EXHIBIT 4.1
PURCHASE AGREEMENT
Dated as of
December 14, 1998
BETWEEN
US AIRWAYS, INC.
AND
AIRBUS INDUSTRIE FINANCIAL SERVICES
CLASS C PASS THROUGH CERTIFICATES, SERIES 1998-1
US AIRWAYS, INC.
CLASS C PASS THROUGH CERTIFICATES, SERIES 1998-1
PURCHASE AGREEMENT
December 14, 1998
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, a Massachusetts trust
company, 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 1998-1 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 December 4, 1998 (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 each Series Supplement being referred to herein as the
"Pass Through Agreement" and the trust created thereby being referred to as
the "Class C Trust").
A portion of the proceeds of the offering of the Class C
Certificates will be paid to the Trustee to be used to purchase Series C
Equipment Notes for the Delivered Aircraft. The remaining 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 Citibank, N.A., a
national banking association (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, as
Trustee, as Subordination Agent (as hereinafter defined), 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. ABN AMRO Bank
N.V., acting through its Chicago branch (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
A Pass Through Certificates, Series 1998-1 (the "Class A Certificates) and
the Class B Pass Through Certificates, Series 1998-1 (the "Class B
Certificates" and together with the Class A Certificates and 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, as subordination agent and trustee thereunder (the
"Subordination Agent"), 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
an Exchange and Registration Agreement, substantially in the form attached
hereto as Annex A (the "Registration Agreement"), pursuant to which the
Company will agree to file with the Securities and Exchange Commission (the
"Commission") (i) a registration statement under the Securities Act (the
"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, collectively, the Note Purchase Agreement, the Pass Through
Agreement, the Liquidity Facility, the Pass Through Certificates, the
Equipment Notes and the Intercreditor Agreement.
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 A Pass
Through Certificates and the Class B 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 0000 Xxx) 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 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 A Pass Through Certificates and the
Class B 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 Delaware 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 Closing Date (as defined in the Note Purchase Agreement)
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 is or 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 Closing Date (as defined in the Note
Purchase Agreement), 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 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 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,
0000 Xxx Xxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 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.
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 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 (the "Letter
Agreement") between AVSA, S.A.R.L. and the Company 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 is an "air carrier operating under a
certificate of convenience and necessity issued by the Civil
Aeronautics Board" within the meaning of 11 U.S.C. section 1110;
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 required to be shown; 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 required to be described in the
Offering Memorandum which are not described as required, nor any
contracts or documents of a character required to be described or
referred to in the Offering Memorandum, that are not so
described, referred to or filed as 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, the related Pass Through 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. 333-64425) 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 and the Offering Memorandum and the documents
incorporated by reference in the Offering Memorandum and no facts
have come to such counsel's attention that lead such counsel 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, 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 any
untrue statement of a material fact or omitted 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,
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 Vedder, Price, Xxxxxxx & Kammholz, 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 Shearman & Sterling, 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
shall be in form and substance reasonably satisfactory to you and (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) You shall have received on each of the date of this
Agreement and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
you, from the Company's independent public accountants, containing
statements and information of the type customarily included in accountants'
"agreed upon procedures letters" to underwriters with respect to the
financial statements and certain other financial or statistical data and
certain financial information contained in or incorporated by reference
into the Offering Memorandum.
(l) The Class A Certificates and Class B Certificates (in
each case 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, that if it should sell any Certificate,
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. 1998-1C.
(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) 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) 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) 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) 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) [RESERVED]
(c) 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.
(d) 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 Issuer in connection with the offering of
such Securities shall be deemed to be in the same proportion as the
aggregate consideration received by the Trust from the sale by the Trust of
such Securities (or securities which were exchanged into such Securities)
bears to the aggregate consideration received by such Holder in connection
with the resale of such Securities, and such Holder 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.
(e) 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 (d) above.
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) 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.
(f) 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 December 4, 1998, among the Company and Xxxxxx Xxxxxxx & Co.
Incorporated, Credit Suisse First Boston Corporation, Xxxxxx Brothers Inc.
and Xxxxxxx Xxxxx Xxxxxx Inc. 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; 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.
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 INTERNAL 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, US Airways Group, Inc., and AVSA, S.A.R.L., 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 (in each case 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/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Sr. V.P., Finance & CFO
Accepted as of the date hereof
Airbus Industrie Financial Services
By: /s/ Yann Ballet
-------------------------------
Name: Yann Ballet
Title: Managing Director
SCHEDULE I
CLASS C PASS THROUGH CERTIFICATES, SERIES 1998-1
Pass Through Aggregate Interest Final Expected
Certificate Designation Principal Amount Rate Distribution Date
----------------------- ---------------- -------- -----------------
1998-1C $141,366,000 6.82% July 30, 2014
Exhibit A
FORM OF OPINION OF SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP
Based upon the foregoing, and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. Each of the Pass Through Documents to which US Airways is a
party is a valid and binding obligation of US Airways enforceable against
US Airways in accordance with its terms.
2. Each of the Pass Through Agreement, the Intercreditor
Agreement, the Note Purchase Agreement and the Escrow Agreements is a valid
and binding obligation of each Trustee that is a party thereto enforceable
against such Trustee in accordance with its terms.
3. Each of the Liquidity Facilities, the Intercreditor
Agreement and the Note Purchase Agreement is a valid and binding obligation
of the Subordination Agent enforceable against the Subordination Agent in
accordance with its terms.
4. Each of the Escrow Agreements, the Deposit Agreements and
the Note Purchase Agreement is a valid and binding obligation of each
Escrow Agent that is a party thereto enforceable against each such Escrow
Agent in accordance with its terms.
5. Each of the Escrow Agreements and the Note Purchase
Agreement is a valid and binding obligation of the Paying Agent that is a
party thereto enforceable against such Paying Agent in accordance with its
terms.
6. The Pass Through Certificates and the Class C Certificates
are lawfully and validly Outstanding (as such term is defined in the Pass
Through Agreements) under the related Pass Through Agreement and are
entitled to the benefits of such Pass Through Agreement.
7. The Escrow Receipts are validly issued and outstanding and
are entitled to the benefits of the applicable Escrow Agreement.
8. The statements set forth under the headings "Description of
the Certificates", "Description of the Escrow Agreements", "Description of
the Liquidity Facilities", "Description of the Intercreditor Agreement" and
"Description of the Equipment Notes" in the Prospectus Supplement
incorporated in the Offering Memorandum, and the statements set forth under
the heading "Description of the Deposit Agreement" and "Registered Exchange
Offer; Registration Rights; Liquidated Damages" of the Offering Memorandum,
insofar as such statements purport to summarize certain provisions of the
Pass Through Certificates, the Class C Certificates, the Pass Through
Agreements, the Deposit Agreements, the Escrow Agreements, the Escrow
Receipts, the Liquidity Facilities, the Intercreditor Agreement, the
Equipment Notes, the Trust Agreements, the Trust Indentures, the Trust
Supplements, the Leases and the Lease Supplements, provide a fair summary
of such provisions.
9. The statements set forth under "ERISA Considerations" in the
Prospectus Supplement incorporated in the Offering Memorandum, insofar as
such statements purport to summarize certain federal laws of the United
States, provide a fair summary of such laws.
10. The statements set forth under "Description of the Equipment
Notes--Remedies" in the Prospectus Supplement incorporated in the Offering
Memorandum, insofar as such statements purport to summarize provisions of
Section 1110 of the Bankruptcy Code, provide a fair summary of such
provisions.
11. Subject to the assumptions set forth in this letter and the
assumptions and qualifications set forth in the discussion in the
Prospectus and the Prospectus Supplement incorporated in the Offering
Memorandum under the heading "Certain United States Federal Income Tax
Consequence" (the "Discussions"), we are of the opinion that (i) each Pass
Through Trust will not itself be subject to U.S. federal income taxation,
and (ii) the Discussions, insofar as they purport to address the federal
income tax laws of the United States, are accurate in all material
respects. In addition, we express no opinion as to the United States
federal, state, local, foreign or other tax consequences, other than as set
forth in the Discussions. Further, there can be no assurances that the
opinion expressed herein will be accepted by the Internal Revenue Service
(the "IRS"), or, if challenged, by a court. In rendering our opinion, we
have considered the applicable provisions of the Code, Treasury Department
regulations promulgated thereunder, pertinent judicial authorities,
interpretive rulings of the IRS, and such other authorities as we have
considered relevant. It should be noted that statutes, regulations,
judicial decisions, and administrative interpretations are subject to
change or differing interpretations at any time, possibly with retroactive
effect. A change in the authorities or the accuracy or completeness of any
of the information, documents, corporate records, covenants, statements,
representations, or assumptions on which our opinion is based could affect
our conclusions. This opinion is expressed as of the date hereof, and we
are under no obligation to supplement or revise our opinion to reflect any
changes (including changes that have retroactive effect) (i) in applicable
law or (ii) in any information, document, corporate record, covenant,
statement, representation, or assumption stated herein that becomes untrue
or incorrect.
12. None of the Company or any of the Covered Trusts 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 thereof as described in the Prospectus and the Prospectus
Supplement, neither the Covered Trusts nor the escrow arrangements
contemplated by the Escrow Agreements will result in the creation of an
"investment company" within the meaning of the Investment Company Act.
13. The issuance and sale of the Class C Certificates to AIFS
pursuant to the Purchase Agreement, the issuance and sale of the Pass
Through Certificates to the Underwriters pursuant to the Underwriting
Agreement, the issuance of the Escrow Receipts attached to the Class C
Certificates and the Pass Through Certificates and the valid authorization,
execution and delivery of the Pass Through Documents to which it is a party
by US Airways and the performance by US Airways of its respective
obligations under the Pass Through Documents to which it is a party do not
require US Airways to obtain or effect any consent, approval,
authorization, registration or qualification of or with any governmental
agency or body of the United States of America (excluding the
Transportation Code and rules and regulations of the FAA) or the State of
New York, except such as may be required by the "Blue Sky" laws of the
various states in connection with the purchase and distribution of the
Class C Certificates and by the Company's performance of its obligations
under the Registration Rights Agreement and, with regard to the Pass
Through Certificates only, except such as are required under the Securities
Act of 1933, as amended (the "1933 Act"), and the Trust Indenture Act of
1939, as amended (the "1939 Act").
14. Neither the execution and delivery by US Airways of the Pass
Through Documents to which US Airways is a party nor the compliance by US
Airways with the respective terms thereof that are applicable to it will
contravene any law, rule or regulation of the State of New York or the
United States of America generally applicable to transactions of this type.
15. Each of the Escrow Agreements creates a valid escrow under
New York law and a valid equitable interest in the escrowed property in
favor of the corresponding Trustee. Neither a New York court nor a United
States federal court applying New York law or the Bankruptcy Code (in the
case of a holder of an Escrow Receipt that is eligible for relief under
Section 109 of the Bankruptcy Code), if properly presented with the issue
and after having properly considered such issue, would permit any holder of
an Escrow Receipt to terminate the related Escrow Agreement, except in
accordance with its terms.
16. So long as an Escrow Agreement has not been terminated and
whether or not any insolvency proceeding has been commenced, creditors of
any person that is a holder of an Escrow Receipt issued under the Escrow
Agreement, a receiver, liquidator, or holder of a lien against the assets
of any such person, and any trustee in bankruptcy of such a person (if the
person is eligible for relief under section 109 of the Bankruptcy Code)
(collectively, the "Creditors") may acquire valid claims or liens, as to
the Deposits established under the Deposit Agreement and as to the related
Deposit Agreement and Escrow Agreement, only against the rights of the
holder of the Escrow Receipt under the Escrow Agreement and do not have,
and may not through the enforcement of such Creditors' rights acquire, any
greater right than the holder of the Escrow Receipt with respect to the
Deposits, Deposit Agreement or Escrow Agreement.
17. No creditor of US Airways or any of its subsidiaries, and no
holder of a lien against the assets of any such person, such as trustees,
receivers or liquidators (whether or not any insolvency proceeding has been
commenced), may acquire valid claims or liens as to the Deposits and the
related Deposit Agreements and Escrow Agreements.
18. Assuming, without independent investigation, (i) the
accuracy of the representations and warranties of the Company set forth in
Section 2 of the Purchase Agreement and of AIFS in Section 4 of the
Purchase Agreement, (ii) the due performance by the Company of the
covenants and agreements set forth in Section 3 and Section 5 of the
Purchase Agreement, and (iii) compliance by AIFS with the offering and
transfer procedures and restrictions described in the Offering Memorandum,
the offer, sale and delivery of the Class C Certificates to AIFS in the
manner contemplated by the Purchase Agreement and the Offering Memorandum
do not require registration under the 1933 Act, and the Indenture does not
require qualification under the 1939 Act, it being understood that we
express no opinion as to any subsequent resale of any Class C Certificates.
Exhibit B
FORM OF OPINION OF XXXXXXX XXXX LLP
Based upon the foregoing, we are of the opinion that:
1. State Street is a Massachusetts trust company, validly
formed and authorized to operate as a state-chartered trust company under
the laws of the Commonwealth of Massachusetts and has the requisite
corporate and trust power, authority and legal right to execute, deliver
and perform its obligations under the State Street Documents and, in its
capacity as Pass Through Trustee, has requisite corporate power, authority
and legal right to issue and execute the Class C Certificates delivered on
the date herewith.
2. The execution, delivery and performance by State
Street, in its individual capacity or as Pass Through Trustee,
Subordination Agent and Paying Agent, as the case may be, of the State
Street Documents and the consummation by State Street, in its individual
capacity or as Pass Through Trustee, Subordination Agent and Paying Agent,
as the case may be, of the transactions contemplated thereby and compliance
by State Street, in its individual capacity or as Pass Through Trustee,
Subordination Agent and Paying Agent, as the case may be, with the terms
thereof including, without limitation, the execution and issuance of Class
C Certificates delivered on the date herewith, have been duly authorized by
all necessary corporate action on the part of State Street, and neither the
execution and delivery thereof nor the consummation by State Street, in its
individual capacity or as Pass Through Trustee, Subordination Agent and
Paying Agent, as the case may be, of the transactions contemplated thereby
nor compliance by State Street, in its individual capacity or as Pass
Through Trustee, Subordination Agent and Paying Agent, as the case may be,
with any of the terms and provisions thereof (i) does or will violate or
result in a breach of, or constitute any default under, State Street's
charter documents or by-laws or the provisions of any indenture, mortgage,
contract or other agreement, in each case known to us, to which it is a
party or by which it or any of its properties is or may be bound or
affected or (ii) does or will violate any law or governmental rule or
regulation of the United States governing the banking or trust powers of
State Street or of the Commonwealth of Massachusetts, or any order or
judgment known to us and applicable to or binding on State Street.
3. Neither the execution and delivery by State Street, in
its individual capacity or as Pass Through Trustee, Subordination Agent and
Paying Agent, as the case may be, of the State Street Documents or the
issuance of the Offered Certificates issued and delivered on the date
herewith nor the performance by State Street, in its individual capacity or
as Pass Through Trustee, Subordination Agent and Paying Agent, as the case
may be, of any of the transactions contemplated thereby requires the
consent or approval of, the giving of notice to, the registration with, the
recording or filing of any document with, or the taking of any other action
in respect of, any federal or Massachusetts governmental authority or
agency governing the banking or trust powers of State Street or under any
Massachusetts law.
4. Each of the State Street Documents has been duly
executed and delivered by State Street, in its individual capacity or as
Pass Through Trustee, Subordination Agent and Paying Agent, as the case may
be, and is the legal, valid and binding obligation of State Street, in its
individual capacity or as Pass Through Trustee, Subordination Agent and
Paying Agent, as the case may be, enforceable against State Street, in its
individual capacity or as Pass Through Trustee, Subordination Agent and
Paying Agent, as the case may be, in accordance with its terms.
5. The Class C Certificates issued on and dated the date
herewith have been duly issued, authenticated and delivered by State Street
pursuant to the terms of the State Street Documents.
6. To our knowledge, but without having investigated any
governmental records or court dockets, and without having made any other
independent investigation, there are no pending or overtly threatened
actions or proceedings against State Street before any court or
administrative agency or arbitration board or tribunal which individually
or in the aggregate, if determined adversely to it, could reasonably be
expected to affect materially adversely the ability of State Street to
perform its obligations under the State Street Documents.
7. There are no taxes, fees or other governmental charges
("Taxes") payable under the laws of the Commonwealth of Massachusetts with
respect to the execution of and delivery by State Street, in its individual
capacity or as Pass Through Trustee, as the case may be, of any of the
State Street Documents (except for Taxes on any fees payable to State
Street in its individual capacity) which would not have been imposed if
State Street did not have its principal place of business in Massachusetts
or did not perform its administrative duties under the State Street
Documents in Massachusetts, and, assuming that the trust created by the
Trust Agreement will not be taxable as a corporation, but, rather, will be
characterized as a grantor trust under subpart E, Part I of Subchapter J of
the Internal Revenue Code of 1986, as amended, (i) such trust will not be
subject to any fees, taxes or other charges imposed by the Commonwealth of
Massachusetts or any political subdivision or taxing authority thereof
based on income, receipts, value or otherwise, and (ii) Holders that are
not residents of or otherwise subject to tax in Massachusetts will not be
subject to any taxes imposed by the Commonwealth of Massachusetts or any
political subdivision or taxing authority thereof as a result of
purchasing, holding (including receiving payments with respect to) or
selling a Certificate.
Exhibit C
FORM OF OPINION OF RAY, XXXXXXX & XXXXXXX
Based on and subject to the foregoing, we are of the opinion that:
1. The Escrow Agent is a national banking association duly
organized and validly existing 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 of America pertaining to its banking,
trust and fiduciary powers to conduct its business and operations as
currently conducted and to enter into, execute and deliver the Operative
Agreements to which the Escrow Agent is a party (the "Transaction
Documents") and perform its obligations thereunder.
2. The execution, delivery and performance by the Escrow
Agent of the Transaction Documents, the consummation by the Escrow Agent of
the transactions contemplated thereby and compliance by the Escrow Agent
with the terms thereof (i) have been duly authorized by all necessary
corporate action on the part of the Escrow Agent and do not require any
stockholder approval or consent of any trustee or holder of any
indebtedness or obligations of the Escrow Agent, (ii) do not and will not
contravene, or result in a breach of or constitute any default under its
charter documents or by-laws, or the provisions of any indenture, mortgage,
contract or other agreement known to us, to which it is party or by which
it or any of its properties is or may be bound or affected and (iii) does
not and will not contravene any law or governmental rule or regulation of
the United States of America or the State of Utah, or any order, judgment,
injunction or decree known to us and applicable to or binding on the Escrow
Agent or by which any of its properties is bound, or require the consent or
approval of, the giving of notice to, or the registration with, or the
taking of any action in respect of, or under, the laws of the United States
of America or the laws of the State of Utah or any subdivision or agency
thereof.
3. Each of the Transaction Documents has been duly
executed and delivered by the Escrow Agent and assuming that each such
agreement is the legal, valid and binding obligation of each other party
thereto, is the legal, valid and binding obligation of the Escrow Agent,
enforceable against the Escrow Agent in accordance with its terms.
4. To our knowledge, there are no pending or threatened
actions, suits, investigations or proceedings (whether or not purportedly
on behalf of the Escrow Agent) against or affecting the Escrow Agent or any
of its property before or by any court or administrative agency which,
individually or in the aggregate, if adversely determined, (A) would
adversely affect the ability of the Escrow Agent to perform its obligations
under any of the Transaction Documents or (B) would call into question or
challenge the validity of the Transaction Documents or the enforceability
thereof.
Exhibit D
FORM OF OPINION OF VEDDER, PRICE, XXXXXXX & KAMMHOLZ
Based upon and subject to the foregoing, it is our opinion that:
1. Each of the Liquidity Documents constitutes the legal,
valid and binding obligation of each of the parties thereto enforceable
against such parties in accordance with its terms, except as such
enforceability is limited by (i) bankruptcy, receivership, conservatorship,
insolvency, fraudulent transfer, liquidation, reorganization, moratorium or
other laws affecting creditors' rights and remedies generally from time to
time in effect as the same may be applied in the event of the bankruptcy,
receivership, conservatorship, insolvency, moratorium, liquidation,
reorganization or similar situation of any such party, or other similar
occurrence with respect to any such party or by laws affecting the rights
of creditors of depository institutions, (ii) the possible judicial
application of foreign laws or governmental action affecting creditors'
rights generally, (iii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
public policy and applicable law relating to fiduciary duties, and (iv) any
implied covenant of good faith and fair dealing.
2. ABN AMRO Bank N.V. is licensed by the Office of Banks
and Real Estate of the State of Illinois to maintain its branch at 000
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx (the "Branch"), in accordance with the
banking law of the State of Illinois and the Branch has the full power,
authority and legal right to execute and deliver the Liquidity Documents.
3. The execution, delivery and performance by ABN AMRO of
the Liquidity Documents, and the consummation of the transactions
contemplated therein do not violate any banking law, or any governmental
rule or regulation relating thereto, of the United States of America, the
State of Illinois or the State of New York.
4. No authorization, consent, approval or other action by,
and no notice to or filing with, any banking authority or regulatory body
of the United States of America, the State of Illinois or the State of New
York is required for the due execution, delivery and performance by ABN
AMRO of the Liquidity Documents other than administrative and ministerial
filings which ABN AMRO is obligated to make in the ordinary course of its
business (which filings we have assumed have been and will continue to be
made in a timely manner).
5. The payment obligations of ABN AMRO under the Liquidity
Documents constitute unsecured and unsubordinated obligations of ABN AMRO.
Exhibit E
FORM OF OPINION OF SHEARMAN & STERLING AND
IN-HOUSE COUNSEL FOR THE DEPOSITARY
Based upon and subject to the foregoing, we are of the opinion that:
1. The Deposit Agreement constitutes the legal, valid and
binding obligation of Citibank, enforceable in accordance with its terms.
2. Subject to the provisions of 12 U.S.C. section 1821, the
obligations of Citibank under the Deposit Agreement will rank equally with
the unsecured deposit obligations of Citibank and all other unsecured
indebtedness of Citibank that is not contractually subordinated to the
payment of such obligations.
3. The Bank is duly organized and validly existing under the
Federal laws of the United States and is duly qualified to conduct banking
business in the State of New York.
4. The execution, delivery and performance by the Bank of the
Deposit Agreement, and the transactions contemplated thereby, have been
duly authorized by all necessary actions and proceedings by or on behalf of
the Bank, do not contravene the Articles of Incorporation or By-Laws of the
Bank and do not violate any law or regulation of the United States of
America or the State of New York or, to the best of my knowledge, any
order, writ, injunction or decree of any court or governmental agency
against the Bank.
5. The Bank has duly executed and delivered the Deposit
Agreement.
6. No authorization, consent or approval of or other action by,
and no notice to or filing with, any United States Federal or New York
state governmental authority or regulatory body is required for the
execution, delivery or performance by the Bank of the Deposit Agreement.
7. To the best of my knowledge after due inquiry, there is no
pending or threatened action, suit, investigation or proceeding against or
affecting the Bank or any of its property before or by any court or
administrative agency in the State of New York that, if adversely
determined, (i) would adversely affect the ability of the Bank to perform
its obligations under the Deposit Agreement or (ii) would call into
question or challenge the validity of the Deposit Agreement or the
enforceability thereof in accordance with the terms thereof.
