EXHIBIT 4.19
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PARTICIPATION AGREEMENT
(N___U_ Series G Equipment Note)
Dated as of
__________, 200__
By and Between
US AIRWAYS, INC.,
Owner
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity except
as expressly provided herein, but solely as
Class G Pass Through Trustee under the
Class G Pass Through Trust Agreement,
Subordination Agent and Indenture Trustee
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One Airbus A[-]-[--] Aircraft
U.S. Registration No. N___U_
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INDEX TO PARTICIPATION AGREEMENT
Page
SECTION 1. Definitions and Construction................................2
SECTION 2. Participation by Class G Pass Through Trustee
in Financing of the Aircraft................................2
(a) Participation by Class G Pass Through
Trustee on the Delivery Date; Issuance of Series
G Equipment Note.....................................2
(b) Owner's Notice of Delivery Date......................3
(c) Closing..............................................3
(d) Postponement of Scheduled Delivery Date.....................3
SECTION 3. [Reserved.].................................................4
SECTION 4. Conditions Precedent........................................4
(a) Conditions Precedent to Purchase of Series
G Equipment Note.....................................4
(b) Conditions Precedent to the Obligations of
Owner...............................................11
SECTION 5. Extent of Interest of Series G Note Holders................12
SECTION 6. Representations and Warranties of Owner;
Indemnities. ..............................................13
(a) Representations and Warranties......................13
(b) General Indemnity...................................16
SECTION 7. Representations, Warranties and Covenants..................21
(a) Securities Act......................................21
(b) Reregistration......................................21
(c) Quiet Enjoyment.....................................23
(d) Series G Equipment Note Acquired for
Investment..........................................23
(e) Owner Merger Covenant...............................24
(f) Representations, Warranties and Covenants
of the Indenture Trustee............................25
(g) Confidentiality of Purchase Agreement...............27
(h) Loan Participant Liens..............................27
(i) Indenture Trustee Liens.............................27
(j) Further Assurances..................................27
(k) Transfer of Series G Equipment Note.................28
(l) Representations and Warranties of Class G
Pass Through Trustee................................28
(m) Representations and Warranties of Subordination
Agent...............................................30
SECTION 8. Reliance of Class G Liquidity Provider and
Policy Provider............................................33
SECTION 9. Other Documents............................................33
SECTION 10. Certain Covenants of Owner.................................33
(a) Further Assurances..................................33
(b) Filings.............................................34
SECTION 11. [Reserved.]................................................34
SECTION 12. Notices; Consent to Jurisdiction...........................34
(a) Notices.............................................34
(b) Consent to Jurisdiction.............................34
SECTION 13. [Reserved.]................................................35
SECTION 14. Miscellaneous..............................................35
(a) Survival............................................35
(b) Counterparts........................................35
(c) Amendments and Waivers..............................35
(d) Successors and Assigns..............................36
(e) Governing Law.......................................36
(f) References.................................................36
EXHIBITS
Exhibit A - Form of Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois), special counsel for Owner
Exhibit B - Form of Opinion of Owner's Legal Department
Exhibit C - Form of Opinion of special counsel for the Manufacturer
Exhibit D - Form of Opinion of Xxxxx & Xxxxxxx, P.C., special FAA
Counsel
Exhibit E - Form of Opinion of Xxxxxxx Xxxx LLP, special counsel for
the Indenture Trustee
Exhibit F - Form of Opinion of Xxxxxxx Xxxx LLP, special counsel for
the Class G Pass Through Trustee
Exhibit G - Form of Opinion of Xxxxxxx Xxxx LLP, special counsel for
the Subordination Agent
SCHEDULES
Schedule I - Names and Addresses
Schedule II - Commitment
Schedule III - Pass Through Trust Agreement
PARTICIPATION AGREEMENT
(N___U_ Series G Equipment Note)
THIS PARTICIPATION AGREEMENT (N___U_ Series G Equipment
Note), dated as of __________, 200__ (as amended, supplemented or otherwise
modified from time to time, this "Agreement"), by and between US AIRWAYS,
INC., a Delaware corporation (together with its successors and permitted
assigns, the "Owner"), and STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, a national banking association, not in
its individual capacity except as otherwise provided herein, but solely as
pass through trustee under the Class G Pass Through Trust Agreement (in
such capacity, together with its successors and permitted assigns, the
"Class G Pass Through Trustee"), subordination agent and trustee under the
Intercreditor Agreement (in such capacity, together with its successors and
permitted assigns, the "Subordination Agent"), and Indenture Trustee under
the Indenture (in such capacity, together with any successor indenture
trustee, the "Indenture Trustee");
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Indenture Trustee and Owner are entering into the
Indenture pursuant to which Owner will issue to the Class G Pass Through
Trustee the Series G Equipment Note, which Series G Equipment Note is to be
secured by the mortgage and security interests created by Owner in favor of
the Indenture Trustee;
WHEREAS, concurrently with the execution and delivery of
this Agreement, Owner will execute and deliver an Indenture Supplement
covering the Aircraft, supplementing the Indenture;
WHEREAS, the proceeds from the issuance and sale of the
Class G Pass Through Certificates by the Class G Pass Through Trust will be
applied in part by the Class G Pass Through Trustee on the Delivery Date to
purchase from Owner, on behalf of the Class G Pass Through Trust, the
Series G Equipment Note bearing the same interest rate as the Class G Pass
Through Certificates issued by the Class G Pass Through Trust;
WHEREAS, prior to the execution and delivery of this
Agreement, (i) the Class G Liquidity Provider entered into the Class G
Liquidity Facility for the benefit of the holders of the Class G Pass
Through Certificates, with the Subordination Agent, as agent for the Class
G Pass Through Trustee on behalf of the Class G Pass Through Trust, (ii)
the Policy Provider entered into the Policy Provider Agreement with the
Subordination Agent, as agent for the Class G Pass Through Trustee on
behalf of the Class G Pass Through Trust and has issued the Policy for the
benefit of the holders of the Class G Pass Through Certificates and (iii)
the Class G Pass Through Trustee, the Class G Liquidity Provider, the
Policy Provider and the Subordination Agent have entered into the
Intercreditor Agreement; and
WHEREAS, the Series G Equipment Note will be held by the
Subordination Agent pursuant to the Intercreditor Agreement on behalf of
the Class G Pass Through Trust.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND CONSTRUCTION.
Capitalized terms used but not defined herein shall have the
respective meanings set forth or incorporated by reference, and shall be
construed and interpreted in the manner described, in Annex A.
SECTION 2. PARTICIPATION BY CLASS G PASS THROUGH TRUSTEE IN
FINANCING OF THE AIRCRAFT.
(a) Participation by Class G Pass Through Trustee on the
Delivery Date; Issuance of Series G Equipment Note. Subject to the terms
and conditions of this Agreement, the Class G Pass Through Trustee agrees
to make a secured loan to Owner on the Delivery Date to finance, in part,
Owner's acquisition of the Aircraft by paying to Owner the aggregate
purchase price of the Series G Equipment Note being issued to the Class G
Pass Through Trustee as set forth on Schedule II opposite the name of the
Class G Pass Through Trust. The Class G Pass Through Trustee shall make
such payment to Owner on a date to be designated pursuant to Section 2(b)
by transferring to the account of Owner at State Street Bank and Trust
Company of Connecticut, National Association, 000 Xxxxxx Xxxxxx, Xxxxxxx
Square, Xxxxxxxx, Xxxxxxxxxxx 00000, ABA No. 011-00-0028, Account No.
0000-000-0, Reference: US Airways, Inc. 2000-2 EETC/N___U_), not later than
9:30 a.m., New York City time, on the Delivery Date in immediately
available funds in Dollars, the amount set forth opposite the name of the
Class G Pass Through Trust on Schedule II hereto.
Upon the occurrence of the above transfer by the Class G
Pass Through Trustee to Owner, Owner shall issue, pursuant to Article II of
the Indenture, to the Subordination Agent on behalf of the Class G Pass
Through Trustee, the Series G Equipment Note of the maturity and aggregate
principal amount, bearing the interest rate and for the purchase price set
forth on Schedule II opposite the name of the Class G Pass Through Trust.
(b) Owner's Notice of Delivery Date. Owner agrees to give
the Indenture Trustee, the Class G Pass Through Trustee and the
Subordination Agent at least one (1) Business Day written or facsimile
notice prior to the Delivery Date, which notice shall specify the amount of
the Series G Equipment Note to be purchased by the Class G Pass Through
Trustee, the Delivery Date for the Aircraft, the serial number of the
Airframe and each Engine, and the United States registration number for the
Aircraft.
(c) Closing. The closing of the transactions referred to in
this Agreement shall take place commencing at 9:30 a.m. local time, on the
Delivery Date at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP in
New York, New York.
(d) Postponement of Scheduled Delivery Date.
(i) If for any reason whatsoever the closing of the
transactions contemplated hereby is not consummated on the Delivery
Date provided for pursuant to Section 2(b) (the "Scheduled Delivery
Date"), the closing shall be deemed adjourned to the next Business
Day or to such other Business Day on or prior to [-] as Owner shall
specify by written notice to the Class G Pass Through Trustee and
the Indenture Trustee.
(ii) If the closing fails to occur on the Scheduled Delivery
Date, Owner shall cause the Indenture Trustee to promptly return to
the Class G Pass Through Trustee any funds provided by such Class G
Pass Through Trustee, together with interest or income earned
thereon.
(iii) If the closing fails to occur on the Scheduled
Delivery Date and funds are not returned, as provided by clause
(ii) above, to the Class G Pass Through Trustee, Owner shall use
reasonable efforts to cause the Indenture Trustee to invest, at the
risk of Owner, the funds received by it from the Class G Pass
Through Trustee in Cash Equivalents. Any such obligations purchased
by Owner, whether directly or through a repurchase agreement, shall
be held in trust by the Indenture Trustee for the benefit of the
Class G Pass Through Trustee.
(iv) If the closing fails to occur on the Scheduled Delivery
Date, unless Owner shall cause the Indenture Trustee to return all
funds to the Class G Pass Through Trustee by 2:00 p.m., New York
City time, on the Scheduled Delivery Date, Owner shall reimburse
the Class G Pass Through Trustee for the loss of the use of its
funds an amount equal to the excess, if any, of (x) interest
at the Debt Rate on the amount of such funds for the period from
and including the Scheduled Delivery Date to but excluding the
actual Delivery Date or, if earlier, the day on which the Class G
Pass Through Trustee's funds are returned if such return is made by
2:00 p.m., New York City time (or to but excluding the next
following Business Day if such return is not made by such time)
over (y) any amount paid to the Class G Pass Through Trustee in
respect of interest or income earned by Owner pursuant to clause
(iii) above.
(v) On the Delivery Date or on the date funds are required
to be returned to the Class G Pass Through Trustees pursuant to
clause (ii) above, Owner shall reimburse the Class G Pass Through
Trustees for any losses incurred on such investments. All income
and profits on the investment of such funds shall be for the
account of the Class G Pass Through Trustee, and Owner shall not be
liable for failure to invest such funds, except for its own
negligence or willful misconduct.
SECTION 3. [RESERVED.]
SECTION 4. CONDITIONS PRECEDENT.
(a) Conditions Precedent to Purchase of Series G Equipment
Note. It is agreed that the obligations of the Indenture Trustee, the
Subordination Agent and the Class G Pass Through Trustee on behalf of the
Class G Pass Through Trust to participate in the transaction contemplated
hereby on the Delivery Date are subject to the fulfillment to the
satisfaction of each party (or waiver by such party), prior to or on the
Delivery Date of the following conditions precedent:
(i) At least one (1) Business Day prior to the Delivery
Date, each of the parties hereto shall have received the Delivery
Notice pursuant to Section 2(b).
(ii) On the Delivery Date, no change shall have occurred
after the date of the execution and delivery of this Agreement in
applicable law or regulations or guidelines or interpretations
thereof by appropriate regulatory authorities which would make it a
violation of law or regulations or guidelines for the Class G Pass
Through Trustee to make its Commitment available in accordance with
Section 2.
(iii) The following documents shall have been duly
authorized, executed and delivered by the respective party or
parties thereto, shall each be satisfactory in form and substance
to the Indenture Trustee, the Class G Pass Through Trustee and the
Subordination Agent and shall be in full force and effect and
executed counterparts shall have been delivered to the Indenture
Trustee, the Class G Pass Through Trustee and the Subordination
Agent, or their respective counsel, provided that only the
Subordination Agent on behalf of the Class G Pass Through Trustee
shall receive an executed original of the Series G Equipment Note:
(1) an excerpted copy of the Purchase Agreement
(insofar as it relates to the Aircraft);
(2) the Indenture;
(3) the Indenture Supplement;
(4) the Series G Equipment Note;
(5) the FAA Xxxx of Sale;
(6) the Xxxx of Sale;
(7) the Purchase Agreement Assignment;
(8) the Consent and Agreement; and
(9) the French Pledge Agreement.
In addition, the Class G Pass Through Trustee shall
have received executed counterparts or conformed copies of the
following documents:
(1) the Class G Pass Through Trust Agreement;
(2) the Intercreditor Agreement;
(3) the Class G Liquidity Facility for the Class G
Pass Through Trust; and
(4) the Policy Provider Agreement and the Policy for
the Class G Pass Through Trust.
(iv) A Uniform Commercial Code financing statement or
statements covering all the security interests created by or
pursuant to the Granting Clause of the Indenture that are not
covered by the recording system established by the Transportation
Code shall have been executed and delivered by Owner, and
arrangements satisfactory to the Indenture Trustee shall have been
made for the filing of such financing statement or statements in
all places necessary or advisable, and any additional Uniform
Commercial Code financing statements deemed advisable by the Class
G Pass Through Trustee shall have been executed and delivered by
Owner and arrangements satisfactory to the Indenture Trustee shall
have been made for the filing of such financing statements.
(v) The Indenture Trustee, the Class G Pass Through Trustee
and the Subordination Agent shall have received the following, in
each case in form and substance satisfactory to it (except it shall
not be a condition to the obligation of any such party that it
receive a certificate or other document required to be delivered by
it):
(A) (1) an incumbency certificate of Owner as to the person
or persons authorized to execute and deliver the Operative
Documents to which Owner is a party and any other documents
to be executed on behalf of Owner in connection with the
transactions contemplated hereby and the signatures of such
person or persons;
(2) a copy of the resolutions of the board of
directors of Owner or Owner's executive committee, certified
by the Secretary or an Assistant Secretary of Owner, duly
authorizing the transactions contemplated hereby and the
execution and delivery of each of the documents required to
be executed and delivered on behalf of Owner in connection
with the transactions contemplated hereby; and
(3) a copy of the certificate of incorporation of
Owner, certified by the Secretary of State of the State of
Delaware, a copy of the by-laws of Owner certified by the
Secretary or Assistant Secretary of Owner, and a certificate
or other evidence from the Secretary of State of the State
of Delaware, dated as of a date shortly prior to the
Delivery Date, as to the due incorporation and good standing
of Owner in such state.
(B) (1) an incumbency certificate of the Indenture Trustee
as to the person or persons authorized to execute and
deliver the Operative Documents to which the Indenture
Trustee is a party and any other documents to be executed on
behalf of the Indenture Trustee in connection with the
transactions contemplated hereby and the signatures of such
person or persons;
(2) a copy of the resolutions of the board of
directors of the Indenture Trustee, certified by the
Secretary or an Assistant Secretary of the Indenture
Trustee, duly authorizing the transactions contemplated
hereby and the execution and delivery of each of the
documents required to be executed and delivered on behalf of
the Indenture Trustee in connection with the transactions
contemplated hereby;
(3) a copy of the articles of association of the
Indenture Trustee certified by the Comptroller of the
Currency, a copy of the by-laws of the Indenture Trustee
certified by the Secretary or an Assistant Secretary of the
Indenture Trustee, and a certificate or other evidence from
the Comptroller of the Currency, dated as of a date shortly
prior to the Delivery Date, as to the existence of the
Indenture Trustee under the laws of the United States of
America; and
(4) a certificate signed by an authorized officer of
the Indenture Trustee, dated the Delivery Date, certifying
that the representations and warranties contained herein of
the Indenture Trustee are correct in all material respects
as though made on and as of the Delivery Date, except to the
extent that such representations and warranties relate
solely to an earlier date (in which case such
representations and warranties are correct on and as of such
earlier date).
(vi) All appropriate action required to have been taken
prior to the Delivery Date in connection with the transactions
contemplated by this Agreement shall have been taken by the Federal
Aviation Administration, or any governmental or political agency,
subdivision or instrumentality of the United States, and all
orders, permits, waivers, authorizations, exemptions and approvals
of such entities required to be in effect on the Delivery Date in
connection with the transactions contemplated by this Agreement
shall have been issued, and all such orders, permits, waivers,
authorizations, exemptions and approvals shall be in full force and
effect on the Delivery Date.
(vii) The Indenture Trustee, the Class G Pass Through
Trustee and the Subordination Agent shall have received a
certificate signed by an authorized officer of Owner to the effect
that:
(1) the Aircraft has been duly certified by the Federal
Aviation Administration as to type and has a current certificate
of airworthiness;
(2) the Indenture and the Indenture Supplement
covering the Aircraft shall have been duly filed for
recordation (or shall be in the process of being so duly
filed for recordation) with the Federal Aviation
Administration;
(3) the representations and warranties contained
herein of Owner are correct in all material respects as
though made on and as of the Delivery Date, except to the
extent that such representations and warranties relate
solely to an earlier date (in which case such
representations and warranties were correct on and as of
such earlier date); and
(4) the conditions to the purchase of the Series G
Equipment Note by the Class G Pass Through Trustee under the
Class G Pass Through Documents have been duly satisfied or
waived in accordance with their respective terms.
(viii) In the case of the Class G Pass Through Trustee, the
conditions specified in Section 3 of the Class G Note Purchase
Agreement shall have been satisfied or waived.
(ix) The Indenture Trustee, the Class G Pass Through Trustee
and the Subordination Agent shall have received, addressed to each
such party, an opinion dated the Delivery Date substantially in the
form of Exhibit A hereto from Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois), special counsel for Owner, and an opinion dated the
Delivery Date substantially in the form of Exhibit B hereto from
Owner's legal department.
(x) The Class G Pass Through Trustee and the Indenture
Trustee shall have received, addressed to the Class G Pass Through
Trustee, the Indenture Trustee and Owner, an opinion dated the
Delivery Date substantially in the form of Exhibit C hereto from
Xxxxxxxx Chance, with respect to the Manufacturer Documents.
(xi) [Reserved.]
(xii) [Reserved.]
(xiii) The Indenture Trustee, the Class G Pass Through
Trustee and the Subordination Agent shall have received, addressed
to each such party, an opinion dated the Delivery Date
substantially in the form of Exhibit D hereto from Xxxxx & Xxxxxxx,
P.C., special FAA counsel.
(xiv) The Class G Pass Through Trustee and the Subordination
Agent shall have received, addressed to each such party, an opinion
dated the Delivery Date substantially in the form of Exhibit E from
Xxxxxxx Xxxx LLP, special counsel for the Indenture Trustee.
(xv) [Reserved.]
(xvi) The Indenture Trustee, the Class G Pass Through
Trustee and the Subordination Agent shall have received an
insurance certificate together with an independent insurance
broker's report, in form and substance reasonably satisfactory to
the Indenture Trustee, as to the due compliance with the terms of
Section 7.04 of the Indenture relating to insurance with respect to
the Aircraft.
(xvii) [Reserved.]
(xviii)No action or proceeding shall have been instituted
nor shall governmental action be threatened before any court or
governmental agency, nor shall any order, judgment or decree have
been issued or proposed to be issued by any court or governmental
agency at the time of the Delivery Date to set aside, restrain,
enjoin or prevent the completion and consummation of this Agreement
or the transactions contemplated hereby.
(xix) [Reserved.]
(xx) No Event of Default has occurred and is continuing and
no Event of Loss has occurred with respect to the Airframe or any
Engine.
(xxi) The Indenture Trustee and the Subordination Agent
shall have received (A) a certificate signed by an authorized
officer of the Pass Through Trustee, dated the Delivery Date,
certifying that the representations and warranties contained herein
of the Pass Through Trustee are correct in all material respects as
though made on and as of the Delivery Date, except to the extent
that such representations and warranties relate solely to an
earlier date (in which case such representations and warranties are
correct on and as of such earlier date), (B) an opinion dated the
Delivery Date substantially in the form of Exhibit F hereto
addressed to each such party of Xxxxxxx Xxxx LLP, special counsel
for the Class G Pass Through Trustee and (B) such other documents
and evidence with respect to the Class G Pass Through Trustee as
either such Person may reasonably request in order to establish the
due consummation of the transactions contemplated by this
Agreement, the taking of all necessary corporate action in
connection therewith and compliance with the conditions herein set
forth.
(xxii) The Indenture Trustee and the Class G Pass Through
Trustee shall have received, addressed to each such party, an
opinion dated the Delivery Date substantially in the form of
Exhibit G hereto from Xxxxxxx Xxxx LLP, special counsel for the
Subordination Agent.
Promptly upon the recording of the Indenture and the
Indenture Supplement covering the Aircraft pursuant to the Transportation
Code, Owner will cause Xxxxx & Xxxxxxx, P.C., special FAA counsel in
Oklahoma City, Oklahoma, to deliver to the Class G Pass Through Trustee,
the Indenture Trustee and Owner an opinion as to the due recording of the
Indenture and such Indenture Supplement and the lack of filing of any
intervening documents with respect to the Aircraft.
(b) Conditions Precedent to the Obligations of Owner. It is
agreed that the obligations of Owner to participate in the transactions
contemplated hereby on the Delivery Date are subject to the fulfillment to
the satisfaction of Owner prior to the Delivery Date of the following
conditions precedent:
(i) All appropriate action required to have been taken on or
prior to the Delivery Date in connection with the transactions
contemplated by this Agreement shall have been taken by the Federal
Aviation Administration, or any governmental or political agency,
subdivision or instrumentality of the United States, and all
orders, permits, waivers, exemptions, authorizations and approvals
of such entities required to be in effect on the Delivery Date in
connection with the transactions contemplated by this Agreement
shall have been issued, and all such orders, permits, waivers,
exemptions, authorizations and approvals shall be in full force and
effect on the Delivery Date.
(ii) The conditions specified in Sections 4(a)(ii) shall
have been satisfied.
(iii) Those documents described in Section 4(a)(iii) shall
have been duly authorized, executed and delivered by the respective
party or parties thereto (other than Owner) in the manner specified
in Section 4(a)(iii), shall each be satisfactory in form and
substance to Owner, shall be in full force and effect on the
Delivery Date, and an executed counterpart of each thereof (other
than the Series G Equipment Note) shall have been delivered to
Owner or its special counsel.
(iv) Owner shall have received (A) each certificate referred
to in Section 4(a)(v) (other than the certificate referred to in
clause (A) thereof), (B) the certificate referred to in Section
4(a)(xxi)(A) and (C) such other documents and evidence with respect
to the Class G Pass Through Trustee as Owner or its special counsel
may reasonably request in order to establish the due consummation
of the transactions contemplated by this Agreement, the taking of
all corporate proceedings in connection therewith and compliance
with the conditions herein set forth.
(v) Owner shall have received the opinions set forth in
Sections 4(a)(x), 4(a)(xiii), 4(a)(xiv), 4(a)(xxi)(B) and
4(a)(xxii), in each case addressed to Owner and dated the Delivery
Date.
(vi) No action or proceeding shall have been instituted nor
shall governmental action be threatened before any court or
governmental agency, nor shall any order, judgment or decree have
been issued or proposed to be issued by any court or governmental
agency at the time of the Delivery Date to set aside, restrain,
enjoin or prevent the completion and consummation of this Agreement
or the transactions contemplated hereby.
(vii) No change shall have occurred after the date of the
execution and delivery of this Agreement in applicable law or
regulations or guidelines or interpretations by appropriate
regulatory authorities which would make it a violation of law or
regulations or guidelines for Owner to enter into any transaction
contemplated by the Operative Documents to be executed on or before
the Delivery Date.
(viii) Owner shall have been paid by the Class G Pass
Through Trustee for the issuance of the Series G Equipment Note.
SECTION 5. EXTENT OF INTEREST OF SERIES G NOTE HOLDERS. No Series G
Note Holder shall have any further interest in, or other right with respect
to, the mortgage and security interests created by the Indenture when and
if the principal of and interest on the Series G Equipment Note held by
such holder and all other sums payable to such holder hereunder, under the
Indenture and under such Series G Equipment Note shall have been paid in
full.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF OWNER; INDEMNITIES.
(a) Representations and Warranties. Owner represents and
warrants to the Class G Pass Through Trustee, the Indenture Trustee, each
Series G Loan Participant, the Subordination Agent, the Class G Liquidity
Provider and the Policy Provider that:
(i) Owner is a corporation duly organized, validly existing
and in good standing under the laws of the state of its
incorporation, has the corporate power and authority to own or hold
under lease its properties, has, or had on the respective dates of
execution thereof, the corporate power and authority to enter into
and perform its obligations under the Owner Documents, the Class G
Pass Through Trust Agreement and the other Operative Documents to
which it is a party, and is duly qualified to do business as a
foreign corporation in each state in which its operations or the
nature of its business requires other than failures to so qualify
which would not have a material adverse effect on the condition
(financial or otherwise), business or properties of Owner and its
subsidiaries considered as one enterprise;
(ii) Owner is a Certificated Air Carrier, and its chief
executive office (as such term is used in Article 9 of the Uniform
Commercial Code in effect in the State of Virginia) is located at
Arlington, Virginia;
(iii) the execution and delivery by Owner of the Owner
Documents, the Class G Pass Through Trust Agreement and each other
Operative Document to which Owner is a party, and the performance
of the obligations of Owner under the Owner Documents, the Class G
Pass Through Trust Agreement and each other Operative Document to
which Owner is a party, have been duly authorized by all necessary
corporate action on the part of Owner, do not require any
stockholder approval, or approval or consent of any trustee or
holder of any material indebtedness or material obligations of
Owner, except such as have been duly obtained and are in full force
and effect, and do not contravene any law, governmental rule,
regulation or order binding on Owner or the certificate of
incorporation or by-laws of Owner, or contravene the provisions of,
or constitute a default under, or result in the creation of any
Lien (other than Permitted Liens) upon the property of Owner under,
any indenture, mortgage, contract or other agreement to which Owner
is a party or by which it may be bound or affected which
contravention, default or Lien, individually or in the aggregate,
would be reasonably likely to have a material adverse effect on the
condition (financial or otherwise), business or properties of Owner
and its subsidiaries considered as one enterprise; provided, that
insofar as the representations and warranties set forth in this
Section 6(a)(iii) apply to the prohibited transaction rules of
ERISA and Section 4975 of the Code, such representations and
warranties are based upon and subject to the truth and accuracy of
the representations and warranties made or deemed made by each
purchaser of Class G Pass Through Certificates issued by the Class
G Pass Through Trust;
(iv) neither the execution and delivery by Owner of the
Owner Documents, the Class G Pass Through Trust Agreement or any
other Operative Document to which Owner is a party, nor the
performance of the obligations of Owner under the Owner Documents,
the Class G Pass Through Trust Agreement or the other Operative
Documents to which Owner is a party, requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, the Department of
Transportation, the FAA, or any other Federal, state or foreign
governmental authority having jurisdiction over Owner, other than
(A) the registration of the Class G Pass Through Certificates under
the Securities Act and under the securities laws of any state in
which the Class G Pass Through Certificates may be offered for sale
if the laws of such state require such action, (B) the
qualification of the Class G Pass Through Trust Agreement under the
Trust Indenture Act of 1939, as amended, pursuant to an order of
the Securities and Exchange Commission, (C) the orders, permits,
waivers, exemptions, authorizations and approvals of the regulatory
authorities having jurisdiction over the operation of the Aircraft
by Owner required to be obtained on or prior to the Delivery Date,
which orders, permits, waivers, exemptions, authorizations and
approvals have been, or on the Delivery Date will be, duly obtained
and are, or on the Delivery Date will be, in full force and effect,
(D) the registrations and filings referred to in Section 6(a)(vi)
and (E) authorizations, consents, approvals, actions, notices and
filings required to be obtained, taken, given or made either only
after the date hereof or the failure of which to obtain, take, give
or make would not be reasonably likely to have a material adverse
effect on the condition (financial or otherwise), business or
properties of Owner and its subsidiaries considered as one
enterprise;
(v) this Agreement, each of the other Owner Documents and
the Class G Pass Through Trust Agreement to which Owner is a party
constitute (or, in the case of documents to be executed on the
Delivery Date, will constitute) the legal, valid and binding
obligations of Owner enforceable against Owner in accordance with
their respective terms, except as the same may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
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;
(vi) except for (A) the filing for recording pursuant to the
Transportation Code of the Indenture and the Indenture Supplement
attached thereto and made a part thereof and (B) the filing of
financing statements (and continuation statements at periodic
intervals) with respect to the security interests created by such
documents under the Uniform Commercial Code of Virginia and such
other states as may be specified in the opinion furnished pursuant
to Section 4(a)(ix) hereof, no further filing or recording of any
document (including any financing statement in respect thereof
under Article 9 of the Uniform Commercial Code of any applicable
jurisdiction) or other action is necessary under the laws of the
United States of America or any State thereof in order to perfect
the security interest in favor of the Indenture Trustee in the
Aircraft (with respect to such portion of the Aircraft as is
covered by the recording system established by the FAA pursuant to
49 U.S.C. Section 44107);
(vii) neither Owner nor any of its Affiliates has directly
or indirectly offered any interest in any Series G Equipment Note
or the Class G Pass Through Certificates for sale to any Person
other than in a manner permitted by the Securities Act and by the
rules and regulations thereunder;
(viii) Owner is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(ix) no event has occurred and is continuing which
constitutes a Default or an Event of Default;
(x) no event has occurred and is continuing which
constitutes an Event of Loss or would constitute an Event of Loss
with the lapse of time;
(xi) Owner is solvent and has no intention or belief that it
is about to incur debts beyond its ability to pay as they mature;
(xii) none of the proceeds from the issuance of the Series G
Equipment Note will be used directly or indirectly by Owner to
purchase or carry any "margin security" as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve
System;
(xiii) except as may have been disclosed in Owner's reports
filed with the Securities and Exchange Commission, there are no
pending or threatened actions or proceedings that individually or
in the aggregate which could be expected to have a material adverse
effect on the condition (financial or otherwise), business or
properties of Owner and its subsidiaries considered as one
enterprise;
(xiv) Owner has good title (subject to filing and
recordation of the FAA Xxxx of Sale with the FAA) to the Aircraft,
free and clear of all Liens, except the Lien of the Trust Indenture
and Liens permitted by clauses (iv) (solely for Taxes not yet due
but excluding any such Taxes being contested) and (v) (solely
securing obligations that are not yet due but excluding any such
obligations being contested) of Section 7.01 of the Trust
Indenture;
(xv) the audited consolidated balance sheet of Owner with
respect to fiscal year ended December 31, 1999 included in Owner's
annual report on Form 10-K for the year ended December 31, 1999,
filed by Owner with the SEC, and the related consolidated
statements of income, stockholders' equity and cash flows for the
period then ended, have been prepared in conformity with GAAP and
present fairly in all material respects the financial condition of
Owner and its consolidated subsidiaries as of such date and the
result of its operations and cash flows for such period; and
(xvi) Owner holds all licenses, permits and franchises from
the appropriate Government Entities necessary to authorize Owner to
lawfully engage in air transportation and to carry on scheduled
commercial passenger service as currently conducted, except where
the failure to so hold any such license, permit or franchise would
not be reasonably likely to have a material adverse effect on the
condition (financial or otherwise), business or properties of Owner
and its subsidiaries considered as one enterprise.
(b) General Indemnity. Owner hereby agrees to indemnify each
Indemnitee against, and agrees to protect, save and keep harmless each of
them from (whether or not the transactions contemplated herein or in any of
the other Operative Documents are consummated), any and all expenses
imposed on, incurred by or asserted against any Indemnitee, in any way
relating to, based on or arising out of (A) the execution, delivery and
performance of the Operative Documents or the Pass Through Documents and
the transactions contemplated thereby; (B) the manufacture, purchase,
acceptance or rejection of the Airframe or any Engine or Parts; (C) the
Aircraft (or any portion thereof) or any engine installed on the Airframe
or any airframe on which an Engine is installed whether or not arising out
of the manufacture, purchase, registration, reregistration, financing,
refinancing, ownership, delivery, nondelivery, inspection, lease, sublease,
possession, storage, use or non-use, operation, maintenance, overhaul,
modification, alteration, condition, replacement, repair, substitution,
sale, return or other disposition of the Aircraft including, without
limitation, any violation of law relating to the Aircraft (including
environmental laws), latent or other defects, whether or not discoverable,
strict tort liability and any claim for patent, trademark or copyright
infringement; or (D) the offer or sale of any interest in the Equipment
Notes (including the Series G Equipment Note and any Series C Equipment
Note which may be issued under the Indenture) or the Pass Through
Certificates (including the Class G Pass Through Certificates and any Class
C Pass Through Certificates which may be issued under the Class C Pass
Through Trust) (or other evidence of the debt relating to the Aircraft) on
the Delivery Date or in the future or in connection with a refinancing in
accordance with the terms hereof (including any violation of securities
laws or ERISA); provided, that the foregoing indemnity shall not extend to
an Indemnitee with respect to any Expense to the extent such Expense is
attributable to one or more of the following: (1) any representation or
warranty by such Indemnitee in the Operative Documents or Pass Through
Documents being incorrect, or (2) the failure by such Indemnitee to perform
or observe any of its agreements, covenants or conditions in any of the
Operative Documents or the Pass Through Documents, or (3) the willful
misconduct or the gross negligence of such Indemnitee, or (4) (A) in the
case of any Indemnitee, the offer, sale or other disposition (voluntary or
involuntary) by such Indemnitee of all or any part of its interest in the
Airframe or any Engine, (B) in the case of a Note Holder (including any
Series G Note Holder and any Series C Note Holder (if any Series C
Equipment Note are issued under the Indenture)), the offer, sale or other
disposition (voluntary or involuntary) by such Note Holder of all or any
part of its interest in any Equipment Note or (C) in the case of any
Indemnitee, the offer, sale or other disposition by such Indemnitee of all
or any part of such Indemnitee's interest in the Operative Documents, or
(5) any Tax, or (6) in the case of the Indenture Trustee in its individual
and trust capacities, failure on the part of the Indenture Trustee to
distribute in accordance with the Indenture any amounts distributable by it
thereunder, or (7) in the case of any Pass Through Trustee or the
Subordination Agent, failure on the part of such Pass Through Trustee or
the Subordination Agent to distribute in accordance with the Intercreditor
Agreement and the Pass Through Trust Agreements amounts received and
distributable thereunder, or (8) the authorization or giving or withholding
of any future amendments, supplements, waivers or consents with respect to
any of the Operative Documents which amendments, supplements, waivers or
consents (a) are not or were not requested by Owner or (b) are not
occasioned by a specific requirement of the Operative Documents, or (9) any
amount which any Indemnitee expressly agrees to pay under any Operative
Document or any amount which is expressly stated to be an expense that is
not reimbursable by Owner under the Operative Documents, or (10) any amount
that is an ordinary and usual operating or overhead expense of any
Indemnitee (it being understood out-of-pocket expenses payable to third
parties do not constitute "ordinary and usual operating and overhead
expenses"), or (11) any amounts attributable to any Lien which such
Indemnitee is required to remove pursuant to the terms of the Operative
Documents or the Pass Through Documents, or (12) any loss of tax benefits
or increases in tax liability or (13) any amount that constitutes principal
of, or interest or premium on any Equipment Note (including the Series G
Equipment Note and any Series C Equipment Note which may be issued under
the Indenture).
Owner's indemnity obligation to an Indemnitee under this
Section 6(b) shall equal the amount which, after taking into account any
Tax imposed upon the receipt or accrual of the amounts payable under this
Section 6(b) and any tax benefits realized by such Indemnitee as a result
of the accrual or payment of such Expense shall equal the amount of the
Expense indemnifiable under this Section 6(b).
If any Indemnitee shall realize a tax savings by reason of
any Tax paid or indemnified by Owner pursuant to this Section 6(b) (whether
such tax savings shall be by means of a foreign tax credit, depreciation or
cost recovery deduction or otherwise) and such savings are not otherwise
taken into account in computing such payment or indemnity such Indemnitee
shall pay to Owner an amount equal to the lesser of (i) the amount of such
tax savings, plus any additional tax savings recognized as the result of
any payment made pursuant to this sentence, when, as if, and to the extent,
realized or (ii) the amount of all payments pursuant to this Section 6(b)
by Owner to such Indemnitee (less any payments previously made by such
Indemnitee to Owner pursuant to this Section 6(b)) (and the excess, if any,
of the amount described in clause (i) over the amount described in clause
(ii) shall be carried forward and applied to reduce pro tanto any
subsequent obligations of Owner to make payments to such Indemnitee
pursuant to this Section 6(b)).
If a claim is made against an Indemnitee involving one or
more Expenses and such Indemnitee has notice thereof, such Indemnitee shall
promptly after receiving such notice give notice of such claim to Owner;
provided that the failure to give such notice shall not affect the
obligations of Owner hereunder except to the extent Owner is prejudiced by
such failure or Owner's indemnification obligations are increased as a
result of such failure. If no Event of Default shall have occurred and be
continuing, Owner shall be entitled, at its sole cost and expense, acting
through counsel reasonably acceptable to the respective Indemnitee, (A) in
any judicial or administrative proceeding that involves solely a claim for
one or more expenses, to assume responsibility for and control thereof, (B)
in any judicial or administrative proceeding involving a claim for one or
more expenses and other claims related or unrelated to the transactions
contemplated by the Operative Documents, to assume responsibility for and
control of such claim for Expenses to the extent that the same may be and
is severed from such other claims (and such Indemnitee shall use its best
efforts to obtain such severance) and (C) in any other case, to be
consulted by such Indemnitee with respect to judicial proceedings subject
to the control of such Indemnitee and to be allowed, at Owner's sole
expense, to participate therein. Notwithstanding any of the foregoing to
the contrary, Owner shall not be entitled to assume responsibility for and
control of any such judicial or administrative proceedings if such
proceedings will involve a material risk of the sale, forfeiture or loss
of, or the creation of any Lien (other than a Permitted Lien) on, the
Aircraft, the Indenture Estate or any part thereof unless in such an event
Owner shall have posted a bond or other security satisfactory to the
relevant Indemnitees in respect to such risk. The Indemnitee may
participate at its own expense and with its own counsel in any judicial
proceeding controlled by Owner pursuant to the preceding provisions.
The affected Indemnitee shall supply Owner with such
information reasonably requested by Owner as is necessary or advisable for
Owner to control or participate in any proceeding to the extent permitted
by this Section 6(b). Such Indemnitee shall not enter into a settlement or
other compromise with respect to any Expense without the prior written
consent of Owner, which consent shall not be unreasonably withheld or
delayed, unless such Indemnitee waives its right to be indemnified with
respect to such Expense under this Section 6(b).
Owner shall supply the Indemnitee with such information
reasonably requested by the Indemnitee as is necessary or advisable for the
Indemnitee to control or participate in any proceeding to the extent
permitted by this Section 6(b).
Upon payment of any Expense pursuant to this Section 6(b),
Owner, without any further action, shall be subrogated to any claims the
Indemnitee may have relating thereto. The Indemnitee agrees to give such
further assurances or agreements and to cooperate with Owner to permit
Owner to pursue such claims, if any, to the extent reasonably requested by
Owner.
If an Indemnitee is reimbursed, in whole or in part, with
respect to any Expense paid by Owner hereunder, it will promptly pay the
amount refunded, including interest received thereon (but not an amount in
excess of the amount Owner or any of its insurers has paid in respect of
such Expense pursuant to this Section 6(b)) over to Owner.
To the extent permitted by applicable law, interest at the
Base Rate plus one percent (1.0%) shall be paid, on demand, on any amount
or indemnity not paid when due pursuant to this Section 6 until the same
shall be paid. Such interest shall be paid in the same manner as the unpaid
amount in respect of which such interest is due.
Any amount which is payable to Owner by any Person pursuant
to this Section 6(b) shall not be paid to Owner if an Event of Default has
occurred and is continuing or if any payment is due and owing by Owner to
such Person under any Operative Document. Any such amount shall be held by
such Person (Owner hereby granting a security interest in such amount to
such Person) and, if an Event of Default shall have occurred and be
continuing, shall be applied against Owner's obligations hereunder or under
another applicable Operative Document to such Person as and when due (and,
to the extent that Owner has no obligations hereunder to such Person, such
amount shall be paid to Owner). At such time as there shall not be
continuing any such Event of Default or there shall not be due and owing
any such payment, such amount shall be paid to Owner to the extent not
previously applied in accordance with the immediately preceding sentence.
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Securities Act. Each Series G Loan Participant
represents and warrants that neither it nor anyone acting in its behalf has
offered any Series G Equipment Note for sale to, or solicited any offer to
buy any Series G Equipment Note from, any Person or entity other than in a
manner in compliance with, and which does not require registration under,
the Securities Act or the rules and regulations thereunder.
(b) Reregistration. The Indenture Trustee and each Series G
Loan Participant agree that, so long as no Event of Default shall have
occurred and be continuing, Owner may elect to effect a change in
registration of the Aircraft, at Owner's cost and expense, so long as the
country of registry of the Aircraft is a country listed in the last
paragraph of this Section 7(b). Upon the request of Owner, the country list
in the last paragraph of this Section 7(d) may be amended from time to time
to include any other country which the Indenture Trustee has determined,
acting reasonably, would provide substantially equivalent protection for
the rights of lenders in similar transactions as provided under the laws of
the United States of America and the states thereof. In order for Owner to
effect a change in the country of registry of the Aircraft, Owner shall
deliver to the Indenture Trustee the following:
(I) an Officer's Certificate certifying that (A) the insurance
or self-insurance required by Section 7.04 of the Indenture
shall be in full force and effect at the time of such change
in registration after giving effect to such change in
registration, (B) all indemnities in favor of the Indenture
Trustee under any Operative Document afford the Indenture
Trustee substantially the same protection as provided prior
to such change of registry, (C) the Lien of the Indenture in
favor of the Indenture Trustee will continue as a first
priority lien following such change of registry, (D) such
change will not result in the imposition of, or increase in
the amount of, any Tax for which Owner is not required to
indemnify, or is not then willing to enter into a binding
agreement to indemnify, the Series G Note Holders or the
Indenture Trustee, pursuant to this Agreement and (E) that
the new country of registry imposes aircraft maintenance
standards not materially different from those of any
Permitted Foreign Air Authority; and
(II) a favorable opinion (subject to customary exceptions) of
counsel (reasonably acceptable to the Indenture Trustee)
addressed to the Indenture Trustee, from counsel of
recognized reputation qualified in the laws of the relevant
jurisdiction to the effect that: (A) it is not necessary,
solely as a consequence of such change in registration and
without giving effect to any other activity of the Indenture
Trustee (or any Affiliate thereof) for the Indenture Trustee
to register or qualify to do business in such jurisdiction;
(B) unless Owner shall have agreed to provide insurance
covering the risk of requisition of use of such Aircraft by
the government of such jurisdiction so long as such Aircraft
is registered under the laws of such jurisdiction, the laws
of such jurisdiction require fair compensation by the
government of such jurisdiction payable in currency freely
convertible into Dollars for the loss of use of such
Aircraft in the event of the requisition by such government
of such use; and (C) after giving effect to such change in
registration, the Lien of the Indenture on Owner's right,
title and interest in and to the Aircraft shall continue as
a valid and duly perfected first priority security interest
and all filing, recording or other action necessary to
protect the same shall have been accomplished (or, if such
opinion cannot be given at the time of such proposed change
in registration because such change in registration is not
yet effective, (1) the opinion shall detail what filing,
recording or other action is necessary and (2) the Indenture
Trustee shall have received a certificate from Owner that
all possible preparations to accomplish such filing,
recording and other action shall have been done, and such
filing, recording and other action shall be accomplished and
a supplemental opinion to that effect shall be delivered to
the Indenture Trustee on or prior to the effective date of
such change in registration).
Owner shall pay all reasonable costs, expenses, fees,
recording and registration taxes, including the reasonable fees and
expenses of counsel to the Indenture Trustee, and other charges in
connection with any such change in registration.
The list of countries in which Owner is permitted to effect
a reregistration of the Aircraft in accordance with the procedures of this
Section 7(b) is as follows:
Australia Malta
Austria Mexico
Bahamas Netherlands
Belgium New Zealand
Bermuda Norway
Brazil People's Republic of China
Canada Philippines
Denmark Portugal
Finland Republic of China (Taiwan)*
France Singapore
Germany South Korea
Grenada Spain
Greece Sweden
Iceland Switzerland
India Thailand
Ireland Tobago
Italy Trinidad
Jamaica Turkey
Japan United Kingdom
Luxembourg United States
Malaysia Venezuela
*So long as on the date of registration such country and the
United States have diplomatic relations at least as good as those in effect
on the Delivery Date.
(c) Quiet Enjoyment. Each Series G Loan Participant and each
of the Indenture Trustee, the Subordination Agent and the Class G Pass
Through Trustee covenants and agrees that, so long as no Event of Default
shall have occurred and be continuing and the Indenture has not been duly
declared in default, such Person shall not (and shall not permit any
Affiliate or other Person claiming by, through or under it to) interfere
with Owner's continued possession, use and operation of, and quiet
enjoyment of, the Aircraft.
(d) Series G Equipment Note Acquired for Investment. Each
Series G Loan Participant represents and warrants that the Series G
Equipment Note to be issued to it pursuant to the Indenture is being
acquired by it for investment and not with a view to resale or distribution
(it being understood that such Series G Loan Participant may pledge or
assign as security its interest in each Series G Equipment Note issued to
it), except that such Series G Loan Participant may sell, transfer or
otherwise dispose of any Series G Equipment Note or any portion thereof, or
grant participations therein, in a manner which in itself does not require
registration under the Securities Act.
(e) Owner Merger Covenant. Owner will not consolidate with
or merge into any other corporation or convey, transfer or lease
substantially all of its assets as an entirety to any Person unless:
(i) the corporation formed by such consolidation or into
which Owner is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of Owner as an
entirety shall be (i) organized and validly existing under the laws
of the United States of America or any state thereof or the
District of Columbia, (ii) a Citizen of the United States and (iii)
a Certificated Air Carrier, if and so long as such status is a
condition of entitlement to the benefits of Section 1110 of the
Bankruptcy Code with respect to the Lien of the Indenture;
(ii) the corporation formed by such consolidation or into
which Owner is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of Owner as an
entirety shall execute and deliver to Indenture Trustee an
agreement in form and substance reasonably satisfactory to the
Indenture Trustee a duly authorized, valid, binding and enforceable
agreement containing an assumption by such successor corporation or
Person of the due and punctual performance and observance of each
covenant and condition of the Operative Documents to which Owner is
a party to be performed or observed by Owner;
(iii) immediately after giving effect to such transaction,
no Event of Default shall have occurred and be continuing; and
(iv) Owner shall have delivered to the Indenture Trustee a
certificate signed by the President, any Executive Vice President,
any Senior Vice President or any Vice President and by the
Secretary or an Assistant Secretary of Owner, and an opinion of
counsel (which may be Owner's General Counsel, Deputy General
Counsel, Associate General Counsel or Assistant General Counsel)
reasonably satisfactory to the Indenture Trustee, each stating that
such consolidation, merger, conveyance, transfer or lease and the
assumption agreement mentioned in clause (ii) above comply with
this Section 7(e) and that all conditions precedent herein provided
for relating to such transaction have been complied with.
Upon any such consolidation or merger or any such
conveyance, transfer or lease of substantially all of the assets of Owner
as an entirety in accordance with this Section 7(e), the successor
corporation or Person formed by such consolidation or into which Owner is
merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power
of, Owner under this Agreement with the same effect as if such successor
corporation or Person had been named as Owner herein. No such conveyance,
transfer or lease of substantially all of the assets of Owner as an
entirety shall have the effect of releasing Owner or any successor
corporation or Person which shall theretofore have become such in the
manner prescribed in this Section 7(e) from its liability in respect of any
Operative Document to which it is a party.
(f) Representations, Warranties and Covenants of the
Indenture Trustee. State Street Bank and Trust Company of Connecticut,
National Association represents, warrants (as of the Delivery Date) and
covenants, in its individual capacity, to Owner, the Class G Pass Through
Trustee, the Subordination Agent, the Class G Liquidity Provider and the
Policy Provider as follows:
(i) the Indenture Trustee is a national banking association
duly incorporated, validly existing and in good standing under the
laws of the United States, is a Citizen of the United States
(without making use of any voting trust, voting powers agreement or
similar arrangement), will notify promptly all parties to this
Agreement if in its reasonable opinion its status as a Citizen of
the United States (without making use of any voting trust, voting
powers agreement or similar arrangement) is likely to change and
will resign as Indenture Trustee as provided in Section 9.02 of the
Indenture promptly after it obtains actual knowledge that it has
ceased to be such a Citizen of the United States (without making
use of a voting trust, voting powers agreement or similar
arrangement), 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 each of this Agreement, the Indenture and each
other Operative Document to which it is a party and to carry out
its obligations under this Agreement, the Indenture and each other
Operative Document to which it is a party and to authenticate the
Series G Equipment Note;
(ii) the execution and delivery by the Indenture Trustee of
the Indenture Trustee Documents and the authentication of the
Series G Equipment Note and the performance by the Indenture
Trustee of its obligations under the Indenture Trustee Documents
have been duly authorized by the Indenture Trustee 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;
(iii) this Agreement and each of the other Indenture Trustee
Documents constitute the legal, valid and binding obligations of
the Indenture Trustee enforceable against it in accordance with
their respective 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;
(iv) there are no pending or, to its knowledge, threatened
actions or proceedings against the Indenture Trustee, either in its
individual capacity or as Indenture Trustee, before any court or
administrative agency which, if determined adversely to it, would
materially adversely affect the ability of the Indenture Trustee,
in its individual capacity or as Indenture Trustee as the case may
be, to perform its obligations under the Operative Documents to
which it is a party;
(v) there are no Indenture Trustee Liens on the Aircraft;
and
(vi) the Indenture Trustee will furnish to the Note Holders
and the Policy Provider, promptly upon receipt thereof, duplicates
or copies of all reports, notices, requests, demands, certificates
and other instruments furnished to the Indenture Trustee under any
Operative Document to the extent that the same shall not have been
furnished or be required to have been furnished to the Note Holders
and the Policy Provider pursuant to the applicable Operative
Documents.
(g) Confidentiality of Purchase Agreement. The Indenture
Trustee agrees for the benefit of the Seller, the Manufacturer and Owner
that it will not disclose or suffer to be disclosed the terms of the
Purchase Agreement to any third party except (A) as may be required by any
applicable statute, court or administrative order or decree or governmental
ruling or regulation or to any regulatory authorities having official
jurisdiction over them, (B) in connection with the financing of the
Aircraft and the other transactions contemplated by the Operative Documents
(including any transfer of the Series G Equipment Note (including by way of
participation or assignment of an interest, provided such participant or
assignee agrees to hold such terms confidential to the same extent as
herein provided) and any exercise of remedies under the Indenture), (C)
with the prior written consent of the Manufacturer, the Seller and Owner or
(D) to the Indenture Trustee's counsel or special counsel, independent
insurance brokers or other agents who agree to hold such information
confidential.
(h) Loan Participant Liens. Each Series G Loan Participant
covenants and agrees that it shall not cause or permit to exist a Loan
Participant Lien attributable to it with respect to the Aircraft. Each
Series G Loan Participant agrees that it will promptly, at its own expense,
take such other action as may be necessary duly to discharge such Loan
Participant Lien attributable to it. Each Series G Loan Participant agrees
to make restitution to Owner for any actual diminution of the assets of
Owner resulting from such Loan Participant Lien attributable to it.
(i) Indenture Trustee Liens. State Street Bank and Trust
Company of Connecticut, National Association, in its individual capacity,
covenants and agrees that it shall not cause or permit to exist any
Indenture Trustee's Liens with respect to the Indenture Estate. State
Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity, agrees that it will promptly, at its own expense, take
such action as may be necessary duly to discharge such Indenture Trustee's
Liens. State Street Bank and Trust Company of Connecticut, National
Association, in its individual capacity, agrees to make restitution to
Owner for any actual diminution of the assets of the Indenture Estate
resulting from such Indenture Trustee's Liens.
(j) Further Assurances. Owner, at its expense, will take, or
cause to be taken, such action with respect to the recording, filing,
re-recording and refiling of the Indenture, the Indenture Supplement and
any financing statements or other instruments as are necessary to maintain,
so long as the Indenture is in effect, the perfection of the security
interests created by the Indenture or will furnish to the Indenture Trustee
timely notice of the necessity of such action, together with such
instruments, in execution form, and such other information as may be
required to enable them to take such action. Owner will notify the
Indenture Trustee of any change in the location of its chief executive
office (as such term is used in Article 9 of the Uniform Commercial Code)
promptly after making such change or in any event within the period of time
necessary under applicable law to prevent the lapse of perfection (absent
refiling) of financing statements filed under the Operative Documents.
(k) Transfer of Series G Equipment Note. Each Series G Loan
Participant hereby represents, warrants and agrees that it shall not
transfer any interest in the Series G Equipment Note unless and until the
transferee agrees in writing (copies of which shall be provided by the
Indenture Trustee to Owner) to make the representations contemplated to be
made by a Series G Loan Participant in this Agreement and to be bound by
the terms of this Agreement and the Indenture.
(l) Representations and Warranties of Class G Pass Through
Trustee. The Class G Pass Through Trustee represents and warrants to Owner,
the Indenture Trustee, the Subordination Agent, the Class G Liquidity
Provider and the Policy Provider, in its capacity as such and in its
individual capacity, as follows:
(i) the Class G Pass Through Trustee is a national banking
association 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 the Class G Pass
Through Trust Agreement, the Intercreditor Agreement and this
Agreement and to perform its obligations under the Class G Pass
Through Trust Agreement, the Intercreditor Agreement and this
Agreement;
(ii) this Agreement, the Class G Pass Through Trust
Agreement and the Intercreditor Agreement have been duly
authorized, executed and delivered by the Class G Pass Through
Trustee; this Agreement, the Class G Pass Through Trust Agreement
and the Intercreditor Agreement constitute the legal, valid and
binding obligations of the Class G Pass Through Trustee enforceable
against it in accordance with their respective 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
Class G Pass Through Trustee of the Class G Pass Through Trust
Agreement, the Intercreditor Agreement or this Agreement, the
purchase by the Class G Pass Through Trustee of the Series G
Equipment Note pursuant to this Agreement, or the issuance of the
Class G Pass Through Certificates pursuant to the Class G Pass
Through Trust Agreement, contravenes any law, rule or regulation of
the State of Connecticut or any United States governmental
authority or agency regulating the Class G Pass Through Trustee's
banking, trust or fiduciary powers or any judgment or order
applicable to or binding on the Class G Pass Through Trustee and
does not contravene or result in any breach of, or constitute a
default under, the Class G Pass Through Trustee's articles of
association or by-laws or any agreement or instrument to which the
Class G Pass Through Trustee is a party or by which it or any of
its properties may be bound;
(iv) neither the execution and delivery by the Class G Pass
Through Trustee of the Class G Pass Through Trust Agreement, the
Intercreditor Agreement or this Agreement, nor the consummation by
the Class G Pass Through Trustee of any of the transactions
contemplated hereby or thereby, 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 Class G Pass Through Trustee's banking, trust or
fiduciary powers;
(v) there are no Taxes payable by the Class G Pass Through
Trustee imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by the Class G Pass Through
Trustee of this Agreement, the Class G Pass Through Trust Agreement
or the Intercreditor Agreement (other than franchise or other taxes
based on or measured by any fees or compensation received by the
Class G Pass Through Trustee for services rendered in connection
with the transactions contemplated by the Class G Pass Through
Trust Agreement), and there are no Taxes payable by the Class G
Pass Through Trustee imposed by the State of Connecticut or any
political subdivision thereof in connection with the acquisition,
possession or ownership by the Class G Pass Through Trustee of the
Series G Equipment Note (other than franchise or other taxes based
on or measured by any fees or compensation received by the Class G
Pass Through Trustee for services rendered in connection with the
transactions contemplated by the Class G Pass Through Trust
Agreement), and, assuming that the trust created by the Class G
Pass Through Trust Agreement will not be taxable as a corporation,
but rather, will be characterized either as a grantor trust under
subpart E, Part I, of Subchapter J of the Code or as a partnership,
such trust will not be subject to any Taxes imposed by the State of
Connecticut or any political subdivision thereof;
(vi) there are no pending or threatened actions or
proceedings against the Class G Pass Through Trustee 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 Class G Pass Through Trustee to
perform its obligations under this Agreement, the Intercreditor
Agreement or the Class G Pass Through Trust Agreement;
(vii) except for the issue and sale of the Class G Pass
Through Certificates contemplated hereby, the Class G Pass Through
Trustee has not directly or indirectly offered the Series G
Equipment Note for sale to any Person or solicited any offer to
acquire the Series G Equipment Note from any Person, nor has the
Class G Pass Through Trustee authorized anyone to act on its behalf
to offer directly or indirectly the Series G Equipment Note for
sale to any Person, or to solicit any offer to acquire the Series G
Equipment Note from any Person; and the Class G Pass Through
Trustee is not in default under the Class G Pass Through Trust
Agreement; and
(viii) the Class G Pass Through Trustee is not directly or
indirectly controlling, controlled by or under common control with
Owner.
(m) Representations and Warranties of Subordination Agent.
The Subordination Agent represents and warrants to Owner, the
Indenture Trustee, the Class G Pass Through Trustee, the Class G
Liquidity Provider and the Policy Provider, in its capacity as such
and in its individual capacity, as follows:
(i) the Subordination Agent is a national banking
association 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, the
Class G Liquidity Facility, the Policy Provider Agreement and the
Intercreditor Agreement and to perform its obligations under this
Agreement, the Class G Liquidity Facility, the Policy Provider
Agreement and the Intercreditor Agreement;
(ii) this Agreement, the Class G Liquidity Facility, the
Policy Provider Agreement and the Intercreditor Agreement have been
duly authorized, executed and delivered by the Subordination Agent;
this Agreement, the Class G Liquidity Facility, the Policy Provider
Agreement and the Intercreditor Agreement constitute the legal,
valid and binding obligations of the Subordination Agent
enforceable against it in accordance with their respective 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 the Class G Liquidity Facility, the Policy
Provider Agreement, the Intercreditor Agreement or 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 or result in any breach of, or
constitute a default under, the Subordination Agent's articles of
association or by-laws or 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 the Class G Liquidity Facility, the Policy Provider
Agreement, the Intercreditor Agreement or this Agreement nor the
consummation by the Subordination Agent of any of the transactions
contemplated hereby or thereby 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, the
Class G Liquidity Facility, the Policy Provider Agreement or the
Intercreditor 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
Policy Provider Agreement or the Class G Liquidity Facility), and
there are no Taxes payable by the Subordination Agent imposed by
the State of Connecticut or any political subdivision thereof in
connection with the acquisition, possession or ownership by the
Subordination Agent of the Series G Equipment Note (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 Policy Provider Agreement or the Class
G Liquidity Facility);
(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, the Intercreditor Agreement, the Policy Provider
Agreement or the Class G Liquidity Facility;
(vii) the Subordination Agent has not directly or indirectly
offered the Series G Equipment Note for sale to any Person or
solicited any offer to acquire the Series G Equipment Note from any
Person, nor has the Subordination Agent authorized anyone to act on
its behalf to offer directly or indirectly the Series G Equipment
Note for sale to any Person, or to solicit any offer to acquire the
Series G Equipment Note from any Person; and the Subordination
Agent is not in default under the Policy Provider Agreement or the
Class G Liquidity Facility; and
(viii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with Owner.
SECTION 8. RELIANCE OF CLASS G LIQUIDITY PROVIDER AND POLICY
PROVIDER. Each of the parties hereto agrees and acknowledges that the Class
G Liquidity Provider and the Policy Provider shall be third party
beneficiaries of each of the representations, warranties and covenants made
herein by such party, and that each of the Class G Liquidity Provider and
Policy Provider may rely on such representations and warranties to the same
extent as if such representations and warranties were made to each of the
Class G Liquidity Provider and Policy Provider directly. Owner agrees and
acknowledges that each of the Class G Liquidity Provider and Policy
Provider shall be third party beneficiaries of the indemnities contained in
Section 6(b), and each of the Class G Liquidity Provider and Policy
Provider may rely on such indemnities to the same extent as if such
indemnities were made to each of the Class G Liquidity Provider and the
Policy Provider directly.
SECTION 9. OTHER DOCUMENTS. So long as the Lien of the Indenture
has not been terminated, the Class G Pass Through Trustee, the
Subordination Agent and the Indenture Trustee hereby agree for the benefit
of Owner that without Owner's consent, each such party will not amend any
other provision of any Operative Document or Class G Pass Through Document
in a manner adversely affecting Owner. Each of the Indenture Trustee, the
Subordination Agent and the Class G Pass Through Trustee agree to promptly
furnish to Owner copies of any supplement, amendment, waiver or
modification of any of the Operative Documents or Class G Pass Through
Documents to which Owner is not a party. Each Series G Loan Participant
agrees that it will not take any action in respect of the Indenture Estate
except through the Indenture Trustee pursuant to the Indenture or as
otherwise permitted by the Indenture.
SECTION 10. CERTAIN COVENANTS OF OWNER. Owner covenants and agrees
with each of the Series G Loan Participants and the Indenture Trustee, as
follows:
(a) Further Assurances. Owner will cause to be done,
executed, acknowledged and delivered all and every such further acts,
conveyances and assurances as the Indenture Trustee shall reasonably
require for accomplishing the purposes of this Agreement and the other
Operative Documents; provided that any instrument or other document so
executed by Owner will not expand any obligations or limit any rights of
Owner in respect of the transactions contemplated by any Operative
Documents.
(b) Filings. Owner, at its expense, will cause the
Indenture, all supplements and amendments to the Indenture and this
Agreement to be promptly filed and recorded, or filed for recording, to the
extent permitted under the Transportation Code or required under any other
applicable law. Upon the execution and delivery of the Indenture, the
Indenture and the Indenture Supplement shall be filed for recording with
the Federal Aviation Administration.
SECTION 11. [Reserved.]
SECTION 12. NOTICES; CONSENT TO JURISDICTION.
(a) Notices. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing and shall be personally delivered or sent by
registered or certified mail, postage prepaid, or by telecopier, or by
prepaid courier service, and shall be deemed to be given for purposes of
this Agreement on the day that such writing is delivered to the recipient
thereof in accordance with the provisions of this Section 12(a). Unless
otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section 12(a), notices, demands, instructions
and other communications in writing shall be given to or made upon the
respective parties hereto at their respective addresses (or to their
respective telecopier numbers) as follows: (A) if to Owner, the Class G
Pass Through Trustee, the Subordination Agent or the Indenture Trustee to
the respective addresses set forth on Schedule I hereto or (B) if to any
subsequent Series G Note Holder, addressed to such Series G Note Holder at
its address set forth in the Equipment Note register maintained pursuant to
Section 2.07 of the Indenture.
(b) Consent to Jurisdiction. Each of the parties hereto (A)
hereby irrevocably submits itself to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and to
the non-exclusive jurisdiction of the Supreme Court of the State of New
York, New York County, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any other Operative Document,
the subject matter of any thereof or any of the transactions contemplated
hereby or thereby brought by any party or parties thereto, or their
successors or assigns and (B) hereby waives, and agrees not to assert, by
way of motion, as a defense, or otherwise, in any such suit, action or
proceeding, to the extent permitted by applicable law, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of
the suit, action or proceeding is improper, or that this Agreement or any
other Operative Document or the subject matter of any thereof or any of the
transactions contemplated hereby or thereby may not be enforced in or by
such courts; provided, however that the foregoing shall not apply to the
right any party may have to seek removal of such suit, action or proceeding
to federal court or to seek consolidation of any separate actions, suits or
proceedings brought by one or more of the other parties in the same or
different jurisdictions. The agreement set forth in this Section 12(b) is
given solely for the benefit of the parties hereto and shall not inure to
the benefit of any other Person.
SECTION 13. [RESERVED.]
SECTION 14. MISCELLANEOUS.
(a) Survival. The representations, warranties, indemnities
and agreements of Owner, the Indenture Trustee, the Subordination Agent and
the Class G Pass Through Trustee provided for in this Agreement or any
other Operative Document, and Owner's, the Indenture Trustee's, the
Subordination Agent's and the Class G Pass Through Trustee's obligations
under any and all thereof, shall survive the making available of the Class
G Pass Through Trustee's Commitment, the transfer of any interest by any
Series G Loan Participant in the Series G Equipment Note or the Indenture
Estate and the expiration or other termination of this Agreement or any
other Operative Document.
(b) Counterparts. This Agreement 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.
(c) Amendments and Waivers. Neither this Agreement nor any
of the terms hereof may be terminated, amended, supplemented, waived or
modified, except by an instrument in writing signed by the party against
which the enforcement of the termination, amendment, supplement, waiver or
modification is sought; and no such termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy thereof
shall have been delivered to the Indenture Trustee.
(d) Successors and Assigns. The terms of this Agreement
shall be binding upon, and inure to the benefit of, Owner and, subject to
the terms of this Agreement, its successors and permitted assigns, the
Class G Pass Through Trustee and its successors as Class G Pass Through
Trustee (and any additional trustee appointed) under the Class G Pass
Through Trust Agreement, each Series G Note Holder and its successors and
registered assigns and the Indenture Trustee and its successors as
Indenture Trustee under the Indenture. The terms of this Agreement shall
inure to the benefit of the Class G Liquidity Provider and Policy Provider,
and each of their successors and permitted assigns.
(e) Governing Law. THIS AGREEMENT 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.
(f) References. Unless otherwise specified, references in
this Agreement to Sections, Exhibits, Schedules and Annexes are references
to Sections, Exhibits, Schedules and Annexes herein or hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
US AIRWAYS, INC.,
Owner
By:_______________________________
Name:
Title:
STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity
except as otherwise provided herein,
but solely as Indenture Trustee
By:_______________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual
capacity, except as otherwise
provided herein, but solely as Class
G Pass Through Trustee
By:_______________________________
Name:
Title:
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:_______________________________
Name:
Title:
ANNEX A
DEFINITIONS
(N___U_)
The following terms shall have the following meanings for all
purposes of the Operative Documents referred to below, unless otherwise
defined in an Operative Document or the context thereof shall otherwise
require and such meanings shall be equally applicable to both the singular
and the plural forms of the terms herein defined. In the case of any
conflict between the provisions of this Annex A and the provisions of the
main body of any Operative Document, the provisions of the main body of
such Operative Document shall control the construction of such Operative
Document.
Except as otherwise provided herein, all references to any
agreement defined in this Annex A shall be deemed to include such agreement
as the same may from time to time be amended, supplemented or otherwise
modified in accordance with its terms and, where applicable, the terms of
the other Operative Documents. All references to statutes, rules and
regulations shall be deemed to include all amendments, replacements and
successors thereto unless otherwise specified herein.
"Acceptable Alternate Engine" means (i) a CFM International Model
56-5 (or improved) type engine having not less than 1,500 cycles left
before such engine's next scheduled shop visit or (ii) an engine of the
same or another manufacturer suitable for use on the Airframe and having a
value and utility equal to or greater than a CFM Model 56-5 type engine,
assuming such engine is in the condition required by the Indenture.
"Actual Knowledge" means actual knowledge of a Responsible Officer
in the Corporate Trust Office of the Indenture Trustee.
"Additional Insured" means the Indenture Trustee, the Pass Through
Trustees, the Liquidity Providers, the Policy Provider, Owner in its
capacity as lessor under any Lease, and each of their respective
Affiliates, successors and permitted assigns, and the respective directors,
officers, employees and agents of the foregoing.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control
with such Person. For the purposes of this definition, "control" (including
"controlled by" and "under common control with") shall mean 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.
"Aircraft" means the Airframe to be subject to the Lien of the
Indenture (or any airframe from time to time substituted for such Airframe
pursuant to Section 5.06 of the Indenture) together with the two Engines
initially subject to the Lien of the Indenture (or any engine substituted
for either of such Engines pursuant to the terms of the Indenture), in each
case as specified in the applicable Indenture Supplement, whether or not
any of such initial or substituted Engines may from time to time be
installed on such initial or substituted Airframe or may be installed on
any other airframe or on any other aircraft.
"Airframe" means: (i) the Airbus aircraft (except Engines or
engines from time to time installed thereon) specified in the initial
Indenture Supplement, and any aircraft (except Engines or engines from time
to time installed thereon) which may from time to time be substituted for
such aircraft (except Engines or engines from time to time installed
thereon) pursuant to Section 5.06 of the Indenture; and (ii) any and all
Parts so long as the same shall be incorporated or installed in or attached
to such aircraft (except Engines or engines from time to time installed
thereon); provided, however, that at such time as an aircraft (except
Engines or engines from time to time installed thereon) shall be deemed
part of the property subject to the Lien of the Indenture in substitution
for the Airframe pursuant to the applicable provisions of the Indenture,
the replaced Airframe shall cease to be an Airframe subject to the Lien of
the Indenture; provided further that the Airframe shall not include
Passenger Convenience Equipment.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended, or any subsequent legislation that amends, supplements or
supersedes such provisions.
"Base Rate" means the rate of interest announced publicly by The
Chase Manhattan Bank in New York, New York from time to time as its base
rate.
"Xxxx of Sale" means a full warranty xxxx of sale covering the
Aircraft delivered by the Manufacturer or its Affiliate to Owner.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in New
York, New York, Hartford, Connecticut or Pittsburgh, Pennsylvania.
"Cash Equivalents" means (i) direct obligations of the United
States of America and agencies guaranteed by the United States government
having a final maturity of ninety (90) days or less from date of purchase
thereof; (ii) certificates of deposit issued by, bankers' acceptances of,
or time deposits with, any bank, trust company or national banking
association incorporated under the laws of the United States of America or
one of the states thereof having combined capital and surplus and retained
earnings as of its last report of condition of at least $500,000,000 and
having a rating of Aa or better by Xxxxx'x Investors Service, Inc.
("Moody's") or AA or better by Standard & Poor's Corporation ("S&P") and
having a final maturity of ninety (90) days or less from date of purchase
thereof; and (iii) commercial paper of any holding company of a bank, trust
company or national banking association described in (ii) and commercial
paper of any corporation or finance company incorporated or doing business
under the laws of the United States of America or any state thereof having
a rating assigned to such commercial paper of A1 by S&P or P1 by Moody's
and having a final maturity of ninety (90) days or less from the date of
purchase thereof; provided, however, that the aggregate amount at any one
time so invested in certificates of deposit issued by any one bank shall
not be in excess of 5% of such bank's capital and surplus.
"Certificated Air Carrier" means a Citizen of the United States
holding an air carrier operating certificate issued pursuant to Chapter 447
of Title 49, United States Code, for aircraft capable of carrying ten or
more individuals or 6,000 pounds or more of cargo or that otherwise is
certified or registered to the extent required to fall within the purview
of Section 1110 of the Bankruptcy Code or any analogous successor provision
of the Bankruptcy Code.
"Citizen of the United States" has the meaning specified for such
term in Section 40102(a)(15) of Title 49 of the United States Code or any
similar legislation of the United States of America enacted in substitution
or replacement therefor.
"Civil Reserve Air Fleet Program" means the Civil Reserve Air
Fleet Program currently administered by the United States Air Force Air
Mobility Command pursuant to Executive Order No. 11490, as amended, or any
substantially similar program.
"Class C Deposit Agreement" means, if and when any Class C Pass
Through Certificates are issued, the Deposit Agreement (if any), to be
dated as of the date of the issuance of the Class C Pass Through
Certificates, between the financial institution acting as escrow agent
under the Class C Escrow Agreement relating to the Class C Pass Through
Certificates (if any), and the Class C Depositary.
"Class C Depositary" means the financial institution initially
party to the Class C Deposit Agreement as depositary thereunder, or any
successors thereto.
"Class C Escrow Agreement" means, if and when any Class C Pass
Through Certificates are issued, the Escrow and Paying Agent Agreement (if
any), to be dated as of the date of the issuance of the Class C Pass
Through Certificates, among the financial institution acting as escrow
agent, any underwriters or purchasers named therein, the Class C Pass
Through Trustee, and the financial institution acting as paying agent
thereunder.
"Class C Liquidity Facility" means, if and when any Class C Pass
Through Certificates are issued, the Revolving Credit Agreement (if any) to
be dated as of the date of the issuance of the Class C Pass Through
Certificates, between the Subordination Agent, as agent and trustee for the
Class C Pass Through Trustee, and the Class C Liquidity Provider, and any
replacement thereof, as the same may be amended, modified or supplemented.
"Class C Liquidity Provider" means the financial institution
initially party to the Class C Liquidity Facility (if any) as the liquidity
provider thereunder, or any successor thereto.
"Class C Note Purchase Agreement" means the Note Purchase
Agreement, to be dated as of the date the Class C Pass Through Certificates
are issued (if such Class C Pass Through Certificates are issued), among
Owner, the Class C Pass Through Trustee, the Subordination Agent, the
financial institution acting as escrow agent in connection with the
issuance of the Class C Pass Through Certificates, and the financial
institutions acting as paying agent in connection with the issuance of the
Class C Pass Through Certificates.
"Class C Pass Through Certificates" means any certificates if and
when issued by the Class C Pass Through Trust and authenticated by the
Class C Pass Through Trustee, representing fractional undivided interests
in the Class C Pass Through Trust, and any certificates issued in exchange
therefor or replacement thereof pursuant to the terms of the Class C Pass
Through Trust Agreement.
"Class C Pass Through Documents" means, if any Class C Pass
Through Certificates are issued, the Class C Participation Agreement, the
Class C Pass Through Trust Agreement, the Class C Note Purchase Agreement,
the Class C Deposit Agreement, the Class C Liquidity Facility and the
Intercreditor Agreement.
"Class C Pass Through Trust" means the Class C Pass Through Trust,
No. 2000-2C, if and when created pursuant to the Class C Pass Through Trust
Agreement.
"Class C Pass Through Trust Agreement" means the Pass Through
Trust Agreement, dated as of July 30, 1999, among Owner, US Airways Group,
Inc. and State Street and the separate pass through trust supplement No.
2000-2C thereto creating the Class C Pass Through Trust, if and when
created.
"Class C Pass Through Trustee" means, if and when any Class C Pass
Through Certificates are issued, the financial institution acting as
trustee under the Class C Pass Through Trust Agreement, together with any
successor trustee appointed pursuant thereto.
"Class G Deposit Agreement" that certain Deposit Agreement (Class
G), dated as of the Class G Pass Through Trust Closing Date, between First
Security Bank, National Association, as escrow agent under the Class G
Escrow Agreement referred to therein, and the Class G Depositary.
"Class G Depositary" means [-], as Class G under the Class G
Deposit Agreement, or any successors thereto.
"Class G Escrow Agreement" means that certain Escrow and Paying
Agent Agreement (Class G), dated as of the Class G Pass Through Trust
Closing Date, among First Security Bank, National Association, as escrow
agent, the Underwriters, the Class G Pass Through Trustee, and State Street
Bank and Trust Company of Connecticut, National Association, as paying
agent thereunder.
"Class G Liquidity Facility" means the Revolving Credit Agreement,
dated as of the Class G Pass Through Trust Closing Date, between the
Subordination Agent, as borrower, and the Class G Liquidity Provider, and
any replacement thereof, as the same may be amended, modified or
supplemented.
"Class G Liquidity Provider" means [-], or any successor thereto.
"Class G Note Purchase Agreement" means the Note Purchase
Agreement, dated as of the Class G Pass Through Trust Closing Date, among
Owner, the Class G Pass Through Trustee, the Subordination Agent, First
Security Bank, National Association, as Escrow Agent, and State Street Bank
and Trust Company of Connecticut, National Association, as Paying Agent.
"Class G Pass Through Certificates" means the certificates issued
by the Class G Pass Through Trust and authenticated by the Class G Pass
Through Trustee on the Class G Pass Through Trust Closing Date, and any
certificates issued in exchange therefor or replacement thereof pursuant to
the terms of the Class G Pass Through Trust Agreement.
"Class G Pass Through Documents" means the Class G Participation
Agreement, the Class G Pass Through Trust Agreement, the Class G Note
Purchase Agreement, the Class G Deposit Agreement, the Class G Liquidity
Facility, the Policy Provider Agreement, the Policy and the Intercreditor
Agreement.
"Class G Pass Through Trust" means the Class G Pass Through Trust
set forth in Schedule III to the Series G Participation Agreement.
"Class G Pass Through Trust Agreement" means the pass through
trust agreement and the separate pass through trust supplement referred to
in Schedule III to the Series G Participation Agreement.
"Class G Pass Through Trust Closing Date" means August [-], 2000.
"Class G Pass Through Trustee" means State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association, in its capacity as trustee under the Class G Pass Through
Trust Agreement, and each other Person that may from time to time be acting
as successor trustee under the Class G Pass Through Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means the commitment pursuant to the Participation
Agreements of the Pass Through Trustees to finance a portion of Owner's
cost for the Aircraft.
"Consent and Agreement" means, collectively, each Consent and
Agreement (N___U_), dated as of the date of the Series G Participation
Agreement, executed by the Seller and the Manufacturer, respectively, as
the same may be amended, modified or supplemented from time to time in
accordance with the applicable provisions thereof.
"Corporate Trust Office" means the principal office of the
Indenture Trustee located at 000 Xxxxxx Xxxxxx, Xxxxxxx Square, Hartford,
Connecticut 06103, Attention: Corporate Trust Administration, or such other
office at which the Indenture Trustee's corporate trust business shall be
administered which the Indenture Trustee shall have specified by notice in
writing to Owner, the Loan Participants and each Note Holder.
"Debt Rate" means, (i) with respect to the Series G Equipment
Note, the rate per annum specified for such Series under the heading
"Interest Rate" in Schedule I to the Indenture and (ii) with respect to the
Series C Equipment Note, if issued, the rate per annum for such Series
under the heading "Interest Rate" in Schedule I to the applicable Indenture
Supplement.
"Default" means any event or condition that with the giving of
notice or the lapse of time or both would become an Event of Default.
"Delivery Date" means the date of the initial Indenture Supplement
for the Aircraft.
"Delivery Notice" means the notice of delivery delivered pursuant
to Section 2(b) of the Series G Participation Agreement.
"Depositaries" means, collectively, the Class G Depositary and the
Class C Depositary.
"Deposit Agreements" means, collectively, the Class G Deposit
Agreement and the Class C Deposit Agreement.
"Dollars" and "$" mean the lawful currency of the United States of
America.
"Engine" means (i) each of the two CFM International 56-5 type
engines listed by manufacturer's serial number in the initial Indenture
Supplement, whether or not from time to time thereafter installed on the
Airframe or installed on any other airframe or on any other aircraft; and
(ii) any Acceptable Alternate Engine that may from time to time be
substituted, pursuant to the terms of the Indenture, for either of such two
Engines, together in each case with any and all Parts incorporated or
installed in or attached thereto or any and all Parts removed there from;
provided, however, that at such time as an engine shall be deemed part of
the property leased under the Indenture in substitution for an Engine
pursuant to the applicable provisions of the Indenture, the replaced Engine
shall cease to be an Engine subject to the Lien of the Indenture. The term
"Engines" means, as of any date of determination, all Engines then subject
to the Lien of the Indenture.
"Equipment Note Register" has the meaning specified for such term
in Section 2.07 of the Indenture.
"Equipment Note Registrar" has the meaning specified for such term
in Section 2.07 of the Indenture.
"Equipment Notes" means and include any Series G Equipment Notes
and any Series C Equipment Notes issued under the Indenture, and issued in
exchange therefor or replacement thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA in the Series G
Participation Agreement are references to ERISA as in effect at the date of
the Series G Participation Agreement, section references to ERISA in the
Series C Participation Agreement are references to ERISA as in effect at
the date of the Series C Participation Agreement, and, in each case, are
references to any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"Event of Default" has the meaning specified for such term in
Section 4.02 of the Indenture.
"Event of Loss" means, with respect to the Aircraft, Airframe or
any Engine, any of the following events with respect to such property: (i)
the loss of such property or of the use thereof due to the destruction of
or damage to such property which renders repair uneconomic or which renders
such property permanently unfit for normal use by Owner (or any Lessee) for
any reason whatsoever; (ii) any damage to such property which results in an
insurance settlement with respect to such property on the basis of a total
loss, or a constructive or compromised total loss; (iii) the theft or
disappearance of such property for a period in excess of one hundred eighty
(180) days; (iv) the requisition for use of such property by any
governmental authority (other than a requisition for use by the United
States Government or any government of registry of the Aircraft or any
agency or instrumentality thereof) that shall have resulted in the loss of
possession of such property by Owner (or any Lessee) for a period in excess
of one hundred eighty (180) consecutive days; (v) [intentionally omitted];
(vi) condemnation, confiscation, requisition or taking of title of the
Aircraft or the Airframe for more than thirty (30) days; (vii) as a result
of any law, rule, regulation, order or other action by the Federal Aviation
Administration or other governmental body of the government of registry of
the Aircraft having jurisdiction, the use of such property in the normal
course of the business of air transportation shall have been prohibited for
a period of one hundred eighty (180) consecutive days, unless Owner (or
Lessee) shall have undertaken and shall be diligently carrying forward all
steps which are necessary or desirable to permit the normal use of such
property by Owner (or such Lessee), but in any event an "Event of Loss"
shall occur if such "grounding" extends for a period of more than three
hundred sixty (360) days; provided that no Event of Loss shall be deemed to
occur if such "grounding" is applicable to Owner's entire fleet of
[A319][A320] aircraft and Owner, prior to the expiration of one year from
the prohibition of such use, shall have conformed at least one such
aircraft in its fleet to the requirements of any such law, rule,
regulation, order or other action and commenced regular commercial use of
the same in such jurisdiction and shall be diligently carrying forward, on
a non-discriminatory basis, all steps which are necessary or desirable to
permit the normal use of the Aircraft by Owner (or such Lessee), but in any
event an "Event of Loss" shall be deemed to have occurred if such use shall
have been prohibited for a period of two consecutive years; and (viii) with
respect to an Engine only, any divestiture of title to or interest in an
Engine or any event with respect to an Engine that is deemed to be an Event
of Loss with respect to such Engine pursuant to Section 5.06(b) of the
Indenture. An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if an Event of Loss occurs with respect to the Airframe.
"Expenses" means all liabilities, obligations, losses, damages,
settlements, penalties, claims, actions, suits, costs, expenses and
disbursements (including, without limitation, reasonable fees and
disbursements of legal counsel, accountants, appraisers, inspectors or
other professionals and reasonable costs of investigation).
"FAA Xxxx of Sale" means a xxxx of sale for the Aircraft on AC
Form 8050-2 (or such other form as may be approved by the FAA) delivered to
Owner by the Manufacturer or its Affiliates.
"Federal Aviation Administration" and "FAA" mean the United States
Federal Aviation Administration and any agency or instrumentality of the
United States government succeeding to their functions.
"Federal Funds Rate" means a fluctuating interest rate per annum
in effect from time to time, which rate per annum shall at all times be
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by State Street from three Federal funds brokers of
recognized standing selected by it.
"Foreign Air Carrier" means any air carrier which is not a U.S.
Air Carrier and which performs, or contracts for the performance of,
maintenance, preventative maintenance and inspections for the Aircraft,
Airframe and/or any Engine or engine to standards which are approved by, or
which are substantially equivalent to those required by, the Federal
Aviation Administration or any Permitted Foreign Air Authority.
"French Pledge Agreement" means the French Pledge Agreement, dated
as of the date of the Series G Participation Agreement, between Owner and
the Indenture Trustee, as the same may be amended, supplemented or modified
from time to time.
"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.
"Indemnitee" means (i) the Indenture Trustee, (ii) the Loan
Participants and each other Note Holder, (iii) the Subordination Agent,
(iv) the Liquidity Providers, (v) the Policy Provider; (vi) the Pass
Through Trustees, (vii) each Affiliate of the Persons described in clauses
(i) through (vi), inclusive, (viii) the respective directors, officers,
employees, agents and servants of each of the Persons described in clauses
(i) through (vii), inclusive, and (vix) the successors and permitted
assigns of the Persons described in clauses (i) through (viii), inclusive.
"Indemnity Agreements" means, collectively, (i) that certain
Indemnity Agreement, dated as of the Class G Pass Through Trust Closing
Date, between the Class G Depositary and Owner and (ii) if the Class C Pass
Through Certificates are issued, that certain Indemnity Agreement, dated as
of the date such Class C Pass Through Certificates are issued, between the
Class C Depositary and Owner.
"Indenture" or "Trust Indenture" means that certain Indenture and
Security Agreement (N___U_), dated as of the date of the Series G
Participation Agreement, between Owner and the Indenture Trustee, as it may
from time to time be supplemented or amended as therein provided, including
supplementing by the Indenture Supplement pursuant to the Indenture.
"Indenture Agreements" means the Participation Agreements, the
Purchase Agreement, the Purchase Agreement Assignment, the French Pledge
Agreement, the Consent and Agreement and any other contract, agreement or
instrument from time to time assigned or pledged under the Indenture.
"Indenture Estate" or "Trust Indenture Estate" means all estate,
right, title and interest of the Indenture Trustee in and to the properties
referred to in the Granting Clause of the Indenture.
"Indenture Indemnitees" means (i) State Street and the Indenture
Trustee, (ii) each separate or additional trustee appointed pursuant to the
Indenture, (iii) the Subordination Agent, (iv) the Liquidity Providers, (v)
the Policy Provider, (vi) each Pass Through Trustee and (vii) each of the
respective directors, officers, employees, agents and servants of each of
the Persons described in clauses (i) through (vi), inclusive.
"Indenture Supplement" means a supplement to the Indenture,
substantially in the form of Exhibit A to the Indenture, which shall
particularly describe the Aircraft, and any Replacement Airframe and
Replacement Engine included in the property subject to the Lien of the
Indenture.
"Indenture Trustee" means State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, not in
its individual capacity, but solely as Indenture Trustee, and any entity
which may from time to time be acting as indenture trustee under the
Indenture.
"Indenture Trustee Documents" means the Participation Agreements,
the Indenture, the Purchase Agreement Assignment, the French Pledge
Agreement and any other agreements between the Indenture Trustee and any
other party to the Participation Agreements relating to the Transactions
delivered on the Delivery Date or on the date the Series C Equipment Notes
are issued.
"Indenture Trustee's Liens" means any Lien which arises as a
result of (A) claims against the Indenture Trustee not related to its
interest in the Aircraft, (B) acts of the Indenture Trustee not permitted
by, or failure of the Indenture Trustee to take any action required by, the
Operative Documents to the extent such acts arise or such failure arises
from or constitutes gross negligence or willful misconduct, (C) claims
against the Indenture Trustee relating to Taxes or Expenses which are
excluded from the indemnification provided by Section 6 of the Series G
Participation Agreement pursuant to said Section 6 and any comparable
provision contained in the Series C Participation Agreement, or (D) claims
against the Indenture Trustee arising out of the transfer by the Indenture
Trustee of all or any portion of its interest in the Aircraft, the
Indenture Estate or the Operative Documents other than a transfer of the
Aircraft pursuant to Article IV or V of the Indenture.
"Insurance Brokers" has the meaning specified for such term in
Section 7.04 of the Indenture.
"Intercreditor Agreement" means that certain Intercreditor
Agreement, dated as of the Class G Pass Through Trust Closing Date, among
the Class G Pass Through Trustee, the Class G Liquidity Provider, the
Policy Provider and the Subordination Agent; provided, that if the Class C
Pass Through Trust issues Class C Pass Through Certificates, then pursuant
to the terms of the Intercreditor Agreement, the Class C Pass Trustee and
the Class C Liquidity Provider (if there is a Class C Liquidity Facility)
will join the Intercreditor Agreement as parties thereto.
"Law" means (a) any constitution, treaty, statute, law,
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 any lease permitted by the terms of Section
7.02(b)(x) of the Indenture.
"Lessee" means any Person for so long, but only so long, as such
Person is in possession of the Airframe and/or any Engine pursuant to the
terms of a Lease which is then in effect pursuant to Section 7.02(b) of the
Indenture.
"Lien" means any mortgage, pledge, lien, charge, claim,
encumbrance, lease, sublease, sub-sublease or security interest.
"Liquidity Providers" means, collectively, the Class G Liquidity
Provider and the Class C Liquidity Provider.
"Loan Participant" means, collectively, the Series G Loan
Participant and the Series C Loan Participant.
"Loan Participant Liens" means any Lien which arises from acts or
claims against any Loan Participant not related to the transactions
contemplated by the Operative Documents.
"Majority in Interest of Note Holders" as of a particular date of
determination means the holders of at least a majority in aggregate unpaid
principal amount of all Equipment Notes outstanding as of such date
(excluding any Equipment Notes held by Owner or any Affiliate thereof).
"Make-Whole Amount" means, with respect to any Equipment Note, the
amount (as determined by an independent investment banker selected by Owner
and reasonably acceptable to the Indenture Trustee) by which (a) the
present value of the remaining scheduled payments of principal and interest
from the redemption date to maturity of such Equipment Note computed by
discounting each such payment on a semiannual basis from its respective
Payment Date (assuming a 360-day year of twelve 30-day months) using a
discount rate equal to the Treasury Yield exceeds (b) the outstanding
principal amount of such Equipment Note plus accrued interest. For purposes
of determining the Make-Whole Amount, "Treasury Yield" means, at the time
of determination, the interest rate (expressed as a semiannual equivalent
and 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 semiannual yield to maturity for United States Treasury
securities maturing on the Average Life Date and trading in the public
securities market 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
and (B) the other maturing as close as possible to, but later than, the
Average Life Date, 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 is reported on the most recent
H.15(519), such weekly average yield to maturity as published in such
H.15(519). "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. The date of determination of a Make-Whole
Amount shall be the third Business Day prior to the applicable redemption
date and the "most recent H.15(519)" means the H.15(519) published prior to
the close of business on the third Business Day prior to the applicable
redemption date. "Average Life Date" means, for each Equipment Note to be
redeemed, the date which follows the redemption date by a period equal to
the Remaining Weighted Average Life at the redemption date of such
Equipment Note.
"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, and its successors and
assigns.
"Manufacturer Documents" means the Purchase Agreement Assignment
and the Consent and Agreement.
"Mortgaged Property" has the meaning specified for such term in
Section 3.03 of the Indenture.
"Non-U.S. Person" means any Person other than a U.S. Person.
"Note Holder" means any holder from time to time of one or more
Equipment Notes.
"Obsolete Parts" has the meaning specified for such term in
Section 7.03(c) of the Indenture.
"Operative Documents" means, collectively, the Participation
Agreements, the Indenture, the Indenture Supplement covering the Aircraft,
the Equipment Notes, the Purchase Agreement (insofar as it relates to the
Aircraft), the Purchase Agreement Assignment, the French Pledge Agreement
and the Consent and Agreement (each, an "Operative Document").
"Operative Indentures" means each of the indentures under which
notes have been issued and purchased by the Pass Through Trustees.
"Owner" means US Airways, Inc., a Delaware corporation.
"Owner Documents" means the Participation Agreements, the French
Pledge Agreement, the Indenture and the Equipment Notes.
"Participation Agreements" means, collectively, the Series G
Participation Agreement and the Series C Participation Agreement.
"Parts" means all appliances, parts, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
(a) complete Engines or engines, (b) any items leased by Owner from a third
party and (c) cargo containers) which may from time to time be incorporated
or installed in or attached to the Airframe or any Engine for so long as
such items remain subject to the Lien of the Indenture after removal
therefrom; provided that "Parts" shall not include Passenger Convenience
Equipment.
"Pass Through Certificates" means, collectively, the Class G Pass
Through Certificates and the Class C Pass Through Certificates.
"Pass Through Documents" means, collectively, the Class G Pass
Through Documents and the Class C Pass Through Documents.
"Pass Through Indemnitees" means (i) the Subordination Agent, the
Liquidity Providers, the Policy Provider and the Pass Through Trustees,
(ii) each Affiliate of a Person described in the preceding clause (i),
(iii) the respective directors, officers, employees, agents and servants of
each of the Persons described in the preceding clauses (i) and (ii) and
(iv) the successors and permitted assigns of the Persons described in the
preceding clauses (i), (ii) and (iii).
"Pass Through Trust Agreements" means, collectively, the Class G
Pass Through Trust Agreement and the Class C Pass Through Trust Agreement.
"Pass Through Trustees" means, collectively, the Class G Pass
Through Trustee and the Class C Pass Through Trustee.
"Passenger Convenience Equipment" means available components or
systems installed on or affixed to the Airframe that are used to provide
individual telecommunications to passengers aboard the Aircraft.
"Past Due Rate" means a rate per annum equal to 1% over the Debt
Rate.
"Payment Date" means each February 5 and August 5, commencing on
[-] (or, if any such day is not a Business Day, the immediately succeeding
Business Day) until the Equipment Notes have been paid in full.
"Permitted Foreign Air Authority" means the Civil Aviation
Authority of the United Kingdom, the Direction Generale de l'Aviation
Civile of the French Republic, the Luftfahrt Bundesamt of the Federal
Republic of Germany, the Rijflauchtraatdienst of the Kingdom of the
Netherlands, the Ministry of Transportation of Japan or the Federal
Ministry of Transport of Canada (and any agency or instrumentality of the
applicable government succeeding to the functions of any of the foregoing
entities).
"Permitted Foreign Air Carrier" means any air carrier with its
principal executive office in a country listed in Section 7(b) of the
Series G Participation Agreement as in effect from time to time and as may
be modified in accordance with such Section 7(b).
"Permitted Lien" means any Lien referred to in clauses (i) through
(viii) of Section 7.01 of the Indenture.
"Permitted Lessee" means any (i) manufacturer of airframes or
aircraft engines, or any Affiliate of a manufacturer of airframes or
aircraft engines, (ii) any Permitted Foreign Air Carrier, (iii) any Person
approved in writing by the Indenture Trustee and (iv) any U.S. Air Carrier.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Policy" means the financial guarantee insurance policy, dated as
of the Class G Pass Through Trust Closing Date, issued by the Policy
Provider in favor of the Subordination Agent for the benefit of the Class G
Pass Through Trust.
"Policy Provider" means MBIA Insurance Corporation, or any
successor thereto.
"Policy Provider Agreement" means the Insurance and Indemnity
Agreement, dated as of the Class G Pass Through Trust Closing Date, among
the Policy Provider, Owner and the Subordination Agent.
"Principal Amount", with respect to an Equipment Note, means the
stated original principal amount of such Equipment Note and, with respect
to all Equipment Notes, means the aggregate stated original principal
amounts of all Equipment Notes.
"Purchase Agreement" means the Sale and Purchase Agreement, dated
as of October 31, 1997, between the Seller and US Airways Group, Inc.
(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, relating to the Aircraft.
"Purchase Agreement Assignment" means the Purchase Agreement
Assignment (N___U_), dated as of the date of the Series G Participation
Agreement, between Owner and the Indenture Trustee, as the same may be
amended, supplemented or modified from time to time, with a form of Consent
and Agreement to be executed by the Seller attached thereto.
"Purchasers" means each Pass Through Trustee.
"QIB" has the meaning specified for such term in Section 2.08 of
the Indenture.
"Remaining Weighted Average Life" of an Equipment Note, at the
redemption date of such Equipment Note, means the number of days equal to
the quotient obtained by dividing (a) the sum of the products obtained by
multiplying (i) the amount of each then remaining installment of principal,
including the payment due on the maturity date of such Equipment Note, by
(ii) the number of days from and including the redemption date to but
excluding the scheduled payment date of such principal installment; by (b)
the then unpaid principal amount of such Equipment Note.
"Replacement Airframe" means any airframe substituted for the
Airframe pursuant to Section 5.06 of the Indenture.
"Replacement Engine" means any engine substituted for an Engine
pursuant to Section 5.06 of the Indenture.
"Responsible Officer" means a responsible officer in the Corporate
Trust Office of the Indenture Trustee.
"Scheduled Delivery Date" has the meaning specified for such term
in Section 2(d) of the Series G Participation Agreement and the comparable
provision of the Series C Participation Agreement.
"Secured Obligations" has the meaning specified for such term in
the Granting Clause of the Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means AVSA, S.A.R.L., a societe a responsabilite limitee
organized and existing under the laws of the Republic of France.
"Senior Holder" has the meaning specified for such term in Section
2.15(c) of the Indenture.
"Series C" or "Series C Equipment Notes" means all Equipment Notes
issued and designated as "Series C" under the applicable Indenture
Supplement, in the Principal Amount and maturities and bearing interest as
specified in Schedule I to the applicable Indenture Supplement under the
heading "Series C".
"Series C Loan Participant" means each Series C Purchaser and its
respective successors and registered assigns, including any Series C Note
Holder.
"Series C Note Holder" means any holder from time to time of one
or more Series C Equipment Notes.
"Series C Participation Agreement" means, if any Class C Pass
Through Certificates and Series C Equipment Notes are issued, the
Participation Agreement (N___U_ Series C Equipment Note), to be dated the
date such Series C Equipment Notes are originally issued, among the
Subordination Agent, the Indenture Trustee, Owner and the Class C Pass
Through Trustee, as the same may from time to time be supplemented or
further amended, or the terms thereof waived or modified, to the extent
permitted by, and in accordance with, the terms thereof.
"Series C Purchaser" means the Class C Pass Through Trustee.
"Series G" or "Series G Equipment Notes" means Equipment Notes
issued and designated as "Series G" under the Indenture, in the Principal
Amount and maturities and bearing interest as specified in Schedule I to
the Indenture under the heading "Series G."
"Series G Loan Participant" means each Series G Purchaser and its
respective successors and registered assigns, including any Series G Note
Holder.
"Series G Note Holder" means any holder from time to time of one
or more Series G Equipment Notes.
"Series G Participation Agreement" means that certain
Participation Agreement (N___U_ Series G Equipment Note), dated as of
__________, 200__, among the Subordination Agent, the Indenture Trustee,
Owner and the Class G Pass Through Trustee, as the same may from time to
time be supplemented or further amended, or the terms thereof waived or
modified, to the extent permitted by, and in accordance with, the terms
thereof.
"Series G Purchaser" means the Class G Pass Through Trustee.
"State Street" means State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, in its
individual capacity.
"Subordination Agent" means State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, as
subordination agent under the Intercreditor Agreement, or any successor
thereto.
"Taxes" means any and all fees (including, without limitation,
license, recording, documentation and registration fees), taxes (including,
without limitation, income, gross receipts, sales, rental, use, turnover,
value added, property (tangible and intangible), excise and stamp taxes),
license, levies, imposts, duties, recording charges and assessments of any
kind whatsoever that are in the nature of taxes or other governmental
charges including interest, penalties and additions to tax (each,
individually a "Tax").
"Transactions" means the transactions contemplated by the
Participation Agreements and the other Operative Documents.
"Transportation Code" means that portion of the United States Code
comprising those provisions formerly referred to as the Federal Aviation
Act of 1958, as amended, or any subsequent legislation that amends,
supplements or supersedes such provisions.
"Underwriters" means Credit Suisse First Boston Corporation, ABN
AMRO Incorporated, Chase Securities, Inc. and Xxxxxxx Xxxxx Xxxxxx.
"U.S. Air Carrier" means any Certificated Air Carrier as to which
there is in force an air carrier operating certificate issued pursuant to
Part 121 of the regulations under the Transportation Code, or which may
operate as an air carrier by certification or otherwise under any successor
or substitute provisions therefor or in the absence thereof.
"U.S. Person" means any Person that qualifies as a "United States
person" under Section 7701(a)(30) of the Code.
"Wet Lease" means any arrangement whereby Owner (or any Lessee)
agrees to furnish the Airframe and Engines or engines installed thereon to
a third party pursuant to which such Airframe and Engines or engines (i)
shall be operated solely by regular employees of Owner (or any Lessee)
possessing all current certificates and licenses that would be required
under the Transportation Code, or, if the Aircraft is not registered in the
United States, all certificates and licenses required by the laws of the
jurisdiction of registry, for the performance by such employees of similar
functions within the United States of America or such other jurisdiction of
registry (it is understood that cabin attendants need not be regular
employees of Owner (or any Lessee)) and (ii) shall be maintained by Owner
(or any Lessee) in accordance with its normal maintenance practices.
