Exhibit A-4 to Note Purchase Agreement
FORM OF PURCHASE AGREEMENT ASSIGNMENT
(LEASED AIRCRAFT)
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE ASSUMPTION THAT BOTH
SERIES G AND SERIES C EQUIPMENT NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT
NOTES ARE NOT ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT SHALL BE
MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES AND TO MAKE
OTHER RELATED CHANGES.
PURCHASE AGREEMENT ASSIGNMENT
(US Airways, Inc. Trust No. N___U_)
PURCHASE AGREEMENT ASSIGNMENT (US Airways, Inc. Trust No.
N___U_), dated as of _____________ __, ____ (this "Assignment"), between US
AIRWAYS, INC., a Delaware corporation (the "Assignor" or "Lessee"), and
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its individual capacity
but solely as Owner Trustee ("FSB" or "Lessor") under the Trust Agreement
(US Airways, Inc. Trust No. N___U_), dated as of _____________ __, ____,
(as amended, modified or supplemented from time to time, the "Trust
Agreement"), between ____________________ (the "Owner Participant") and
FSB.
W I T N E S S E T H :
WHEREAS, US Airways Group, Inc. ("Parent") and AVSA (as
hereinafter defined) are parties to the Purchase Agreement (as hereinafter
defined), providing, among other things, for the delivery by AVSA to the
Assignor of certain aircraft, including the Aircraft (as hereinafter
defined) covered by the Participation Agreement (as hereinafter defined);
WHEREAS, pursuant to a Purchase Agreement Assignment, dated as of
__________ __, _____, by and between Parent and Lessee (the "Parent
Assignment"), Parent assigned all of its right, title in and interest in
and to the Purchase Agreement to Assignor to the extent such right, title
and interest relate to certain aircraft, including the Aircraft covered by
the Participation Agreement;
WHEREAS, pursuant to a Consent and Agreement of AVSA and
Guarantor (as hereinafter defined), dated as of ________ __, 2000 (the
"Parent Consent and Agreement"), AVSA and Guarantor consented to the
assignment by Parent to Assignor of Parent's right, title in and interest
in and to the Purchase Agreement as provided for in the Parent Assignment;
WHEREAS, pursuant to the Parent Consent and Agreement, Guarantor
confirmed that its guarantee given in the Consent and Guaranty (as
hereinafter defined) remains in full force and effect and, to the extent
the same relates to the aircraft assigned to Lessee pursuant to the Parent
Assignment, it inures to the benefit of the Assignor;
WHEREAS, pursuant to the Consent and Guaranty, the Guarantor has
agreed, among other things, to unconditionally guarantee the due and
punctual performance by AVSA of all of its liabilities and obligations as
set forth in the Purchase Agreement;
WHEREAS, pursuant to the Lease (as hereinafter defined), the
Lessor will lease the Aircraft to the Assignor;
WHEREAS, on the terms and conditions hereof and of the Consents
and Agreements (as hereinafter defined), (a) the Assignor desires to assign
to the Lessor certain of the Assignor's remaining rights, title and
interests in, to and under the Purchase Agreement and the Consent and
Guaranty (insofar as they relate to the Purchase Agreement and the
Aircraft) and (b) the Lessor desires to accept the assignments and, except
as otherwise provided herein, to assume the obligations of the "Buyer"
under the Purchase Agreement, to the extent assigned to it pursuant hereto;
WHEREAS, pursuant to the Indenture (as hereinafter defined), the
Lessor will assign, inter alia, its rights hereunder to the Indenture
Trustee (as hereinafter defined) to the extent set forth therein;
WHEREAS, such assignments and acceptances are intended to permit
consummation of the transactions contemplated by the Participation
Agreement;
WHEREAS, AVSA and the Guarantor are willing to execute and
deliver their respective Consents and Agreements; and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Defined Terms. For all purposes of this Assignment, except as
otherwise expressly provided or unless the context otherwise requires,
the following terms shall have the following meanings:
"Aircraft" shall mean the Airbus A330 aircraft, bearing
manufacturer's serial number ___, delivered under the Purchase Agreement,
including the two Xxxxx & Xxxxxxx Model PW 4168A engines installed on such
aircraft on the date of delivery thereof pursuant to the Purchase Agreement
or such other engines as may be substituted therefore under the Lease.
"AVSA" shall mean AVSA, S.A.R.L., a French societe a
responsabilite limitee, and its successors and assigns.
"AVSA Consent and Agreement" shall mean the Consent and Agreement
of AVSA attached hereto, as amended, modified or supplemented from time to
time.
"Consent and Guaranty" shall mean the Consent and Guaranty of the
Guarantor attached to the Purchase Agreement, together with all amendments,
waivers, and consents heretofore entered into or heretofore granted
thereunder.
"Consents and Agreements" shall mean the AVSA Consent and
Agreement and the Guarantor Consent and Agreement.
"Equipment Notes" shall have the meaning ascribed thereto in the
Participation Agreement.
"Guarantor" shall mean Airbus Industrie, G.I.E., a French
groupement d'interet economique, and its successors and assigns.
"Guarantor Consent and Agreement" shall mean the Consent and
Agreement of the Guarantor attached hereto, as amended, modified or
supplemented from time to time.
"Indenture" shall mean the Trust Indenture and Security Agreement
(US Airways, Inc. Trust No. N___U_), dated as of _____________ __, ____,
between the Lessor and the Indenture Trustee, as amended, modified or
supplemented from time to time.
"Indenture Trustee" shall mean State Street Bank and Trust
Company of Connecticut, a national banking association, not in its
individual capacity but solely as Indenture Trustee under the Indenture and
each other person which may from time to time be acting as successor
trustee under the Indenture.
"Lease" shall mean the Lease Agreement (US Airways, Inc. Trust
No. N___U_), dated as of _____________ __, ____, between the Lessor and the
Assignor, as amended, modified or supplemented from time to time.
"Participation Agreement" shall mean the Participation Agreement
(US Airways, Inc. Trust No. N___U_), dated as of _____________ __, ____,
among the Assignor, the Owner Participant, the Pass Through Trustee (as
defined therein), the Lessor, the Indenture Trustee and the Subordination
Agent (as defined therein), as amended, modified or supplemented from time
to time.
"Purchase Agreement" shall mean the Airbus A330/A340 Purchase
Agreement, dated as of November 24, 1998, between US Airways Group, Inc.
and AVSA, together with all exhibits, appendices and letter agreements
thereto and all amendments, waivers and consents granted thereunder.
All other terms used herein in capitalized form that are defined
in the Lease shall, when used herein, have the meanings specified in the
Lease.
2. Assignment. (a) Generally. The Assignor has sold, assigned,
transferred and set over and does hereby sell, assign, transfer and
set over unto the Lessor (i) all of the Assignor's right, title and
interest in and to (x) Clauses 12, 13 and 17 of the Purchase Agreement
(the "Assigned Rights") and (y) the Consent and Guaranty (insofar as
such Consent and Guaranty relates to the Assigned Rights), as and to
the extent that the same relates to the Aircraft, except to the extent
reserved below, including, without limitation, in such assignment to
the Lessor (A) all claims for damages in respect of such Aircraft
arising as a result of any default by AVSA under Clause 12, 13 or 17
of the Purchase Agreement, including, without limitation, all
warranty, service life policy and indemnity provisions contained in
Clause 12 of the Purchase Agreement in respect of the Aircraft and
all claims thereunder and under the Consent and Guaranty in respect of
the Aircraft and (B) any and all rights of the Assignor to compel
performance of the terms of Clause 12, 13 and 17 of the Purchase
Agreement and the Consent and Guaranty in respect of the Aircraft;
reserving to the Assignor, however, all the Assignor's rights and
interests in and to Clauses 12, 13 and 17 of the Purchase Agreement
and the Consent and Guaranty as and to the extent that Clause 12, 13
or 17 of the Purchase Agreement and the Consent and Guaranty relate to
aircraft other than the Aircraft and to the extent that the Purchase
Agreement and the Consent and Guaranty relate to any other matters not
directly pertaining to the Aircraft.
(b) Assignment of Rights. If and so long as there shall not
exist and be continuing an Event of Default and, if an Event of Default is
continuing, so long as Lessee or any Sublessee remains in possession of the
Aircraft, the Lessor hereby authorizes the Lessee, to the exclusion of the
Lessor, to exercise in the Lessee's name all rights and powers related to
the Assigned Rights and to retain any recovery or benefit resulting from
the enforcement of any of the Assigned Rights in respect of the Aircraft,
except that the Lessee may not enter into any change order or other
amendment, modification or supplement to the Purchase Agreement without the
written consent or countersignature of the Lessor if such change order,
amendment, modification or supplement would result in any rescission,
cancellation or termination of the Assigned Rights in respect of the
Aircraft or in any way limit the rights assigned hereunder.
(c) Acceptance of Assignment. Subject to the terms hereof, the
Lessor accepts the assignment contained in this Clause 2.
(d) Onward Transfer of Rights. Except as provided in Clause 8
hereunder, the Lessor agrees that it may not sell, assign or otherwise
transfer any of the Assigned Rights without the prior written consent of
AVSA.
(e) Requirement of Notice to AVSA. For all purposes of this
Assignment, AVSA shall not be deemed to have knowledge of and need not
recognize any Event of Default, unless and until AVSA shall have received
written notice thereof from the Lessor or the Indenture Trustee addressed
to its Chief Executive Officer, 0, Xxxx Xxxxx Xxxxxxx Xxxxxxxx, 00000
Xxxxxxx, Xxxxxx (telex 521155F) (fax: 000-00-0-0000-0000) and, in acting
in accordance with the terms of the Purchase Agreement and this Assignment,
AVSA may act with acquittance and conclusively rely upon any such notice.
3. Certain Rights and Obligations of the Parties. (a) Assignor Remains
Liable. It is expressly agreed that, anything herein contained to the
contrary notwithstanding: (a) the Assignor shall at all times remain
liable to AVSA under the Purchase Agreement to perform all the duties
and obligations of the "Buyer" thereunder to the same extent as if
this Assignment had not been executed; (b) the exercise by the Lessor
of any of the rights assigned hereunder shall not release the Assignor
from any of its duties or obligations to AVSA under the Purchase
Agreement except to the extent that such exercise by the Lessor shall
constitute performance of such duties and obligations; and (c) except
as provided in the next succeeding paragraph, none of the Lessor, the
Indenture Trustee nor any Participant shall have any obligation or
liability under the Purchase Agreement by reason of, or arising out
of, this Assignment or be obligated to perform any of the obligations
or duties of the Assignor under the Purchase Agreement or to make any
payment or to make any inquiry as to the sufficiency of any payment
received by any of them or to present or file any claim or to take any
other action to collect or enforce any claim for any payment assigned
hereunder.
(b) Lessor Bound by Purchase Agreement. Without in any way
releasing the Assignor from any of its duties or obligations under the
Purchase Agreement, the Lessor confirms for the benefit of AVSA that,
insofar as the provisions of the Purchase Agreement relate to the Aircraft,
in exercising any rights under the Purchase Agreement, or in making any
claim with respect to the Aircraft or other goods and services delivered or
to be delivered pursuant to the Purchase Agreement, the terms and
conditions of the Purchase Agreement disclosed to the Lessor in writing
shall apply to, and be binding upon, the Lessor to the extent of its
respective interests assigned hereunder to the same extent as the Assignor.
(c) Limit of Effect of this Assignment. Nothing contained
herein shall (i) subject AVSA or the Guarantor to any liability to which it
would not otherwise be subject under the Purchase Agreement or (ii) modify
in any respect the contractual rights of AVSA or the Guarantor thereunder
(except, in each case, as provided in the attached Consents and
Agreements).
(d) Appointment as Attorney-in-Fact. The Assignor does hereby
constitute, effective at any time after an Event of Default shall have
occurred and be continuing, the Lessor and its successors and permitted
assigns to be the Assignor's true and lawful attorney, irrevocably, with
full power (in the name of the Assignor or otherwise) to ask, require,
demand, receive, compound and give acquittance for any and all monies and
claims for monies due and to become due under, or arising out of, the
Purchase Agreement and the Consent and Guaranty in respect of the Aircraft,
to the extent that the same have been assigned as provided in this
Assignment and, for such period as the Lessor, its successors and assigns
may exercise rights with respect thereto under this Assignment, to endorse
any checks or other instruments or orders in connection therewith and to
file any claims or take any action or institute (or, if previously
commenced, assume control of) any proceedings and to obtain any recovery in
connection therewith which the Lessor, its successors and assigns, may deem
to be necessary or advisable in the premises.
4. Further Assurances. The Assignor and the Lessor each agree that, at
any time and from time to time, upon the written request of any other
party hereto, it will promptly and duly execute and deliver any and
all such further instruments and documents and take such further
action as the other may reasonably request in order to obtain the full
benefits of this Assignment and of the rights and powers herein
granted.
5. No Amendment of Purchase Agreement. So long as the Lease is in
effect, the Lessor agrees that it shall not enter into any agreement
that would amend, modify, supplement, rescind, cancel or terminate the
Purchase Agreement or the Consent and Guaranty in any respect or in
any way limit the rights of the Assignor or any of the other rights
assigned hereunder (except as set forth above when there has been an
Event of Default), without the prior written consent of the Assignor.
6. Execution of Assignment. This Assignment is executed by the Assignor
and the Lessor concurrently with the execution and delivery of the
Participation Agreement and the Lease.
7. Confidentiality. The Lessor agrees that it will not disclose to any
third party the terms of the Purchase Agreement or this Assignment,
except (a) as required by applicable law or governmental regulation,
(b) as contemplated in the Lease or the Participation Agreement
(including as set forth in Section 7(o) of the Participation
Agreement) or (c) with the consent of the Assignor, the Guarantor and
AVSA.
8. Assignment as Collateral. Each party hereto consents to the
assignment and pledge by the Lessor to the Indenture Trustee, as
security for the Equipment Notes to be issued under the Indenture and
the other obligations secured thereby as specified in the Indenture,
of all of the Lessor's right, title and interest in and to the
Assigned Rights and the Consent and Guaranty under this Assignment
which assignment shall be on terms identical to this Assignment.
9. Counterparts. This Assignment may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
10. GOVERNING LAW. THIS ASSIGNMENT SHALL IN ALL RESPECTS BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
11. Successors and Assigns. This Assignment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
12. Notices. All notices with respect to the matters contained herein
shall be delivered (notices with respect to AVSA shall be sent to the
address for AVSA set forth in Clause 2(e) hereof) in the manner
provided in Section 12(a) of the Participation Agreement.
13. No Oral Amendments. Neither this Assignment 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 whom the enforcement of such termination, amendment,
supplement, waiver or modification is sought.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment to be duly executed as of the day and year first above written.
US AIRWAYS, INC.
By: _________________________________
Name:
Title:
` FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in
its individual capacity
but solely as Lessor
By: ________________________________
Name:
Title:
AIRBUS INDUSTRIE CONSENT AND AGREEMENT
The undersigned, 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 (the "Guarantor"), hereby acknowledges notice of
and consents to all of the terms of the Purchase Agreement Assignment
between US Airways, Inc., a Delaware corporation, and First Security Bank,
National Association, not in its individual capacity, but solely as Owner
Trustee, with respect to US Airways, Inc. Trust No. N7___UW, dated as of
______________ (hereinafter called the "Assignment", the defined terms
therein being hereinafter used with the same meaning), and to the
assignment of the Assigned Rights to the Indenture Trustee under the
Indenture, dated as of ______________, between ___________ and ____________
(hereinafter called the "Indenture"), and hereby confirms to the Assignor
and the Lessor and their respective successors and assigns that:
(i) except as provided in the Assignment, all representations,
warranties, and agreements of the Guarantor under the Consent and
Guaranty insofar as they relate to the Assigned Rights with
respect to the Aircraft shall inure to the benefit of the Lessor
and its respective successors and permitted assigns, to the same
extent as if the Lessor and its successors and permitted assigns
had originally been named the "Buyer" of the Aircraft therein;
(ii) the Guarantor will pay to the person or entity entitled to
receive the corresponding payment from AVSA under the terms of
the Assignment all amounts required to be paid by the Guarantor
with respect to the Aircraft;
(iii) the Guarantor consents to the sale of the Aircraft by
Lessee to the Lessor, the assignment of Assignor's rights and
interests under the Purchase Agreement and the Consent and
Guaranty to the Lessor pursuant to the Assignment and to the
assignment of the Lessor's rights and interests in the Assignment
to the Indenture Trustee pursuant to the Indenture and the lease
of the Aircraft by the Lessor to the Assignor under the Lease;
and
(iv) from and after the purchase of the Aircraft pursuant to the
Participation Agreement and payment in full for the Aircraft, the
Guarantor will not assert any lien or claim against the Aircraft
or any part thereof or against the Lessee, the Lessor, the Owner
Participant or the Indenture Trustee arising on or prior to such
purchase or in respect of any work or services performed on or
prior thereto.
The Guarantor hereby represents and warrants that:
(A) the Guarantor is a groupement d'interet economique duly
organized and existing in good standing under the laws of the Republic of
France and has the requisite power and authority to enter into and perform
its obligations under the Consent and Guaranty and this Consent and
Agreement;
(B) the making and performance, in accordance with their terms,
of the Consent and Guaranty and this Consent and Agreement have been duly
authorized by all necessary corporate action on the part of the Guarantor,
do not require the consent or approval of the members of the Guarantor, do
not require the consent or approval of, or the giving of notice to, or
registration with, or the taking of any other action in respect of, any
French governmental authority or agency except for those that have already
been obtained and do not contravene any law binding on the Guarantor or
contravene the Guarantor's charter documents or any indenture, credit
agreement or other contractual agreement to which the Guarantor is a party
or by which it is bound;
(C) the Consent and Guaranty constituted, as of the date thereof
and at all times thereafter to and including the date of this Consent and
Agreement, and each of this Consent and Agreement and the Consent and
Guaranty constitutes, binding obligations of the Guarantor enforceable
against the Guarantor in accordance with their respective terms, subject
to: (i) the limitations of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally; and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law), which principles do not make the remedies available at law or in
equity with respect to the Purchase Agreement and this Consent and
Agreement inadequate for the practical realization of the benefits intended
to be provided thereby; and
(D) the Consent and Guaranty is in full force and effect.
This Consent and Agreement is made subject to and with the
benefit of Clause 3 of the Assignment and Section 4.03 of the Indenture.
* * * * * *
THIS CONSENT AND AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
Dated as of ________________
AIRBUS INDUSTRIE G.I.E.
By: _______________________________
Name:
Title:
AVSA CONSENT AND AGREEMENT
The undersigned, AVSA, S.A.R.L., a societe a responsabilite
limitee organized and existing under the laws of the Republic of France
("AVSA"), hereby acknowledges notice of and consents to all of the terms of
the Purchase Agreement Assignment between US Airways, Inc., a Delaware
corporation, and First Security Bank, National Association, not in its
individual capacity, but solely as Owner Trustee, with respect to US
Airways, Inc. Trust No. N___U_, dated as of ______________ (hereinafter
called the "Assignment," the defined terms therein being hereinafter used
with the same meaning), and to the assignment of the Assigned Rights to the
Indenture Trustee under the Indenture, dated as of _____________, between
__________ and _____________ (hereinafter called the "Indenture"), and
hereby confirms to the Assignor and the Lessor and their respective
successors and assigns that:
(i) except as provided in the Assignment, all representations,
warranties, indemnities and agreements of AVSA under the Purchase
Agreement insofar as they relate to the Assigned Rights with
respect to the Aircraft shall inure to the benefit of the Lessor
and its respective successors and permitted assigns to the same
extent as if the Lessor and its successors and permitted assigns
had originally been named the "Buyer" of the Aircraft therein;
(ii) AVSA will pay to the Assignor all payments required to be
paid by it under the Purchase Agreement, unless and until AVSA
shall have received written notice from the Indenture Trustee or
the Lessor (or, after the Indenture shall have been discharged in
full, the Lessor) addressed to it at the address and in the
manner set forth in the Assignment that an Event of Default has
occurred and is continuing, whereupon AVSA will make any and all
payments thereafter required to be made by it under the Purchase
Agreement, to the extent that the right to receive such payment
has been assigned under the Assignment ("AVSA Payments"),
directly to the Indenture Trustee (or, after the Indenture shall
have been discharged in full, the Lessor) if AVSA shall have
received notice as aforesaid that an Event of Default has
occurred and is continuing;
(iii) The Lessor shall not be liable for any of the obligations
or duties of the Assignor under the Purchase Agreement, nor shall
the Assignment give rise to any duties or obligations whatsoever
on the part of the Lessor owing to AVSA, except for the
agreements of the Lessor set forth in the Assignment, including,
but not limited to Clause 3(b) of the Assignment;
(iv) AVSA consents to the sale of the Aircraft by Lessee to
Lessor, assignment of the Lessor's rights and interests in the
Assignment to the Indenture Trustee pursuant to the Indenture and
to the lease of the Aircraft by the Lessor to the Lessee under
the Lease; and
(v) from and after the purchase of the Aircraft pursuant to the
Participation Agreement and payment in full for the Aircraft,
AVSA will not assert any lien or claim against the Aircraft or
any part thereof arising on or prior to such purchase or in
respect of any work or services performed on or prior thereto.
AVSA hereby represents and warrants that:
(A) AVSA is a societe a responsabilite limitee duly organized
and existing in good standing under the laws of the Republic of France
and has the requisite power and authority to enter into and perform its
obligations under the Purchase Agreement and this Consent and Agreement;
(B) the making and performance, in accordance with their terms,
of the Purchase Agreement and this Consent and Agreement have been duly
authorized by all necessary corporate action on the part of AVSA, do not
require any approval of AVSA's shareholders, do not require the consent or
approval of, the giving notice to, or registration with, or the taking of
any other action in respect of, any French governmental authority or agency
except for those that have already been obtained and do not contravene any
law binding on AVSA or contravene AVSA's charter documents or any
indenture, credit agreement or other contractual agreement to which AVSA is
a party or by which it is bound;
(C) each of the Purchase Agreement and this Consent and
Agreement constitutes a binding obligation of AVSA enforceable against AVSA
in accordance with its terms, subject to: (i) the limitations of applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally; and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law), which principles do not make the remedies
available at law or in equity with respect to the Purchase Agreement and
this Consent and Agreement inadequate for the practical realization of the
benefits intended to be provided thereby; and
(D) the Purchase Agreement is in full force and effect as to
AVSA.
This Consent and Agreement is made subject to and with the
benefit of Clause 3 of the Assignment and Section 4.03 of the Indenture.
* * * * * *
THIS CONSENT AND AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
Dated as of ________________
AVSA, S.A.R.L.
By: ________________________________
Name:
Title:
