---------------------------------------------------------------
NOTE PURCHASE AGREEMENT
Dated as of March 3, 2000
Among
US AIRWAYS, INC.,
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Pass Through Trustee under the
Pass Through Trust Agreement
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Subordination Agent
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
and
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Paying Agent
--------------------------------------------------------------
INDEX TO NOTE PURCHASE AGREEMENT
--------------------------------
Page
----
SECTION 1. Definitions.............................................3
SECTION 2. Financing of New Aircraft...............................3
SECTION 3. Conditions Precedent....................................8
SECTION 4. Representations and Warranties..........................9
SECTION 5. Covenants..............................................14
SECTION 6. Notices................................................15
SECTION 7. Expenses...............................................15
SECTION 8. Further Assurances.....................................16
SECTION 9. Miscellaneous..........................................16
SECTION 10. Governing Law..........................................17
SCHEDULES
---------
Schedule I New Aircraft and Scheduled Closing Months
Schedule II Trust Supplement
Schedule III Deposit Agreement
Schedule IV Escrow and Paying Agent Agreement
Schedule V Mandatory Document Terms
Schedule VI Mandatory Economic Terms
Schedule VII Aggregate Amortization Schedule
ANNEX
-----
Annex A Definitions
EXHIBITS
--------
Exhibit A-1 Form of Leased Aircraft Participation Agreement
Exhibit A-2-1 Form of Basic Lease
Exhibit A-2-2 Form of Deferred Equity/Prepaid-Deferred Rent Lease
Exhibit A-3 Form of Leased Aircraft Indenture
Exhibit A-4 Form of Leased Aircraft Purchase Agreement Assignment
Exhibit A-5 Form of Leased Aircraft Trust Agreement
Exhibit A-6 Form of Leased Aircraft French Pledge Agreement
Exhibit B Form of Closing Notice
Exhibit C-1 Form of Owned Aircraft Participation Agreement
Exhibit C-2 Form of Owned Aircraft Indenture
Exhibit C-3 Form of Owned Aircraft Purchase Agreement Assignment
Exhibit C-4 Form of Owned Aircraft French Pledge Agreement
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of March 3, 2000, among
(i) US Airways, Inc., a Delaware corporation (the "Company"), (ii) State
Street Bank and Trust Company of Connecticut, National Association, a
national banking association, not in its individual capacity except as
otherwise expressly provided herein, but solely as trustee (in such
capacity together with its successors in such capacity, the "Pass Through
Trustee") under the Pass Through Trust Agreement (as defined below), (iii)
State Street Bank and Trust Company of Connecticut, National Association, a
national banking association, as subordination agent and trustee (in such
capacity together with its successors in such capacity, the "Subordination
Agent") under the Intercreditor Agreement (as defined below), (iv) First
Security Bank, National Association, a national banking association, as
Escrow Agent (in such capacity together with its successors in such
capacity, the "Escrow Agent"), under the Escrow and Paying Agent Agreement
(as defined below) and (v) State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, as
Paying Agent (in such capacity together with its successors in such
capacity, the "Paying Agent") under the Escrow and Paying Agent Agreement.
W I T N E S S E T H:
-------------------
WHEREAS, US Airways Group, Inc. ("Group") has obtained
commitments from the Seller pursuant to the Aircraft Purchase Agreement for
the delivery of the five (5) aircraft listed in Schedule I hereto (together
with any aircraft substituted therefor in accordance with the Aircraft
Purchase Agreement prior to the delivery thereof, the "New Aircraft");
WHEREAS, pursuant to the Basic Pass Through Trust Agreement and
the Trust Supplement set forth in Schedule II hereto, and concurrently with
the execution and delivery of this Agreement, a grantor trust (the "Pass
Through Trust") has been created to facilitate certain of the transactions
contemplated hereby, including, without limitation, the issuance and sale
of pass through certificates pursuant thereto (collectively, the
"Certificates") to provide for a portion of the financing of the New
Aircraft;
WHEREAS, the Company has entered into the Underwriting
Agreement dated as of February 25, 2000 (the "Underwriting Agreement") with
the several underwriters (the "Underwriters") named therein, which provides
that the Company will cause the Pass Through Trustee of the Class G Trust
to issue and sell the Class G Certificates to the Underwriters;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) the Escrow Agent and the Depositary entered into the Deposit
Agreement set forth in Schedule III hereto (the "Deposit Agreement")
whereby the Escrow Agent agreed to direct the Underwriters to make certain
deposits referred to therein on the Issuance Date (the "Initial Deposits")
and to permit the Pass Through Trustee to make additional deposits from
time to time thereafter (the Initial Deposits together with such additional
deposits are collectively referred to as the "Deposits") and (ii) the Pass
Through Trustee, the Underwriters, the Paying Agent and the Escrow Agent
entered into the Escrow and Paying Agent Agreement set forth in Schedule IV
hereto (the "Escrow and Paying Agent Agreement") whereby, among other
things, (a) the Underwriters agreed to deliver an amount equal to the
amount of the Initial Deposits to the Depositary on behalf of the Escrow
Agent and (b) the Escrow Agent, upon the Depositary receiving such amount,
has agreed to deliver escrow receipts to be affixed to each Certificate;
WHEREAS, the Company will determine whether to enter into a
leveraged lease transaction as lessee with respect to such New Aircraft (a
"Leased Aircraft") or to issue secured equipment notes in order to finance
such New Aircraft (an "Owned Aircraft") and will give to the Pass Through
Trustee a Closing Notice (as defined below) specifying its election;
WHEREAS, upon receipt of a Closing Notice with respect to a New
Aircraft, subject to the terms and conditions of this Agreement, the Pass
Through Trustee will enter into the applicable Financing Agreements
relating to such New Aircraft;
WHEREAS, on the Closing Date under the applicable Financing
Agreements, the Pass Through Trustee will fund its purchase of Equipment
Notes with the proceeds of one or more Deposits withdrawn by the Escrow
Agent under the Deposit Agreement bearing the same interest rate as the
Certificates issued by such Pass Through Trust;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) Bayerische Landesbank Girozentrale, a public law banking
institution organized under the laws of the Free State of Bavaria, Germany
(the "Liquidity Provider"), has entered into a revolving credit agreement (
a "Liquidity Facility"), for the benefit of the Certificate Holders of the
Pass Through Trust, with the Subordination Agent, as agent for the Pass
Through Trustee on behalf of the Pass Through Trust and (ii) the Pass
Through Trustee, the Liquidity Provider, the Policy Provider (as defined
below) and the Subordination Agent have entered into the Intercreditor
Agreement, dated as of the date hereof (the "Intercreditor Agreement"); and
WHEREAS, concurrently with the execution and delivery of this
Agreement, MBIA Insurance Corporation, a New York stock insurance company
(the "Policy Provider") has entered into the Insurance and Indemnity
Agreement (the "Policy Provider Agreement"), with the Company and the
Subordination Agent, as agent and trustee for the Pass Through Trustee of
the Class G Trust on behalf of the Class G Trust, and the Policy Provider
has issued the financial guarantee insurance policy (the "Policy") provided
for therein for the benefit of the Class G Certificate Holders.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used but not defined
herein shall have the respective meanings set forth or incorporated by
reference in Annex A.
Section 2. Financing of New Aircraft. (a) The Company confirms
that Group has entered into the Aircraft Purchase Agreement with the Seller
pursuant to which Group has agreed to purchase, and the Seller has agreed
to deliver, the New Aircraft in the months specified in Schedule I hereto,
all on and subject to terms and conditions specified in the Aircraft
Purchase Agreement. Group may, prior to the scheduled delivery date for the
New Aircraft, assign the right to purchase the New Aircraft to the Company.
The Company agrees that the New Aircraft will be financed in the manner
provided herein, all on and subject to the terms and conditions hereof and
of the relevant Financing Agreements.
(b) In furtherance of the foregoing, the Company agrees
to give the parties hereto, the Depositary, the Policy Provider and each of
the Rating Agencies not less than two (2) Business Day's prior notice (a
"Closing Notice") of the scheduled closing date (the "Scheduled Closing
Date") (or, in the case of a Substitute Closing Notice under Section 2(f)
or (g) hereof, one (1) Business Day's prior notice) of a financing in
respect of each New Aircraft, which notice shall:
(i) specify whether the Company has elected
to treat such New Aircraft as a Leased Aircraft or an Owned Aircraft;
(ii) specify the Scheduled Closing Date on
which the financing therefor in the manner provided herein shall be
consummated, which Scheduled Closing Date shall be within 120 days of
the delivery of such New Aircraft from the Seller to the Company or
Group (or, with Rating Agency Confirmation, a longer period following
delivery of such New Aircraft from Seller to the Company or Group,
but in no event on or after the Cut-Off Date) and prior to the
Cut-Off Date;
(iii) instruct the Pass Through Trustee to
instruct the Escrow Agent to provide a Notice of Purchase Withdrawal
to the Depositary with respect to the Series G Equipment Notes to be
issued in connection with the financing of such New Aircraft;
(iv) instruct the Pass Through Trustee to enter
into the Participation Agreement included in the Financing Agreements
with respect to such Aircraft in such form and at such a time on or
before the Scheduled Closing Date specified in such Closing Notice
and to perform its obligations thereunder;
(v) specify the aggregate principal amount of
Series G Equipment Notes to be issued, and purchased by the Pass
Through Trustee, in connection with the financing of such New
Aircraft on such Scheduled Closing Date (which shall in all respects
comply with the Mandatory Economic Terms); and
(vi) if such New Aircraft is to be a Leased
Aircraft, certify that the related Owner Participant (A) is not an
Affiliate of the Company and (B) based on the representations of such
Owner Participant, is either (1) a Qualified Owner Participant or (2)
any other person the obligations of which under the Owner Participant
Documents (as defined in the applicable Participation Agreement) are
guaranteed by a Qualified Owner Participant.
Notwithstanding the foregoing, in the event the Scheduled Closing Date for
any Aircraft to be financed pursuant to the terms hereof is on or within 3
Business Days following the date of issuance of the Certificates, the
Closing Notice therefor may be delivered to the parties hereto on such
Scheduled Closing Date.
(c) Upon receipt of a Closing Notice, the Pass Through
Trustee shall, and shall cause the Subordination Agent to, enter into and
perform their obligations under the Participation Agreement specified in
such Closing Notice, provided, however, that such Participation Agreement
and the other Financing Agreements to be entered into pursuant to such
Participation Agreement shall be in the forms thereof annexed hereto in all
material respects with such changes therein as shall have been requested by
the Company or the related Owner Participant (in the case of Lease
Financing Agreements), and agreed to by the Company and, if modified in any
material respect, as to which prior written consent of the Policy Provider
shall have been obtained and as to which Rating Agency Confirmation shall
have been obtained from each Rating Agency by the Company (to be delivered
by the Company to the Pass Through Trustee and the Policy Provider on or
before the relevant Closing Date, it being understood that if Policy
Provider consent and Rating Agency Confirmation shall have been received
with respect to any Financing Agreements and such Financing Agreements are
utilized for subsequent New Aircraft (or Substitute Aircraft) without
material modifications, no additional Policy Provider consent or Rating
Agency Confirmation shall be required); provided, however, that the
relevant Financing Agreements as executed and delivered shall not vary the
Mandatory Economic Terms and shall contain the Mandatory Document Terms (as
such Mandatory Document Terms may be modified in accordance with Schedule V
hereto). Notwithstanding the foregoing, if any Financing Agreement annexed
hereto shall not have been reviewed by either Rating Agency prior to the
Issuance Date, then, prior to the use thereof in connection with the
financing of any Aircraft hereunder, the Company shall obtain from each
Rating Agency a confirmation that the use of such Financing Agreement would
not result in (A) a reduction of the rating for the Class G Certificates
below the then current rating for such Class of Certificates (without
regard to the Policy) or (B) a withdrawal or suspension of the rating of
the Class G Certificates, in each case, without regard to the Policy.
(d) With respect to each New Aircraft, the Company shall
cause State Street Bank and Trust Company of Connecticut, National
Association (or such other person that meets the eligibility requirements
to act as loan trustee under the Leased Aircraft Indenture or Owned
Aircraft Indenture) to execute as Loan Trustee the Financing Agreements
relating to such Aircraft to which such Loan Trustee is intended to be a
party, and shall concurrently therewith execute such Financing Agreements
to which the Company is intended to be a party and perform its respective
obligations thereunder. Upon the request of either Rating Agency or of the
Policy Provider, the Company shall deliver or cause to be delivered to each
Rating Agency or the Policy Provider, as the case may be, a true and
complete copy of each Financing Agreement relating to the financing of each
New Aircraft together with a true and complete set of the closing
documentation (including legal opinions) delivered to the related Loan
Trustee, Subordination Agent and Pass Through Trustee under the related
Participation Agreement.
(e) If after giving any Closing Notice, there shall be a
delay in the delivery of a New Aircraft, or if on the Scheduled Closing
Date of a New Aircraft the financing thereof in the manner contemplated
hereby shall not be consummated for whatever reason, the Company shall give
the parties hereto and the Policy Provider prompt notice thereof.
Concurrently with the giving of such notice of postponement or
subsequently, the Company shall give the parties hereto and the Policy
Provider a substitute Closing Notice specifying the date (the "Substitute
Closing Date") to which the applicable financing shall have been
re-scheduled (which shall be a Business Day before the earlier of (x) the
120th day following the delivery of the Aircraft from the Seller to the
Company or Group, as the case may be (or, with Rating Agency Confirmation,
a longer period following delivery of such New Aircraft from Seller to the
Company or Group) and (y) the Cut-Off Date on which the Escrow Agent shall
be entitled to withdraw one or more Deposits under the Deposit Agreement to
enable each Pass Through Trustee to fund its purchase of the related
Equipment Notes). Upon receipt of any such notice of postponement, the Pass
Through Trustee shall comply with its obligations under Section 5.01(b) of
the Trust Supplement and thereafter the financing of the relevant New
Aircraft shall take place on the Substitute Closing Date therefor (all on
and subject to the terms and conditions of the relevant Financing
Agreements) unless further postponed as provided herein.
(f) Anything in this Section 2 to the contrary
notwithstanding, the Company shall have the right at any time on or before
the Scheduled Closing Date of any New Aircraft, and subsequent to its
giving a Closing Notice therefor, to postpone the Scheduled Closing Date of
such New Aircraft so as to enable the Company to change its election to
treat such New Aircraft as a Leased Aircraft or an Owned Aircraft by
written notice of such postponement to the other parties hereto. The
Company shall subsequently give the parties hereto and the Policy Provider
a substitute Closing Notice complying with the provisions of Section 2(b)
hereof and specifying the new Closing Date for such postponed New Aircraft
(which shall be a Business Day occurring before the earlier of (x) the
120th day following the delivery of the Aircraft from the Seller to the
Company or Group, as the case may be (or, with Rating Agency Confirmation,
a longer period following delivery of such New Aircraft from Seller to the
Company or Group) and (y) the Cut-Off Date and on which the Escrow Agent
shall be entitled to withdraw Deposits under the Deposit Agreement
sufficient to enable the Pass Through Trustee to fund its purchase of the
related Equipment Notes). All other terms and conditions of this Note
Purchase Agreement shall apply to the financing of any such New Aircraft on
the re-scheduled Closing Date therefor except the re-scheduled Closing Date
shall be deemed the Closing Date of such New Aircraft for all purposes of
this Section 2.
(g) If the delivery date for any New Aircraft under the
Aircraft Purchase Agreement is delayed for more than 30 days beyond the
month scheduled for delivery or February 7, 2001, the Company may identify
for delivery a substitute aircraft therefor meeting the following
conditions (together with the substitute aircraft referred to in the next
sentence, a "Substitute Aircraft"): (i) a Substitute Aircraft must be an
Airbus Model A330 aircraft delivered by the Seller to the Company after
January 31, 2000 and (ii) the Company shall be obligated to obtain prior
written consent of the Policy Provider and to obtain Rating Agency
Confirmation in respect of the replacement of any New Aircraft by
Substitute Aircraft. Upon the satisfaction of the conditions set
forth above with respect to a Substitute Aircraft, the New Aircraft to be
replaced shall cease to be subject to this Agreement and all rights and
obligations of the parties hereto concerning such New Aircraft shall cease,
and such Substitute Aircraft shall become and thereafter be subject to the
terms and conditions of this Agreement to the same extent as such New
Aircraft.
(h) The Company shall have no liability for the failure
of the Pass Through Trustee to purchase Equipment Notes with respect to any
New Aircraft or Substitute Aircraft, other than the Company's obligation,
if any, to pay the Deposit Make-Whole Amount pursuant to Section 5(a)(i) of
this Agreement.
(i) The parties agree that if, in connection with the
delivery of a New Aircraft or Substitute Aircraft, any Owner Participant
who is to be a party to any Lease Financing Agreements shall not be a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Act, then the applicable Lease Financing Agreements shall be
modified, consistent with the Mandatory Document Terms (as such Mandatory
Document Terms may be modified in accordance with Schedule V hereto), to
require such Owner Participant to enter into a voting trust, voting powers
or similar arrangement satisfactory to the Company that (A) enables such
New Aircraft or Substitute Aircraft to be registered in the United States
and (B) complies with the FAA regulations issued under the Act applicable
thereto.
(j) Anything herein to the contrary notwithstanding, the
Company shall not have the right, and shall not be entitled, at any time to
request the issuance of Series G Equipment Notes to the Pass Through
Trustee in an aggregate principal amount in excess of the amount of the
Deposits then available for withdrawal by the Escrow Agent under and in
accordance with the provisions of the Deposit Agreement.
(k) Anything herein to the contrary notwithstanding, the
Company and Group shall each have the right to accept delivery of a New
Aircraft under the Aircraft Purchase Agreement on the delivery date
therefor under the Aircraft Purchase Agreement; provided that the Company
shall in any event, give the parties hereto a Closing Notice specifying a
Scheduled Closing Date not later than one hundred twenty (120) days after
the delivery of such New Aircraft under the Aircraft Purchase Agreement
(or, with Rating Agency Confirmation, a longer period following delivery of
such New Aircraft from Seller to the Company or Group) and before the
Cut-Off Date and otherwise complying with the provisions of Section 2(b)
hereof. All other terms and conditions of this Note Purchase Agreement
shall apply to the financing of any such New Aircraft on the new Scheduled
Closing Date therefor except (i) the Scheduled Closing Date shall be deemed
to be the Closing Date of such New Aircraft for all purposes of this
Section 2 and (ii) the related Financing Agreements shall be amended to
reflect the original delivery of such New Aircraft to the Company.
Section 3. Conditions Precedent. The obligation of the Pass
Through Trustee to enter into, and to cause the Subordination Agent to
enter into, any Participation Agreement as directed pursuant to a Closing
Notice and to perform its obligations thereunder is subject to satisfaction
of the following conditions:
(a) no Triggering Event shall have occurred; and
(b) the Company shall have delivered a certificate to the
Pass Through Trustee, the Policy Provider and the Liquidity Provider
stating that (i) such Participation Agreement and the other Financing
Agreements to be entered into pursuant to such Participation Agreement do
not vary the Mandatory Economic Terms and contain the Mandatory Document
Terms (as such Mandatory Document Terms may be modified in accordance with
Schedule V hereto) and (ii) any substantive modification of such Financing
Agreements from the forms of such Financing Agreements attached to this
Agreement do not materially and adversely affect the Policy Provider or the
Certificate Holders, and such certification shall be true and correct.
(c) a copy of the Rating Agency Confirmation required
under Section 2 shall have been delivered to the Pass Through Trustee.
Anything herein to the contrary notwithstanding, the obligation
of the Pass Through Trustee to purchase Equipment Notes shall terminate on
the Cut-Off Date.
Section 4. Representations and Warranties.
------------------------------
(a) The Company represents and warrants on the date
hereof and on each Closing Date that:
(i) the Company is duly incorporated, validly
existing and in good standing under the laws of the State of Delaware
and is a "citizen of the United States" as defined in Section
40102(a)(15) of the Act and has the full corporate power, authority
and legal right under the laws of the State of Delaware to execute
and deliver this Agreement and each Financing Agreement to which it
will be a party and to carry out the obligations of the Company under
this Agreement and each Financing Agreement to which it will be a
party;
(ii) the execution and delivery by the
Company of this Agreement and the performance by the Company of its
obligations under this Agreement have been duly authorized by the
Company and will not violate its Certificate of Incorporation or
by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it is bound;
(iii) this Agreement constitutes the legal,
valid and binding obligation of the Company, enforceable against it
in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity; and
(iv) if a certificate is required to be delivered
under Section 3(b), the statements contained therein are true and
correct.
(b) State Street Bank and Trust Company of Connecticut,
National Association represents and warrants on the date hereof and on each
Closing Date that:
(i) State Street Bank and Trust Company of
Connecticut, National Association is duly incorporated, validly
existing and in good standing under the laws of the State of
Connecticut and is a "citizen of the United States" as defined in
Section 40102(a)(15) of the Act, and has the full corporate power,
authority and legal right under the laws of the State of Connecticut
and the United States pertaining to its banking, trust and fiduciary
powers to execute and deliver this Agreement and each Financing
Agreement to which it will be a party and to carry out the
obligations of State Street Bank and Trust Company of Connecticut,
National Association, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, under this
Agreement and each Financing Agreement to which it will be a party;
(ii) the execution and delivery by State Street
Bank and Trust Company of Connecticut, National Association, in its
capacity as Subordination Agent, Pass Through Trustee or Paying
Agent, as the case may be, of this Agreement and the performance by
State Street Bank and Trust Company of Connecticut, National
Association, in its capacity as Subordination Agent, Pass Through
Trustee or Paying Agent, as the case may be, of its obligations under
this Agreement have been duly authorized by State Street Bank and
Trust Company of Connecticut, National Association, in its capacity
as Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it is bound; and
(iii) this Agreement constitutes the legal,
valid and binding obligation of State Street Bank and Trust Company
of Connecticut, National Association, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, enforceable against it in accordance with its terms,
except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general principles of equity,
whether considered in a proceeding at law or in equity.
(c) The Pass Through Trustee hereby confirms to each of
the other parties hereto that its representations and warranties set forth
in Section 7.15 of the Basic Pass Through Trust Agreement and Section 5.04
of the Trust Supplement are true and correct as of the date hereof.
(d) The Subordination Agent represents and warrants as of
the date hereof and as of each Closing Date that:
(i) the Subordination Agent is duly organized,
validly existing and in good standing under the laws of the United
States and has the full corporate power, authority and legal right
under the laws of the State of Connecticut and the United States
pertaining to its banking, trust and fiduciary powers to execute and
deliver this Agreement and each Financing Agreement to which it is or
will be a party and to perform its obligations under this Agreement
and each Financing Agreement to which it is or will be a party;
(ii) this Agreement has been duly authorized,
executed and delivered by the Subordination Agent; this Agreement
constitutes the legal, valid and binding obligations of the
Subordination Agent enforceable against it in accordance with its
terms, except as the same may be limited by applicable bankruptcy,
insolvency reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general principles of equity,
whether considered in a proceeding at law or in equity;
(iii) none of the execution, delivery and
performance by the Subordination Agent of this Agreement contravenes
any law, rule or regulation of the State of Connecticut or any United
States governmental authority or agency regulating the Subordination
Agent's banking, trust or fiduciary powers or any judgment or order
applicable to or binding on the Subordination Agent and do not
contravene the Subordination Agent's articles of association or
by-laws or result in any breach of, or constitute a default under,
any agreement or instrument to which the Subordination Agent is a
party or by which it or any of its properties may be bound;
(iv) neither the execution and delivery by the
Subordination Agent of this Agreement nor the consummation by the
Subordination Agent of any of the transactions contemplated hereby
requires the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect to,
any Connecticut governmental authority or agency or any federal
governmental authority or agency regulating the Subordination Agent's
banking, trust or fiduciary powers;
(v) there are no Taxes payable by the
Subordination Agent imposed by the State of Connecticut or any
political subdivision or taxing authority thereof in connection with
the execution, delivery and performance by the Subordination Agent of
this Agreement (other than franchise or other taxes based on or
measured by any fees or compensation received by the Subordination
Agent for services rendered in connection with the transactions
contemplated by the Intercreditor Agreement, the Liquidity Facility,
the Policy or the Policy Provider Agreement), and there are no Taxes
payable by the Subordination Agent imposed by the United States or
the State of Connecticut or any political subdivision of either in
connection with the acquisition, possession or ownership by the
Subordination Agent of any of the Equipment Notes (other than
franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services
rendered in connection with the transactions contemplated by the
Intercreditor Agreement, the Liquidity Facility, the Policy or the
Policy Provider Agreement); and
(vi) there are no pending or threatened actions
or proceedings against the Subordination Agent before any court or
administrative agency which individually or in the aggregate, if
determined adversely to it, would materially adversely affect the
ability of the Subordination Agent to perform its obligations under this
Agreement.
(e) The Escrow Agent represents and warrants as of the
date hereof and as of each Closing Date that:
(i) the Escrow Agent is a national banking
association duly incorporated, validly existing and in good standing
under the laws of the United States and has the full corporate power,
authority and legal right under the laws of the United States
pertaining to its banking, trust and fiduciary powers to execute and
deliver this Agreement, the Deposit Agreement and the Escrow and
Paying Agent Agreement (collectively, the "Escrow Agent Agreements")
and to carry out the obligations of the Escrow Agent under each of
the Escrow Agent Agreements;
(ii) the execution and delivery by the Escrow
Agent of each of the Escrow Agent Agreements and the performance by
the Escrow Agent of its obligations hereunder and thereunder have
been duly authorized by the Escrow Agent and will not violate its
articles of association or by-laws or the provisions of any
indenture, mortgage, contract or other agreement to which it is a
party or by which it is bound; and
(iii) each of the Escrow Agent Agreements
constitutes the legal, valid and binding obligations of the Escrow
Agent enforceable against it in accordance with its terms, except as
the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity.
(f) The Paying Agent represents and warrants as of the
date hereof and of each Closing Date that:
(i) the Paying Agent is duly organized,
incorporated, validly existing and in good standing under the laws of
the United States and has the full corporate power, authority and
legal right under the laws of the United States pertaining to its
banking, trust and fiduciary powers to execute and deliver this
Agreement and the Escrow and Paying Agent Agreement (collectively,
the "Paying Agent Agreements") and to carry out the obligations of the
Paying Agent under each of the Paying Agent Agreements;
(ii) the execution and delivery by the Paying
Agent of each of the Paying Agent Agreements and the performance by
the Paying Agent of its obligations hereunder and thereunder have
been duly authorized by the Paying Agent and will not violate its
articles of association or by-laws or the provisions of any
indenture, mortgage, contract or other agreement to which it is a
party or by which it is bound; and
(iii) each of the Paying Agent Agreements
constitutes the legal, valid and binding obligations of the Paying
Agent enforceable against it in accordance with its terms, except as
the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity.
Section 5. Covenants. (a) The Company covenants with each of the
other parties hereto that:
(i) on the date that the Depositary is obligated
to pay the amount of the Final Withdrawal to the Paying Agent
pursuant to a Deposit Agreement relating to any Trust, the Company
shall pay to the Pass Through Trustee of such Trust no later than
1:00 p.m. (New York time) an amount equal to the Deposit Make-Whole
Premium, if any, required to be paid in respect of such Final
Withdrawal amount;
(ii) subject to Section 5(a)(iv) of this
Agreement, the Company shall at all times maintain its corporate
existence and shall not wind up, liquidate or dissolve or take any
action, or fail to take any action, that would have the effect of any
of the foregoing;
(iii) the Company shall at all times remain a
U.S. Air Carrier (as defined in the Financing Agreements) and shall
at all times be otherwise certificated and registered to the extent
necessary to entitle (i) in the case of Leased Aircraft, the Owner
Trustee and the Loan Trustee to the rights afforded to lessors of
aircraft equipment under Section 1110 and (ii) in the case of Owned
Aircraft, the Loan Trustee to the rights afforded to secured parties
of aircraft equipment under Section 1110;
(iv) Section 7(e) of the Owned Aircraft
Participation Agreement Form and Section 7(v) of the Leased Aircraft
Participation Agreement Form are hereby incorporated by reference
herein;
(v) the Company agrees to provide written
notice to each of the parties hereto and the Policy Provider of the
occurrence of the Cut-Off Date no later than one Business Day after
the date thereof;
(vi) with respect to Owned Aircraft, the
Company agrees to provide each Rating Agency and the Policy Provider
with prompt written notice of any lease by the Company of any
Aircraft for a lease period of more than one (1) year; and
(vii) If the Depositary's short-term rating shall
at any time fall below the Depositary Threshold Rating from either
Moody's or Standard & Poor's, the Company shall, within 60 days of
such event occurring, cause the Depositary to be replaced with a
depository bank (a "Replacement Depositary") on the following terms
and preconditions:
(1) the Replacement Depositary must
be one that either (x) meets the Depositary Threshold Rating or (y)
with respect to which the Company shall have obtained written
confirmation from each Rating Agency that such Replacement Depositary
will not cause a reduction of any rating then in effect for the Class
G Certificates by such Rating Agency (without regard to any
downgrading of any rating of the Depositary being replaced and
without regard to the Policy) and, in either case, the Company shall
have obtained written confirmation from each Rating Agency that such
replacement will not cause a reduction or withdrawal of any rating
then in effect for the Class G Certificates by such Rating Agency
(without regard to any downgrades of any rating of the Depositary
being replaced and without regard to the Policy);
(2) the Company shall pay all fees,
expenses and other amounts then owing to the replaced Depositary; and
(3) the Company shall cause the
Escrow Agent and the Replacement Depositary to enter into a
Replacement Deposit Agreement for the Class G Certificates and shall
cause the Replacement Depositary to deliver to the Company, the
Policy Provider and each Rating Agency legal opinions and other
closing documentation substantially similar in scope and substance as
those that were delivered by the Depositary being replaced in
connection with the execution and delivery of the Deposit Agreement
being replaced.
Upon satisfaction of the foregoing conditions, the Company shall
instruct the Pass Through Trustee, and the Pass Through Trustee
agrees, to execute and deliver to the Escrow Agent a duly completed
Withdrawal Certificate (as defined in the Escrow and Paying Agent
Agreement) together with a Notice of Replacement Withdrawal (as
defined in the Escrow and Paying Agent Agreement).
Each of the parties hereto agrees, at the Company's request, to enter
into any amendments to this Agreement, the Escrow and Paying Agent
Agreement and any other Operative Documents as may be necessary or
desirable to give effect to the replacement of the Depositary with
the Replacement Depositary and the replacement of the Deposit
Agreement with the Replacement Deposit Agreements.
Upon the execution and delivery of the Replacement Deposit Agreement,
the Replacement Depositary shall be deemed to be the Depositary with
all of the rights and obligations of the Depositary hereunder and
under the other Operative Documents and the Replacement Deposit
Agreement shall be deemed to be the Deposit Agreement hereunder and
under the other Operative Documents, except that the obligations of
the replaced Depositary under the last sentence of Section 2.2 of the
Deposit Agreement shall remain in full force and effect
notwithstanding the execution and delivery of the Replacement Deposit
Agreement.
(b) State Street Bank and Trust Company of Connecticut,
National Association, in its individual capacity, covenants with each of
the other parties to this Agreement that it will, immediately upon
obtaining knowledge of any facts that would cast doubt upon its continuing
status as a "citizen of the United States" as defined in 49 U.S.C. ss.
40102(a)(15) and promptly upon public disclosure of negotiations in respect
of any transaction which would or might adversely affect such status,
notify in writing all parties hereto of all relevant matters in connection
therewith. Upon State Street Bank and Trust Company of Connecticut,
National Association giving any such notice, State Street Bank and Trust
Company of Connecticut, National Association shall, subject to Section 8.02
of any Indenture then entered into, resign as Loan Trustee in respect of
such Indenture.
(c) The Company further covenants that it will not issue
or cause to be issued any "Class C Pass Through Trust Certificates" (as
contemplated by the Company's Prospectus Supplement dated February 25,
1999) unless the Company has received written confirmation from each of the
Rating Agencies that the issuance of such certificates and the related
series C equipment notes will not result in a withdrawal, suspension or
downgrading of the rating of the Class G Certificates (without regard to
the Policy). The Company agrees, in connection with the issuance of such
"Class C Pass Through Trust Certificates," to cause the pass through
trustee for the Class C pass through trust that is formed to enter into an
amended and restated Note Purchase Agreement or a separate note purchase
agreement and in either case, to provide for the purchase of series C
equipment notes by the pass through trustee for such class C pass through
trust.
Section 6. Notices. Unless otherwise specifically provided
herein, all notices required or permitted by the terms of this Agreement
shall be in English and in writing, and any such notice shall become
effective upon being delivered personally or, if promptly confirmed by
mail, when dispatched by facsimile or other written telecommunication,
addressed to such party hereto at its address or facsimile number set forth
below the signature of such party at the foot of this Agreement. Notice to
the Policy Provider shall be given at the address specified in the Policy
Provider Agreement.
Section 7. Expenses and Indemnity. (a) The Company agrees to
pay to the Subordination Agent when due an amount or amounts equal to the
fees payable to the Liquidity Provider under Section 2.03 of the Liquidity
Facility and the related Fee Letter (as defined in the Intercreditor
Agreement) multiplied by a fraction the numerator of which shall be the
then outstanding aggregate amount of the Deposits under the Deposit
Agreement and the denominator of which shall be the sum of (x) the then
outstanding aggregate principal amount of the Series G Equipment Notes
issued under all of the Indentures and (y) the then outstanding aggregate
amount of the Deposits under the Deposit Agreement.
(b) The Company agrees to pay to the Subordination Agent
when due for application in accordance with the Intercreditor Agreement an
amount or amounts equal to the fees payable to the Policy Provider under
the Policy Fee Letter (as defined in the Policy Provider Agreement)
multiplied by a fraction the numerator of which shall be the then
outstanding aggregate amount of the Deposits under the Deposit Agreement
and the denominator of which shall be the sum of (x) the then outstanding
aggregate principal amount of the Series G Equipment Notes issued under all
of the Indentures and (y) the then outstanding aggregate amount of the
Deposits under the Deposit Agreement.
(c) So long as no Equipment Notes have been issued in
respect of any Aircraft, the Company agrees to pay (i) to the Subordination
Agent when due (A) the amount equal to interest on any Downgrade Advance
(other than any Applied Downgrade Advance) payable under Section 3.07 of
the Liquidity Facility minus Investment Earnings while such Downgrade
Advance shall be outstanding, (B) the amount equal to interest on any
Non-Extension Advance (other than any Applied Non- Extension Advance)
payable under Section 3.07 of the Liquidity Facility minus Investment
Earnings while such Non-Extension Advance shall be outstanding and (C) any
other amounts owed to the Liquidity Provider by the Subordination Agent as
borrower under the Liquidity Facility (other than amounts due as repayment
of advances thereunder or as interest on such advances, except to the
extent payable pursuant to clause (A) or (B)), (ii) all compensation and
reimbursement of expenses, disbursements and advances payable by the
Company under the Pass Through Trust Agreement, (iii) all compensation and
reimbursement of expenses and disbursements payable to the Subordination
Agent under the Intercreditor Agreement except with respect to any income
or franchise taxes incurred by the Subordination Agent in connection with
the transactions contemplated by the Intercreditor Agreement, the Liquidity
Facility or the Policy Provider Agreement and (iv) all compensation and
reimbursement of expenses and disbursements payable to the Policy Provider
under Section 3.7(i) of the Intercreditor Agreement, and (v) in the event
the Company requests any amendment to this Note Purchase Agreement or any
Operative Document, all reasonable fees and expenses (including, without
limitation, fees and disbursements of counsel) of the Escrow Agent, the
Paying Agent and/or the Policy Provider in connection therewith. For
purposes of this Section 7(c), the terms "Applied Downgrade Advance,"
"Applied Non-Extension Advance," "Downgrade Advance", "Investment Earnings"
and "Non- Extension Advance" shall have the meanings specified in the
Liquidity Facility.
(d) The Company hereby agrees to indemnify each of the
Escrow Agent and the Paying Agent from and against, and agrees to protect,
save and keep harmless the Policy Provider from any and all losses, claims
and expenses imposed on, incurred by or asserted against the Policy
Provider in any way relating to, based on or arising from the execution,
delivery and performance of this Agreement, the Deposit Agreement or the
Escrow and Paying Agent Agreement; provided, that the foregoing indemnity
shall not extend to any of the Escrow Agent or the Paying Agent with
respect to any loss, claim or expense to the extent such loss, claim or
expense is attributable to (i) a breach by any such party of this
Agreement, the Deposit Agreement or the Escrow and Paying Agent Agreement
or (ii) such party's gross negligence or willful misconduct.
(e) The Company hereby agrees to indemnify the Policy
Provider from and against, and agrees to protect, save and keep harmless
each of them from any and all losses, claims and expenses imposed on,
incurred by or asserted against any of them in any way relating to, based
on or arising from the enforcement by the Policy Provider of its rights as
a subrogee under the Escrow and Paying Agent Agreement; provided, that the
foregoing indemnity shall not extend to the Policy Provider with respect to
any loss, claim or expense to the extent such loss, claim or expense is
attributable to the Policy Provider's gross negligence or willful
misconduct and provided further, that the Policy Provider shall have no
claim against any "Indenture Estate" or "Trust Indenture Estate" (as such
terms are defined in the Financing Agreements) for any payments under this
Section 7(e).
Section 8. Further Assurances. Each party hereto shall duly
execute, acknowledge and deliver, or shall cause to be executed,
acknowledged and delivered, all such further agreements, instruments,
certificates or documents, and shall do and cause to be done such further
acts and things, in any case, as any other party hereto shall reasonably
request in connection with its administration of, or to carry out more
effectually the purposes of, or to better assure and confirm unto it the
rights and benefits to be provided under, this Agreement.
Section 9. Miscellaneous. (a) Provided that the transactions
contemplated hereby have been consummated, and except as otherwise provided
for herein, the representations, warranties and agreements herein of the
Company, the Subordination Agent, the Escrow Agent, the Paying Agent and
the Pass Through Trustee, and the Company's, the Subordination Agent's, the
Escrow Agent's, the Paying Agent's and the Pass Through Trustee's
obligations under any and all thereof, shall survive the expiration or
other termination of this Agreement and the other agreements referred to
herein.
(b) This Agreement may be executed in any number of
counterparts (and each of the parties hereto shall not be required to
execute the same counterpart). Each counterpart of this Agreement,
including a signature page executed by each of the parties hereto, shall be
an original counterpart of this Agreement, but all of such counterparts
together shall constitute one instrument. Neither this Agreement nor any of
the terms hereof may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement,
waiver or modification is sought. The index preceding this Agreement and
the headings of the various Sections of this Agreement are for convenience
of reference only and shall not modify, define, expand or limit any of the
terms or provisions hereof. The terms of this Agreement shall be binding
upon, and shall inure to the benefit of, the Company and its successors and
permitted assigns, the Pass Through Trustee and its successors as Pass
Through Trustee (and any additional trustee appointed) under any of the
Pass Through Trust Agreement, the Escrow Agent and its successors as Escrow
Agent under the Escrow and Paying Agent Agreement, the Paying Agent and its
successors as Paying Agent under the Escrow and Paying Agent Agreement and
the Subordination Agent and its successors as Subordination Agent under the
Intercreditor Agreement.
(c) This Agreement is not intended to, and shall not,
provide any person not a party hereto (other than the Underwriters and each
of the beneficiaries of Section 7 hereof and the Policy Provider (as a
third party beneficiary)) with any rights of any nature whatsoever against
any of the parties hereto, and no person not a party hereto (other than the
Underwriters and each of the beneficiaries of Section 7 hereof) shall have
any right, power or privilege in respect of, or have any benefit or
interest arising out of, this Agreement.
(d) For purposes of enforcement, the Policy Provider
shall be an express third party beneficiary of this Agreement.
Section 10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[This space intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Note
Purchase Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above written.
US AIRWAYS, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
---------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President and Treasurer
Address: 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX
00000
Attention: Treasurer
Facsimile: (000) 000-0000
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in its
individual capacity, except as otherwise
provided herein, but solely as Pass Through
Trustee
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Secretary
Address: 000 Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
with a copy to:
State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in its
individual capacity, except as otherwise
provided herein, but solely as Subordination
Agent
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Secretary
Address: 000 Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
with a copy to:
State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Escrow Agent
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Address: 00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Paying Agent
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Secretary
Address: 000 Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
with a copy to:
State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
SCHEDULE I to
NOTE PURCHASE AGREEMENT
-----------------------
NEW AIRCRAFT AND SCHEDULED DELIVERY MONTHS
NEW AIRCRAFT EXPECTED MANUFACTURER'S SCHEDULED
TYPE REGISTRATION NUMBER SERIAL NUMBER DELIVERY MONTH
Airbus A330-300 N672UW 333 April 2000
Airbus A330-300 N673UW 337 May 2000
Airbus A330-300 N674UW 342 June 2000
Airbus A330-300 N675US 370 November 2000
Airbus A330-300 N676UW 375 December 2000
SCHEDULE II to
NOTE PURCHASE AGREEMENT
-----------------------
Trust Supplement
Trust Supplement dated as of the Issuance Date between the
Company and the Pass Through Trustee in respect of US Airways Pass Through
Trust, Series 2000-1G.
SCHEDULE III to
NOTE PURCHASE AGREEMENT
-----------------------
Deposit Agreement
Deposit Agreement (Class G) dated as of the Issuance Date
between ABN AMRO Bank N.V., acting through its Chicago branch, and the
Escrow Agent.
SCHEDULE IV to
NOTE PURCHASE AGREEMENT
-----------------------
Escrow and Paying Agent Agreement
Escrow and Paying Agent Agreement (Class G) dated as of the
Issuance Date among the Escrow Agent, the Underwriters, the Pass Through
Trustee and the Paying Agent.
SCHEDULE V to
NOTE PURCHASE AGREEMENT
-----------------------
MANDATORY DOCUMENT TERMS
The terms "Trust Indenture Form," "Lease Form" and
"Participation Agreement Form" shall have the respective meanings specified
in Schedule VI to the Note Purchase Agreement. The Trust Indenture Form,
Lease Form and Participation Agreement Form have been prepared to reflect
the issuance of two series of Equipment Notes, series G and series C. If,
with respect to any particular Closing Date, the Company does not issue or
cause to be issued two series of Equipment Notes, the Trust Indenture Form,
Lease Form and Participation Agreement Form will be amended to delete
references to the Series C Equipment Notes and related terms.
1. May not modify in any material adverse respect as regards
the interests of the Note Holders, the Subordination Agent, the Liquidity
Provider, the Policy Provider or the Loan Trustee, the Granting Clause of
the Trust Indenture Form so as to deprive the Note Holders of a first
priority security interest in and mortgage lien on the Aircraft, the rights
of US Airways under the Aircraft Purchase Agreement to the extent assigned
under the Indenture and in the case of a Leased Aircraft Indenture, the
Lease or to eliminate any of the obligations intended to be secured thereby
or otherwise modify in any material adverse respect as regards the
interests of the Note Holders, the Subordination Agent, the Liquidity
Provider, the Policy Provider or the Loan Trustee the provisions of Article
II or III or Sections 4.02, 4.03, 4.04, 5.02, 5.06, 9.01, 10.04, 10.11 or
10.12 of the Trust Indenture Form for the Leased Aircraft or Article II or
III or Sections 4.02, 4.03, 4.04 5.02, 5.06, 10.01, 11.04, 11.11 or 11.12
of the Trust Indenture Form for the Owned Aircraft.
2. May not modify in any material adverse respect as regards
the interests of the Note Holders, the Subordination Agent, the Liquidity
Provider, the Policy Provider or the Loan Trustee the provisions of Section
3(c)(v), the proviso to the first sentence of Section 3(e), 7(a)(1)(A),
clause (6) of the final paragraph of Section 10(a), 18, 21, the penultimate
sentence of Section 25 or Section 27 of the Lease Form or otherwise modify
the terms of the Lease Form so as to deprive the Loan Trustee of rights
expressly granted to the "Loan Trustee" therein.
3. May not modify in any material adverse respect as regards
the interests of the Note Holders, the Subordination Agent, the Liquidity
Provider, the Policy Provider or the Loan Trustee the provisions of
Sections 4(a)(vi), 4(a)(ix)(1), 4(a)(ix)(2), 4(a)(ix)(3), 4(a)(ix)(4) (but
only to the extent relating to the representations and warranties set forth
in Sections 6(a)(vi) and 6(a)(xv)), Sections 4(a)(x), 4(a)(xi) (to the
extent such section requires special counsel for the Lessee to deliver an
opinion relating to Section 1110 of the Bankruptcy Code), 4(a)(xii),
4(a)(xiii), 4(a)(xv) and 4(a)(xvi) so as to eliminate the requirement to
deliver to the Loan Participant or the Loan Trustee, as the case may be,
the legal opinions to be provided to such Persons thereunder (recognizing
that the lawyers rendering such opinions may be changed),
Sections 7(c), 7(h), the second sentence of Section 7(n), 7(q), 7(z), 14(f)
or 14(h) of the Participation Agreement Form or of the provisions of
Section 7(d)(II)(E) of the Participation Agreement Form as regards the
rights of the Loan Trustee thereunder.
4. May not modify, in any material adverse respect as regards
the interests of the Note Holders, the Subordination Agent, the Liquidity
Provider, the Policy Provider or the Loan Trustee, the definition of
"Make-Whole Amount" in Annex A to the Participation Agreement Form.
Notwithstanding the foregoing, any such Mandatory Document Term
may be modified to correct or supplement any such provision which may be
defective or to cure any ambiguity or correct any mistake, provided,
however, that any such action shall not materially adversely affect the
interests of the Note Holders, the Subordination Agent, the Liquidity
Provider, the Policy Provider, the Loan Trustee or the Certificate Holders.
SCHEDULE VI to
NOTE PURCHASE AGREEMENT
-----------------------
MANDATORY ECONOMIC TERMS
PART I:
MANDATORY ECONOMIC TERMS OF THE SERIES G EQUIPMENT NOTES
--------------------------------------------------------
OBLIGOR: (i) in the case of Equipment Notes issued under an Owned Aircraft
Indenture, US Airways, Inc. or (ii) in the case of Equipment Notes issued
under a Leased Aircraft Indenture, an Owner Trust.
MAXIMUM PRINCIPAL AMOUNT OF SERIES G EQUIPMENT NOTES (ON AN AIRCRAFT-BY-
AIRCRAFT BASIS): The principal amount of the Series G Equipment Notes
issued with respect to an Aircraft must equal the principal amount of
Series G Equipment Notes indicated for each such Aircraft as set forth in
the Prospectus Supplement in "Prospectus Supplement Summary-Secured
Promissory Notes and the Aircraft" under the column "Principal Amount of
Series G Equipment Notes."
LOAN TO AIRCRAFT VALUE RATIO OF SERIES G EQUIPMENT NOTES (ON AN
AIRCRAFT-BY- AIRCRAFT BASIS):
1. Initial Loan to Aircraft Value Ratio. Initial Loan to
Aircraft Value (with the value of any Aircraft for these purposes
equal to the value (the "Assumed Appraised Value") for such Aircraft
set forth in the Prospectus Supplement in "Prospectus Supplement
Summary-Secured Promissory Notes and the Aircraft" under the column
"Appraised Base Value") must not exceed 51%
2. Loan to Aircraft Value Ratios on Regular Distribution Dates.
The Loan to Aircraft Value for the Series G Equipment Notes issued in
respect of each Aircraft (computed as of the date of the issuance
thereof on the basis of the Assumed Appraised Value of such Aircraft
and the Depreciation Assumption (as defined in the Prospectus
Supplement in the Glossary) must not exceed as of any Regular
Distribution Date thereafter (assuming no default in the payment of
the Equipment Notes) 51%
INITIAL AVERAGE LIFE OF SERIES G EQUIPMENT NOTES (ON AN
AIRCRAFT-BY-AIRCRAFT BASIS):
Initial Average Life (in years) of the Series G Equipment Notes
on any Aircraft must not be less than 8.5 years, and will not extend beyond
11.5 years from the Issuance Date.
INTEREST RATE FOR SERIES G EQUIPMENT NOTES:
The interest rate applicable to the Series G Equipment Notes
(the "Debt Rate") must be equal to the rate applicable to the Class G
Certificates.
PAST DUE RATE APPLICABLE TO SERIES G EQUIPMENT NOTES: Not less than Debt
Rate plus 1% per annum.
AGGREGATE PRINCIPAL AMOUNT OF SERIES G EQUIPMENT NOTES:
At the Delivery Period Termination Date, the aggregate
principal amount of Series G Equipment Notes will equal the original
aggregate face amount of the Class G Certificates, without giving effect to
any scheduled principal payments on such secured promissory notes but after
giving effect to any reductions to the Pool Balance for the Class G
Certificates from Deposits not used to purchase Series G Equipment Notes on
or before such date.
PAYMENT DATES APPLICABLE TO SERIES G EQUIPMENT NOTES:
Payment dates will be February 20 and August 20, commencing on
the first such date to occur after the issuance of each Series G Equipment
Note
MAKE-WHOLE AMOUNTS APPLICABLE TO SERIES G EQUIPMENT NOTES:
As provided in Article II of the form of Leased Aircraft
Indenture marked as Exhibit A-3 of the Note Purchase Agreement (the "Leased
Aircraft Indenture Form") or the form of Owned Aircraft Indenture marked as
Exhibit C-2 of the Note Purchase Agreement (the "Owned Aircraft Indenture
Form," together with the Leased Aircraft Indenture Form, the "Trust
Indenture Form").
REDEMPTION AND PURCHASE OF SERIES G EQUIPMENT NOTES: As provided in Article II
of the applicable Trust Indenture Form.
PART II:
MANDATORY ECONOMIC TERMS OF THE CLASS G CERTIFICATES
AVERAGE LIFE (IN YEARS)
As of the Delivery Period Termination Date, the average life of
the Class G Certificates must not be more than 10.2 years from the Issuance
Date (computed without regard to the acceleration of any Series G Equipment
Notes and after giving effect to any special distribution on the Class G
Certificates thereafter required in respect of unused Deposits).
LOAN TO AIRCRAFT VALUE RATIO FOR CLASS G CERTIFICATES
As of the Delivery Period Termination Date and each Regular
Distribution Date thereafter, the Loan to Aircraft Value for the Class G
Certificates (computed as of any such date on the basis of the Assumed
Appraised Value of all Aircraft that have been delivered and the
Depreciation Assumption) must not exceed (assuming no default in the
payment of the Equipment Notes and after giving effect to scheduled
payments) 49.0%
FINAL EXPECTED DISTRIBUTION DATE
Class G Certificates: February 20, 2017
PART III:
MANDATORY ECONOMIC TERMS OF LEASE
TERM: The Basic Lease Term for each Lease shall expire by its
terms on or after latest maturity date of the related
Equipment Notes.
LEASE PERIOD DATES
(SOMETIMES REFERRED TO
AS RENT PAYMENT DATES): February 20 and August 20
MINIMUM PAYMENTS: Each installment of basic rent, together with any
advances or payments by Lessee and any payments of
deferred equity amounts by an Owner Participant under
a Lease and the related agreements must be sufficient for
the Owner Trustee to pay in full, on the date on which
such installment of basic rent, advance, other payment or
deferred equity is due, any payments scheduled to be
made on account of principal of, and interest on, the
related Equipment Notes. If an Owner Participant is
required to make a deferred equity payment to be used
by an Owner Trustee to pay principal of, and interest on,
the Equipment Notes and the Owner Participant fails to
make the payment, Lessee will be required to provide the
Owner Trustee with funds sufficient to make the
payment.
TERMINATION VALUE
(SOMETIMES REFERRED TO AS
STIPULATED LOSS VALUES
OR TERMINATION AMOUNTS):Termination values (or other
comparable termination amounts), together with all
other amounts payable by Lessee upon termination of
any Lease, and the amount of premium, if any,
payable by the Owner Trustee, must be sufficient to
pay amounts due with respect to the related Equipment
Notes.
ALL-RISK HULL INSURANCE:Not less than Termination Value (or,
other comparable termination amount), subject to
Lessee's right to self- insure on terms no more
favorable to Lessee in any material respect than
those set forth in Section (d) of Exhibit H to the
Lease Forms.
MINIMUM LIABILITY
INSURANCE AMOUNT: As set forth in Exhibit H to the Lease Forms.
PAST DUE RATE: Not less than (i) with respect to any portion of any
payment of Rent that may be required by the Trust
Indenture to be paid by the Loan Trustee to the holders
of any outstanding Equipment Notes, a rate per annum
equal to 1% over the interest rate then in effect for such
Equipment Notes, and (ii) with respect to the remaining
portion of any payment of Rent (and the entire amount of
any payment of Rent after the satisfaction and discharge
of the Trust Indenture), a rate per annum equal to 1%
over the rate of interest publicly announced by The
Chase Manhattan Bank, (or other major commercial
banking institutions) in New York, New York from time
to time as its base rate of interest.
PART IV:
MANDATORY ECONOMIC TERMS FOR THE PARTICIPATION AGREEMENT
--------------------------------------------------------
Loan Trustee, Subordination Agent, Liquidity Provider, the
Policy Provider, Pass Through Trustee and Note Holders shall be indemnified
against Expenses and Taxes in a manner not materially less favorable to the
Loan Trustees, the Subordination Agent, the Liquidity Provider, the Policy
Provider, the Pass Through Trustee and the Note Holders than that set forth
in Section 6 of the form of the Participation Agreement (the "Participation
Form") marked as Exhibit A-1 to the Note Purchase Agreement for the Leased
Aircraft or as Exhibit C-1 to the Note Purchase Agreement for the Owned
Aircraft.
SCHEDULE VII to
NOTE PURCHASE AGREEMENT
-----------------------
AGGREGATE AMORTIZATION SCHEDULE
Scheduled
Payment Expected
of Principal Pool Factor
February 20, 2001........................... $8,700,000 0.9691137
August 20, 2001............................. 6,250,000 0.9469252
February 20, 2002........................... 6,250,000 0.9247368
August 20, 2002............................. 6,250,000 0.9025483
February 20, 2003........................... 6,250,000 0.8803598
August 20, 2003............................. 6,250,000 0.8581714
February 20, 2004........................... 6,250,000 0.8359829
August 20, 2004............................. 6,250,000 0.8137945
February 20, 2005........................... 6,500,000 0.7907185
August 20, 2005............................. 6,710,000 0.7668970
February 20, 2006........................... 6,920,000 0.7423299
August 20, 2006............................. 7,130,000 0.7170173
February 20, 2007........................... 7,340,000 0.6909592
August 20, 2007............................. 7,550,000 0.6641555
February 20, 2008........................... 7,760,000 0.6366063
August 20, 2008............................. 7,970,000 0.6083116
February 20, 2009........................... 8,180,000 0.5792714
August 20, 2009............................. 8,390,000 0.5494856
February 20, 2010........................... 8,600,000 0.5189543
August 20, 2010............................. 8,810,000 0.4876774
February 20, 2011........................... 9,020,000 0.4556550
August 20, 2011............................. 9,230,000 0.4228871
February 20, 2012........................... 9,440,000 0.3893737
August 20, 2012............................. 9,650,000 0.3551147
February 20, 2013........................... 9,860,000 0.3201102
August 20, 2013............................. 10,070,000 0.2843602
February 20, 2014.......................... 10,280,000 0.2478646
August 20, 2014............................ 10,490,000 0.2106235
February 20, 2015........................... 10,700,000 0.1726368
August 20, 2015............................ 10,910,000 0.1339047
February 20, 2016.......................... 11,120,000 0.0944270
August 20, 2016............................ 11,330,000 0.0542037
February 20, 2017........................... 15,268,000 0.0000000
ANNEX A to
NOTE PURCHASE AGREEMENT
DEFINITIONS
"Act" means 49 U.S.C.ss.ss.40101-46507.
"Affiliate" means, with respect to any person, any other person
directly or indirectly controlling, controlled by or under common control
with such person. For purposes of this definition, "control" means the
power, directly or indirectly, to direct or cause the direction of the
management and policies of such person, whether through the ownership of
voting securities or by contract or otherwise and "controlling,"
"controlled by" and "under common control with" have correlative meanings.
"Aircraft Purchase Agreement" means the Purchase Agreement
dated as of November 24, 1998 between US Airways Group, Inc. and the Seller
(including all exhibits thereto, together with all letter agreements
entered into that by their terms constitute part of any such Purchase
Agreement), as the same may be amended or otherwise supplemented from time
to time.
"Aircraft Purchase Agreement Assignment" means a Purchase
Agreement Assignment substantially in the form of Exhibit A-4 for Leased
Aircraft, and Exhibit C-3 for Owned Aircraft, to the Note Purchase
Agreement.
"Assumed Amortization Schedule" means Schedule VII to the Note
Purchase Agreement.
"Average Life Date" means, for any Equipment Note, the date
which follows the time of determination by a period equal to the Remaining
Weighted Average Life of such Equipment Note.
"Bankruptcy Code" means the United States Bankruptcy Code, 11
U.S.C.ss.ss.101 et seq.
"Basic Pass Through Trust Agreement" means the Pass Through
Trust Agreement, dated as of July 30, 1999, among the Company, US Airways
Group, Inc. and Pass Through Trustee, as such agreement may be
supplemented, amended or modified, but does not include any Trust
Supplement.
"Business Day" means any day, other than a Saturday, Sunday or
other day on which insurance companies or commercial banks in New York, New
York, or commercial banking institutions in Pittsburgh, Pennsylvania and in
the cities in which the Corporate Trust Office of the Subordination Agent
or any Loan Trustee or the fiscal agent of the Policy Provider or the
office of the Policy Provider are located are authorized or required by law
or executive order to close.
"Certificate" has the meaning set forth in the second recital
to the Note Purchase Agreement.
"Certificate Holder" means the Person in whose name a
Certificate is registered in the Register.
"Class" means the class of Certificates issued by the Pass
Through Trust.
"Class G Certificates" means the Class G Certificates issued by
the US Airways Pass Through Trust, Series 2000-1G.
"Class G Trust" means the US Airways Pass Through Trust, Series
2000-1G formed pursuant to the Basic Pass Through Trust Agreement and Class
G Trust Supplement.
"Closing Date" means the Business Day on which a closing occurs
under the Financing Agreements.
"Company" means US Airways, Inc., a Delaware corporation and its
successors and permitted assigns.
"Cut-Off Date" means the earlier of (a) the day after the
Delivery Period Termination Date and (b) the date on which a Triggering
Event occurs.
"Delivery Period Termination Date" means the earlier of (a)
February 7, 2001, and (b) the date on which Equipment Notes issued with
respect to all of the New Aircraft (or Substitute Aircraft in lieu thereof)
have been purchased by the Pass Through Trustee in accordance with the Note
Purchase Agreement; provided that if all Equipment Notes relating to the
New Aircraft (or Substitute Aircraft in lieu thereof) have not been
purchased by February 7, 2001 on account of manufacturing delays that occur
for reasons beyond the control of the Company and that are not occasioned
by the fault or negligence of the Company, then the February 7, 2001 date
may be extended to the earlier of (i) the date on which Equipment Notes
with respect to all New Aircraft (or Substitute Aircraft in lieu thereof)
have been purchased by the Pass Through Trusts in accordance with the Note
Purchase Agreement, and (ii) June 7, 2001.
"Deposit" has the meaning set forth in the fourth recital to
the Note Purchase Agreement.
"Deposit Agreement" has the meaning set forth in the fourth
recital to the Note Purchase Agreement.
"Deposit Make-Whole Premium" means, with respect to the
distribution of unused Deposits to holders of the Class G Certificates, as
of any date of determination, an amount equal to the excess, if any, of (a)
the present value of the excess of (i) the scheduled payment of principal
and interest to maturity of the Series G Equipment Notes, assuming the
maximum principal amount thereof (the "Maximum Amount") minus the
Non-Premium Amount were issued, on each remaining Regular Distribution Date
for the Class G Certificates under the Assumed Amortization Schedule over
(ii) the scheduled payment of principal and interest to maturity of the
Series G Equipment Notes actually acquired by the Trustee on each such
Regular Distribution Date, such present value computed by discounting such
excess on a semiannual basis on each Regular Distribution Date (assuming a
360-day year of twelve 30-day months) using a discount rate equal to the
Treasury Yield plus 175 basis points over (b) the amount of such unused
Deposits to be distributed to the holders of such Certificates, minus the
Non-Premium Amount plus accrued and unpaid interest on such net amount to
but excluding the date of determination from and including the preceding
Regular Distribution Date (or if such date of determination precedes the
first Regular Distribution Date, the Issuance Date).
"Depositary" means ABN AMRO Bank N.V., acting through its
Chicago branch.
"Depositary Threshold Rating" means, with respect to the
Depositary or any Replacement Depositary, short-term unsecured rating of
A-1+ from Standard & Poor's and P-1 from Moody's.
"Equipment Notes" means and includes any equipment notes issued
under any Indenture in the form specified in Section 2.01 thereof (as such
form may be varied pursuant to the terms of such Indenture) and any
Equipment Note issued under any Indenture in exchange for or replacement of
any other Equipment Note.
"Escrow Agent" has the meaning set forth in the first paragraph
of the Note Purchase Agreement.
"Escrow and Paying Agent Agreement" has the meaning set forth
in the fourth recital to the Note Purchase Agreement.
"FAA" means the Federal Aviation Administration of the United
States.
"Final Withdrawal" with respect to the Escrow and Paying Agent
Agreement, has the meaning set forth in Section 1.2 thereof.
"Financing Agreements" means, collectively, the Lease Financing
Agreements and the Owner Financing Agreements.
"Government Entity" means (a) any federal, state, provincial or
similar government, and any body, board, department, commission, court,
tribunal, authority, agency or other instrumentality of any such government
or otherwise exercising any executive, legislative, judicial,
administrative or regulatory functions of such government or (b) any other
government entity having jurisdiction over any matter contemplated by the
Operative Documents or relating to the observance or performance of the
obligations of any of the parties to the Operative Documents.
"H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of
the Federal Reserve System.
"Indentures" means, collectively, the Leased Aircraft Indentures
and the Owned Aircraft Indentures.
"Intercreditor Agreement" has the meaning set forth in the
eighth recital to the Note Purchase Agreement.
"Issuance Date" means the date of the original issuance of the
Class G Certificates.
"Law" means (a) any constitution, treaty, statute, law, decree,
regulation, order, rule or directive of any Government Entity, and (b) any
judicial or administrative interpretation or application of, or decision
under, any of the foregoing.
"Lease" means a Lease Agreement substantially in the form of
either Exhibit A-2-1 (Basic Lease Form) or A-2-2 (Deferred
Equity/Prepaid--Deferred Rent Lease Form) to the Note Purchase Agreement.
"Lease Financing Agreements" means, collectively, the Aircraft
Purchase Agreement Assignment, the Leased Aircraft Participation Agreement,
the Lease, the Leased Aircraft Indenture, the Leased Aircraft French Pledge
Agreement, the Equipment Notes issued under the Leased Aircraft Indenture
and the Trust Agreement relating to the financing of a Leased Aircraft.
"Lease Period" has the meaning set forth in the Participation
Agreement.
"Leased Aircraft" means a New Aircraft subject to a Lease.
"Leased Aircraft French Pledge Agreement" means a French Pledge
Agreement substantially in the form of Exhibit A-6 to the Note Purchase
Agreement.
"Leased Aircraft Indenture" means a Trust Indenture and
Security Agreement substantially in the form of Exhibit A-3 to the Note
Purchase Agreement.
"Leased Aircraft Participation Agreement" means a Participation
Agreement substantially in the form of Exhibit A-1 to the Note Purchase
Agreement.
"Liquidity Facility" has the meaning set forth in the eighth
recital to the Note Purchase Agreement.
"Liquidity Provider" has the meaning set forth in the eighth
recital to the Note Purchase Agreement.
"Loan Trustee" means the "Indenture Trustee" as defined in the
Financing Agreements.
"Mandatory Document Terms" means the terms set forth on
Schedule V to the Note Purchase Agreement.
"Mandatory Economic Terms" means the terms set forth on
Schedule VI to the Note Purchase Agreement.
"Manufacturer" means Airbus Industrie, G.I.E., a "Groupement
d'Interet Economique" established under "Ordonnance" No. 67-821 dated
September 23, 1967, of the Republic of France.
"New Aircraft" has the meaning set forth in the first recital
to the Note Purchase Agreement.
"Non-Premium Amount" means the amount equal to unused Deposits
to be distributed due to the failure of an Aircraft to be delivered prior
to the Delivery Period Termination Date due to any reason not occasioned by
US Airways' fault or negligence.
"Note Purchase Agreement" means the Note Purchase Agreement to
which this Annex A is attached.
"Notice of Purchase Withdrawal" with respect to the Deposit
Agreement, has the meaning set forth in Section 2.3 thereof.
"Operative Documents" means, collectively, the Pass Through
Trust Agreement, the Escrow and Paying Agent Agreement, the Deposit
Agreement, the Liquidity Facility, the Policy Provider Agreement, the
Policy, the Intercreditor Agreement, the Trust Agreements, the Equipment
Notes, the Certificates and the Financing Agreements.
"Owned Aircraft" means a New Aircraft subject to an Owned Aircraft
Indenture.
"Owned Aircraft French Pledge Agreement" means a French Pledge
Agreement substantially in the form of Exhibit C-4 to the Note Purchase
Agreement.
"Owned Aircraft Indenture" means an Indenture and Security
Agreement substantially in the form of Exhibit C-2 to the Note Purchase
Agreement.
"Owned Aircraft Participation Agreement" means a Participation
Agreement substantially in the form of Exhibit C-1 to the Note Purchase
Agreement.
"Owner Financing Agreements" means, collectively, the Aircraft
Purchase Agreement Assignment, the Owned Aircraft Participation Agreement,
the Owned Aircraft Indenture, the Owned Aircraft French Pledge Agreement
and the Equipment Notes issued thereunder relating to the financing of an
Owned Aircraft.
"Owner Participant" means, with respect to any Leased Aircraft,
the Person named as the Owner Participant in the Participation Agreement
with respect to such Leased Aircraft.
"Owner Trust" means with respect to any Leased Aircraft, the
trust created by the "Trust Agreement" referred to in the Leased Aircraft
Indenture related thereto.
"Owner Trustee" means with respect to any Leased Aircraft, the
"Owner Trustee" party to the "Trust Agreement" referred to in the Leased
Aircraft Indenture related thereto.
"Participation Agreements" means, collectively, the Leased
Aircraft Participation Agreements and the Owned Aircraft Participation
Agreements.
"Pass Through Trust" has the meaning set forth in the second
recital to the Note Purchase Agreement.
"Pass Through Trust Agreement" means the Trust Supplement,
together with the Basic Pass Through Trust Agreement by and between the
Company and Pass Through Trustee.
"Pass Through Trustee" has the meaning set forth in the first
paragraph of the Note Purchase Agreement.
"Paying Agent" has the meaning set forth in the first paragraph
of the Note Purchase Agreement.
"Person" means any individual, firm, partnership, joint
venture, trust, trustee, Government Entity, organization, association,
corporation, government agency, committee, department, authority and other
body, corporate or incorporate, whether having distinct legal status or
not, or any member of any of the same.
"Policy " has the meaning set forth in the ninth recital to the
Note Purchase Agreement.
"Policy Provider Obligations" has the meaning specified in the
Intercreditor Agreement.
"Policy Provider" has the meaning set forth in the ninth
recital to the Note Purchase Agreement.
"Policy Provider Agreement" has the meaning set forth in the
ninth recital to the Note Purchase Agreement.
"Qualified Owner Participant" has the meaning set forth in
Annex A to the Leased Aircraft Participation Agreement.
"Rating Agencies" means, collectively, at any time, each
nationally recognized rating agency that have been requested by the Company
to rate the Certificates and which shall then be rating the Certificates.
The initial Rating Agencies will be Xxxxx'x Investors Service and Standard
& Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.
"Rating Agency Confirmation" means, with respect to (i) any
Financing Agreement that has been modified in any material respect from the
forms thereof attached to the Note Purchase Agreement or with respect to a
Substitute Aircraft or (ii) the length of the period between the delivery
of a New Aircraft and its Scheduled Closing Date, a written confirmation
from each of the Rating Agencies that the use of such Financing Agreement
with such modifications or the substituting of such Substitute Aircraft for
a New Aircraft or the length of such period, either of which of the
foregoing shall in a particular case require Rating Agency Confirmation,
would not result in (i) a reduction of the rating for the Class G
Certificates below the then current rating for such Class of Certificates
(without regard to the Policy) or (ii) a withdrawal or suspension of the
rating of the Class G Certificates, in each case, without reference to the
Policy.
"Register" means the register maintained pursuant to Sections
3.04 and 7.12 of the Basic Pass Through Trust Agreement with respect to
each Pass Through Trust.
"Regular Distribution Dates" shall mean February 20 and August
20 of each year, commencing August 2, 2000.
"Remaining Weighted Average Life" means, on a given date with
respect to any Equipment Note, the number of days equal to the quotient
obtained by dividing (a) the sum of each of the products obtained by
multiplying (i) the amount of each then remaining scheduled payment of
principal of such Equipment Note, including the payment due on the maturity
of such Equipment Note by (ii) the number of days from and including such
determination date to but excluding the date on which such payment of
principal is scheduled to be made, by (b) the then outstanding principal
amount of such Equipment Note.
"Replacement Depositary" has the meaning set forth in Section
5(a)(vii) of the Note Purchase Agreement.
"Replacement Deposit Agreement" means, for the Class G
Certificates, a deposit agreement substantially in the form of the replaced
Deposit Agreement for such Class of Certificates as shall permit the Rating
Agencies to confirm in writing their respective ratings then in effect for
such Class of Certificates (before the downgrading of such ratings, if any,
as a result of the downgrading of the Depositary and without regard to the
Policy).
"Section 1110" means 11 U.S.C. ss. 1110 of the Bankruptcy Code
or any successor or analogous Section of the federal bankruptcy Law in
effect from time to time.
"Seller" means AVSA, S.A.R.L., a societe a responsabilite
limitee organized and existing under the laws of the Republic of France and
its successors and permitted assigns.
"Series G Equipment Notes" means Equipment Notes issued under
an Indenture and designated as "Series G" thereunder.
"Subordination Agent" has the meaning set forth in the first
paragraph of the Note Purchase Agreement.
"Substitute Aircraft" has the meaning set forth in Section 2(g)
of the Note Purchase Agreement.
"Substitute Closing Date" has the meaning set forth in Section
2(e) of the Note Purchase Agreement.
"Taxes" means all license, recording, documentary, registration
and other similar fees and all taxes, levies, imposts, duties, charges,
assessments or withholdings of any nature whatsoever imposed by any Taxing
Authority, together with any penalties, additions to tax, fines or interest
thereon or additions thereto.
"Taxing Authority" means any federal, state or local government
or other taxing authority in the United States, any foreign government or
any political subdivision or taxing authority thereof, any international
taxing authority or any territory or possession of the United States or any
taxing authority thereof.
"Treasury Yield" means, as of any date of determination, with
respect to any Equipment Note (utilizing the Assumed Amortization Schedule
applicable thereto), the interest rate (expressed as a decimal and, in the
case of United States Treasury bills, converted to a bond equivalent yield)
determined to be the per annum rate equal to the semi-annual yield to
maturity for United States Treasury securities maturing on the Average Life
Date of such Equipment Note and trading in the public securities markets
either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury
securities, trading in the public securities markets, (A) one maturing as
close as possible to, but earlier than, the Average Life Date of such
Equipment Note and (B) the other maturing as close as possible to, but
later than, the Average Life Date of such Equipment Note, in each case as
published in the most recent H.15(519) or, if a weekly average yield to
maturity for United States Treasury securities maturing on the Average Life
Date of such Equipment Note is reported on the most recent H.15(519), such
weekly average yield to maturity as published in such H.15(519).
"Triggering Event" has the meaning assigned to such term in the
Intercreditor Agreement.
"Trust Agreement" means a Trust Agreement substantially in the
form of Exhibit A-5 to the Note Purchase Agreement.
"Trust Supplement" means an agreement supplemental to the Basic
Pass Through Trust Agreement pursuant to which (i) a separate trust is
created for the benefit of the holders of the Certificates of a class, (ii)
the issuance of the Certificates of such class representing fractional
undivided interests in such trust is authorized and (iii) the terms of the
Certificates of such class are established.
"Underwriters" has the meaning set forth in the third recital
to the Note Purchase Agreement.
EXHIBIT A-1
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF LEASED AIRCRAFT PARTICIPATION AGREEMENT
[FILED SEPARATELY]
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE
ASSUMPTION THAT BOTH SERIES G AND SERIES C EQUIPMENT
NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES ARE NOT
ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT
SHALL BE MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES
AND TO MAKE OTHER RELATED CHANGES.
EXHIBIT A-2-1 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF BASIC LEASE
[FILED SEPARATELY]
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE
ASSUMPTION THAT BOTH SERIES G AND SERIES C EQUIPMENT
NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES ARE NOT
ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT
SHALL BE MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES
AND TO MAKE OTHER RELATED CHANGES.
EXHIBIT A-2-2 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF DEFERRED EQUITY/PREPAID-DEFERRED RENT LEASE
[FILED SEPARATELY]
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE
ASSUMPTION THAT BOTH SERIES G AND SERIES C EQUIPMENT
NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES ARE NOT
ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT
SHALL BE MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES
AND TO MAKE OTHER RELATED CHANGES.
EXHIBIT A-3 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF LEASED AIRCRAFT INDENTURE
[FILED SEPARATELY]
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE
ASSUMPTION THAT BOTH SERIES G AND SERIES C EQUIPMENT
NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES ARE NOT
ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT
SHALL BE MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES
AND TO MAKE OTHER RELATED CHANGES.
EXHIBIT A-4 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF LEASED AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT
[FILED SEPARATELY]
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE
ASSUMPTION THAT BOTH SERIES G AND SERIES C EQUIPMENT
NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES ARE NOT
ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT
SHALL BE MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES
AND TO MAKE OTHER RELATED CHANGES.
EXHIBIT A-5 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF LEASED AIRCRAFT TRUST AGREEMENT
[FILED SEPARATELY]
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE
ASSUMPTION THAT BOTH SERIES G AND SERIES C EQUIPMENT
NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES ARE NOT
ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT
SHALL BE MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES
AND TO MAKE OTHER RELATED CHANGES.
EXHIBIT A-6 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF LEASED AIRCRAFT FRENCH PLEDGE AGREEMENT
[FILED SEPARATELY]
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE
ASSUMPTION THAT BOTH SERIES G AND SERIES C EQUIPMENT
NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES ARE NOT
ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT
SHALL BE MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES
AND TO MAKE OTHER RELATED CHANGES.
EXHIBIT B to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF CLOSING NOTICE
EXHIBIT B
Closing Notice
Dated as of __________
To each of the addressees listed
in Schedule A hereto
Re: Closing Notice in Accordance with Note Purchase
-----------------------------------------------
Agreement Referred to below
---------------------------
Gentlemen:
Reference is made to the Note Purchase Agreement, dated as of
March 3, 2000 among US Airways, Inc. (the "Company"), State Street Bank and
Trust Company of Connecticut, National Association, as Pass Through Trustee
under the Pass Through Trust Agreement (as defined therein) (the "Pass
Through Trustee"), State Street Bank and Trust Company of Connecticut,
National Association, as Subordination Agent (the "Subordination Agent"),
First Security Bank, National Association, as Escrow Agent (the "Escrow
Agent") and State Street Bank and Trust Company of Connecticut, National
Association, as Paying Agent (the "Paying Agent") (as in effect from time
to time, the "Note Purchase Agreement"). Unless otherwise defined herein,
capitalized terms used herein shall have the meanings set forth in the Note
Purchase Agreement or, to the extent not defined therein, the Intercreditor
Agreement.
Pursuant to Section 2(b) of the Note Purchase Agreement, the
undersigned hereby notifies you, in respect of the Airbus A330 aircraft
with manufacturer's serial number __________ (the "Aircraft"), of the
following:
1. The Company has elected to treat the Aircraft as [a Leased
Aircraft] [an Owned Aircraft];
2. The Scheduled Closing Date for the financing of the Aircraft
is __________; and
3. The aggregate amount of each series of Equipment Notes to be
issued, and purchased by the respective Pass Through Trustee, on the
Closing Date, in connection with the financing of such Aircraft is as
follows: The Class G Trustee shall purchase Series G Equipment Notes in the
amount of $__________.
The Company hereby instructs the Class G Trustee to (i) execute
a Withdrawal Certificate in the form of Annex A hereto dated as of
__________ and attach thereto a Notice of Purchase Withdrawal dated such
date completed as set forth on Exhibit A hereto and (ii) deliver such
Withdrawal Certificate and Notice of Purchase Withdrawal to the Escrow
Agent.
The Company hereby instructs the Pass Through Trustee to (i)
purchase Series G Equipment Notes and in an amount set forth opposite such
Pass Through Trustee in clause (3) above with a portion of the proceeds of
the withdrawals of Deposits referred to in the applicable Notice of
Purchase Withdrawal referred to above and (ii) re-deposit with the
Depositary the excess, if any, of the amount so withdrawn over the purchase
price of such Equipment Notes.
The Company hereby instructs the Pass Through Trustee to (a)
enter into the Participation Agreement dated as of __________ among the
Company, as Lessee, the Subordination Agent, the Pass Through Trustee,
State Street Bank and Trust Company of Connecticut, National Association,
as Loan Trustee and Loan Participant, First Security Bank, National
Association, as Owner Trustee and __________, as Owner Participant, (b)
perform its obligations thereunder and (c) deliver such certificates,
documents and legal opinions relating to such Pass Through Trustee as
required thereby.
[The Company hereby certifies that the Owner Participant with
respect to the Aircraft is not an Affiliate of the Company and is (A) a
Qualified Owner Participant or (B) a Person the obligations of which under
the Financing Agreements are guaranteed by a Qualified Owner Participant.]1
Yours faithfully,
US Airways, Inc.
By:___________________________
Name:
Title:
SCHEDULE A
State Street Bank and Trust Company
of Connecticut, National Association, as
Pass Through Trustee, Subordination
Agent and Paying Agent
000 Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
with a copy to:
State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
First Security Bank, National Association,
as Escrow Agent
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio
Management, Structured Finance
Facsimile: (000) 000-0000
Annex A
WITHDRAWAL CERTIFICATE
First Security Bank, National Association,
as Escrow Agent
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
Attention: Corporate Trust Services
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent Agreement,
dated as of March 3, 2000 (the "Agreement"). We hereby certify to you that
the conditions to the obligations of the undersigned to execute a
Participation Agreement pursuant to the Note Purchase Agreement have been
satisfied. Pursuant to Section 1.2(c) of the Agreement, please execute the
attached Notice of Withdrawal and immediately transmit by facsimile to the
Depositary, at ___________.
Capitalized terms used herein but not defined herein shall have
the meanings set forth in the Agreement.
Very truly yours,
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its
individual capacity by solely as Pass Through
Trustee
By:__________________________________________
Name:
Title:
Dated: As of __________
Exhibit A
NOTICE OF PURCHASE WITHDRAWAL
-----------------------------
ABN AMRO Bank, N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class G) dated as of
March 3, 2000 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and ABN AMRO Bank, N.V., as
Depositary (the "Depositary").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the
Deposit, $__________, Account No. __________.
The undersigned hereby directs the Depositary to pay [a portion
of] the proceeds of the Deposit [in an amount equal to $____________]to
_______________, Account No. __________, Reference: __________ on
_______________, _____, [and to re-deposit the remaining proceeds of the
Deposit with the Depositary as a new Deposit pursuant to Section 2.4 of the
Deposit Agreement, in each case]2 upon the telephonic request of a
representative of the Pass Through Trustee.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
as Escrow Agent
By ____________________________
Name:
Title:
Dated:___________, ____
EXHIBIT C-1 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF OWNED AIRCRAFT PARTICIPATION AGREEMENT
[FILED SEPARATELY]
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE ASSUMPTION THAT BOTH SERIES
G AND SERIES C EQUIPMENT NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES
ARE NOT ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT SHALL BE
MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES AND TO MAKE OTHER
RELATED CHANGES.
EXHIBIT C-2 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF OWNED AIRCRAFT INDENTURE
[FILED SEPARATELY]
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE ASSUMPTION THAT BOTH SERIES
G AND SERIES C EQUIPMENT NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES
ARE NOT ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT SHALL BE
MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES AND TO MAKE OTHER
RELATED CHANGES.
EXHIBIT C-3 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF OWNED AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT
[FILED SEPARATELY]
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE ASSUMPTION THAT BOTH SERIES
G AND SERIES C EQUIPMENT NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES
ARE NOT ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT SHALL BE
MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES AND TO MAKE OTHER
RELATED CHANGES.
EXHIBIT C-4 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF OWNED AIRCRAFT FRENCH PLEDGE AGREEMENT
[FILED SEPARATELY]
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE ASSUMPTION THAT BOTH SERIES
G AND SERIES C EQUIPMENT NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES
ARE NOT ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT SHALL BE
MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES AND TO MAKE OTHER
RELATED CHANGES.
