion of Vedder, Price, Xxxxxxx & Kammholz, counsel for the Depositary
for the Class C Trust, dated the Closing Date, and an opinion of in-house
counsel to the Depositary, dated the Closing Date, each in form and
substance reasonably satisfactory to you and substantially to the effect
set forth in Exhibit E hereto.
(i) Each of the Appraisers shall have furnished
to AIFS a letter from such Appraiser, addressed to the Company and dated
the Closing Date, confirming that such Appraiser and each of its directors
and officers (i) is not an affiliate of the Company or any of its
affiliates; (ii) does not have any substantial interest, direct or
indirect, in the Company or any of its affiliates; and (iii) is not
connected with the Company or any of its affiliates as an officer,
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
(j) At the Closing Date, each of the Operative
Documents (other than the Indentures, Leases and Participation Agreements)
shall be duly executed and delivered by each of the parties thereto; the
representations and warranties of the Company contained in each of such
executed Operative Documents shall be true and correct in all material
respects as of the Closing Date (except to the extent that they relate
solely to an earlier or later date, in which case they shall be true and
correct as of such earlier or later date) and you shall have received a
certificate of the President or a Vice President of the Company, dated as
of the Closing Date, to such effect.
(k) [Reserved.]
(l) The Class G Certificates (with attached
Escrow Receipts) in the amount and containing the terms described in the
Offering Memorandum shall be concurrently issued and purchased by the
Underwriters.
4. Representations and Warranties of the Purchaser. AIFS
represents and warrants to the Company and the Class C Trust that:
(a) It understands that any subsequent transfer
of the Certificates is subject to certain restrictions and conditions set
forth in the Pass Through Agreement relating to the Class C Certificates
and it agrees to be bound by, and not to resell, pledge or otherwise
transfer the Class C Certificates except in compliance with or pursuant to
a transaction exempt from, such restrictions and conditions and the
Securities Act.
(b) It understands that the Class C Certificates
have not been registered under the Securities Act, are being sold to it in
a transaction that is exempt from the registration requirements of the
Securities Act and that the Class C Certificates may not be reoffered or
resold except as permitted in the following sentence. It agrees that, if it
should sell any Class C Certificate within two years after the later of the
original issuance of such Class C Certificate and the last date on which
such Class C Certificate is owned by US Airways, the Trustee or any
affiliate of any of such persons, it shall do so only (A) to US Airways,
Inc., (B) to a person who it reasonably believes is a "qualified
institutional buyer" in compliance with Rule 144A under the Securities Act,
(C) to an institutional "accredited investor" acquiring $100,000 or more
aggregate principal amount of such Certificate that, prior to such
transfer, furnished to the Trustee a signed letter containing certain
representations and agreements relating to the restrictions on transfer of
such Certificate (the form of which letter can be obtained from the
Trustee), (D) pursuant to the exemption from registration provided by Rule
144 under the Securities Act (if available), (E) in accordance with another
exemption from the Securities Act or (F) pursuant to an effective
registration statement under the Securities Act; and it further agrees to
provide to any person purchasing any of the Certificates from it (other
than pursuant to clauses (D) and (F) above) a notice advising such
purchaser that resales of such Certificates are restricted as stated in the
Trust Supplement No. 2000-3C.
(c) It understands that, on any proposed resale
of any Class C Certificates as contemplated by clause (B) of paragraph (b)
above, it shall be required to furnish to US Airways and to the Trustee
such certifications, legal opinions and other information as US Airways and
the Trustee may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. It further understands that the
Class C Certificates purchased by it shall bear a legend to the foregoing
effect.
(d) It is an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of its
investment in the Class C Certificates, and it and any accounts for which
it is acting are each able to bear the economic risks of its or their
investments.
(e) It is not acquiring the Class C Certificates
with plan assets of any plan subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code").
5. Further Agreements of the Company. The Company agrees
with the Purchaser:
(a) At any time prior to the first to occur of
(i) the date on which the Purchaser receives freely transferable Exchange
Certificates in a Registered Exchange Offer (including as a result of the
Purchaser having to deliver a prospectus in connection with any resale of
Exchange Certificates), (ii) the date on which a Shelf Registration
Statement is declared effective, (iii) the date on which the Purchaser
ceases to own any Securities (each of the foregoing capitalized terms are
used as defined in the Registration Agreement) and (iv) the date that is
the second anniversary of the Closing Date (the "Applicable Date"), to
advise the Purchaser promptly and, if requested, confirm such advice in
writing, of the happening of any event which makes any statement of a
material fact made in the Offering Memorandum untrue or which requires the
making of any additions to or changes in the Offering Memorandum (as
amended or supplemented from time to time) in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; to advise the Purchaser promptly of any order preventing or
suspending the use of the Offering Memorandum, of any suspension of the
qualification of the Class C Certificates for offering or sale in any
jurisdiction and of the initiation or threatening of any proceeding for any
such purpose; and to use reasonable efforts to prevent the issuance of any
such order preventing or suspending the use of the Offering Memorandum or
suspending any such qualification and, if any such suspension is issued, to
obtain the lifting thereof at the earliest possible time;
(b) For so long as the Purchaser owns any
Securities (as defined in the Registration Agreement), to furnish promptly
to the Purchaser as many copies of the Offering Memorandum (and any
amendments or supplements thereto) as may be reasonably requested;
(c) For so long as the Purchaser owns any
Securities (as defined in the Registration Agreement), prior to making any
amendment or supplement to the Offering Memorandum, to furnish a copy
thereof to each of the Purchaser and counsel for the Purchaser and not to
effect any such amendment or supplement to which the Purchaser shall
reasonably object by notice to the Company after a reasonable period to
review;
(d) For so long as the Purchaser owns any
Securities (as defined in the Registration Agreement), if, at any time
prior to the Applicable Date, any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel for
the Purchaser or counsel for the Company, to amend or supplement the
Offering Memorandum in order that the Offering Memorandum will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply with applicable law (or to contain current financial
information, which may be incorporated by reference), at the request of the
Purchaser, to promptly prepare such amendment or supplement as may be
necessary to correct such untrue statement or omission or so that the
Offering Memorandum, as so amended or supplemented, will comply with
applicable law;
(e) For so long as the Class C Certificates are
outstanding and are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, to furnish to holders of the Class C
Certificates and prospective purchasers of the Class C Certificates
designated by such holders, upon request of such holders or such
prospective purchasers, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act, unless the Company is then
subject to and in compliance with Section 13 or 15(d) of the Exchange Act
(the foregoing agreement being for the benefit of the holders from time to
time of the Class C Certificates and prospective purchasers of the Class C
Certificates designated by such holders);
(f) For so long as the Purchaser owns any
Securities (as defined in the Registration Agreement), to promptly take
from time to time such actions as the Purchaser may reasonably request to
qualify the Class C Certificates for offering and sale under the securities
or Blue Sky laws of such jurisdictions as the Purchaser may designate and
to continue such qualifications in effect until the Applicable Date; and to
arrange for the determination of the eligibility for investment of the
Class C Certificates under the laws of such jurisdictions as the Purchaser
may reasonably request; provided that the Company and its subsidiaries
shall not be obligated to qualify as foreign corporations in any
jurisdiction in which they are not so qualified or to file a general
consent to service of process in any jurisdiction;
(g) Arrange for the Class C Certificates to be
eligible for clearance and settlement through DTC;
(h) Not to, and to cause its affiliates not to,
sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as such term is defined in the Securities Act)
which could be integrated with the sale of the Class C Certificates to the
Purchaser in a manner which would require registration of the Class C
Certificates under the Securities Act;
(i) Except following the effectiveness of a
Registration Statement (as defined in the Registration Agreement), not to,
and to cause its affiliates not to, authorize or knowingly permit any
person acting on their behalf to, solicit any offer to buy or offer to sell
the Class C Certificates by means of any form of general solicitation or
general advertising within the meaning of Regulation D or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act; and not to offer, sell, contract to sell or otherwise
dispose of, directly or indirectly, any securities under circumstances
where such offer, sale, contract or disposition would cause the exemption
afforded by Section 4(2) of the Securities Act to cease to be applicable to
the offering and sale of the Class C Certificates as contemplated by this
Agreement; and
(j) In connection with sales or potential sales
of the Class C Certificates by the Purchaser, the Company agrees to make
its officers, employees, independent accountants and legal counsel
reasonably available to the Purchaser in connection with each filing of a
Form 10-Q, Form 10-K or a Form 8-K by the Company; provided that the
reasonable out-of-pocket fees and expenses of the Company incurred in
connection therewith for such accountants and legal counsel shall be paid
by Purchaser; provided further that if at the time Purchaser requests
access to the Company's accountants and legal counsel the Company is
engaged in a securities offering and is otherwise making its accountants
and legal counsel available in connection therewith Purchaser shall only be
responsible for any such expenses that the Company would not otherwise have
incurred.
6. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless AIFS, its affiliates, their
respective officers, directors, representatives, employees and agents and
each person, if any, who controls AIFS within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities caused by any
untrue or alleged untrue statement of a material fact contained in the
Offering Memorandum (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading.
(b) In case any proceeding (including any
governmental investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to paragraph (a) above,
such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees and expenses of more than one firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by AIFS in the case of parties indemnified pursuant
to paragraph (a) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding and does not include a statement as to or an admission
of fault, culpability or failure to act by or on behalf of any indemnified
party.
(c) To the extent the indemnification provided
for in paragraph (a) of this Section 6 is unavailable to an indemnified
party or insufficient in respect of any losses, claims, damages or
liabilities, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on
the one hand, and AIFS, on the other hand, from the offering of the Class C
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and AIFS on the
other hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company in
connection with the offering of the Class C Certificates shall be deemed to
be in the same proportion as the aggregate consideration received by the
Class C Trust from the sale by the Class C Trust of the Class C
Certificates (or securities which were exchanged for the Class C
Certificates) bears to the aggregate consideration received by the
Purchaser in connection with the resale of the Class C Certificates, and
the Purchaser shall be deemed to have received the rest of the benefits.
The relative fault of the Company on the one hand and of AIFS on the other
hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company or by AIFS and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
(d) The Company and AIFS agree that it would not
be just or equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in
paragraph (c) above. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages and liabilities referred to in
paragraph (c) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, AIFS
shall not be required to contribute any amount in excess of the amount by
which the total price at which the Class C Certificates sold by it were
sold exceeds the principal amount of such Class C Certificates. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The indemnity and
contribution provisions contained in this Section 6 and the representations
and warranties of the Company contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of AIFS or any
person controlling AIFS or by or on behalf of the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Class C Certificates. The remedies provided for in
this Section 6 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
(e) The indemnity and contribution provisions
contained in this Section 6 and the representations, warranties and other
statements of the Company contained in this Agreement or contained in
certificates of officers of the Company submitted pursuant hereto, shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of AIFS or any person controlling AIFS or the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Class C Certificates.
7. Termination. This Agreement shall be subject to
termination in your absolute discretion, by oral notice confirmed in
writing, given by you to the Company, if prior to delivery of and payment
for the Class C Certificates any of the events described in Section 3(a) or
Section 3(b)(iii) occur, and it shall also automatically terminate
immediately if prior to delivery of and payment for the Class C
Certificates upon the termination of (x) the Underwriting Agreement, dated
as of October 26, 2000, among the Company and Xxxxxx Xxxxxxx & Co.
Incorporated, Credit Lyonnais Securities (USA) Inc., Deutsche Bank
Securities Inc., and XX Xxxxx Securities Corporation or (y) the Letter
Agreement.
8. Notices. All notices and other communications under
this Agreement shall be in writing, unless otherwise stated herein, and
shall be deemed to have been duly given if delivered, mailed or transmitted
by any standard form of telecommunication. Notices to you shall be directed
to you at 2nd Floor, George's Dock House, International Financial Services
Centre, Xxxxxx 0, Xxxxxxx, Attention: Legal Department (011-353-1-829-1866
if by telecopy); and notices to the Company shall be directed to it at US
Airways, Inc., Crystal Park Four, 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000,
Attention: Treasurer (703/872-5936 if by telecopy).
9. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
10. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
11. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall
not be deemed a part of this Agreement.
12. Effect of Operative Documents. (a) The financing
contemplated hereby shall constitute (i) a Seller Financing, (ii) a
Qualifying Financing Transaction and (iii) a utilization in full of the
Seller Commitment (as each such term is defined in the Letter Agreement),
in each case with respect to the Aircraft described in the Offering
Memorandum, in an amount equal to the aggregate principal amount of the
Class C Certificates issued on the Closing Date, less any amount of
Deposits returned to AIFS pursuant to the Operative Documents. Solely with
respect to the financing contemplated by the Operative Documents, and
except as provided in the next succeeding sentence and in Section 13
hereof, the terms and conditions of the Operative Documents will, as of the
Closing Date, supersede and replace the general terms and conditions set
forth in Sections 3 and 4 of the Letter Agreement. Without limiting or
affecting the parties' rights or obligations hereunder or under the
Registration Agreement, the terms and conditions set forth (i) under the
captions "Transfer Rights" and "Transaction Expenses" in Section 4 of the
Letter Agreement and (ii) except as expressly set forth in that certain
Consent, Waiver and Acknowledgment Agreement, dated the date hereof, among
the Company, Group and AVSA in all sections of the Letter Agreement (other
than Sections 3 and 4) shall survive the execution and delivery hereof and
of the Operative Documents and the Financing Agreements and shall remain in
full force and effect in accordance with their terms, including, without
limitation, with respect to the financing contemplated by the Operative
Documents.
(b) Without limiting the first sentence of
paragraph (a) of this Section 12, neither this Agreement nor the
consummation of the financing contemplated hereby shall in any way limit or
affect the application of the Letter Agreement to any other proposed
utilization of the Seller Commitment.
13. Covenants as to Letter Agreement. The Company
covenants that the aggregate principal amount of the Series C Equipment
Notes issued with respect to all of the Aircraft described in the Offering
Memorandum shall not exceed the Seller Commitment. The Company further
covenants that the aggregate principal amount of the Series C Equipment
Notes issued with respect to each Aircraft described in the Offering
Memorandum shall not exceed the Available Per Aircraft Financing Amount (as
defined in Section 1(a) of the Letter Agreement) with respect to such
Aircraft. The financing of each aircraft will comply with the last sentence
of the first paragraph of the section of the Letter Agreement captioned
"General Terms and Conditions-Documentation-Tax Indemnities." In addition,
the Equipment Notes issued with respect to any aircraft will comply with
the final sentence of Section 1(g) of the Letter Agreement. The covenants
set forth in this Section 13 shall apply only if AIFS owns one or more
Class C Certificates.
IN WITNESS WHEREOF, we have executed this Purchase
Agreement as of the date first written above.
Very truly yours,
US AIRWAYS, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
----------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President and Treasurer
Accepted as of the date hereof
Airbus Industrie Financial Services
By: /s/ Xxxxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Director
SCHEDULE I
Class C Pass Through Certificates, Series 2000-3
Pass Through Aggregate Interest Final Expected
Certificate Designation Principal Amount Rate Distribution Date
----------------------- ---------------- ---- -----------------
2000-3C $157,054,000 8.39% March 1, 2022
