EXHIBIT 4.8
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NOTE PURCHASE AGREEMENT
(2000-2 Series G Equipment Notes)
Dated as of August 2, 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
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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-1A Form of Basic Leased Aircraft Participation Agreement
Exhibit A-1B Form of Special Leased Aircraft Participation Agreement
Exhibit A-2A Form of Basic Lease
Exhibit A-2B Form of Special Lease
Exhibit A-3A Form of Basic Leased Aircraft Indenture (Includes Class C)
Exhibit A-3B Form of Special Leased Aircraft Indenture
Exhibit A-4 Form of Leased Aircraft Purchase Agreement Assignment
Exhibit A-5A Form of Basic Trust Agreement
Exhibit A-5B Form of Special Trust Agreement
Exhibit A-6 Form of Leased Aircraft French Pledge Agreement
Exhibit B Form of Closing Notice
Exhibit C-1 Form of Owned Aircraft Participation Agreement
Exhibit C-2 Form of Owned Aircraft Indenture
Exhibit C-3 Form of Owned Aircraft Purchase Agreement Assignment
Exhibit C-4 Form of Owned Aircraft French Pledge Agreement
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of August 2, 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 twenty (20) aircraft listed in Schedule I hereto
(together with any aircraft substituted therefor in accordance with the
Aircraft Purchase Agreement prior to the delivery thereof, the "New
Aircraft");
WHEREAS, pursuant to the Basic Pass Through Trust
Agreement and 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 July 24, 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 (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 (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
one hundred eighty (180) 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 either the
"basic" or "special" 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
180th 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
180th 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 beyond March 1, 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 A319 or A320 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 eighty (180)
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 date 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;
(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; and
(c) a copy of the Rating Agency Confirmation and
Policy Provider consent, if any, 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
Basic 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;
(vii) unless the Form of the
Special Leased Aircraft Indenture is amended to include comparable
provisions as contemplated by the Form of Basic Leased Aircraft
Indenture for the issuance of series C Equipment Notes, and Rating
Agency Confirmation is received with respect to the use of such
new forms, the Company will not issue series C Equipment Notes in
a financing using the "special" lease forms; and
(viii) 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
July 24, 2000) 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 for application in accordance with the
Intercreditor Agreement (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) to the Subordination
Agent when due for application in accordance with the Intercreditor
Agreement 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 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 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 Vice President
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 Vice President
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 Xxxx
--------------------------------------------
Name: Xxxxx 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 Vice President
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 A319 N737US 1245 June 14, 2000
Airbus A319 N738US 1254 June 20, 2000
Airbus A319 N740UW 1265 July 10, 2000
Airbus A319 N741UW 1269 July 13, 2000
Airbus A319 N742US 1275 July 2000
Airbus A319 N744US 1287 August 2000
Airbus A319 N745UW 1289 August 2000
Airbus A319 N746UW 1297 August 2000
Airbus A319 N747UW 1301 August 2000
Airbus A319 N748UW 1311 September 2000
Airbus A319 N749US 1313 September 2000
Airbus A319 N750UW 1315 September 2000
Airbus A319 N751UW 1317 September 2000
Airbus A319 N752US 1319 September 2000
Airbus A319 N753US 1326 October 2000
Airbus A319 N754UW 1328 October 2000
Airbus A320 N117UW 1224 May 30, 2000
Airbus A320 N119US 1268 July 2000
Airbus A320 N118US 1264 September 2000
Airbus A320 N121UW 1294 September 2000
SCHEDULE II to
NOTE PURCHASE AGREEMENT
Trust Supplement
Trust Supplement No. 2000-2G dated as of the Issuance
Date between the Company and the Pass Through Trustee in respect of US
Airways Pass Through Trust, Series 2000-2G.
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.
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 applicable Trust Indenture Form so as to deprive the Note
Holders of a first priority security interest in and mortgage lien on the
applicable Aircraft, the rights of US Airways under the Aircraft Purchase
Agreement to the extent assigned under the applicable Indenture and in the
case of a Leased Aircraft Indenture, the applicable 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
applicable 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 applicable Lease
Form or otherwise modify the terms of the applicable Lease Form so as to
deprive the Loan Trustee of rights expressly granted to the "Indenture
Trustee" therein.
3. In the case of the Basic Leased Aircraft Participation
Agreement 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 applicable Participation Agreement Form or of the provisions of Section
7(d)(II)(E) of the applicable Participation Agreement Form as regards the
rights of the Loan Trustee thereunder.
4. In the case of the Special Leased Aircraft
Participation Agreement, 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)(v), 4(a)(viii)(1), 4(a)(viii)(2), 4(a)(viii)(3),
4(a)(viii)(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)(ix),
4(a)(x) (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)(xi), 4(a)(xii), 4(a)(xiii) and 4(a)(xv) 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(l), 7(n), 7(w), 14(f)
or 14(h) of the applicable Participation Agreement Form or of the
provisions of Section 7(d)(II)(E) of the applicable Participation Agreement
Form as regards the rights of the Loan Trustee thereunder.
5. 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 applicable 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. It is conclusively agreed that the terms provided in
the Special Lease Forms marked as Exhibits X-0X, X-0X, X-0X, and A-5B to
the Note Purchase Agreement are 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 the
comparable provisions in the Basic Lease Forms marked as Exhibits X-0X, X-
0X, A-3A and A-5A to the Note Purchase Agreement.
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 not exceed 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 "Maximum Principal
Amount of Series G Secured Promissory Notes."
LOAN TO AIRCRAFT VALUE RATIO OF SERIES G EQUIPMENT NOTES (ON AN
AIRCRAFT-BY- AIRCRAFT BASIS):
1. Loan to Aircraft Value Ratios on Regular Distribution
Dates. The Loan to Aircraft Value Ratio for the Equipment Notes
for each Aircraft (computed as of the respective dates below on
the basis of the Assumed Appraised Value of such Aircraft and the
Depreciation Assumption) must not exceed, as of the issuance date
of such Equipment Notes and any Regular Distribution Date after
Equipment Notes are issued for that Aircraft (assuming no default
in the payment of the Equipment Notes), the percentages set forth
in the following table:
MAXIMUM EQUIPMENT NOTE LTV RATIO
A319-100 AIRCRAFT A320-200 AIRCRAFT
N748UW
N744US N749US
N740UW N745UW N750UW
N737US N741UW N746UW N751UW N753US N118US
Date N738US N742US N747UW N752US N754UW N117UW N119US N121UW
---- ------ ------ ------ ------ ------ ------ ------ ------
At Issuance................ 50.9% 50.7% 50.6% 50.5% 50.3% 52.2% 51.9% 51.8%
February 5, 2001........... 49.4 49.2 49.4 49.5 49.6 50.7 50.4 50.8
August 5, 2001............. 49.5 49.2 49.4 49.6 49.6 50.9 50.4 50.8
February 5, 2002........... 48.5 48.2 48.3 48.4 48.4 49.9 49.5 49.6
August 5, 2002............. 49.1 48.8 48.9 49.0 48.9 50.5 50.0 50.2
February 5, 2003........... 48.2 47.9 48.0 48.1 48.0 49.6 49.1 49.3
August 5, 2003............. 48.9 48.6 48.7 48.8 48.7 50.3 49.8 50.0
February 5, 2004........... 48.1 47.8 47.9 47.9 47.8 49.4 49.0 49.1
August 5, 2004............. 48.9 48.6 48.7 48.7 48.7 50.3 49.8 50.0
February 5, 2005........... 48.2 47.9 47.9 48.0 47.9 49.6 49.1 49.2
August 5, 2005............. 49.1 48.8 48.9 48.9 48.9 50.5 50.1 50.2
February 5, 2006........... 48.4 48.1 48.1 48.2 48.1 49.8 49.3 49.4
August 5, 2006............. 49.4 49.1 49.1 49.2 49.1 50.8 50.3 50.4
February 5, 2007........... 48.7 48.4 48.4 48.5 48.4 50.1 49.6 49.7
August 5, 2007............. 49.8 49.5 49.6 49.6 49.5 51.3 50.8 50.9
February 5, 2008........... 49.1 48.8 48.8 48.9 48.8 50.5 50.0 50.1
August 5, 2008............. 50.2 49.9 50.0 50.0 49.9 51.6 51.2 51.3
February 5, 2009 and thereafter 46.0 46.0 46.0 46.0 46.0 48.0 48.0 48.0
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 11 years,
and will not extend beyond 13 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 Equipment 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 5 and August 5, 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
Indentures marked as Exhibit A-3A and A-3B of the Note Purchase Agreement
(each a "Leased Aircraft Indenture Form" and collectively, the "Leased
Aircraft Indenture Forms") 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 Forms, the
"Trust Indenture Forms").
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 12.1 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) 50.5%.
FINAL EXPECTED DISTRIBUTION DATE
Class G Certificates: February 5, 2019
PART III:
MANDATORY ECONOMIC TERMS OF LEASE
TERM: The Basic Lease Term for each Lease shall expire
by its terms on or after latest maturity date of
the related Equipment Notes.
LEASE PERIOD DATES
(SOMETIMES REFERRED TO
AS RENT PAYMENT DATES): February 5 and August 5
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 11(d) of the applicable
Lease Form.
MINIMUM LIABILITY
INSURANCE AMOUNT: As set forth in Section 11 of the applicable Lease Form.
PASTDUE 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 applicable 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 Basic
Participation Agreement (the "Basic Participation Agreement Form") marked
as Exhibit A-1A to the Note Purchase Agreement for the Leased Aircraft or
as Exhibit C- 1 to the Note Purchase Agreement for the Owned Aircraft, it
being conclusively agreed that the terms of the indemnification provided by
the Lessee in the Special Leased Aircraft Participation Agreement Form
marked as Exhibit A-1B to the Note Purchase Agreement are 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 the terms of the indemnification in the Basic Leased Aircraft
Participation Agreement Form.
SCHEDULE VII to
NOTE PURCHASE AGREEMENT
AGGREGATE AMORTIZATION SCHEDULE
Scheduled
Payment Expected
Date of Principal Pool Factor
February 5, 2001......................... $ 1.0000000
August 5, 2001........................... --- 1.0000000
February 5, 2002......................... --- 1.0000000
August 5, 2002........................... --- 1.0000000
February 5, 2003......................... --- 1.0000000
August 5, 2003........................... 508,034.30 0.9985982
February 5, 2004......................... 3,427,849.80 0.9891398
August 5, 2004........................... 5,673,180.62 0.9734859
February 5, 2005......................... 5,295,172.96 0.9588751
August 5, 2005........................... 5,161,289.84 0.9446337
February 5, 2006......................... 5,221,420.40 0.9302263
August 5, 2006........................... 5,253,885.84 0.9157294
February 5, 2007......................... 19,318,469.80 0.8624245
August 5, 2007........................... 589,068.58 0.8607991
February 5, 2008......................... 25,823,162.01 0.7895458
August 5, 2008........................... --- 0.7895458
February 5, 2009......................... 20,550,504.20 0.7328413
August 5, 2009........................... --- 0.7328413
February 5, 2010......................... 15,424,505.61 0.6902809
August 5, 2010........................... --- 0.6902809
February 5, 2011......................... 24,068,405.75 0.6238695
August 5, 2011........................... --- 0.6238695
February 5, 2012......................... 25,569,837.27 0.5533153
August 5, 2012........................... --- 0.5533153
February 5, 2013......................... 28,243,977.26 0.4753824
August 5, 2013........................... --- 0.4753824
February 5, 2014......................... 29,461,936.96 0.3940888
August 5, 2014........................... 354,029.65 0.3931119
February 5, 2015......................... 33,712,176.65 0.3000908
August 5, 2015........................... 1,294,006.01 0.2965202
February 5, 2016......................... 45,913,049.24 0.1698335
August 5, 2016........................... --- 0.1698335
February 5, 2017......................... 49,713,439.28 0.0326604
August 5, 2017........................... --- 0.0326604
February 5, 2018......................... 6,372,906.23 0.0150758
August 5, 2018........................... -- 0.0150758
February 5, 2019......................... 5,463,691.71 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 October 31, 1997, between US Airways Group, Inc. and
the Seller (including all exhibits thereto, together with all letter
agreements entered into that by their terms constitute part of any such
Purchase Agreement), 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 the 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 2000-2G.
"Class G Trust" means the US Airways Pass Through Trust,
Series 2000-2G formed pursuant to the Basic Pass Through Trust Agreement
and the Class G Trust Supplement.
"Class G Trust Supplement" means the Trust Supplement No.
2000-2G, dated as of August 2, 2000, between the Company and the Pass
Through Trustee, as such supplement may be supplemented, amended or
modified.
"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) March 1, 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.
"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 198 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 Xxxxx'x.
"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-2A (Basic Lease Form) or Exhibit A-2B (Special Lease
Form) to the Note Purchase Agreement.
"Lease Financing Agreements" means, collectively, the
Leased Aircraft Purchase Agreement Assignments, the Leased Aircraft
Participation Agreements, the Leases, the Leased Aircraft Indentures, the
Leased Aircraft French Pledge Agreements, the Equipment Notes issued under
a Leased Aircraft Indenture and each 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 either Exhibit A-3A or
Exhibit A-3B to the Note Purchase Agreement.
"Leased Aircraft Participation Agreement" means a
Participation Agreement substantially in the form of either Exhibit A-1A or
Exhibit A-1B 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
Owned 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 applicable
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 applicable 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 5 and
August 5 of each year, commencing August 5, 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 either Exhibit A-5A or Exhibit A-5B 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-1A
NOTE PURCHASE AGREEMENT
FORM OF BASIC LEASED AIRCRAFT PARTICIPATION AGREEMENT
[FILED SEPARATELY]
EXHIBIT A-1B
NOTE PURCHASE AGREEMENT
FORM OF SPECIAL LEASED AIRCRAFT PARTICIPATION AGREEMENT
[FILED SEPARATELY]
EXHIBIT A-2A to
NOTE PURCHASE AGREEMENT
FORM OF BASIC LEASE
[FILED SEPARATELY]
EXHIBIT A-2B to
NOTE PURCHASE AGREEMENT
FORM OF SPECIAL LEASE
[FILED SEPARATELY]
EXHIBIT A-3A to
NOTE PURCHASE AGREEMENT
FORM OF BASIC LEASED AIRCRAFT INDENTURE
(INCLUDES CLASS C)
[FILED SEPARATELY]
EXHIBIT A-3B to
NOTE PURCHASE AGREEMENT
FORM OF SPECIAL LEASED AIRCRAFT INDENTURE
[FILED SEPARATELY]
EXHIBIT A-4 to
NOTE PURCHASE AGREEMENT
FORM OF LEASED AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT
[FILED SEPARATELY]
EXHIBIT A-5A to
NOTE PURCHASE AGREEMENT
FORM OF BASIC TRUST AGREEMENT
[FILED SEPARATELY]
EXHIBIT A-5B to
NOTE PURCHASE AGREEMENT
FORM OF SPECIAL TRUST AGREEMENT
[FILED SEPARATELY]
EXHIBIT A-6 to
NOTE PURCHASE AGREEMENT
FORM OF LEASED AIRCRAFT FRENCH PLEDGE AGREEMENT
[FILED SEPARATELY]
EXHIBIT B to
NOTE PURCHASE AGREEMENT
FORM OF CLOSING NOTICE
EXHIBIT B
Closing Notice
Dated as of __________
To each of the addressees listed
in Schedule A hereto
Re: Closing Notice in Accordance with Note Purchase
Agreement Referred to below
Gentlemen:
Reference is made to the Note Purchase Agreement, dated
as of August 2, 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 [A319][A320]
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 August 2, 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: Xxx Xxxxxxxx
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class G) dated as
of August 2, 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]
EXHIBIT C-2 to
NOTE PURCHASE AGREEMENT
FORM OF OWNED AIRCRAFT INDENTURE
[FILED SEPARATELY]
EXHIBIT C-3 to
NOTE PURCHASE AGREEMENT
FORM OF OWNED AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT
[FILED SEPARATELY]
EXHIBIT C-4 to
NOTE PURCHASE AGREEMENT
FORM OF OWNED AIRCRAFT FRENCH PLEDGE AGREEMENT
[FILED SEPARATELY]
