Exhibit 4(a)(xxii)
FORM OF PURCHASE AGREEMENT ASSIGNMENT
(OWNED AIRCRAFT)
PURCHASE AGREEMENT ASSIGNMENT
(N___U_)
PURCHASE AGREEMENT ASSIGNMENT (N___U_), dated as of
_____________ __, ____, 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);
and
WHEREAS, pursuant to a Purchase Agreement Assignment, dated as
of __________ __, 1999, 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 ________ __, 1999 (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; and
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; and
WHEREAS, such assignments and acceptances are intended to permit
consummation of the transactions contemplated by the Participation
Agreement; and
WHEREAS, AVSA and Guarantor are willing to execute and deliver
their respective Consents and Agreements;
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 A3__ aircraft, bearing
manufacturer's serial number ___, delivered under the Purchase Agreement,
including the two [CFM International Model 56-5] (1) [Xxxxx & Xxxxxxx
Model _____](2) engines installed on such aircraft on the date of delivery
thereof pursuant to the Purchase Agreement.
-------------------
(1) For A319 and A320 Aircraft.
(2) For A330 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___U_), 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) [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.
-------------------
(3) For A319 and A320 Aircraft.
(4) For A330 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.
(c) Acceptance of Assignment. Subject to the terms hereof,
Assignee accepts the assignment contained in this Clause 2.
(d) Onward Transfer of Rights. Except as provided in Clause 8
hereunder, 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. 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(o) 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(d)) 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:
