EXHIBIT 4.21
FORM OF PURCHASE AGREEMENT ASSIGNMENT
(OWNED AIRCRAFT)
PURCHASE AGREEMENT ASSIGNMENT
(N___U_)
PURCHASE AGREEMENT ASSIGNMENT (N___U_), dated as of
_____________ __, ____ (this "Assignment"), between US AIRWAYS, INC., a
Delaware corporation ("Assignor"), and STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking association, not
in its individual capacity but solely as Indenture Trustee ("Assignee")
under the Indenture and Security Agreement (N___U_), dated as of
_____________ __, ____, (as amended, modified or supplemented from time to
time, the "Indenture"), between Assignor and Assignee.
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 Parent
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 ________ __, 200_, by and between Parent and Assignor (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 _________ __, 200_ (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 the Assignor pursuant
to the Parent Assignment, it inures to the benefit of the Assignor;
WHEREAS, pursuant to the Consent and Guaranty, 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, on the terms and conditions hereof and of the
Consents and Agreements (as hereinafter defined), Assignor desires to
assign to Assignee certain of the Assignor's remaining rights, title and
interests in, to and under the Purchase Agreement and the Consent and
Guaranty as security for the Secured Obligations (insofar as such
obligations relate to the Purchase Agreement and the Aircraft) and Assignee
is willing to accept such collateral assignment, as hereinafter set forth;
WHEREAS, such assignments and acceptances are intended to permit
consummation of the transactions contemplated by the Participation Agreement;
WHEREAS, AVSA and 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 [A321][A330] aircraft,
bearing manufacturer's serial number ___, delivered under the Purchase
Agreement, including the two [CFM International Model 56-5B engines]1
[Xxxxx & Xxxxxxx Model PW 4168A engines]2 installed on such aircraft on the
date of delivery thereof pursuant to the Purchase Agreement.
-------------------
1 To be used with A321 aircraft.
"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.
"Participation Agreement" shall mean the Participation
Agreement (N[-]) dated as of _____________ __, ____, between the Assignor
and the Assignee, as amended, modified or supplemented from time to time.
"Purchase Agreement" shall mean [the Airbus A319/A320/A321
Purchase Agreement, dated as of October 31, 1997, between US Airways Group,
Inc. and AVSA]3 [the Airbus A330/A340 Purchase Agreement, dated as of
November 24, 1998, between US Airways Group, Inc. and AVSA]4, together with
all exhibits, appendices and letter agreements thereto and all amendments,
waivers and consents granted thereunder.
--------
2 To be used with A330 aircraft.
3 To be used with A321 aircraft.
All other terms used herein in capitalized form that are
defined in the Participation Agreement shall, when used herein, have the
meanings specified in the Participation Agreement.
2. Assignment. (a) Generally. To secure performance of the Secured
Obligations, Assignor has assigned, transferred and set over and
does hereby sell, assign, transfer and set over unto the Assignee a
first priority security interest and mortgage in, to and under (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 Assignee (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 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 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 Assignor remains in possession of
the Aircraft, Assignee hereby authorizes Assignor, to the exclusion
of Assignee, to exercise in Assignor'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 Assignor may not
enter into any change order or other amendment, modification or
supplement to the Purchase Agreement without the written consent or
countersignature of Assignee 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.
-------------------
4 To be used with A330 aircraft.
(c) Acceptance of Assignment. Subject to the terms hereof,
Assignee accepts the assignment contained in this Clause 2.
(d) Onward Transfer of Rights. Assignee 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 Assignee 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) 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 Assignee of any of the rights assigned hereunder shall
not release Assignor from any of its duties or obligations to AVSA
under the Purchase Agreement except to the extent that such
exercise by Assignee shall constitute performance of such duties
and obligations; and (c) except as provided in the next succeeding
paragraph, neither Assignee nor any Loan 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 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) Assignee Bound by Purchase Agreement. Without in any way
releasing Assignor from any of its duties or obligations under the
Purchase Agreement, Assignee 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 Assignee in writing shall apply to, and be binding
upon, Assignee to the extent of its respective interests assigned
hereunder to the same extent as 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. Assignor does hereby
constitute, effective at any time after an Event of Default shall
have occurred and be continuing, Assignee and its successors and
permitted assigns to be Assignor's true and lawful attorney,
irrevocably, with full power (in the name of 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 Assignee, 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 Assignee, its
successors and assigns, may deem to be necessary or advisable in
the premises.
4. Further Assurances. Assignor and Assignee 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 any of the Secured
Obligations remain outstanding, Assignee 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
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 Assignor.
6. Execution of Assignment. This Assignment is executed by Assignor
and Assignee concurrently with the execution and delivery of the
Participation Agreement.
7. Confidentiality. Assignee 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 Participation Agreement
(including as set forth in Section 7(g) of the Participation
Agreement) or (c) with the consent of Assignor, Guarantor and AVSA.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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:
` STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Indenture Trustee
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 ("Guarantor"), hereby
acknowledges notice of and consents to all of the terms of the Purchase
Agreement Assignment between US Airways, Inc., a Delaware corporation
("Assignor"), and State Street Bank and Trust Company of Connecticut,
National Association, a national banking association, not in its individual
capacity but solely as Indenture Trustee ( "Assignee") under the Indenture
and Security Agreement (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
Assignee under the Indenture, dated as of ______________, between Assignor
and Assignee (hereinafter called the "Indenture"), and hereby confirms to
Assignor and Assignee and their respective successors and assigns that:
(i) except as provided in the Assignment, all representations,
warranties, and agreements of 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 Assignee and its
respective successors and permitted assigns, to the same extent as
if Assignee and its successors and permitted assigns had originally
been named the "Buyer" of the Aircraft therein;
(ii) 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 Guarantor with
respect to the Aircraft;
(iii) Guarantor consents to the assignment of Assignor's rights and
interests under the Purchase Agreement and the Consent and Guaranty
to Assignee pursuant to the Assignment; and
(iv) from and after the purchase of the Aircraft pursuant to the
Participation Agreement and payment in full for the Aircraft,
Guarantor will not assert any lien or claim against the Aircraft or
any part thereof or against Assignor or Assignee arising on or
prior to such purchase or in respect of any work or services
performed on or prior thereto.
Guarantor hereby represents and warrants that:
(A) 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 Guarantor,
do not require the consent or approval of the members of 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 Guarantor or
contravene Guarantor's charter documents or any indenture, credit agreement
or other contractual agreement to which 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 Guarantor
enforceable against 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 ("Assignor"), and State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, not in
its individual capacity but solely as Indenture Trustee (the "Assignee")
under the Indenture and Security Agreement (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 Assignee under the Indenture,
dated as of ______________, between the Assignor and the Assignee
(hereinafter called the "Indenture"), and hereby confirms to Assignor and
Assignee 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 Assignee and
its respective successors and permitted assigns to the same extent
as if Assignee and its successors and permitted assigns had
originally been named the "Buyer" of the Aircraft therein;
(ii) AVSA will pay to Assignor all payments required to be paid by
it under the Purchase Agreement, unless and until AVSA shall have
received written notice from Assignee 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 Assignee if AVSA shall have received notice as
aforesaid that an Event of Default has occurred and is continuing;
(iii) Assignee shall not be liable for any of the obligations or
duties of Assignor under the Purchase Agreement, nor shall the
Assignment give rise to any duties or obligations whatsoever on the
part of Assignee owing to AVSA, except for the agreements of
Assignee set forth in the Assignment, including, but not limited to
Clause 3(b) of the Assignment;
(iv) AVSA consents to the assignment of Assignor's rights and
interests under the Purchase Agreement and the Consent and Guaranty
to Assignee pursuant to the Assignment; 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:
