Exhibit C-1 to Note Purchase Agreement
Owned Aircraft
Participation Agreement
N___U_
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PARTICIPATION AGREEMENT
(N___U_)
Dated as of
_________ __, ____
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
Pass Through Trustee under each of the
Pass Through Trust Agreements,
Subordination Agent and Indenture Trustee
_______________________
One Airbus A330 Aircraft
U.S. Registration No. N___U_
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE ASSUMPTION THAT
BOTH SERIES G AND SERIES C EQUIPMENT NOTES WILL BE ISSUED. IF
SERIES C EQUIPMENT NOTES ARE NOT ISSUED ON A PARTICULAR
CLOSING DATE, THIS AGREEMENT SHALL BE MODIFIED TO REMOVE
REFERENCES TO SERIES C EQUIPMENT NOTES AND TO MAKE OTHER
RELATED CHANGES.
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INDEX TO PARTICIPATION AGREEMENT
Page
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SECTION 1. Definitions and Construction. . . . . . . . . . . . . . . . 2
SECTION 2. Participation by Pass Through Trustees in
Financing of the Aircraft . . . . . . . . . . . . . . . . . 2
(a) Participation by Pass Through Trustees on the
Delivery Date; Issuance of Equipment Notes. . . . . . . 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 Equipment
Notes . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Conditions Precedent to the Obligations of Owner . . . 10
SECTION 5. Extent of Interest of Note Holders . . . . . . . . . . . . 12
SECTION 6. Representations and Warranties of Owner; Indemnities . . . 12
(a) Representations and Warranties . . . . . . . . . . . . 12
(b) General Indemnity . . . . . . . . . . . . . . . . . . . 15
SECTION 7. Representations, Warranties and Covenants . . . . . . . . . 19
(a) Securities Act . . . . . . . . . . . . . . . . . . . . 19
(b) Reregistration . . . . . . . . . . . . . . . . . . . . 19
(c) Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . 20
(d) Equipment Notes Acquired for Investment . . . . . . . . 20
(e) Owner Merger Covenant . . . . . . . . . . . . . . . . . 21
(f) Representations, Warranties and Covenants of
the Indenture Trustee . . . . . . . . . . . . . . . . . 22
(g) Confidentiality of Purchase Agreement . . . . . . . . . 23
(h) Loan Participant Liens . . . . . . . . . . . . . . . . 23
(i) Indenture Trustee Liens . . . . . . . . . . . . . . . . 24
(j) Further Assurances . . . . . . . . . . . . . . . . . . 24
(k) Transfer of Equipment Notes . . . . . . . . . . . . . . 24
(l) Representations and Warranties of Pass Through
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 24
(m) Representations and Warranties of Subordination
Agent . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 8. Reliance of Liquidity Provider and Policy Provider . . . . 28
SECTION 9. Other Documents . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 10. Certain Covenants of Owner . . . . . . . . . . . . . . . . 29
(a) Further Assurances . . . . . . . . . . . . . . . . . . 29
(b) Filings . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 11. [Reserved.] . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 12. Notices; Consent to Jurisdiction . . . . . . . . . . . . . 29
(a) Notices . . . . . . . . . . . . . . . . . . . . . . . . 29
(b) Consent to Jurisdiction . . . . . . . . . . . . . . . . 30
SECTION 13. [Reserved.] . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 14. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 30
(a) Survival . . . . . . . . . . . . . . . . . . . . . . . 30
(b) Counterparts . . . . . . . . . . . . . . . . . . . . . 31
(c) Amendments and Waivers . . . . . . . . . . . . . . . . 31
(d) Successors and Assigns . . . . . . . . . . . . . . . . 31
(e) Governing Law . . . . . . . . . . . . . . . . . . . . . 31
EXHIBITS
Exhibit A - Schedule of Countries Authorized for Reregistration
Exhibit B-1 - Form of Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois), special counsel for Owner
Exhibit B-2 - 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
Pass Through Trustee
Exhibit G - Form of Opinion of Xxxxxxx Xxxx LLP, special counsel for the
Subordination Agent
PARTICIPATION AGREEMENT
(N___U_)
THIS PARTICIPATION AGREEMENT (N___U_) dated as of _______ ___,
____ (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 each of
two separate Pass Through Trust Agreements (in such capacity, together with
its successors and permitted assigns, the "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 the Owner are entering into the
Indenture pursuant to which the Owner will issue to the Pass Through
Trustee for each Pass Through Trust Equipment Notes in two series, which
Equipment Notes are to be secured by the mortgage and security interests
created by the 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 Pass
Through Certificates by each Pass Through Trust will be applied in part by
the Pass Through Trustee on the Delivery Date to purchase from Owner, on
behalf of each Pass Through Trust, all of the Equipment Notes bearing the
same interest rate as the Pass Through Certificates issued by such Pass
Through Trust;
WHEREAS, on the Delivery Date for the Aircraft, Owner will
deliver an Indenture Supplement covering the Aircraft;
WHEREAS, pursuant to the terms of the Note Purchase Agreement,
the Pass Through Trustee will purchase from the Owner on the Delivery Date,
on behalf of each Pass Through Trust, all of the Equipment Notes bearing
the same interest rate as the Pass Through Certificates issued by such Pass
Through Trust;
WHEREAS, prior to the execution and delivery of this Agreement,
(i) the Liquidity Provider entered into two separate Liquidity Facilities,
one for the benefit of the holders of Pass Through Certificates of each of
the Class G Pass Through Trust and the Class C Pass Through Trust (each
referenced on Schedule III hereto), with the Subordination Agent, as agent
for the Pass Through Trustee on behalf of each such Pass Through Trust (ii)
the Policy Provider entered into a Policy Provider Agreement with the
Subordination Agent, as agent for the Pass Through Trustee on behalf of the
Class G Trust and has issued the Policy for the benefit of the holders of
Certificates of the Class G Pass Through Trust; and (iii) the Pass Through
Trustee, the Liquidity Provider, the Policy Provider and the Subordination
Agent have entered into the Intercreditor Agreement; and
WHEREAS, the Equipment Notes will be held by the Subordination
Agent pursuant to the Intercreditor Agreement on behalf of the Pass Through
Trusts.
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 PASS THROUGH TRUSTEES IN FINANCING OF
THE AIRCRAFT.
(a) Participation by Pass Through Trustees on the Delivery Date;
Issuance of Equipment Notes. Subject to the terms and conditions of this
Agreement, the Pass Through Trustee for each Pass Through Trust agrees to
make a secured loan to Owner on the Delivery Date to finance, in part, the
Owner's acquisition of the Aircraft by paying to Owner the aggregate
purchase price of the Equipment Notes being issued to such Pass Through
Trustee as set forth on Schedule II opposite the name of such Pass Through
Trust. The Pass Through Trustees shall make such payments to Owner on a
date to be designated pursuant to Section 2(b) but in no event later than
__________________, by transferring to the account of Owner at State Street
Bank and Trust Company of Connecticut, National Association, 000 Xxxxxx
Xxxxxx, Xxxxxxx Square, Hartford, Connecticut 06103, ABA No. _________,
Account No. __________, Reference: US Airways, Inc. 2000-1 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 such Pass Through Trust on Schedule II hereto.
Upon the occurrence of the above transfers by the Pass Through
Trustee for each Pass Through Trust to Owner, Owner shall issue, pursuant
to Article II of the Indenture, to the Subordination Agent on behalf of the
Pass Through Trustee for each of the Pass Through Trusts, Equipment Notes
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
such Pass Through Trust.
(b) Owner's Notice of Delivery Date. Owner agrees to give the
Indenture Trustee, the 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 Equipment Notes to
be purchased by the Pass Through Trustees, 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 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 Pass Through Trustees any funds provided by any such 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
each Pass Through Trustee that made funds available, Owner shall use
reasonable efforts to cause the Indenture Trustee to invest, at the
risk of Owner, the funds received by it from such Pass Through
Trustees 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 respective Pass
Through Trustees that provided such funds.
(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 Pass Through Trustee by 2:00 p.m., New York City time, on
the Scheduled Delivery Date, Owner shall reimburse each Pass Through
Trustee that has made funds available pursuant to this Section 2 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
such 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 such 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 Pass Through Trustees pursuant to clause (ii) above,
Owner shall reimburse the Pass Through Trustees that provided funds
which are invested by Owner pursuant to this subsection (d) for any
losses incurred on such investments. All income and profits on the
investment of such funds shall be for the respective accounts of such
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 Equipment Notes. It is
agreed that the obligations of the Indenture Trustee, the Subordination
Agent and the Pass Through Trustee on behalf of each 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 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 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 Pass Through
Trustee and the Subordination Agent, or their respective counsel,
provided that only the Subordination Agent on behalf of each Pass
Through Trustee shall receive an executed original of such Pass
Through Trustee's respective Equipment Note and provided, further,
that an excerpted copy of the Purchase Agreement shall only be
delivered to and retained by the Indenture Trustee, which copy may be
inspected by the Indenture Trustee if and only if there shall occur
and be continuing an Event of Default:
(1) an excerpted copy of the Purchase Agreement
(insofar as it relates to the Aircraft);
(2) the Indenture;
(3) the Indenture Supplement;
(4) the Equipment Notes;
(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 Pass Through Trustee shall have received
executed counterparts or conformed copies of the following documents:
(1) each of the Pass Through Trust Agreements;
(2) the Intercreditor Agreement;
(3) the Liquidity Facility for each of the Class G and
Class C Pass Through Trusts; and
(4) the Policy Provider Agreement and the Policy for
the Class G Pass Through Trusts.
(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 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 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 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 Equipment
Notes by the Pass Through Trustees under the Pass Through
Documents have been duly satisfied or waived in accordance
with their respective terms.
(viii) In the case of the Pass Through Trustees, the conditions
specified in Section 3 of the Note Purchase Agreement shall have been
satisfied or waived.
(ix) The Indenture Trustee, the 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 B-1 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-2 hereto from
Owner's legal department.
(x) The Pass Through Trustee and the Indenture Trustee shall
have received, addressed to the 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 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 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 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 Pass Through Trustee and (C) such other
documents and evidence with respect to the Pass Through Trustee as it
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 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 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 enter into the Operative Documents
on the Delivery Date are all 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 Equipment Notes)
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 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.
(viii) Owner shall have been paid by the Pass Through Trustees
for the issuance of the Equipment Notes.
SECTION 5. EXTENT OF INTEREST OF NOTE HOLDERS. No 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 all Equipment Notes held by such holder and
all other sums payable to such holder hereunder, under the Indenture and
under such Equipment Notes shall have been paid in full.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF OWNER; INDEMNITIES.
(a) Representations and Warranties. Owner represents and
warrants to the Pass Through Trustee, the Indenture Trustee, each Loan
Participant, the Subordination Agent, each 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 Pass Through Trust
Agreements 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 Owner Documents,
the Pass Through Trust Agreements and each other Operative Document
to which Owner is a party, and the performance of the obligations of
Owner under Owner Documents, the Pass Through Trust Agreements 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 Pass Through
Certificates issued by a Pass Through Trust;
(iv) neither the execution and delivery by Owner of Owner
Documents, the Pass Through Trust Agreements or any other Operative
Document to which Owner is a party, nor the performance of the
obligations of Owner under Owner Documents, the Pass Through Trust
Agreements 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 Pass Through Certificates under
the Securities Act and under the securities laws of any state in
which the Pass Through Certificates may be offered for sale if the
laws of such state require such action, (B) the qualification of the
Pass Through Trust Agreements 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
Pass Through Trust Agreements 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 the Equipment Notes or the 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 Equipment
Notes 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 _____(1) included in Owner's annual report on Form
10-K for the year ended _____, [as amended], 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
----------------
(1) Insert most recent fiscal year end.
(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 or the Pass Through Certificates (or other evidence of the debt
relating to the Aircraft) on the Delivery Date 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
the 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, 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 Agreement 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
the Equipment Notes.
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 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 Loan Participant represents and
warrants that neither it nor anyone acting in its behalf has offered any
Equipment Notes for sale to, or solicited any offer to buy any 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 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 on Exhibit A. Upon the
request of Owner, Exhibit A shall 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 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.
(c) Quiet Enjoyment. Each Loan Participant and each of the
Indenture Trustee, the Subordination Agent and the 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) Equipment Notes Acquired for Investment. Each Loan
Participant represents and warrants that the 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 Loan
Participant may pledge or assign as security its interest in each Equipment
Note issued to it), except that the Loan Participants may sell, transfer or
otherwise dispose of any 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 Pass Through Trustee, the
Subordination Agent, each 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
Equipment Notes;
(ii) the execution and delivery by the Indenture Trustee of the
Indenture Trustee Documents and the authentication of the Equipment
Notes 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; and
(v) there are no Indenture Trustee Liens on the Aircraft.
(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 Equipment Notes (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 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 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 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 Equipment Notes. Each Loan Participant hereby
represents, warrants and agrees that it shall not transfer any interest in
any 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 Loan Participant in
this Agreement and to be bound by the terms of this Agreement and the
Indenture.
(l) Representations and Warranties of Pass Through Trustee. The
Pass Through Trustee represents and warrants to Owner, the Indenture
Trustee, the Subordination Agent, each Liquidity Provider and the Policy
Provider, in its capacity as such and in its individual capacity, as
follows:
(i) the 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 each of the Pass Through Trust Agreements, the
Intercreditor Agreement and this Agreement and to perform its
obligations under the Pass Through Trust Agreements, the Intercreditor
Agreement and this Agreement;
(ii) this Agreement, each of the Pass Through Trust Agreements
and the Intercreditor Agreement have been duly authorized, executed
and delivered by the Pass Through Trustee; this Agreement, each of the
Pass Through Trust Agreements and the Intercreditor Agreement
constitute the legal, valid and binding obligations of the 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
Pass Through Trustee of any of the Pass Through Trust Agreements, the
Intercreditor Agreement or this Agreement, the purchase by the Pass
Through Trustee of the Equipment Notes pursuant to this Agreement, or
the issuance of the Pass Through Certificates pursuant to the Pass
Through Trust Agreements, contravenes any law, rule or regulation of
the State of Connecticut or any United States governmental authority
or agency regulating the Pass Through Trustee's banking, trust or
fiduciary powers or any judgment or order applicable to or binding on
the Pass Through Trustee and does not contravene or result in any
breach of, or constitute a default under, the Pass Through Trustee's
articles of association or by-laws or any agreement or instrument to
which the 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 Pass Through
Trustee of any of the Pass Through Trust Agreements, the Intercreditor
Agreement or this Agreement, nor the consummation by the 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 Pass Through Trustee's
banking, trust or fiduciary powers;
(v) there are no Taxes payable by the 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 Pass Through Trustee of this Agreement, any of
the Pass Through Trust Agreements or the Intercreditor Agreement
(other than franchise or other taxes based on or measured by any fees
or compensation received by the Pass Through Trustee for services
rendered in connection with the transactions contemplated by any of
the Pass Through Trust Agreements), and there are no Taxes payable by
the Pass Through Trustee imposed by the State of Connecticut or any
political subdivision thereof in connection with the acquisition,
possession or ownership by the Pass Through Trustee of any of the
Equipment Notes (other than franchise or other taxes based on or
measured by any fees or compensation received by the Pass Through
Trustee for services rendered in connection with the transactions
contemplated by any of the Pass Through Trust Agreements), and,
assuming that the trusts created by the Pass Through Trust Agreements
will not be taxable as corporations, but rather, each will be
characterized either as a grantor trust under subpart E, Part I, of
Subchapter J of the Code or as a partnership, such trusts 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 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 Pass
Through Trustee to perform its obligations under this Agreement, the
Intercreditor Agreement or any Pass Through Trust Agreement;
(vii) except for the issue and sale of the Pass Through
Certificates contemplated hereby, the Pass Through Trustee has not
directly or indirectly offered any Equipment Note for sale to any
Person or solicited any offer to acquire any Equipment Notes from any
Person, nor has the Pass Through Trustee authorized anyone to act on
its behalf to offer directly or indirectly any Equipment Note for sale
to any Person, or to solicit any offer to acquire any Equipment Note
from any Person; and the Pass Through Trustee is not in default under
any Pass Through Trust Agreement; and
(viii) the 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
and the Pass Through Trustee, each 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 Liquidity Facilities, the
Policy Provider Agreement and the Intercreditor Agreement and to
perform its obligations under this Agreement, the Liquidity
Facilities, the Policy Provider Agreement and the Intercreditor
Agreement;
(ii) this Agreement, each of the Liquidity Facilities, the Policy
Provider Agreement and the Intercreditor Agreement have been duly
authorized, executed and delivered by the Subordination Agent; this
Agreement, each of the Liquidity Facilities, 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 each of the Liquidity Facilities, 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 any of the Liquidity Facilities, 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, any of
the Liquidity Facilities, 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 any of the Liquidity Facilities), 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 any
of the Equipment Notes (other than franchise or other taxes based on
or measured by any fees or compensation received by the Subordination
Agent for services rendered in connection with the transactions
contemplated by the Intercreditor Agreement, the Policy Provider
Agreement or any of the Liquidity Facilities);
(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 any
Liquidity Facility;
(vii) the Subordination Agent has not directly or indirectly
offered any Equipment Note for sale to any Person or solicited any
offer to acquire any Equipment Notes from any Person, nor has the
Subordination Agent authorized anyone to act on its behalf to offer
directly or indirectly any Equipment Note for sale to any Person, or
to solicit any offer to acquire any Equipment Note from any Person;
and the Subordination Agent is not in default under any Policy
Provider Agreement or 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 LIQUIDITY PROVIDER AND POLICY PROVIDER.
Each of the parties hereto agrees and acknowledges that the 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 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 Liquidity Provider
and Policy Provider directly. Owner agrees and acknowledges that each of
the Liquidity Provider and Policy Provider shall be third party
beneficiaries of the indemnities contained in Section 6(b), and each of the
Liquidity Provider and Policy Provider may rely on such indemnities to the
same extent as if such indemnities were made to each of the Liquidity
Provider and Policy Provider directly.
SECTION 9. OTHER DOCUMENTS. So long as the Lien of the Indenture
has not been terminated, the 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 Pass Through Document in a manner adversely
affecting Owner. Each of the Indenture Trustee, the Subordination Agent
and the Pass Through Trustee agree to promptly furnish to Owner copies of
any supplement, amendment, waiver or modification of any of the Operative
Documents or Pass Through Documents to which Owner is not a party. Each
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 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 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 Note Holder, addressed to such 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
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 Pass Through Trustee's obligations under any and all thereof, shall
survive the making available of the respective Commitments by the Pass
Through Trustee, the transfer of any interest by any Loan Participant in
any 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 Pass
Through Trustee and its successors as Pass Through Trustee (and any
additional trustee appointed) under any of the Pass Through Trust
Agreements, each 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
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 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:
SCHEDULE I
NAMES AND ADDRESSES
Owner: US Airways, Inc.
U.S. MAIL
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
OVERNIGHT COURIER
_________________________
_________________________
Attn: ___________________
Telecopy No.: (___) ___-____
WIRE TRANSFER
ABA No.__________________
Acct. No.________________
Indenture Trustee, State Street Bank and Trust Company
Subordination Agent of Connecticut, National Association
and Pass Through
Trustee: U.S. MAIL
225 Asylum Street
Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Corporate Trust Administration
Telecopy No: (000) 000-0000
with a copy to
State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department
Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
OVERNIGHT COURIER
000 Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Corporate Trust Administration
Telecopy No: (000) 000-0000
with a copy to
State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department
Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
WIRE TRANSFER
State Street Bank and Trust Company of
Connecticut, National Association
ABA No._________
Acct. No. ________
Attn: Corporate Trust Administration
Reference: U.S. Airways, Inc. 2000-1 EETC/ N___U_
SCHEDULE II
COMMITMENTS
PERCENTAGE OF
PURCHASERS INTEREST RATE
LESSOR'S COST AND MATURITY PURCHASE PRICE
------------- ------------- --------------
US Airways, Inc.
Pass Through Trust:
2000-1G ___% Series G Secured $__________
_______% Notes due__________
2000-1C ___% Series C Secured $__________
______% Notes due __________
SCHEDULE III
PASS THROUGH TRUST AGREEMENTS
Pass Through Trust Agreement, dated as of July 30, 1999, between US
Airways, Inc., US Airways Group, Inc. and State Street Bank and Trust
Company of Connecticut, National Association, as supplemented by Trust
Supplement No. 2000-1G, dated as of February __, 2000 and as supplemented
by Trust Supplement No. 2000-1C, dated as of February __, 2000.
EXHIBIT A
TO PARTICIPATION AGREEMENT
(N___U_)
SCHEDULE OF COUNTRIES FOR REREGISTRATION
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.
Owned Aircraft Form Definitions
N___U_
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 Xxxxx & Xxxxxxx model
PW 4168A or 4173 (or improved) type engine having not less than 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 Xxxxx & Whitney model
PW 4168A or 4173 type engine, assuming such engine is in the condition
required by the Lease.
"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 Trustee, the Liquidity Provider, 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 a carrier operating certificate issued by the Secretary of
Transportation (or by the Administrator of the FAA acting under authority
delegated by the Secretary of Transportation) 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 11
U.S.C. Section 1110 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 Liquidity Provider" means Bayerische Landesbank
Girozentrale, or any successor thereto.
"Class G Liquidity Provider" means Bayerische Landesbank
Girozentrale, or any successor thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means the commitment pursuant to the Participation
Agreement of a Pass Through Trustee 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 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, with respect to any Series, the rate per annum
specified for such Series under the heading "Interest Rate" in Schedule I
to the Indenture.
"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 Participation Agreement.
"Deposit Agreements" means, collectively, (i) that certain
Deposit Agreement (Class G), dated as of the Pass Through Trust Closing
Date, between First Security Bank, National Association, as escrow agent
under the Escrow Agreement referred to therein, and the Depositary and (ii)
that certain Deposit Agreement (Class C), dated as of the Pass Through
Trust Closing Date, between First Security Bank, National Association, as
escrow agent under the Escrow Agreement referred to therein, and the
Depositary.
"Depositary" means ABN AMRO Bank N.V., acting through its Chicago
branch, as Class G and Class C Depositary under the Deposit Agreements, or
any successors thereto.
"Dollars" and "$" mean the lawful currency of the United States
of America.
"Engine" means (i) each of the two Xxxxx & Xxxxxxx 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 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 are to ERISA, as in
effect at the date of the Participation Agreement and any subsequent
provisions of ERISA, amendatory thereof, supplemental thereto or
substituted therefor.
"Escrow Agreements" means, collectively, (i) that certain Escrow
and Paying Agent Agreement (Class G), dated as of the Pass Through Trust
Closing Date, among First Security Bank, National Association, as escrow
agent, the Underwriters, the Pass Through Trustee, and State Street Bank
and Trust Company of Connecticut, National Association, as paying agent
thereunder and (ii) that certain Escrow and Paying Agent Agreement (Class
C), dated as of the Pass Through Trust Closing Date, among First Security
Bank, National Association, as escrow agent, the Underwriters, the Pass
Through Trustee, and State Street Bank and Trust Company of Connecticut,
National Association, as paying agent thereunder.
"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 A330
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 Participation Agreement, between the 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 Provider, (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 Agreement" means that certain Indemnity Agreement,
dated as of the Pass Through Trust Closing Date, between the Depositary and
Owner.
"Indenture" means that certain Indenture and Security Agreement
(N___U_), dated as of the date of the 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 Agreement, 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" 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 Provider, (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 Agreement,
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 Agreement relating to the Transactions,
delivered on the Delivery Date.
"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
Participation Agreement pursuant to said Section 6, 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
Exhibit B to the Indenture.
"Intercreditor Agreement" means that certain Intercreditor
Agreement, dated as of the Pass Through Trust Closing Date, among the Pass
Through Trustees, the Liquidity Provider, the Policy Provider and the
Subordination Agent.
"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 Facilities" means the two Revolving Credit Agreements,
each dated as of the Pass Through Trust Closing Date, between the
Subordination Agent, as borrower, and the Liquidity Provider, and any
replacement thereof, in each case as the same may be amended, modified or
supplemented.
"Liquidity Provider" means Bayerische Landesbank Girozentrale,
as Class G Liquidity Provider and Class C Liquidity Provider under the
Liquidity Facilities, or any successor thereto.
"Loan Participant" means each Purchaser and its respective
successors and registered assigns, including any Note Holder.
"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 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.
"Note Purchase Agreement" means the Note Purchase Agreement dated
as of the Pass Through Trust Closing Date among Owner, the Pass Through
Trustee for the Pass Through Trusts, 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.
"Obsolete Parts" has the meaning specified for such term in
Section 7.03(c) of the Indenture.
"Operative Documents" means, collectively, the Participation
Agreement, 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 Agreement, the French
Pledge Agreement, the Indenture and the Equipment Notes.
"Participants" means the Loan Participants (each individually, a
"Participant").
"Participation Agreement" means that certain Participation
Agreement (N___U_), dated as of _______________ ______, ____, among the
Subordination Agent, the Indenture Trustee, Owner and the 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.
"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 the pass through certificates
to be issued by the Pass Through Trustee in connection with the
Transactions.
"Pass Through Documents" means the Participation Agreement, the
Pass Through Trust Agreements, the Note Purchase Agreement, the Deposit
Agreements, the Liquidity Facilities, the Policy Provider Agreement, the
Policy and the Intercreditor Agreement.
"Pass Through Indemnitees" means (i) the Subordination Agent, the
Liquidity Provider, the Policy Provider and the Pass Through Trustee, (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" means, collectively, the two separate
grantor trusts set forth in Schedule III to the Participation Agreement
created, pursuant to the Pass Through Trust Agreement, to facilitate
certain of the transactions contemplated by the Operative Documents.
"Pass Through Trust Agreement" means the pass through trust
agreement and each of the two separate pass through trust supplements
referred to on Schedule III to the Participation Agreement.
"Pass Through Trust Closing Date" means February __, 2000.
"Pass Through Trustee" means State Street Bank and Trust Company
of Connecticut, National Association, a national banking association, in
its capacity as trustee under each Pass Through Trust Agreement, and each
other Person that may from time to time be acting as successor trustee
under any such Pass Through Trust Agreement.
"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 2 and August 2, 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 Exhibit C to the
Indenture as in effect from time to time and as may be modified in
accordance with Section 7(b) of the Participation Agreement.
"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 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 Pass Through Trust Closing Date, between the
Policy Provider 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 Purchase Agreement dated as of
November 24, 1998 between US Airways Group, Inc. and the Seller (including
all exhibits thereto, together with all letter agreements entered into that
by their terms constitute part of any such Purchase Agreement), as the same
may be amended or otherwise supplemented from time to time, relating to the
Aircraft.
"Purchase Agreement Assignment" means the Purchase Agreement
Assignment (N___U_), dated as of the date of the 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 the Pass Through Trustees under each Pass
Through Trust Agreement.
"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 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 Equipment Notes
issued and designated as "Series C" under the Indenture, in the Principal
Amount and maturities and bearing interest as specified in Schedule I to
the Indenture under the heading "Series C."
"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."
"State Street" means State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, not in
its capacity as Indenture Trustee under the Indenture, but 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").
"Transaction Expenses" means all of the reasonable out-of-pocket
costs, fees and expenses incurred by Owner, the Pass Through Trustee, the
Subordination Agent, the Indenture Trustee, the Liquidity Provider and the
Policy Provider in connection with the transactions contemplated by the
Participation Agreement, the other Operative Documents, the Pass Through
Documents and the Underwriting Agreement (except, in each case, as
otherwise provided therein) including, without limitation:
(a) the reasonable and actual fees, expenses and disbursements of (A)
Xxxxxxx Xxxx LLP, special counsel for the Pass Through Trustee,
the Subordination Agent and the Indenture Trustee, (B) Milbank,
Tweed, Xxxxxx & XxXxxx LLP, special counsel for the Underwriters
and (C) Xxxxx & Xxxxxxx, P.C., special counsel in Oklahoma City,
Oklahoma;
(b) the initial fee and reasonable and actual disbursements of the
Indenture Trustee under the Indenture;
(c) the initial fees and expenses of the Liquidity Provider, the
Policy Provider, the Pass Through Trustee and the Subordination
Agent;
(d) underwriting fees and commissions;
(e) the fees and expenses with respect to the appraisal of the
Aircraft;
(f) the fees, expenses and disbursements of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP and its affiliates, special counsel for Owner;
(g) the costs of filing and recording documents with the FAA and
filing Uniform Commercial Code statements in the United States;
(h) the reasonable fees, expenses and disbursements of special
counsel to each of the Liquidity Provider and Policy Provider;
(i) the expenses of the Depositary payable under Section 10(a) of
each Indemnity Agreement; and
(j) the reasonable fees, expenses and disbursements of, Xxxxxxxx
Chance, special counsel to the Seller and the Manufacturer.
"Transactions" means the transactions contemplated by the
Participation Agreement 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 Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxx Securities
Inc., Credit Lyonnais Securities (USA) Inc. and Credit Suisse First Boston
Corporation.
"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 the 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.
Exhibit B-1
[FORM OF SASM&F (ILLINOIS)
OPINION FOR OWNED AIRCRAFT]
__________, ____
To Each Person Listed on
Schedule I Hereto
Re: US Airways, Inc. (N___U_)
Ladies and Gentlemen:
We have acted as special counsel to US Airways, Inc., a Delaware
corporation ("US Airways"), in connection with the execution and delivery
of (i) the Participation Agreement (N___U_), dated as of _________ __, ____
(the "Participation Agreement"), by and between US Airways and State Street
Bank and Trust Company of Connecticut, National Association, a national
banking association, not in its individual capacity except as otherwise
provided therein, but solely as Pass Through Trustee, Indenture Trustee and
Subordination Agent relating to the Aircraft described in the Indenture
Supplement (as defined below); (ii) the issuance and sale of the Equipment
Notes (as defined below) pursuant to the Indenture and Security Agreement
(N___U_), dated as of ________ __, ____ by and between US Airways and the
Indenture Trustee ("the Indenture"), as supplemented by the Indenture and
Security Agreement Supplement (N___U_), dated ________ __, ____ of US
Airways (the "Indenture Supplement"); (iii) the Purchase Agreement
Assignment, dated as of _______ __, ____, between the Indenture Trustee and
US Airways (the "Purchase Agreement Assignment"); (iv) the Pass Through
Trust Agreement, dated as of _______, 2000, between the Pass Through
Trustee and US Airways (the "Pass Through Trust Agreement"); and (v) each
of the Pass Through Trust Supplements dated as of ______ __, 2000
(collectively, the "Pass Through Trust Supplements"). This opinion is being
delivered at the request of US Airways and pursuant to Section 4(a)(ix) of
the Participation Agreement.
In our examination, we have assumed the genuineness of all
signatures, including indorsements, the legal capacity of natural persons,
the authenticity of all documents submitted to us as originals, the
conformity to original documents of all copies submitted to us as
telefacsimile, certified or photostatic copies, and the authenticity of the
originals of such copies. As to any facts material to this opinion, we
have relied solely upon statements, representations and warranties of US
Airways, the Indenture Trustee, the Subordination Agent, the Pass Through
Trustee and their respective officers and representatives, and others in
the Operative Documents and of public officials, including the facts and
conclusions set forth in the Company's Certificate described below, and we
have made no independent investigation or inquiry with respect to such
factual matters.
In rendering the opinions set forth herein, we have examined and
relied on originals or copies of the following:
(a) the Participation Agreement;
(b) the Purchase Agreement Assignment;
(c) the Indenture;
(d) the Indenture Supplement;
(e) the Equipment Notes;
(f) the Pass Through Trust Agreement;
(g) each of the Pass Through Trust Supplements;
(h) [that certain Lease Agreement, dated as of __________ __,
____ (the "Shuttle Lease"), between US Airways and Shuttle, Inc., a
Delaware corporation ("Shuttle");](1)
---------------
(1) For Aircraft with Shuttle, Inc. Lease only.
(i) an unfiled, but signed copy of a financing statement naming
"US Airways, Inc." as debtor and "State Street Bank and Trust Company of
Connecticut, as Indenture Trustee" as secured party, which we understand
will be filed within ten (10) days of the transfer of the security interest
in the Offices of the Secretary of State of the State of New York (such
filing Office, the "New York Filing Office" and such financing statement,
the "New York Financing Statement");
(j) unfiled, but signed financing statements naming "US Airways,
Inc." as debtor and "State Street Bank and Trust Company of Connecticut, as
Indenture Trustee" as secured party, which we understand will be filed
within ten (10) days of the transfer of the security interest in the
offices of State Corporation Commission, Virginia and the Arlington County
Clerk (such filing offices, the "Virginia Filing Offices" and such
financing statements, the "Virginia Financing Statements");
(k) a certificate of US Airways, dated the date hereof, a copy of
which is attached as Exhibit A; and
(l) such other documents as we have deemed necessary or
appropriate as a basis for the opinions set forth below.
We express no opinion as to the laws of any jurisdiction other
than (i) the Applicable Laws of the State of New York, (ii) the Applicable
Laws of the United States of America and (iii) Article 9 of the Virginia
UCC (as defined below). In this respect, we call to your attention that
certain of the Operative Documents are governed by laws of jurisdictions
other than those described above and we express no opinion as to the effect
of any such laws on the opinions expressed herein. In addition, we express
no opinion with respect to the Transportation Code or the rules and
regulations of the Federal Aviation Administration or the effect thereof on
the opinions herein stated. In addition, we call to your attention that
we are not admitted to practice in the Commonwealth of Virginia and our
opinions in paragraph 8 with respect to the laws of such Commonwealth is
based solely on our review of the Uniform Commercial Code in effect on the
date hereof in the Commonwealth of Virginia (the "Virginia UCC") as
published in the CCH Secured Transactions Guide without regard to case law
decided thereunder.
Capitalized terms not otherwise defined herein have the meanings
assigned thereto in Annex A to the Participation Agreement. The documents
referred to in (a) through (g) above shall hereinafter be referred to
collectively as the "Transaction Documents." "Applicable Laws" shall mean
those laws, rules, regulations which, in our experience, are normally
applicable to transactions of the type contemplated by the Transaction
Documents, without our having made any special investigation as to the
applicability of any special law, rule or regulation, and which are not the
subject of a specific opinion herein referring to a particular law or laws.
"Governmental Approval" means any consent, approval, license, authorization
or validation of, or filing, recording or registration with, any
governmental authority pursuant to Applicable Laws. Unless otherwise
indicated, the "New York UCC" means the Uniform Commercial Code as in
effect on the date hereof in the State of New York and "Applicable UCC"
means the New York UCC and the Virginia UCC, as applicable.
Based upon the foregoing, and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
2. Each of the Transaction Documents constitutes the valid and
binding obligation of US Airways enforceable against US Airways in
accordance with its terms under the laws of the State of New York. The
Indenture and the Indenture Supplement constitute valid and binding
obligations of the Indenture Trustee enforceable against the Indenture
Trustee in accordance with their terms under the laws of the State of New
York.
3. Neither the execution and delivery by US Airways of the
Transaction Documents nor the compliance by US Airways with the terms and
provisions thereof will contravene any Applicable Law of the State of New
York or any Applicable Law of the United States of America.
4. Except for (a) the due and timely filing and, where
appropriate, recording of the Indenture (with the Indenture Supplement
covering the Aircraft attached as an exhibit), pursuant to the
Transportation Code, (b) the registration of the issuance and sale of the
Pass Through Certificates under the Securities Act, (c) compliance with the
securities law of each applicable state and (d) filing of appropriate UCC
Financing Statements and continuation statements, no Governmental Approval,
which has not been obtained or taken and is not in full force and effect,
is required in connection with the execution, delivery or enforceability by
US Airways of any of the Transaction Documents.
5. No registration of US Airways or any of the Pass Through
Trusts under the Investment Company Act of 1940, as amended, is required.
6. The Equipment Notes, when issued to and acquired by the Pass
Through Trustee, will be valid and binding obligations of US Airways
enforceable against US Airways in accordance with their terms and the terms
of the Indenture, as supplemented by the Indenture Supplement, and will be
entitled to the benefits of the Indenture, as supplemented by the Indenture
Supplement.
7. The provisions of the Indenture, as supplemented by the
Indenture Supplement, are effective to create, in favor of the Indenture
Trustee to secure the Secured Obligations, a valid security interest in US
Airways' rights in that portion of the collateral described therein which
is subject to Article 9 of the New York UCC (the "UCC Collateral").
8. The New York Financing Statement is in appropriate form for
filing in the New York Filing Office. To the extent that the New York UCC
governs the perfection of a security interest in US Airways' rights in the
UCC Collateral, as to which we express no opinion, the security interest in
favor of the Indenture Trustee in the UCC Collateral described in the New
York Financing Statement will be perfected upon filing of the New York
Financing Statement in the New York Filing Office.
8. Based solely on our review of the Virginia UCC as published
in the CCH Secured Transaction Guide (without consideration of case law
decided thereunder), we are of the opinion that (i) the Virginia Financing
Statements are in appropriate form for filing in the Virginia Filing
Offices and (ii) to the extent that the Virginia UCC governs the perfection
of a security interest in US Airways' rights in the UCC Collateral, as to
which we express no opinion, the security interest in favor of the
Indenture Trustee in the UCC Collateral described in the Virginia Financing
Statements will be perfected upon filing of the Virginia Financing
Statements in the Virginia Filing Offices.
Our opinions in paragraphs 6, 7 and 8 with respect to the security
interest of the Indenture Trustee are subject to the following
qualifications:
(a) We have assumed the US Airways owns, or with respect to
after-acquired property will own, the UCC Collateral, and we express no
opinion as to the nature or extent of US Airways' rights in or title to any
of the UCC Collateral and we note that with respect to after-acquired
property, the security interest will not attach until US Airways acquires
ownership thereof.
(b) Our opinion with respect to the security interest of the
Indenture Trustee is limited to Article 9 of the Applicable UCC, and such
opinion does not address (i) laws of jurisdictions other than New York or
Virginia, and of New York or Virginia except for Article 9 of the
Applicable UCC, (ii) collateral of a type not subject to Article 9 of the
Applicable UCC, and (iii) what law governs perfection or priority of the
security interests granted in the collateral covered by this opinion.
(c) We call your attention that under the Applicable UCC, events
occurring subsequent to the date hereof may affect any security interest
subject to the Applicable UCC including, but not limited to, factors of the
type identified in Section 9-306 with respect to proceeds; Section 9-103
with respect to changes in the location of the collateral and the location
of a debtor; and Sections 9-307, 9-308 and 9-309 with respect to subsequent
purchasers of the collateral. In addition, actions taken by a secured
party (e.g., releasing or assigning the security interest, delivering
possession of the collateral to a debtor or another person and voluntarily
subordinating a security interest) may affect any security interest subject
to the Applicable UCC.
(d) We express no opinion with respect to the priority of the
security interest of the Indenture Trustee.
(e) We call to your attention that with respect to any goods
which is an accession to, or commingled or processed with other goods, the
security interest of the Indenture Trustee may be limited by Section 9-314
or 9-315 of the New York UCC.
(f) In the case of any instrument, chattel paper, account or
general intangible which is itself secured by other property, we express no
opinion with respect to the Indenture Trustee's rights in and to such
underlying property.
(g) In the case of chattel paper, accounts or general
intangibles, we call to your attention that the security interest of the
Indenture Trustee for the benefit of the Pass Through Trustee may be
subject to the rights of account debtors, claims and defenses of account
debtors and the terms of agreements with account debtors.
(h) In the case of goods, we express no opinion regarding the
security interest of the Indenture Trustee for the benefit of the Pass
Through Trustee in any goods which are subject to a certificate of title or
a document of title.
(i) We express no opinion regarding the security interest of the
Indenture Trustee for the benefit of the Pass Through Trustee in any items
which are subject to a statute, regulation or treaty of the United States
of America which provides for a national or international registration or a
national or international certificate of title for the perfection of a
security interest therein or which specifies a place of filing different
from the place specified in the Applicable UCC for filing to perfect such
security interest.
(j) We express no opinion regarding the security interest of the
Indenture Trustee for the benefit of the Pass Through Trustee in any of the
UCC Collateral consisting of claims against any government or governmental
agency (including without limitation the United States of America or any
state thereof or any agency or department of the United States of America
or any state thereof).
(k) We have assumed that US Airways maintains a place of business
in more than one county in the State of New York.
(l) we express no opinion as to collateral of a type perfected by
means other than the filing of a financing statement under the Applicable
UCC.
(m) We express no opinion with respect to collateral consisting
of goods which are or are to become fixtures, equipment used in farming
operations, or farm products, or accounts or general intangibles arising
from or relating to the sale of farm products by a xxxxxx, consumer goods,
crops growing or to be grown, timber to be cut or minerals or the like
(including oil and gas), or accounts subject to subsection 5 of Section 9-
103 of the Applicable UCC.
(n) We call to your attention that we have not considered the
effect of any tax laws or other similar laws of the Commonwealth of
Virginia which may require the payment of a tax or fee in connection with
the filing of the Virginia Financing Statements and we express no opinion
regarding any tax or fee payable in connection with the filing of the
Virginia Financing Statement (including, without limitation, the existence
or calculation of any such tax or fee).
(o) We have assumed that either the Company maintains a place of
business in more than one county in the Commonwealth of Virginia or that
the Company's only place of business in the Commonwealth of Virginia is and
will be located at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000.
9. The Indenture Trustee acting in behalf of the holders of the
Equipment Notes will be entitled to the benefits of Section 1110 of the
Bankruptcy Code with respect to the Aircraft if US Airways is a debtor in a
case under Chapter 11 of the Bankruptcy Code.
10. [US Airways, as lessor under the Shuttle Lease, will be
entitled to the benefits of Section 1110 of the Bankruptcy Code with
respect to the Aircraft if Shuttle is a debtor in a case under Chapter 11
of the Bankruptcy Code.](2)
-------------
(2) For Aircraft with Shuttle, Inc. Lease only.
With respect to our opinion[s] in paragraph[s] 9 [and 10], we note
that a 1998 decision, Western Pacific Airlines, Inc. v. GATX (In re Western
Pacific Airlines, Inc.), 219 B.R. 305, on rehearing, 221 B.R. 1 (D. Colo.
1998), appeal dismissed as moot, vacatur denied, Boullioun Aircraft Holding
Co., Inc. x. Xxxxx Management (In re Western Pacific Airlines, Inc.), 1999
WL 000000 (00xx Xxx. July 7, 1999), ruled that Section 1110 does not apply
in a case after the trustee timely makes the agreement specified in Section
1110(a)(1)(A) and timely cures defaults outstanding as of the date of the
Chapter 11 petition or that occur during the first sixty days of the case,
with the result, among others, that the ability of an Indenture Trustee to
exercise remedies based on a default that occurs after the first sixty days
of the Chapter 11 case would be subject to the automatic stay. We believe
that this decision construes Section 1110 in a manner that is inconsistent
with both the language of Section 1110 and the legislative history
explaining the purpose and operation of Section 1110. Accordingly, we
believe that the decision is an incorrect interpretation of Section 1110.
In addition, with respect to our opinion[s] in paragraph[s] 9 [and
10], we have, with your consent, relied on the US Airways Opinion (as
defined below) to the effect that [each of] US Airways [and Shuttle] is a
"citizen of the United States," as defined in Section 40102 of Title 49 of
the United States Code, and [each of] US Airways [and Shuttle] hold an "air
carrier operating certificate" issued by the Secretary of Transportation
(or by the Administrator of the FAA acting under authority delegated by the
Secretary of Transportation) pursuant to Section 44705 (in Chapter 447) of
the Transportation Code for aircraft capable of carrying ten or more
individuals or 6,000 pounds or more of cargo. We have assumed that where
the Indenture Trustee is acting as secured party, the security interest of
the Indenture Trustee in the Aircraft is perfected.
Our opinions are subject to the following assumptions and
qualifications:
(a) enforcement of the Transaction Documents may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in equity
or at law);
(b) certain of the remedial provisions with respect to the
security including waivers with respect to the exercise of remedies against
the Indenture Estate contained in the Indenture, as supplemented by the
Indenture Supplement, may be unenforceable in whole or in part, but the
inclusion of such provisions does not affect the validity of each of the
Indenture, as supplemented by the Indenture Supplement, taken as a whole,
and the Indenture, as supplemented by the Indenture Supplement, taken as a
whole, together with applicable law, contains adequate provisions for the
practical realization of the security thereof;
(c) we express no opinion as to the effect on the opinions
expressed herein of (i) the compliance or non-compliance of any party
(without in any way limiting other qualifications and assumptions made
herein, other than US Airways) to the Transaction Documents with any state,
federal or other laws or regulations applicable to it or (ii) the legal or
regulatory status or the nature of the business of any such party;
(d) we express no opinion as to the enforceability of any rights
to contribution or indemnification provided for in the Transaction
Documents to the extent any such rights are violative of the public policy
(including, without limitation, the public policy underlying any federal or
state securities law, rule or regulation);
(e) we express no opinion as to any provision of any Transaction
Document that provides a penalty or to the extent that it provides for an
absolute and unconditional obligation to perform such Transaction Document
even though such Transaction Document is invalid or terminated or such
performance would be illegal; and
(f) with respect to our opinion that the New York choice of law
provision in the Transaction Documents which are expressly governed by New
York law is enforceable, we rely upon, among other things, the Act of July
19, 0000, Xx. 421, 1984 XxXxxxxx'x Sess. Laws of N.Y. 1406, (codified at
N.Y. Gen. Oblig. Law sections 5-1401, 5-1402 (XxXxxxxx 1989) and N.Y. CPLR
327(b) (XxXxxxxx 1990) (the "Act"), and our opinion is subject to the
qualifications that such enforceability (i) may be limited by public policy
considerations of any jurisdiction, other than the courts of the State of
New York, in which enforcement of such provisions, or of a judgement upon
an agreement containing such provisions, is sought, and (ii) as specified
in the Act, does not apply to the extent provided to the contrary in
subsection two of Section 1-105 of the Uniform Commercial Code for the
State of New York.
In rendering the foregoing opinions, we have assumed, with your
consent, that:
(a) each of the Transaction Documents constitutes the legal,
valid and binding obligation of each party thereto (other than US Airways
and, in the case of the Indenture, the Indenture Trustee) enforceable
against each such party (other than US Airways and, in the case of the
Indenture, the Indenture Trustee) in accordance with its terms;
(b) each of (i) State Street Bank and Trust Company of
Connecticut, National Association and (ii) US Airways is duly organized and
validly existing in good standing under the laws of the jurisdiction of its
organization;
(c) each of (i) State Street Bank and Trust Company of
Connecticut, National Association, individually and as Indenture Trustee,
Subordination Agent and Pass Through Trustee, (ii) US Airways has full
power, authority and legal right to enter into and perform its respective
obligations under, and consummate the transactions contemplated by, each of
the Transaction Documents to which it is a party;
(d) each of (i) State Street Bank and Trust Company of
Connecticut, National Association, individually and as Indenture Trustee,
Subordination Agent and Pass Through Trustee, and (ii) US Airways has duly
authorized, executed and delivered each of the Transaction Documents to
which it is a party;
(e) the execution, delivery and performance of the Transaction
Documents by each of the parties thereto and the consummation of the
transactions contemplated thereby does not and will not conflict with,
contravene, violate or constitute a default under (i) the respective
certificate of incorporation, by-laws or other organizational documents of
any such party, (ii) any indenture, mortgage, lease, agreement or other
instrument to which any such party is a party or by which it or any of its
property may be bound or subject, (iii) any law, rule or regulation of any
jurisdiction (provided that we make no such assumption with respect to
Applicable Laws of the State of New York and Applicable Laws of the United
States of America insofar as such Applicable Laws apply to US Airways, as
to which we express our opinion in paragraph 2 herein) or (iv) any judicial
or administrative order or decree of any governmental authority; and
(f) except for (i) the due and timely filing and, where
appropriate, recording of the Indenture and the Indenture Supplement
covering the Aircraft attached as an exhibit pursuant to the Transportation
Code, (ii) the registration of the issuance and sale of the Pass Through
Certificates under the Securities Act, (iii) compliance with the securities
law of each applicable state and (iv) the filing of appropriate UCC
financing statements, no consent, license, permit or approval of, or giving
of notice to, or registration with, or taking of any action in respect of,
any governmental authority of any jurisdiction is required in connection
with (X) the execution, delivery and performance by any party to any
Transaction Document of the respective Transaction Documents to which it is
a party, (Y) the consummation of the transactions contemplated thereby or
(Z) the legality, validity or enforceability of the Transaction Documents
with respect to any party to any Transaction Document (provided that we
make no such assumption with respect to those required by Applicable Laws
as such Applicable Laws apply to US Airways).
With respect to US Airways, we understand that you are separately
receiving an opinion with respect to certain matters set forth above from
Xxxxxx X. Xx, Esq., Associate General Counsel to US Airways (the "US
Airways Opinion"). With respect to Transportation Code matters, we
understand that you are separately receiving an opinion with respect to
certain matters set forth above from Xxxxx & Xxxxxxx, P.C., special
Transportation Code counsel (the "TC Opinion"). With respect to the
Indenture Trustee, the Pass Through Trustee and the Subordination Agent, we
understand that you are separately receiving an opinion with respect to
certain matters set forth above from Xxxxxxx Xxxx LLP, special counsel to
the Indenture Trustee, the Pass Through Trustee and the Subordination Agent
(together with the US Airways Opinion and the TC Opinion, the "Other
Counsel's Opinions"). We are advised that such Other Counsel's Opinions
contain qualifications. Our opinions herein stated are based upon the
assumptions specified above, and we express no opinion as to the effect on
the opinions herein stated of the qualifications stated in the Other
Counsel's Opinions.
This opinion is being furnished only to you and is solely for your
benefit and is not to be used, circulated, quoted, relied upon or otherwise
referred to by any other Person or for any other purpose without our prior
written consent.
Very truly yours,
SCHEDULE I
State Street Bank and Trust Company of Connecticut, National Association,
individually and as Indenture Trustee, Pass Through
Trustee and Subordination Agent
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Officer's Certificate to SASM&F (Illinois) Opinion
EXHIBIT A
Certificate
The undersigned, Xxxxxx X. Xx, is the Associate General Counsel of
US Airways, Inc., a Delaware corporation (the "Owner"), and understands
that pursuant to certain of the Transaction Documents (as defined in the
Opinion referred to below), Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
("SASM&F") is rendering an opinion dated the date hereof (the "Opinion") to
each of the Persons listed on Schedule I thereto. Capitalized terms used
herein but not otherwise defined shall have the meanings set forth in the
Opinion. The undersigned further understands that SASM&F is relying on
this officer's certificate and the statements made herein in rendering such
Opinion.
With regard to the foregoing, on behalf of the Owner, the
undersigned certifies that:
1. Due inquiry has been made of all persons deemed necessary or
appropriate to verify or confirm the statements contained herein.
2. SASM&F may rely upon the representations and warranties that
the Owner has made in each of the Transaction Documents to which it is a
party. The undersigned has made a careful review of the representations
and warranties of the Owner contained in each of the Transaction Documents
and hereby confirms, to the best of his knowledge and belief, that such
representations and warranties are true, correct and complete on and as of
the date of this certificate.
3. Less than 25 percent of the assets of Owner and its
subsidiaries on a consolidated basis and on an unconsolidated basis consist
of margin stock (as such term is defined in Regulation U of the Board of
Governors of the Federal Reserve System).
4. Owner is engaged primarily, directly and through its wholly-
owned subsidiaries and its Majority-Owned Subsidiaries (as hereinafter
defined), in the airline transportation business and (i) is not and does
not hold itself out as being, engaged primarily nor does it propose to
engage primarily, in the business of investing, reinvesting or trading in
Securities (as hereinafter defined), (ii) has not and is not engaged in,
and does not propose to engage in, the business of issuing Face-Amount
Certificates of the Installment Type (as hereinafter defined) and has no
such certificate outstanding and (iii) is not engaged and does not propose
to engage in the business of investing, reinvesting, owning, holding or
trading in Securities, whether or not as its primary activity, and does not
own or propose to acquire Investment Securities (as hereinafter defined)
having a Value exceeding 40% of the Value of the total assets of the Owner
(exclusive of Government Securities (as hereinafter defined)) on an
unconsolidated basis.
5. Neither the Owner nor any of its subsidiaries or affiliates
owns or operates facilities that are used for the generation, transmission,
or distribution of electric energy for sale ("electric utility
facilities").
6. Neither the Owner nor any of its subsidiaries or affiliates
owns or operates facilities that are used for the distribution at retail of
natural or manufactured gas for heat, light, or power ("gas utility
facilities").
7. Neither the Owner nor any of its subsidiaries or affiliates,
directly or indirectly, or through one or more intermediary companies,
owns, controls or holds with power to vote (a) five percent (5%) or more of
the outstanding securities, such as notes, drafts, stock, treasury stock,
bonds, debentures, certificates of interest or participation in any profit
sharing agreements or in oil, gas, other mineral royalties or leases,
collateral-trust certificates, preorganization certificates or
subscriptions, transferable shares, investment contracts, voting-trust
certificates, certificate of deposit for a security, receiver's or
trustee's certificates, or any other instrument commonly known as a
"security" (including certificates of interest or participation in,
temporary or interim certificates for, receipt for, guaranty of, assumption
of liability on, or warrants or right to subscribe to or purchase any of
the foregoing) presently entitling it to vote in the direction or
management of, or any such instrument issued under or pursuant to any
trust, agreement, or arrangement whereby a trustee or trustees or agent or
agents for the owner or holder of such instrument is presently entitled to
vote in the direction or management of, any corporation, partnership,
association, joint-stock company, joint venture or trust that owns or
operates any electric utility facilities or gas utility facilities, or (b)
any other interest, directly or indirectly, or through one or more
intermediary entities, in any corporation, partnership, association,
joint-stock company, joint venture or trust that owns or operates any
electric utility facilities or gas utility facilities.
8. Neither the Owner nor any of its subsidiaries or affiliates
has received notice that the Securities and Exchange Commission has
determined, or may determine, that the Owner or any of its subsidiaries or
affiliates exercises a controlling influence over the management or
direction of the policies of a gas utility company or an electric utility
company as to make it subject to the obligations, duties and liabilities
imposed on holding companies by the Public Utility Holding Company Act of
1935, as amended.
9. As used in paragraph 4 of this certificate, the following
terms shall have the following meanings:
"Control" means the power to exercise a controlling influence over
the management or policies of a company, unless such power is solely the
result of an official position with such company;
"Face-Amount Certificate of the Installment Type" means any
certificate, investment contract, or other Security that represents an
obligation on the part of its issuer to pay a stated or determinable sum or
sums at a fixed or determinable date or dates more than 24 months after the
date of issuance, in consideration of the payment of periodic installments
of a stated or determinable amount;
"Government Securities" means all Securities issued or guaranteed
as to principal or interest by the United States, or by a person controlled
or supervised by and acting as an instrumentality of the government of the
United States pursuant to authority granted by the Congress of the United
States; or any certificate of deposit for any of the foregoing;
"Investment Securities" includes all Securities except (A)
Government Securities, (B) Securities issued by employees' securities
companies, and (C) Securities issued by Majority-Owned Subsidiaries of the
Owner which are not engaged and do not propose to be engaged in activities
within the scope of clause (i), (ii) or (iii) of paragraph 4 of this
Certificate;
"Majority-Owned Subsidiary" of a person means a company 50% or
more of the outstanding Voting Securities of which are owned by such
person, or by a company which, within the meaning of this paragraph, is a
Majority-Owned Subsidiary of such person. Notwithstanding the foregoing, a
company shall not be considered a Majority-Owned Subsidiary of a person if
Control of such company rests with someone other than such person;
"Security" means any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral-trust certificate, preorganization
certificate or subscription, transferrable share, investment contract,
voting-trust certificate, certificate of deposit for a security, fractional
undivided interest in oil, gas, or other mineral rights, any put, call,
straddle, option, or privilege on any security (including a certificate of
deposit) or on any group or index of securities (including any interest
therein or based on the value thereof), or any put, call, straddle, option,
or privilege entered into on a national securities exchange relating to
foreign currency, or, in general, any interest or instrument commonly known
as a "security," or any certificate of interest or participation in,
temporary or interim certificate for, receipt for, guarantee of, or warrant
or right to subscribe to or purchase, any of the foregoing;
"Value" means (i) with respect to Securities owned at the end of
the last preceding fiscal quarter for which market quotations are readily
available, the market value at the end of such quarter; (ii) with respect
to other Securities and assets owned at the end of the last preceding
fiscal quarter, fair value at the end of such quarter, as determined in
good faith by or under the direction of the board of directors; and (iii)
with respect to securities and other assets acquired after the end of the
last preceding fiscal quarter, the cost thereof;
"Voting Security" means any security presently entitling the owner
or holder hereof to vote for the election of directors of a company.
IN WITNESS WHEREOF, the undersigned has executed this certificate
this ___ day of _________, ____.
_________________________________
Name: Xxxxxx X. Xx
Title: Associate General Counsel
Exhibit B-2
[Letterhead of US Airways, Inc.]
[Owned Aircraft Opinion]
___________ ___, ____
To Each Person Listed
on Schedule I Hereto
Re: US Airways, Inc. N__U__
Ladies and Gentlemen:
I am the ____________________ of US Airways, Inc., a Delaware
corporation ("US Airways"), and am familiar with the transactions
contemplated by the Participation Agreement (N___U_), dated as of _________
__, ____ (the "Participation Agreement"), by and between US Airways, as
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 therein but solely as Pass Through Trustee,
Indenture Trustee and Subordination Agent. Capitalized terms not otherwise
defined herein have the meanings assigned thereto in Annex A to the
Participation Agreement.
This opinion is being delivered pursuant to Section 4(a)(ix) of the
Participation Agreement.
In my examination, I have assumed the genuineness of all signatures
(other than the signatures made on behalf of US Airways), including
endorsements, the legal capacity of natural persons, the authenticity of
all documents submitted to me as originals, the conformity to original
documents of all copies submitted to me as telefacsimile, certified or
photostatic copies, and the authenticity of the originals of such copies.
As to any facts material to this opinion, I have relied solely upon
statements, representations and warranties of US Airways, the Indenture
Trustee, the Subordination Agent, the Pass Through Trustee and their
respective officers and representatives, and others in the Operative
Documents and of public officials, and I have made no independent
investigation or inquiry with respect to such factual matters.
In rendering the opinions set forth herein, I have examined and relied
on executed originals or copies of the following:
(a) the Participation Agreement;
(b) the Purchase Agreement Assignment;
(c) the Indenture;
(d) the Indenture Supplement;
(e) the Warranty Xxxx of Sale;
(f) the Equipment Notes;
(g) the Pass Through Trust Agreement;
(h) each of the Pass Through Trust Agreement Supplements;
(i) certified copies of the Certificate of Incorporation and By-laws
of US Airways;
(j) certified copies of certain resolutions of the Board of Directors
of US Airways adopted on May 18, 1999;
(k) a certificate of good standing from the Secretary of State of
the State of Delaware as to the good standing of US Airways in such
jurisdiction [and a certificate of good standing from the Secretary of
State of the State of Delaware as the good standing of Shuttle, Inc. in
such jurisdiction](1); and
(l) such other documents as I have deemed necessary or appropriate as
a basis for the opinions set forth below.
-------------------
(1) For Shuttle, Inc. transactions only.
Based on the foregoing and subject to the limitations, qualifications,
exceptions and assumptions set forth herein, it is my opinion that:
1. US Airways is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is a
"citizen of the United States" within the meaning of Section 40102(a)(15)
of the Transportation Code, and has or had, on the date of execution
thereof, the corporate power and authority to carry on its business as
currently conducted and to enter into and perform its obligations under
each of the Operative Documents to which it is a party. US Airways is duly
qualified to do business and is in good standing in the Commonwealth of
Virginia and each other state of the United States in which its operations
or the nature of its business requires US Airways to so qualify, except
where the failure to so qualify would not have a material adverse effect on
US Airways or its business.
2. US Airways possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents which are material
to the operation of the routes flown by it and the conduct of its business
and operations as currently conducted, and each such certificate,
franchise, license, permit, right and concession and consent is in full
force and effect, except where any failure would not have a material
adverse effect on US Airways or its business.
3. Each of the Operative Documents to which US Airways is a party
has or had, on the date of execution thereof, been duly authorized,
executed and delivered by US Airways.
4. Neither the execution and delivery by US Airways of any of the
Operative Documents to which US Airways is a party, nor the consummation of
any of the transactions by US Airways contemplated thereby, nor the
performance of the obligations thereunder by US Airways, did at the time of
execution and delivery, or does presently (a) require any stockholder
approval or violate the Certificate of Incorporation or By-laws of US
Airways or (b) conflict with or contravene the provisions of, or constitute
a default under, or result in the creation of any Lien (other than any
Permitted Lien) upon the property of US Airways under any law, governmental
rule or regulation, or the Certificate of Incorporation or By-laws of US
Airways or any order, writ, injunction or decree of any court or
governmental authority against US Airways or by which any of its properties
may be bound or any material indenture, mortgage, contract or other
agreement known to me to which US Airways is a party or by which it may be
bound, or require the approval or consent of any trustee or the holders of
any indebtedness or material obligations of US Airways.
5. Neither the execution and delivery by US Airways of any of the
Operative Documents to which it is a party, nor the consummation of any
transactions by US Airways contemplated thereby, nor the performance of the
obligations thereunder by US Airways, did or does, as the case may be, (a)
require the consent or approval of, the giving of notice to, or (except as
described or contemplated in the Operative Documents, all of which were or
are required to be performed on or prior to the Delivery Date and which
were or shall have been accomplished on or prior to the Delivery Date) the
registration with, or the taking of any other action in respect of, the
FAA, the Securities and Exchange Commission or any other authority or
agency of the federal government or of the State of Delaware other than (i)
the registration of the issuance and sale of the Pass Through Certificates
under the Securities Act, (ii) compliance with the securities laws of each
applicable state and (iii) the filings and, where appropriate, recording,
pursuant to the Transportation Code, of the Indenture (with the Indenture
Supplement covering the Aircraft attached as an exhibit) or (b) contravene
any judgment or order applicable to or binding on US Airways or any law or
governmental rule or regulation of the United States or of the State of
Delaware.
6. There is no pending or, to my knowledge, threatened action or
proceeding before any court or administrative agency which individually (or
in the aggregate in the case of any group of related lawsuits) (i) is
expected to have a material adverse effect on (A) the financial condition
of US Airways except for the matters described under "Legal Proceedings" in
US Airways' Annual Report on Form 10-K for the fiscal year ended December
31, ____ and US Airways' Quarterly Report on Form 10-Q for the quarter
ended [March 31, ____, June 30, ____ and September 30, ____,] respectively,
as to all of which I can express no opinion at this time concerning US
Airways' liability (if any) or the effect of any adverse determination upon
the business, condition (financial or otherwise) or operations of US
Airways, or (B) the ability of US Airways to perform its obligations under
the Operative Documents, or (ii) involves the Aircraft.
7. US Airways is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Section 41102(a) of the Transportation Code. US Airways is the holder of
an "air carrier operating certificate" under Section 44705 of the
Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and such certificate is in
full force and effect.
8. US Airways is not, and is not directly or indirectly controlled
by or acting on behalf of any Person which is, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
9. [Shuttle, Inc. is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and
is a "citizen of the United States" within the meaning of Section
40102(a)(15) of the Transportation Code.](2)
10. [Shuttle, Inc. is a duly certificated "air carrier" within the
meaning of the Transportation Code, and a holder of a certificate under
Section 41102(a) of the Transportation Code. Shuttle, Inc. is the holder
of an "air carrier operating certificate" under Section 44705 of the
Transportation Code for aircraft capable of carrying ten (10) or more
individuals or 6,000 pounds or more of cargo, and such certificate is in
full force and effect.](3)
----------------------
(2) For Shuttle, Inc. transactions only.
(3) For Shuttle, Inc. transactions only.
I do not express any opinion as to matters governed by any law other
than the federal laws of the United States of America and the corporation
law of the State of Delaware.
This opinion is delivered to you solely for your use in connection
with the transaction described herein, and may not be used for any other
purpose, and may not be relied upon by any other person, without my prior
written consent.
Very truly yours,
SCHEDULE I
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Exhibit C
FORM (FRENCH LAW) OPINION OF XXXXXXXX CHANCE
IN CONNECTION WITH CERTAIN (OWNED AIRCRAFT) TRANSACTIONS FOR A330 AIRCRAFT
[ ]
To: US Airways Inc.
US Airways Group, Inc.
First Security Bank, National Association
[ ]
RE: ONE AIRBUS A330-[ ] AIRCRAFT
MANUFACTURER'S SERIAL NO.[ ]
US REGISTRATION NO. [ ]
Dear Sirs,
1. We have been requested by US Airways Inc. (the "COMPANY"), to act as
special French counsel with respect to, and to render this opinion
in connection with certain of the transactions contemplated in a
certain Participation Agreement dated as of [ ] (the
"PARTICIPATION AGREEMENT") among [ ].
2. We have examined copies(1) (which we assume conform to the originals)
of:
-------------
(1) AS OF THE DATE HEREOF WE HAVE NOT HAD SIGHT OF PRO-FORMA DOCUMENTS;
THIS DRAFT OPINION IS BASED ON THE ASSUMPTION THAT THE DOCUMENTS WILL
FOLLOW THE FORM OF THE 1999 EETC FINANCINGS.
(i) the purchase agreement assignment (Scheduled April, 2000
through December, 2000 Deliveries) dated as of [ ] between
US Airways Group, Inc. (as assignor) and the Company (as
assignee) (the "FIRST PURCHASE AGREEMENT ASSIGNMENT");
(ii) the consent and agreement of AVSA S.A.R.L. ("AVSA") and Airbus
Industrie G.I.E. ("AIRBUS") to the First Purchase Agreement
Assignment as acknowledged and accepted by US Airways Group,
Inc. and the Company dated as of [ ] (the "FIRST
CONSENT");
(iii) the purchase agreement assignment (US Airways, Inc. Trust No.
N[ ]U[ ]), dated as of [ ], between the Company (as
assignor) and State Street Bank and Trust Company of
Connecticut, National Association (the "INDENTURE TRUSTEE") as
assignee) (the "SECOND PURCHASE AGREEMENT ASSIGNMENT");
(iv) the consent and agreement of Airbus (to the Second Purchase
Agreement Assignment) dated as of [ ] (the "AIRBUS CONSENT
AND AGREEMENT");
(v) the consent and agreement of AVSA (to the Second Purchase
Agreement Assignment) dated as of [ ] (the "AVSA CONSENT
AND AGREEMENT");
(vi) the indenture and security agreement dated as of [ ]
between the Company (as owner) and the Indenture Trustee (the
"INDENTURE"); and
(vii) a document executed both in the English language as the "FRENCH
PLEDGE" and in the French language as the "ACTE DE NANTISSEMENT
DE CREANCES" (the latter being a correct translation of the
former) each dated [ ] and made between the Company (as
pledgor) and the Indenture Trustee (as pledgee) collectively
referred to herein as the "ACTE DE NANTISSEMENT",
the First Purchase Agreement and the Second Purchase Agreement
Assignment are together referred to herein as the "ASSIGNMENTS", the
First Consent and the Second Consents are together referred to herein
as the "CONSENTS" and the documents referred to in (i) to (vii) above
are hereinafter referred to collectively as the "DOCUMENTS".
3. In considering the above, we have assumed:
(i) that the Documents have been duly executed by the parties
thereto (other than Airbus and AVSA);
(ii) the genuineness of all signatures;
(iii) the completeness and conformity to the originals of all
documents supplied to us as copies or as facsimiles;
(iv) that the Documents expressed to be governed by New York law
constitute the legal, valid and binding obligations of the
parties thereto under New York law.
4. Having considered the Documents we are of the opinion, subject to the
qualifications and reservations set out in paragraph 5 below, that:
(i) Airbus is a groupement d'interet economique duly organised and
existing under the laws of the French Republic and has the
power and authority to carry on its business as now conducted.
The present members of Airbus are (i) Aerospatiale Matra S.A.,
(ii) DaimlerChrysler Aerospace Airbus GmbH, (iii) British
Aerospace (Operations) Ltd. and (iv) Construcciones
Aeronauticas S.A. and each of such corporations is, without the
need to proceed against any collateral security for the
indebtedness of Airbus or to take any other legal action or
process (except for service on Airbus by huissier of notice to
perform and subsequent failure by Airbus to do so), jointly and
severally liable with the other members for the debts of Airbus
arising out of obligations contracted by Airbus while such
corporation is a member of Airbus;
(ii) AVSA is a societe a responsabilite limitee duly established and
existing under the laws of the French Republic and has the
power and authority to carry on its business as now conducted;
(iii) each of Airbus and AVSA has full power and authority to enter
into and to execute, deliver and perform its obligations under
the Documents to which it is a party; such obligations are
legal, valid and binding upon them respectively, are
enforceable in accordance with their respective terms and rank
pari passu with the other unsecured obligations of Airbus and
AVSA, as the case may be;
(iv) assuming that under New York law the Indenture Trustee would be
entitled to take proceedings in its own name and on its own
account to recover from the Company the full amount of all
amounts secured by the Acte de Nantissement and subject to the
registration and huissier requirements of paragraph 5(d) hereof
and the observation set forth in paragraph 5(f) hereof, the
Acte de Nantissement:
(a) duly creates for the benefit of the Indenture Trustee the
security interests which it purports to create and the
Indenture Trustee is entitled to the benefits and security
afforded thereby; and
(b) would be effective as against Airbus, AVSA and third
parties to perfect the pledge (nantissement) of the
obligations of Airbus and AVSA that are the subject of the
Acte de Nantissement;
(v) the choice of the laws of the State of New York to govern the
Documents (which are expressed to be so governed) is valid
under the laws of the French Republic, and a French court would
uphold such choice of law in any suit on the Documents brought
in a French court.
5. This opinion must be read subject to the following qualifications and
observations as to French law:
(a) the remedy of specific performance may not be available in a
French court;
(b) in respect of payment obligations, a French court has power
under Article 1244-1 of the French Civil Code to grant time to
a debtor (not in excess of two years), taking into account the
position of the debtor and the needs of the creditor;
(c) in order to ensure the validity as against third parties of the
assignment made in the Assignments, it is necessary that notice
of such assignments be served on Airbus and AVSA by huissier in
accordance with the provisions of Article 1690 of the French
Civil Code. [We have been instructed by the Company to assist
in carrying out such formalities which we intend to do upon
receipt of duly executed originals of such assignment and we
anticipate that there will be no difficulty in accomplishing
these formalities](2);
(d) in order to ensure the validity as against third parties of the
pledge (nantissement) created by the Acte de Nantissement in
accordance with the provisions of Article 2075 of the French
Civil Code, it is necessary for the Acte de Nantissement to be
registered with the French tax administration in a form duly
translated in French by a sworn translator, involving payment
of a stamp duty of a nominal amount. In addition, the pledge
(nantissement) created by the Acte de Nantissement will need to
be served on each of the obligors by huissier, in accordance
with the provisions of Article 2075 of the French Civil Code.
[We have been instructed by the Company to carry out such
formalities on its behalf which we intend to do upon receipt of
duly executed originals of the Pledge Agreement and we
anticipate that there will be no difficulty in accomplishing
these formalities](2);
------------
(2) NOTE: US AIRWAYS TO CONFIRM INSTRUCTIONS
(e) in the event o any proceedings being brought in a French court
in respect of a monetary obligation expressed to be payable in
a currency other than French Francs or euros, a French court
would probably give judgment expressed as an order to pay, not
such currency, but its French Franc or euro equivalent at the
time of payment or enforcement of judgment. With respect to a
bankruptcy, insolvency, liquidation, moratorium,
reorganisation, reconstruction or similar proceedings, French
law may require that all claims or debts be converted into
French Francs or euros at an exchange rate determined by the
court at a date related thereto, such as the date of
commencement of a winding-up;
(f) pledges over non-monetary claims are unusual under French law.
In principal, pledges over claims of this type should be
effective against Airbus, AVSA and third parties but in the
absence of case law, there is a lack of certainty about the
pledge being effective;
(g) a determinatio or certificate as to any matter provided for in
the Documents might be held by a French court not to be final,
conclusive or binding, if such determination or certificate
could be shown to have an unreasonable, incorrect or arbitrary
basis or not to have been given or made in good faith;
(h) claims may become barred by effluxion of time or may be or
become subject to defence of set-off or counterclaim;
(i) a French court may stay proceedings if concurrent proceedings
are being brought elsewhere;
(j) we express no opinion as to whether any provision in the
documents conferring a right of set-off or similar right would
be effective against a liquidator or a creditor;
(k) the enforcemen against Airbus of any of the Documents to which
it is a party may be limited by applicable bankruptcy,
insolvency, arrangement, moratorium or similar laws relating to
or affecting the enforcement of creditors' rights generally, as
such laws are applied to Airbus. The enforcement against AVSA
of any of the Documents to which it is a party may be limited
to such laws, as such laws are applied to AVSA. The enforcement
against any member of Airbus of any obligation of Airbus
contained in the Documents may be limited to such laws, as such
laws are applied to such member;
(l) our opinion as to the enforceability of the Documents relates
only to their enforceability in France in circumstances where
the competent French court has and accepts jurisdiction. The
term "enforceability" refers to the legal character of the
obligations assumed by the parties under the Documents, i.e.
that they are of a character which French law enforces or
recognises. It does not mean that the Documents will be
enforced in all circumstances or in foreign jurisdictions or by
or against third parties or that any particular remedy will be
available; and
(m) article 899 of the French Tax Code provides that agreements
evidencing an undertaking to pay a sum of money are subject to
stamp tax (droit de timbre) of a nominal amount if made in the
French Republic, if made in a foreign country, such agreements
are subject to a stamp tax of a nominal amount before certain
use thereof can be made in the French Republic (Article 897 of
the French Tax Code). However non-payment of such stamp tax
does not affect the legality, validity or enforceability of the
Documents.
We are qualified as French Avocats.
No opinion is expressed herein as to laws other than the laws of the French
Republic as of the date hereof. This opinion is for your use and that of no
one else, and is limited to (i) the matters specifically mentioned herein,
and (ii) the purpose set out above.
Yours faithfully,
XXXXXXXX CHANCE
Exhibit D
FORM OF OPINION OF FAA COUNSEL
_________ __, 2000
To the Addressees on the
Schedule Attached Hereto
RE: AIRBUS INDUSTRIE MODEL A330___ AIRCRAFT WITH
MANUFACTURER'S SERIAL NUMBER _____ AND UNITED STATES
NATIONALITY AND REGISTRATION MARKS N_____ (THE
"AIRCRAFT")
Ladies and Gentlemen:
This letter confirms that we filed with the Federal Aviation
Administration (the "FAA") today at __:__ _.M., C._.T., the Trust
Indenture and Security Agreement (US Airways, Inc.2000-1 Series N_____)
dated as of _________ __, 2000 (the "Indenture") between US Airways, Inc.
(the "Company") and ________________________ as Indenture Trustee (the
"Indenture Trustee"), to which was attached Trust Agreement and Indenture
Supplement No. 1 (US Airways, Inc.2000-1 Series N_____) dated ________
__, 2000 (the "Indenture Supplement") covering the Aircraft and the
______________model _____________ aircraft engines with manufacturer's
serial numbers ____________ and ______________ (the "Engines").
Based upon our examination of the above described instruments and of
such records of the FAA as we deemed necessary to render this opinion and
as were made available to us by the FAA, it is our opinion that:
(a) the Indenture with the Indenture Supplement attached is in due
form for recordation by and has been duly filed for recordation
with the FAA pursuant to and in accordance with the provisions
of Section 44107 of Title 49 of the United States Code;
(b) legal title to the Aircraft is vested in the Company and the
Aircraft is duly registered in the name of the Company pursuant
to and in accordance with the provisions of Sections 44102 and
44103 of Title 49 of the United States Code;
(c) the Aircraft and the Engines are free and clear of Liens (as
such term is defined in Annex A to the Indenture) other than
such as are created by the Indenture, as supplemented by the
Indenture Supplement;
(d) the Indenture, as supplemented by the Indenture Supplement,
creates a duly and validly perfected first priority security
interest in favor of the Indenture Trustee in the Aircraft and
the Engines;
(e) the Indenture, as supplemented by the Indenture Supplement, is
not required to be refiled with the FAA or filed or recorded in
any other place within the United States in order to perfect or
maintain the perfection of the security interest created
thereby in the Aircraft and the Engines under the applicable
laws of any jurisdiction within the United States;
(f) no other registration of the Aircraft and no filings or
recordings (other than the filings and recordings with the FAA
which have been effected) are necessary to perfect in any
jurisdiction within the United States the Company's title to
the Aircraft or the security interest created by the Indenture,
as supplemented by the Indenture Supplement, in the Aircraft
and the Engines under the applicable laws of any jurisdiction
within the United States; and
(h) no authorization, approval, consent, license or order of, or
registration with, or giving of notice to, the FAA Aircraft
Registry is required for the valid authorization, delivery or
performance of the Indenture and the Indenture Supplement
except for such authorizations, approvals, consents, licenses,
orders, registrations and notices as have been effected.
No opinion is herein expressed as to: (i) laws other than the
federal laws of the United States; (ii) the validity or enforceability
under local law of the Indenture, as supplemented by the Indenture
Supplement; (iii) the recognition of the perfection of the security
interest created by the Indenture, as supplemented by the Indenture
Supplement, as against third parties in any legal proceedings outside the
United States; and (iv) the record status of the Aircraft prior to the
commencement of its United States registration. Since our examination
was limited to records maintained by the FAA Aircraft Registry, our
opinion does not cover liens which are perfected without the filing of
notice thereof with the FAA, such as federal tax liens, liens arising
under Section 1368(a) of Title 29 of the United States Code and
possessory artisans' liens, and was subject to the accuracy of FAA
personnel in the filing, indexing and recording of instruments filed with
the FAA and in the search for encumbrance cross-reference index cards for
the Engines. [THIS OPINION IS BEING DELIVERED AT THE REQUEST OF US
AIRWAYS, INC.]
Very truly yours,
XXXXX X. XXXXXX
For the Firm
RDJ:adw
SCHEDULE
[STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, N.A.]{________________________} as Indenture Trustee,
Pass [ ] Through Trustee and Subordination Agent
US Airways, Inc.
Standard & Poor's Ratings Services
MBIA Insurance Corporation
Exhibit E
FORM OF OPINION FOR INDENTURE TRUSTEE COUNSEL
_____________, ______
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
RE: US Airways, Inc./Secured Financing of One Airbus [A320]
[A330-300] Aircraft [N _____ US] -- Indenture Trustee,
Owned Aircraft
Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and Trust
Company of Connecticut, National Association, in its individual capacity
("STATE STREET") and as Indenture Trustee (the "INDENTURE TRUSTEE") under
the Trust Indenture and Security Agreement [N ____ US] dated as of
[________________] (the "INDENTURE") between US Airways, Inc., and State
Street, as Indenture Trustee, in connection with the execution and delivery
of the Participation Agreement [N ____ US] dated as of [________________]
(the "PARTICIPATION AGREEMENT") by and among the Indenture Trustee, US
Airways, Inc., State Street, as Pass Through Trustee (the "PASS THROUGH
TRUSTEE"), State Street, as Subordination Agent (the "SUBORDINATION AGENT")
and the Owner Trustee and the transactions contemplated thereby.
Capitalized terms not otherwise defined herein shall have the meanings
specified in the Lease and Annex A of the Participation Agreement. This
opinion is being delivered at the request of State Street and pursuant to
Section 4( )( ) of the Participation Agreement.
Our representation of State Street and the Indenture Trustee has been
as special counsel for the limited purposes stated above. As to all
matters of fact (including factual conclusions and characterizations and
descriptions of purpose, intention or other state of mind), we have relied,
with your permission, entirely upon (i) the representations and warranties
of the parties set forth in the Operative Documents and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations, warranties and
certificates.
We have examined the Participation Agreement and the Indenture (the
"OPERATIVE DOCUMENTS"), the Certificate of the Comptroller of the Currency
relating to State Street and originals, or copies certified or otherwise
identified to our satisfaction, of such other records, documents,
certificates, or other instruments as we have deemed necessary or advisable
for the purposes of this opinion. For purposes of our opinion rendered in
paragraph 1 below, with respect to the authority of State Street to operate
as a national banking association and exercise trust powers, our opinion
relies upon and is limited by such Certificate of the Comptroller of the
Currency.
We have assumed the genuineness of all signatures (other than those on
behalf of State Street and the Indenture Trustee), the conformity to the
originals of all documents reviewed by us as copies, and the authenticity
and completeness of all original documents reviewed by us in original or
copy form and the legal competence of each individual executing any
document (other than on behalf of State Street and the Indenture Trustee).
When an opinion set forth below is given to the best of our knowledge,
or to our knowledge, or with reference to matters of which we are aware or
which are known to us, or with another similar qualification, the relevant
knowledge or awareness is limited to the actual knowledge or awareness of
the individual lawyer in the firm that signed this opinion, the individual
lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates and the partner of the firm
responsible for State Street corporate trust matters, and without any
special or additional investigation undertaken for the purposes of this
opinion.
Subject to the limitation set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth below are limited solely to the internal
substantive laws of the State of Connecticut as applied by courts located
in Connecticut and the federal laws of the United States. No opinion is
given herein as to the choice of law or internal substantive rules of law
that any court or other tribunal may apply to the transactions contemplated
by the Operative Documents. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by any law, statute, rule or
regulation of the United States relating to the acquisition, ownership,
registration, use, operation, maintenance, repair, replacement or sale of
or the nature of the Aircraft.
To the extent to which this opinion deals with matters governed by or
relating to the laws of the State of New York, or other jurisdiction other
than the State of Connecticut, by which the Operative Documents are stated
to be governed, we have assumed, with your permission that the Operative
Documents are governed by the internal substantive laws of the State of
Connecticut.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
1. We have assumed without any independent investigation that
(i) each party to the Operative Documents, other than State Street,
in its individual capacity or as Indenture Trustee, as applicable, at
all times relevant thereto, is validly existing and in good standing
under the laws of the jurisdiction in which it is organized, and is
qualified to do business and in good standing under the laws of each
jurisdiction where such qualification is required generally or
necessary in order for such party to enforce its rights under such
Operative Documents, and (ii) each party to the Operative Documents,
at all times relevant thereto, had and has the full power, authority
and legal right under its certificate of incorporation, partnership
agreement, bylaws, and other governing organizational documents, and
the applicable corporate, partnership, or other enterprise
legislation and other applicable laws, as the case may be (other than
State Street and the Indenture Trustee with respect to the laws of
the United States of America and the internal substantive laws of the
State of the Connecticut, but only in each case to the limited extent
the same may be applicable to State Street or the Indenture Trustee,
and relevant to our opinions expressed below) to execute, and to
perform its obligations under, the Operative Documents, and (iii)
each party to the Operative Documents (other than State Street or the
Indenture Trustee, as applicable) has duly executed and delivered
each of such agreements and instruments to which it is a party and
that (other than with respect to State Street and the Indenture
Trustee, as applicable) the execution and delivery of such agreements
and instruments and the transactions contemplated thereby have been
duly authorized by proper corporate or other organizational
proceedings as to such party.
2. We have assumed without any independent investigation (i)
that each of the Operative Documents is a valid, binding and
enforceable obligation of each party thereto other than State Street
or the Indenture Trustee, as applicable, and (ii) that each of the
Operative Documents is a valid, binding and enforceable obligation of
State Street or the Indenture Trustee, as applicable, to the extent
that laws other than those of the State of Connecticut are relevant
thereto (other than the laws of the United States of America, but
only to the limited extent the same may be applicable to State Street
or the Indenture Trustee, as applicable, and relevant to our opinions
expressed below).
3. The enforcement of any obligations of State Street or the
Indenture Trustee, as applicable, under any of the Operative
Documents may be limited by the receivership, conservatorship and
supervisory powers of bank regulatory agencies generally, as well as
by bankruptcy, insolvency, reorganization, moratorium, marshaling or
other laws and rules of law affecting the enforcement generally of
creditors' rights and remedies (including such as may deny giving
effect to waivers of debtors' or guarantors' rights); and we express
no opinion as to the status under any fraudulent conveyance laws or
fraudulent transfer laws of any of the obligations of State Street or
the Indenture Trustee, as applicable, under any of the Operative
Documents.
4. We express no opinion as the availability of any specific or
equitable relief of any kind.
5. The enforcement of any of your rights may in all cases be
subject to an implied duty of good faith and fair dealing and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity)
and, as to any of your rights to collateral security, will be subject
to a duty to act in a commercially reasonable manner.
6. We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating to
(i) waivers of rights to object to jurisdiction or venue, or consents
to jurisdiction or venue, (ii) waivers of rights to (or methods of)
service of process, or rights to trial by jury, or other rights or
benefits bestowed by operation of law, (iii) waivers of any
applicable defenses, setoffs, recoupments, or counterclaims, (iv) the
grant of powers of attorney to any person or entity, (v) exculpation
or exoneration clauses, indemnity clauses, and clauses relating to
releases or waivers of unmatured claims or rights, (vi) the
imposition or collection of interest on overdue interest or providing
for a penalty rate of interest or late charges on overdue or
defaulted obligations, or the payment of any premium, liquidated
damages, or other amount which may be held by any court to be a
"penalty" or a "forfeiture," or (vii) so-called "usury savings
clauses" purporting to specify methods of (or otherwise assure)
compliance with usury laws or other similar laws of any jurisdiction.
7. We express no opinion as to the effect of events occurring,
circumstances arising, or changes of law becoming effective or
occurring, after the date hereof on the matters addressed in this
opinion letter, and we assume no responsibility to inform you of
additional or changed facts, or changes in law, of which we may
become aware.
8. No opinion is given herein as to the effect of usury laws
(or other similar laws) of any jurisdiction with respect to the
Operative Documents.
This opinion is rendered solely for the benefit of those institutions
listed on Schedule A hereto and their successors and assigns in connection
with the transactions contemplated by the Operative Documents and may not
be used or relied upon by any other person or for any other purpose.
Based upon the foregoing and subject to the limitations and
qualifications set forth herein, we are of the opinion that:
1. State Street is a national banking association, validly formed
and authorized to operate as a national banking association under the laws
of the United States of America and, in its individual capacity or as
Indenture Trustee, as the case may be, has the requisite corporate and
trust power and authority to execute, deliver and perform its obligations
under the Operative Documents and in its capacity as Indenture Trustee, to
authenticate the Equipment Notes issued on the date hereof.
2. State Street, in its individual capacity or as Indenture Trustee,
as the case may be, has duly authorized the Operative Documents by all
necessary corporate or trust action and has duly executed and delivered the
Operative Documents, and the Operative Documents constitute valid and
binding obligations of State Street, in its individual capacity or as
Indenture Trustee, as the case may be, enforceable against State Street, in
its individual capacity or as Indenture Trustee, as the case may be, in
accordance with their respective terms.
3. The Equipment Notes issued as of the date hereof have been duly
authenticated and delivered by State Street as Indenture Trustee pursuant
to the terms of the Indenture.
4. The authorization, execution, delivery and performance by State
Street, in its individual capacity or as Indenture Trustee, as the case may
be, of the Operative Documents and the consummation of the transactions
therein contemplated and compliance with the terms thereof do not and will
not result in the violation of the provisions of the charter documents or
by-laws of State Street and, to the best of our knowledge, do not conflict
with, or result in a breach of any terms or provisions of, or constitute a
default under, or result in the creation or the imposition of any lien,
charge or encumbrance upon any property or assets of State Street under any
indenture, mortgage or other agreement or instrument, in each case known to
us, to which State Street is a party or by which it is bound, or violates
any applicable Connecticut or federal law, rule or regulation governing
State Street's banking or trust powers, or, to the best of our knowledge,
of any judgment, order or decree, in each case known to us, applicable to
State Street of any court, regulatory body, administrative agency,
government or governmental body having jurisdiction over State Street.
5. No authorization, approval, consent, license or order of, giving
of notice to, registration with, or taking of any other action in respect
of, any federal or state governmental authority or agency pursuant to any
federal or Connecticut law governing the banking or trust powers of State
Street is required for the authorization, execution, delivery and
performance by State Street, in its individual capacity or as Indenture
Trustee, as the case may be, of the Operative Documents or the consummation
of any of the transactions by State Street, in its individual capacity or
as Indenture Trustee, as the case may be, contemplated thereby (except as
shall have been duly obtained, given or taken); and such authorization,
execution, delivery, performance, consummation and issuance do not conflict
with or result in a breach of the provisions of any such law.
6. There are no taxes, fees or other governmental charges payable
under the laws of the State of Connecticut or any political subdivision of
such State in connection with the execution and delivery by State Street,
in its individual capacity or as Indenture Trustee, as the case may be, of
the Operative Documents (except for taxes on any fees payable to State
Street in its individual capacity) which are imposed solely because State
Street has its principal place of business in Connecticut or performs its
administrative duties under the Operative Documents in Connecticut.
7. To our knowledge, but without having investigated any
governmental records or court dockets, and without having made any other
independent investigation, there are no proceedings pending or overtly
threatened in writing against or affecting State Street in any court or
before any governmental authority, agency, arbitration board or tribunal
which, if adversely determined, individually or in the aggregate, could
reasonably be expected to affect materially and adversely the trust related
to the Indenture or affect the right, power and authority of State Street,
in its individual capacity or as Indenture Trustee, as the case may be, to
enter into or perform its obligations under the Operative Documents.
Very truly yours,
XXXXXXX XXXX LLP
SCHEDULE A
State Street Bank and Trust Company of
Connecticut, National Association
US Airways, Inc.
US Airways Group, Inc.
Standard & Poor's Ratings Services
MBIA Insurance Corporation
Exhibit F
FORM OF OPINION FOR PASS THROUGH TRUSTEE COUNSEL
____________________, ____
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
RE: US Airways, Inc./Secured Financing of One Airbus [A320]
[A330-300] Aircraft [N _________ US] -- Pass Through
Trust, Owned Aircraft
Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and Trust
Company of Connecticut, National Association, in its individual capacity
("STATE STREET") and as Pass Through Trustee (the "PASS THROUGH TRUSTEE")
under the Pass Through Trust Agreement dated as of July 30, 1999, among US
Airways Group, Inc., US Airways, Inc. and State Street, as supplemented by
Trust Supplement No. [2000-1G], and Trust Supplement No. [2000-1C] each
dated as of [ ] and each among US Airways, Inc. and
State Street (collectively, the "PASS THROUGH TRUSTS" and, individually, a
"PASS THROUGH TRUST") in connection with the execution and delivery of the
Participation Agreement [N ] dated as of [
] (the "PARTICIPATION AGREEMENT") by and among State Street,
as Indenture Trustee, US Airways, Inc., State Street, as Pass Through
Trustee and State Street, as Subordination Agent (the "SUBORDINATION
AGENT") and the transactions contemplated thereby. Capitalized terms not
otherwise defined herein shall have the meanings specified in the Lease and
Annex A of the Participation Agreement. This opinion is being delivered at
the request of State Street and pursuant to Section 4( )( ) of the
Participation Agreement.
Our representation of State Street and the Pass Through Trustee has
been as special counsel for the limited purposes stated above. As to all
matters of fact (including factual conclusions and characterizations and
descriptions of purpose, intention or other state of mind), we have relied,
with your permission, entirely upon (i) the representations and warranties
of the parties set forth in the Operative Documents and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations, warranties and
certificates.
We have examined the Participation Agreement, the Liquidity Facility
for each of the Class G and Class C Trusts, the Policy Provider Agreement,
the Policy, the Intercreditor Agreement, the Note Purchase Agreement, the
Escrow and Paying Agent Agreement for each of the Class G and Class C
Trusts each dated as of ______________ __, ____ and each among First
Security Bank, National Association, as Escrow Agent, the underwriters
named therein, State Street, as Pass Through Trustee and State Street, as
Paying Agent, and each of the Pass Through Trusts (the "OPERATIVE
DOCUMENTS"), the Certificate of the Comptroller of the Currency relating to
State Street and originals, or copies certified or otherwise identified to
our satisfaction, of such other records, documents, certificates, or other
instruments as we have deemed necessary or advisable for the purposes of
this opinion. For purposes of our opinion rendered in paragraph 1 below,
with respect to the authority of State Street to operate as a national
banking association and exercise trust powers, our opinion relies upon and
is limited by such Certificate of the Comptroller of the Currency.
We have assumed the genuineness of all signatures (other than those on
behalf of State Street and the Pass Through Trustee), the conformity to the
originals of all documents reviewed by us as copies, and the authenticity
and completeness of all original documents reviewed by us in original or
copy form and the legal competence of each individual executing any
document (other than on behalf of State Street and the Pass Through
Trustee).
When an opinion set forth below is given to the best of our knowledge,
or to our knowledge, or with reference to matters of which we are aware or
which are known to us, or with another similar qualification, the relevant
knowledge or awareness is limited to the actual knowledge or awareness of
the individual lawyer in the firm that signed this opinion, the individual
lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates and the partner of the firm
responsible for State Street corporate trust matters, and without any
special or additional investigation undertaken for the purposes of this
opinion.
Subject to the limitation set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth below are limited solely to the internal
substantive laws of the State of Connecticut as applied by courts located
in Connecticut and the federal laws of the United States. No opinion is
given herein as to the choice of law or internal substantive rules of law
that any court or other tribunal may apply to the transactions contemplated
by the Operative Documents. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by any law, statute, rule or
regulation of the United States relating to the acquisition, ownership,
registration, use, operation, maintenance, repair, replacement or sale of
or the nature of the Aircraft.
To the extent to which this opinion deals with matters governed by or
relating to the laws of the State of New York, or other jurisdiction other
than the State of Connecticut, by which the Operative Documents are stated
to be governed, we have assumed, with your permission that the Operative
Documents are governed by the internal substantive laws of the State of
Connecticut.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
1. We have assumed without any independent investigation that
(i) each party to the Operative Documents, other than State Street,
in its individual capacity or as Pass Through Trustee, as applicable,
at all times relevant thereto, is validly existing and in good
standing under the laws of the jurisdiction in which it is organized,
and is qualified to do business and in good standing under the laws
of each jurisdiction where such qualification is required generally
or necessary in order for such party to enforce its rights under such
Operative Documents, and (ii) each party to the Operative Documents,
at all times relevant thereto, had and has the full power, authority
and legal right under its certificate of incorporation, partnership
agreement, bylaws, and other governing organizational documents, and
the applicable corporate, partnership, or other enterprise
legislation and other applicable laws, as the case may be (other than
State Street and the Pass Through Trustee with respect to the laws of
the United States of America and the internal substantive laws of the
State of Connecticut, but only in each case to the limited extent the
same may be applicable to State Street or the Pass Through Trustee,
and relevant to our opinions expressed below) to execute, and to
perform its obligations under, the Operative Documents, and (iii)
each party to the Operative Documents (other than State Street or the
Pass Through Trustee, as applicable) has duly executed and delivered
each of such agreements and instruments to which it is a party and
that (other than with respect to State Street and the Pass Through
Trustee, as applicable) the execution and delivery of such agreements
and instruments and the transactions contemplated thereby have been
duly authorized by proper corporate or other organizational
proceedings as to such party.
2. We have assumed without any independent investigation (i)
that each of the Operative Documents is a valid, binding and
enforceable obligation of each party thereto other than State Street
or the Pass Through Trustee, as applicable, and (ii) that each of the
Operative Documents is a valid, binding and enforceable obligation of
State Street or the Pass Through Trustee, as applicable, to the
extent that laws other than those of the State of Connecticut are
relevant thereto (other than the laws of the United States of
America, but only to the limited extent the same may be applicable to
State Street or the Pass Through Trustee, as applicable, and relevant
to our opinions expressed below).
3. The enforcement of any obligations of State Street or the
Pass Through Trustee, as applicable, under any of the Operative
Documents may be limited by the receivership, conservatorship and
supervisory powers of bank regulatory agencies generally, as well as
by bankruptcy, insolvency, reorganization, moratorium, marshaling or
other laws and rules of law affecting the enforcement generally of
creditors' rights and remedies (including such as may deny giving
effect to waivers of debtors' or guarantors' rights); and we express
no opinion as to the status under any fraudulent conveyance laws or
fraudulent transfer laws of any of the obligations of State Street or
the Pass Through Trustee, as applicable, under any of the Operative
Documents.
4. We express no opinion as the availability of any specific or
equitable relief of any kind.
5. The enforcement of any of your rights may in all cases be
subject to an implied duty of good faith and fair dealing and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity)
and, as to any of your rights to collateral security, will be subject
to a duty to act in a commercially reasonable manner.
6. We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating to
(i) waivers of rights to object to jurisdiction or venue, or consents
to jurisdiction or venue, (ii) waivers of rights to (or methods of)
service of process, or rights to trial by jury, or other rights or
benefits bestowed by operation of law, (iii) waivers of any
applicable defenses, setoffs, recoupments, or counterclaims, (iv) the
grant of powers of attorney to any person or entity, (v) exculpation
or exoneration clauses, indemnity clauses, and clauses relating to
releases or waivers of unmatured claims or rights, (vi) the
imposition or collection of interest on overdue interest or providing
for a penalty rate of interest or late charges on overdue or
defaulted obligations, or the payment of any premium, liquidated
damages, or other amount which may be held by any court to be a
"penalty" or a "forfeiture," or (vii) so-called "usury savings
clauses" purporting to specify methods of (or otherwise assure)
compliance with usury laws or other similar laws of any jurisdiction.
7. We express no opinion as to the effect of events occurring,
circumstances arising, or changes of law becoming effective or
occurring, after the date hereof on the matters addressed in this
opinion letter, and we assume no responsibility to inform you of
additional or changed facts, or changes in law, of which we may
become aware.
8. No opinion is given herein as to the effect of usury laws
(or other similar laws) of any jurisdiction with respect to the
Operative Documents.
In rendering the opinion set forth below in paragraph 6 as to certain
Connecticut tax matters, we have assumed that, for federal income tax
purposes, the trust created by the Trust Agreement will not be taxable as a
corporation, but, rather, will be classified as a grantor trust under
subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of the
Internal Revenue Code of 1986, as amended or as a partnership.
This opinion is rendered solely for the benefit of those institutions
listed on Schedule A hereto and their successors and assigns in connection
with the transactions contemplated by the Operative Documents and may not
be used or relied upon by any other person or for any other purpose.
Based upon the foregoing and subject to the limitations and
qualifications set forth herein, we are of the opinion that:
1. State Street is a national banking association, validly formed
and authorized to operate as a national banking association under the laws
of the United States of America and, in its individual capacity or as Pass
Through Trustee, as the case may be, has or had, as the case may be, the
requisite corporate and trust power and authority to execute, deliver and
perform its obligations under the Operative Documents and in its capacity
as Pass Through Trustee, to issue and execute the Pass Through Certificates
delivered on the Pass Through Trust Closing Date.
2. State Street, in its individual capacity or as Pass Through
Trustee, as the case may be, has duly authorized by all necessary corporate
or trust action the Operative Documents and has duly executed and delivered
the Operative Documents, and the Operative Documents constitute valid and
binding obligations of State Street, in its individual capacity or as Pass
Through Trustee, as the case may be, enforceable against State Street, in
its individual capacity or as Pass Through Trustee, as the case may be, in
accordance with their respective terms.
3. The Pass Through Certificates issued and dated on the Pass
Through Trust Closing Date have been duly issued, authenticated and
delivered by State Street as Pass Through Trustee pursuant to the terms of
the Operative Documents and are enforceable against the Pass Through
Trustee and are entitled to the benefits of the applicable Pass Through
Trusts.
4. The authorization, execution, delivery and performance by State
Street, in its individual capacity or as Pass Through Trustee, as the case
may be, of the Operative Documents and the consummation of the transactions
therein contemplated and compliance with the terms thereof do not and will
not result in the violation of the provisions of the charter documents or
by-laws of State Street and, to the best of our knowledge, do not conflict
with, or result in a breach of any terms or provisions of, or constitute a
default under, or result in the creation or the imposition of any lien,
charge or encumbrance upon any property or assets of State Street under any
indenture, mortgage or other agreement or instrument, in each case known to
us, to which State Street is a party or by which it is bound, or violates
any applicable Connecticut or federal law, rule or regulation governing
State Street's banking or trust powers, or, to the best of our knowledge,
of any judgment, order or decree, in each case known to us, applicable to
State Street of any court, regulatory body, administrative agency,
government or governmental body having jurisdiction over State Street.
5. No authorization, approval, consent, license or order of, giving
of notice to, registration with, or taking of any other action in respect
of, any federal or state governmental authority or agency pursuant to any
federal or Connecticut law governing the banking or trust powers of State
Street is required for the authorization, execution, delivery and
performance by State Street, in its individual capacity or as Pass Through
Trustee, as the case may be, of the Operative Documents or the consummation
of any of the transactions by State Street, in its individual capacity or
as Pass Through Trustee, as the case may be, contemplated thereby (except
as shall have been duly obtained, given or taken); and such authorization,
execution, delivery, performance, consummation and issuance do not conflict
with or result in a breach of the provisions of any such law.
6. There are no taxes, fees or other governmental charges payable
under the laws of the State of Connecticut or any political subdivision of
such State in connection with the execution and delivery by State Street,
in its individual capacity or as Pass Through Trustee, as the case may be,
of the Operative Documents (except for taxes on any fees payable to State
Street in its individual capacity) or in connection with the issuance,
execution and delivery of the Pass Through Certificates by State Street, as
Pass Through Trustee, pursuant to the Pass Through Trusts which are imposed
solely because State Street has its principal place of business in
Connecticut or performs its administrative duties under the Operative
Documents in Connecticut. Neither State Street, in its individual capacity
or as the Pass Through Trustee, as the case may be, the Indenture Trustee,
the Owner Participant, the Owner Trustee, nor the trust created by the
Trust Agreement will, as a result of the transactions contemplated thereby,
be subject to any Taxes under the laws of the State of Connecticut or any
political subdivision thereof (except for Taxes on any fees payable to
State Street in its individual capacity) which are imposed because State
Street has its principal place of business in Connecticut or performs its
administrative duties under the Operative Documents in Connecticut, and
there are no Taxes under the laws of the State of Connecticut or any
political subdivision thereof (except for Taxes on any fees payable to
State Street in its individual capacity) upon or with respect to the
Aircraft or any Engine or any part of any interest therein, or the
purchase, ownership, delivery, lease, sublease, possession, presence, use,
operation, condition, storage, maintenance, modification, alteration,
repair, sale, return, transfer or other disposition of the Aircraft or any
Engine which are imposed because State Street has its principal place of
business in Connecticut or performs its administrative duties under the
Operative Documents in Connecticut.
7. To our knowledge, but without having investigated any
governmental records or court dockets, and without having made any other
independent investigation, there are no proceedings pending or overtly
threatened in writing against or affecting State Street in any court or
before any governmental authority, agency, arbitration board or tribunal
which, if adversely determined, individually or in the aggregate, could
reasonably be expected to affect materially and adversely the trust related
to the Indenture or affect the right, power and authority of State Street,
in its individual capacity or as Pass Through Trustee, as the case may be,
to enter into or perform its obligations under the Operative Documents.
Very truly yours,
XXXXXXX XXXX LLP
SCHEDULE A
State Street Bank and Trust Company of
Connecticut, National Association
US Airways, Inc.
US Airways Group, Inc.
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
MBIA Insurance Corporation
Exhibit G
FORM OF OPINION FOR SUBORDINATION AGENT COUNSEL
_____________, ________
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
RE: US Airways, Inc./Secured Financing of One Airbus [A320]
[A330-300] Aircraft [N _____ US] for Subordination Agent,
Owned Aircraft
Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and Trust
Company of Connecticut, National Association, in its individual capacity
("STATE STREET") and as Subordination Agent (the "SUBORDINATION AGENT")
under the Intercreditor Agreement dated as of [________________] (the
"INTERCREDITOR AGREEMENT") among State Street, in its capacity as Pass
Through Trustee under the US Airways Pass Through Trust 2000-1G, and US
Airways Pass Through Trust 2000-1C, Bayerische Laudesbank Girozentrale, as
Class G Liquidity Provider and Class C Liquidity Provider, MBIA Insurance
Corporation as Policy Provider and Class C Liquidity Provider and State
Street, as Subordination Agent in connection with the execution and
delivery of the Participation Agreement [N ____ US] dated as of
[________________] (the "PARTICIPATION AGREEMENT") by and among State
Street, as Indenture Trustee, US Airways, Inc., State Street, as Pass
Through Trustee (the "PASS THROUGH TRUSTEE"), and State Street, as
Subordination Agent, and the transactions contemplated thereby.
Capitalized terms not otherwise defined herein shall have the meanings
specified in Annex A of the Participation Agreement. This opinion is being
delivered at the request of State Street and pursuant to Section 4( )(____)
of the Participation Agreement.
Our representation of State Street and the Subordination Agent has
been as special counsel for the limited purposes stated above. As to all
matters of fact (including factual conclusions and characterizations and
descriptions of purpose, intention or other state of mind), we have relied,
with your permission, entirely upon (i) the representations and warranties
of the parties set forth in the Operative Documents and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations, warranties and
certificates.
We have examined the Participation Agreement, the Note Purchase
Agreement and the Intercreditor Agreement (the "OPERATIVE DOCUMENTS"), the
Certificate of the Comptroller of the Currency relating to State Street and
originals, or copies certified or otherwise identified to our satisfaction,
of such other records, documents, certificates, or other instruments as we
have deemed necessary or advisable for the purposes of this opinion. For
purposes of our opinion rendered in paragraph 1 below, with respect to the
authority of State Street to operate as a national banking association and
exercise trust powers, our opinion relies upon and is limited by such
Certificate of the Comptroller of the Currency.
We have assumed the genuineness of all signatures (other than those on
behalf of State Street and the Subordination Agent), the conformity to the
originals of all documents reviewed by us as copies, and the authenticity
and completeness of all original documents reviewed by us in original or
copy form and the legal competence of each individual executing any
document (other than on behalf of State Street and the Subordination
Agent).
When an opinion set forth below is given to the best of our knowledge,
or to our knowledge, or with reference to matters of which we are aware or
which are known to us, or with another similar qualification, the relevant
knowledge or awareness is limited to the actual knowledge or awareness of
the individual lawyer in the firm that signed this opinion, the individual
lawyers in the firm who have participated directly in the specific
transactions to which this opinion relates and the partner of the firm
responsible for State Street corporate trust matters, and without any
special or additional investigation undertaken for the purposes of this
opinion.
Subject to the limitation set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth below are limited solely to the internal
substantive laws of the State of Connecticut as applied by courts located
in Connecticut and the federal laws of the United States. No opinion is
given herein as to the choice of law or internal substantive rules of law
that any court or other tribunal may apply to the transactions contemplated
by the Operative Documents. No opinion is expressed herein as to the
application or effect of federal securities laws or as to the securities or
so-called "Blue Sky" laws of any state or other jurisdiction. In addition,
no opinion is expressed as to matters governed by any law, statute, rule or
regulation of the United States relating to the acquisition, ownership,
registration, use, operation, maintenance, repair, replacement or sale of
or the nature of the Aircraft.
To the extent to which this opinion deals with matters governed by or
relating to the laws of the State of New York, or other jurisdiction other
than the State of Connecticut, by which the Operative Documents are stated
to be governed, we have assumed, with your permission that the Operative
Documents are governed by the internal substantive laws of the State of
Connecticut.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
1. We have assumed without any independent investigation that
(i) each party to the Operative Documents, other than State Street,
in its individual capacity or as Subordination Agent, as applicable,
at all times relevant thereto, is validly existing and in good
standing under the laws of the jurisdiction in which it is organized,
and is qualified to do business and in good standing under the laws
of each jurisdiction where such qualification is required generally
or necessary in order for such party to enforce its rights under such
Operative Documents, and (ii) each party to the Operative Documents,
at all times relevant thereto, had and has the full power, authority
and legal right under its certificate of incorporation, partnership
agreement, bylaws, and other governing organizational documents, and
the applicable corporate, partnership, or other enterprise
legislation and other applicable laws, as the case may be (other than
State Street and the Subordination Agent with respect to the laws of
the United States of America and the internal substantive laws of the
State of Connecticut, but only in each case to the limited extent the
same may be applicable to State Street or the Subordination Agent,
and relevant to our opinions expressed below) to execute, and to
perform its obligations under, the Operative Documents, and (iii)
each party to the Operative Documents (other than State Street or the
Subordination Agent, as applicable) has duly executed and delivered
each of such agreements and instruments to which it is a party and
that (other than with respect to State Street and the Subordination
Agent, as applicable) the execution and delivery of such agreements
and instruments and the transactions contemplated thereby have been
duly authorized by proper corporate or other organizational
proceedings as to such party.
2. We have assumed without any independent investigation (i)
that each of the Operative Documents is a valid, binding and
enforceable obligation of each party thereto other than State Street
or the Subordination Agent, as applicable, and (ii) that each of the
Operative Documents is a valid, binding and enforceable obligation of
State Street or the Subordination Agent, as applicable, to the extent
that laws other than those of the State of Connecticut are relevant
thereto (other than the laws of the United States of America, but
only to the limited extent the same may be applicable to State Street
or the Subordination Agent, as applicable, and relevant to our
opinions expressed below).
3. The enforcement of any obligations of State Street or the
Subordination Agent, as applicable, under any of the Operative
Documents may be limited by the receivership, conservatorship and
supervisory powers of bank regulatory agencies generally, as well as
by bankruptcy, insolvency, reorganization, moratorium, marshaling or
other laws and rules of law affecting the enforcement generally of
creditors' rights and remedies (including such as may deny giving
effect to waivers of debtors' or guarantors' rights); and we express
no opinion as to the status under any fraudulent conveyance laws or
fraudulent transfer laws of any of the obligations of State Street or
the Subordination Agent, as applicable, under any of the Operative
Documents.
4. We express no opinion as the availability of any specific or
equitable relief of any kind.
5. The enforcement of any of your rights may in all cases be
subject to an implied duty of good faith and fair dealing and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity)
and, as to any of your rights to collateral security, will be subject
to a duty to act in a commercially reasonable manner.
6. We express no opinion as to the enforceability of any
particular provision of any of the Operative Documents relating to
(i) waivers of rights to object to jurisdiction or venue, or consents
to jurisdiction or venue, (ii) waivers of rights to (or methods of)
service of process, or rights to trial by jury, or other rights or
benefits bestowed by operation of law, (iii) waivers of any
applicable defenses, setoffs, recoupments, or counterclaims, (iv) the
grant of powers of attorney to any person or entity, (v) exculpation
or exoneration clauses, indemnity clauses, and clauses relating to
releases or waivers of unmatured claims or rights, (vi) the
imposition or collection of interest on overdue interest or providing
for a penalty rate of interest or late charges on overdue or
defaulted obligations, or the payment of any premium, liquidated
damages, or other amount which may be held by any court to be a
"penalty" or a "forfeiture," or (vii) so-called "usury savings
clauses" purporting to specify methods of (or otherwise assure)
compliance with usury laws or other similar laws of any jurisdiction.
7. We express no opinion as to the effect of events occurring,
circumstances arising, or changes of law becoming effective or
occurring, after the date hereof on the matters addressed in this
opinion letter, and we assume no responsibility to inform you of
additional or changed facts, or changes in law, of which we may
become aware.
8. No opinion is given herein as to the effect of usury laws
(or other similar laws) of any jurisdiction with respect to the
Operative Documents.
This opinion is rendered solely for the benefit of those institutions
listed on Schedule A hereto and their successors and assigns in connection
with the transactions contemplated by the Operative Documents and may not
be used or relied upon by any other person or for any other purpose.
Based upon the foregoing and subject to the limitations and
qualifications set forth herein, we are of the opinion that:
1. State Street is a national banking association, validly formed
and authorized to operate as a national banking association under the laws
of the United States of America and, in its individual capacity or as
Subordination Agent, as the case may be, has the requisite corporate and
trust power and authority to execute, deliver and perform its obligations
under the Operative Documents.
2. State Street, in its individual capacity or as Subordination
Agent, as the case may be, has duly authorized the Operative Documents by
all necessary corporate or trust action and has duly executed and delivered
the Operative Documents, and the Operative Documents constitute valid and
binding obligations of State Street, in its individual capacity or as
Subordination Agent, as the case may be, enforceable against State Street,
in its individual capacity or as Subordination Agent, as the case may be,
in accordance with their respective terms.
3. The authorization, execution, delivery and performance by State
Street, in its individual capacity or as Subordination Agent, as the case
may be, of the Operative Documents and the consummation of the transactions
therein contemplated and compliance with the terms thereof do not and will
not result in the violation of the provisions of the charter documents or
by-laws of State Street and, to the best of our knowledge, do not conflict
with, or result in a breach of any terms or provisions of, or constitute a
default under, or result in the creation or the imposition of any lien,
charge or encumbrance upon any property or assets of State Street under any
indenture, mortgage or other agreement or instrument, in each case known to
us, to which State Street is a party or by which it is bound, or violates
any applicable Connecticut or federal law, rule or regulation governing
State Street's banking or trust powers, or, to the best of our knowledge,
of any judgment, order or decree, in each case known to us, applicable to
State Street of any court, regulatory body, administrative agency,
government or governmental body having jurisdiction over State Street.
4. No authorization, approval, consent, license or order of, giving
of notice to, registration with, or taking of any other action in respect
of, any federal or state governmental authority or agency pursuant to any
federal or Connecticut law governing the banking or trust powers of State
Street is required for the authorization, execution, delivery and
performance by State Street, in its individual capacity or as Subordination
Agent, as the case may be, of the Operative Documents or the consummation
of any of the transactions by State Street, in its individual capacity or
as Subordination Agent, as the case may be, contemplated thereby (except as
shall have been duly obtained, given or taken); and such authorization,
execution, delivery, performance, consummation and issuance do not conflict
with or result in a breach of the provisions of any such law.
5. There are no taxes, fees or other governmental charges payable
under the laws of the State of Connecticut or any political subdivision of
such State in connection with the execution and delivery by State Street,
in its individual capacity or as Subordination Agent, as the case may be,
of the Operative Documents (except for taxes on any fees payable to State
Street in its individual capacity) which are imposed solely because State
Street has its principal place of business in Connecticut or performs its
administrative duties under the Operative Documents in Connecticut.
6. To our knowledge, but without having investigated any
governmental records or court dockets, and without having made any other
independent investigation, there are no proceedings pending or overtly
threatened in writing against or affecting State Street in any court or
before any governmental authority, agency, arbitration board or tribunal
which, if adversely determined, individually or in the aggregate, could
reasonably be expected to affect materially and adversely the trust related
to the Indenture or affect the right, power and authority of State Street,
in its individual capacity or as Subordination Agent, as the case may be,
to enter into or perform its obligations under the Operative Documents.
7. Assuming that the Subordination Agent holds each of the Equipment
Notes delivered to and registered in its name pursuant to and as required
by the Intercreditor Agreement, it holds such Equipment Notes in trust as
trustee for the related Pass Through Trustee in the exercise of the
fiduciary powers conferred upon State Street by Connecticut law.
Very truly yours,
XXXXXXX XXXX LLP
SCHEDULE A
State Street Bank and Trust Company of Connecticut, National Association
US Airways, Inc.
US Airways Group, Inc.
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
MBIA Insurance Corporation
