Exhibit 4.1
EXECUTION VERSION
PASS THROUGH TRUST AGREEMENT
DATED DECEMBER 21, 2010
BETWEEN
US AIRWAYS, INC.
AND
WILMINGTON TRUST COMPANY
AS TRUSTEE
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
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2
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Section 1.01. Definitions
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2
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Section 1.02. Compliance Certificates and Opinions
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12
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Section 1.03. Form of Documents Delivered to Trustee
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12
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Section 1.04. Directions of Certificateholders
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13
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ARTICLE II ORIGINAL ISSUANCE OF CERTIFICATES: ACQUISITION OF TRUST PROPERTY
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14
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Section 2.01. Amount Unlimited; Issuable in Series
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14
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Section 2.02. Acquisition of Equipment Notes
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17
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Section 2.03. Acceptance by Trustee
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19
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Section 2.04. Limitation of Powers
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19
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ARTICLE III THE CERTIFICATES
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19
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Section 3.01. Form, Denomination and Execution of Certificates
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19
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Section 3.02. Authentication of Certificates
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20
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Section 3.03. Temporary Certificates
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20
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Section 3.04. Transfer and Exchange
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20
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Section 3.05. Book-Entry and Definitive Certificates
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21
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Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates
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23
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Section 3.07. Persons Deemed Owners
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24
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Section 3.08. Cancellation
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24
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Section 3.09. Limitation of Liability for Payments
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24
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Section 3.10. CUSIP Numbers
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25
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ARTICLE IV DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
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25
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Section 4.01. Certificate Account and Special Payments Account
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25
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Section 4.02. Distributions from Certificate Account and Special Payments Account
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25
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Section 4.03. Statements to Certificateholders
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27
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Section 4.04. Investment of Special Payment Moneys
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28
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ARTICLE V THE COMPANY
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28
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Section 5.01. Maintenance of Corporate Existence
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28
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Section 5.02. Consolidation, Merger, Etc.
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29
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i
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Page
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ARTICLE VI DEFAULT
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30
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Section 6.01. Indenture Events of Default and Triggering Events
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30
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Section 6.02. Incidents of Sale of Equipment Notes
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31
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Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit
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31
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Section 6.04. Control by Certificateholders
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32
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Section 6.05. Waiver of Past Defaults
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32
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Section 6.06. Right of Certificateholders to Receive Payments Not to Be Impaired
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33
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Section 6.07. Certificateholders May Not Bring Suit Except Under Certain Conditions
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33
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Section 6.08. Remedies Cumulative
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34
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Section 6.09. Undertaking for Costs
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34
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ARTICLE VII THE TRUSTEE
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34
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Section 7.01. Certain Duties and Responsibilities
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34
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Section 7.02. Notice of Defaults
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35
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Section 7.03. Certain Rights of Trustee
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35
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Section 7.04. Not Responsible for Recitals or Issuance of Certificates
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36
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Section 7.05. May Hold Certificates
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36
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Section 7.06. Money Held in Trust
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36
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Section 7.07. Compensation and Reimbursement
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36
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Section 7.08. Corporate Trustee Required; Eligibility
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37
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Section 7.09. Resignation and Removal; Appointment of Successor
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38
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Section 7.10. Acceptance of Appointment by Successor
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39
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Section 7.11. Merger, Conversion, Consolidation or Succession to Business
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40
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Section 7.12. Maintenance of Agencies
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40
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Section 7.13. Money for Certificate Payments to Be Held in Trust
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41
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Section 7.14. Registration of Equipment Notes in Trustees Name
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42
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Section 7.15. Representations and Warranties of Trustee
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42
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Section 7.16. Withholding Taxes; Information Reporting
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43
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Section 7.17. Trustees Liens
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43
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Section 7.18. Preferential Collection of Claims
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44
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ARTICLE VIII CERTIFICATEHOLDERS LISTS AND REPORTS BY TRUSTEE
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44
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Section 8.01. The Company to Furnish Trustee with Names and Addresses of Certificateholders
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44
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Section 8.02. Preservation of Information; Communications to Certificateholders
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44
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Section 8.03. Reports by Trustee
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44
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Section 8.04. Reports by the Company
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44
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ii
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ARTICLE IX SUPPLEMENTAL AGREEMENTS
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45
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Section 9.01. Supplemental Agreements without Consent of Certificateholders
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45
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Section 9.02. Supplemental Agreements with Consent of Certificateholders
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47
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Section 9.03. Documents Affecting Immunity or Indemnity
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48
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Section 9.04. Execution of Supplemental Agreements
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49
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Section 9.05. Effect of Supplemental Agreements
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49
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Section 9.06. Conformity with Trust Indenture Act
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49
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Section 9.07. Reference in Certificates to Supplemental Agreements
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49
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ARTICLE X AMENDMENTS TO INDENTURES AND OTHER NOTE DOCUMENTS
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49
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Section 10.01. Amendments and Supplements to Indentures and Other Note Documents
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49
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ARTICLE XI TERMINATION OF TRUSTS
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50
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Section 11.01. Termination of the Trusts
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50
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ARTICLE XII MISCELLANEOUS PROVISIONS
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51
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Section 12.01. Limitation on Rights of Certificateholders
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51
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Section 12.02. Certificates Nonassessable and Fully Paid
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51
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Section 12.03. Registration of Equipment Notes in Name of Subordination Agent
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52
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Section 12.04. Notices
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52
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Section 12.05. Governing Law and Venue; Waiver of Jury Trial
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53
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Section 12.06. Severability of Provisions
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54
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Section 12.07. Trust Indenture Act Controls
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54
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Section 12.08. Effect of Headings and Table of Contents
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54
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Section 12.09. Successors and Assigns
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54
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Section 12.10. Benefits of Agreement
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55
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Section 12.11. Legal Holidays
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55
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Section 12.12. Counterparts
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55
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Section 12.13. Communication by Certificateholders with Other Certificateholders
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55
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Section 12.14. Intention of Parties
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55
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Section 12.15. No Recourse Against Others
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55
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iii
Reconciliation and tie between US Airways Pass Through Trust Agreement, dated December 21, 2010 and
the Trust Indenture Act of 1939. This reconciliation does not constitute part of the Pass Through
Trust Agreement.
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Trust Indenture Act of 1939 Section
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Pass Through Trust Agreement Section
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310 (a) (1)
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7.08
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310(a) (2)
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7.08
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312(a)
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3.05; 7.12; 8.01; 8.02
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313(a)
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8.03
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313 (b)
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8.03
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314(a) (l)-(3)
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8.04(a)-(c)
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314(a) (4)
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8.04(d)
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314 (c) (1)
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1.02
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314 (c) (2)
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1.02
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314 (d) (1)
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1.02; 7.13; 11.01
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314 (d) (2)
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1.02; 7.13; 11.01
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314 (d) (3)
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2.01
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314 (e)
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1.02
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315 (b)
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7.02
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315 (c)
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7.01 (b)
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316 (a) (last sentence)
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1.04 (c)
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316 (a) (1) (A)
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6.04
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316 (a) (1) (B)
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6.05
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316 (b)
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6.06
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316 (c)
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1.04 (d)
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317 (a) (1)
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6.03
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317 (b)
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7.13
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318 (a)
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12.07
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PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of December 21, 2010 (the
Basic
Agreement
), between US AIRWAYS, INC., a Delaware corporation (the
Company
), and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Trustee, is made with respect to the
formation from time to time of separate US Airways Pass Through Trusts, and the issuance from time
to time of separate series of Pass Through Certificates representing fractional undivided interests
in the respective Trusts.
W I T N E S S E T H:
WHEREAS, from time to time, the Company and the Trustee may enter into a Trust Supplement
(this and certain other defined terms used herein are defined in Section 1.01) pursuant to which
the Trustee shall declare the creation of a separate Trust for the benefit of the Holders of the
series of Certificates to be issued in respect of such Trust, and the initial Holders of the
Certificates of such series, as the grantors of such Trust, by their respective acceptances of the
Certificates of such series, shall join in the creation of such Trust with the Trustee;
1
WHEREAS, all Certificates to be issued in respect of each separate Trust will be issued as a
separate series pursuant to this Agreement, will evidence fractional undivided interests in such
Trust and will have no rights, benefits or interests in respect of any other separate Trust or the
property held therein, subject, however, to the provisions of any Intercreditor Agreement to which
one or more Trusts may be a party and to any provisions to the contrary in any applicable Trust
Supplement;
WHEREAS, from time to time, pursuant to the terms and conditions of this Agreement with
respect to each separate Trust formed under this Agreement, the Trustee on behalf of such Trust
shall purchase one or more issues of Equipment Notes, or notes issued by a separate trust or other
entity secured by Equipment Notes, having the same interest rate as, and final maturity dates not
later than the final Regular Distribution Date of, the series of Certificates issued in respect of
such Trust and, subject to the terms of any related Intercreditor Agreement and to any terms to the
contrary in any applicable Trust Supplement, shall hold such Equipment Notes in trust for the
benefit of the Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and the purchase of Equipment Notes by,
the Trustee on behalf of each Trust created from time to time pursuant to this Agreement, the
Company as the issuer, as such term is defined in and solely for purposes of the Securities Act
of 1933, as amended, of the Certificates to be issued in respect of each Trust and as the
obligor, as such term is defined in and solely for purposes of the Trust Indenture Act has duly
authorized the execution and delivery of this Basic Agreement and is undertaking to perform certain
administrative and ministerial duties under this Agreement and is also undertaking to pay the fees
and expenses of the Trustee; and
WHEREAS, this Basic Agreement, as supplemented from time to time, is subject to the provisions
of the Trust Indenture Act and shall, to the extent applicable, be governed by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good
and valuable consideration the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01.
Definitions
. For all purposes of this Basic Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms used herein that are defined in this Article I have the meanings assigned
to them in this Article I, and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust Indenture Act, either
directly or by reference therein, or by the rules promulgated under the Trust Indenture Act,
have the meanings assigned to them therein;
2
(3) all references in this Basic Agreement to designated Articles, Sections,
Subsections and other subdivisions are to the designated Articles, Sections, Subsections
and other subdivisions of this Basic Agreement;
(4) the words herein, hereof and hereunder and other words of similar import
refer to this Basic Agreement as a whole and not to any particular Article, Section,
Subsection or other subdivision;
(5) unless the context otherwise requires, whenever the words including, include or
includes are used herein, it shall be deemed to be followed by the phrase without
limitation; and
(6) the term this Agreement (as distinguished from this Basic Agreement) refers,
unless the context otherwise requires, to this Basic Agreement as supplemented by the Trust
Supplement creating a particular Trust and establishing the series of Certificates issued or
to be issued in respect thereof, with reference to such Trust and such series of
Certificates, as this Basic Agreement as so supplemented may be further supplemented with
respect to such Trust and such series of Certificates.
Act
: Has the meaning, with respect to any Certificateholder, specified in Section
1.04(a).
Affiliate
: Means, with respect to any specified Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common control with such
Person. For the purposes of this definition, Control, when used with respect to any specified
Person, means the power, directly or indirectly, to direct the management and policies of such
Person, whether through the ownership of voting securities or by contract or otherwise, and the
terms controlling and controlled have meanings correlative to the foregoing.
Aircraft
: Means one or more aircraft, including engines therefor, owned by or leased
to the Company and securing one or more Equipment Notes.
Authorized Agent
: Means, with respect to the Certificates of any series, any Paying
Agent or Registrar for the Certificates of such series.
Avoidable Tax
: Has the meaning specified in Section 7.09(e).
Basic Agreement
: Means this Pass Through Trust Agreement, as the same may from time
to time be supplemented, amended or modified, but does not include any Trust Supplement.
Book-Entry Certificates
: Means, with respect to the Certificates of any series, a
beneficial interest in the Certificates of such series, ownership and transfers of which shall be
made through book entries as described in Section 3.05.
Business Day
: Means, with respect to the Certificates of any series, any day other
than a Saturday, a Sunday or a day on which commercial banks are required or authorized to close in
Phoenix, Arizona, New York, New York, or, so long as any Certificate of such series is outstanding,
the city and state in which the Trustee or any related Loan Trustee maintains its Corporate Trust
Office or receives and disburses funds.
3
Certificate
: Means any one of the certificates executed and authenticated by the
Trustee, substantially in the form attached to the Trust Supplement establishing such series of
Certificates.
Certificate Account
: Means, with respect to the Certificates of any series, the
account or accounts created and maintained for such series pursuant to Section 4.01(a) and the
related Trust Supplement.
Certificateholder
or
Holder
: Means, with respect to the Certificates of any
series, the Person in whose name a Certificate of such series is registered in the Register for
Certificates of such series.
Certificate Owner
: Means, with respect to the Certificates of any series, for
purposes of Section 3.05, the Person who owns a Book-Entry Certificate of such series.
Clearing Agency
: Means an organization registered as a clearing agency pursuant to
Section 17A of the Securities Exchange Act of 1934, as amended.
Clearing Agency Participant
: Means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects, directly or
indirectly, book-entry transfers and pledges of securities deposited with the Clearing Agency.
Company
: Means US Airways, Inc., a Delaware corporation, or its successor in interest
pursuant to Section 5.02, or (only in the context of provisions hereof, if any, when such reference
is required for purposes of compliance with the Trust Indenture Act) any other obligor (within
the meaning of the Trust Indenture Act) with respect to the Certificates of any series.
Controlling Party
: Means, with respect to the Certificates of any series, the Person
entitled to act as such pursuant to the terms of the related Intercreditor Agreement.
Corporate Trust Office
: Means, with respect to the Trustee or any Loan Trustee, the
office of such trustee in the city at which at any particular time its corporate trust business
shall be principally administered.
Cut-Off Date
: Means, with respect to the Certificates of any series, the date
designated as such in the Trust Supplement establishing such series.
Definitive Certificates
: Has the meaning, with respect to the Certificates of any
series, specified in Section 3.05.
Direction
: Has the meaning specified in Section 1.04(a).
Distribution Date
: Means any Regular Distribution Date, Special Distribution Date or
Initial Regular Distribution Date.
Equipment Notes
: Means, with respect to any Trust, any one of the notes, certificates
or instruments issued pursuant to any Indenture and described as Equipment Notes in, or on a
schedule attached to, the Trust Supplement in respect of such Trust and to be held by the Trustee
4
as part of such Trust, including any Equipment Note (as so defined) issued under the
applicable Indenture in replacement thereof or substitution therefor.
ERISA
: Means the Employee Retirement Income Security Act of 1974, as amended from
time to time, or any successor federal statute.
Escrow Account
: Has the meaning, with respect to any Trust, specified in Section
2.02(b).
Escrowed Funds
: Has the meaning, with respect to any Trust, specified in Section
2.02(b).
Event of Default
: Means, in respect of any Trust, an Indenture Event of Default under
any Indenture pursuant to which Equipment Notes held by such Trust were issued and such other event
as may be designated under the related Trust Supplement as an Event of Default.
Fractional Undivided Interest
: Means the fractional undivided interest in a Trust
that is evidenced by a Certificate relating to such Trust.
Guarantee
: Means, with respect to the Certificates of any series, a guarantee by the
Parent of the obligations of the Company under any Equipment Notes or any Leases related to
Equipment Notes to be acquired and held in the Trust as to which the Certificates of such series
represent fractional undivided interests.
Indenture
: Means, with respect to any Trust, each of the one or more separate trust
indenture and security agreements or trust indenture and mortgages or similar documents described
in, or on a schedule attached to, the Trust Supplement and an indenture having substantially the
same terms and conditions which relates to a Substitute Aircraft, as each such indenture may be
amended or supplemented in accordance with its respective terms; and Indentures means all of such
agreements.
Indenture Event of Default
: Means, with respect to any Indenture, any Indenture Event
of Default (as such term is defined in such Indenture).
Initial Regular Distribution Date
: Means, with respect to the Certificates of any
series, the first Regular Distribution Date on which a Scheduled Payment is to be made.
Intercreditor Agreement
: Means (a) any agreement by and among the Trustee, as trustee
hereunder with respect to one or more Trusts, one or more Liquidity Providers, if applicable, and a
Subordination Agent providing, among other things, for the distribution of payments made in respect
of Equipment Notes held by such Trusts, or (b) such other agreement or agreements designated as an
Intercreditor Agreement in the Trust Supplement relating to any Trust.
Issuance Date
: Means, with respect to the Certificates of any series, the date of the
issuance of such Certificates.
Lease
: Means any lease between an Owner Trustee, as the lessor (or such other Person
acting as the lessor), and the Company, as the lessee, referred to in the related Indenture, as
such
5
lease may be amended, supplemented or otherwise modified in accordance with its terms; and
Leases means all such Leases.
Letter of Representations
: Means, with respect to the Certificates of any series, an
agreement among the Company, the Trustee and the initial Clearing Agency substantially in the form
attached as an Exhibit to the related Trust Supplement, as such letter may be modified or
supplemented, or any successor letter thereto.
Liquidity Facility
: Means, with respect to the Certificates of any series or any
Equipment Notes, (a) any revolving credit agreement, letter of credit, bank guarantee, insurance
policy, surety bond or financial guaranty or any other type of agreement or arrangement for the
provision of insurance, a guarantee or other credit enhancement or liquidity support relating to
the Certificates of such series between a Liquidity Provider and a Subordination Agent or one or
more other Persons, as amended, replaced, supplemented or otherwise modified from time to time in
accordance with its terms and, if applicable, the terms of any Intercreditor Agreement, or (b) such
other agreement or agreements designated as a Liquidity Facility in the Trust Supplement relating
to any Trust.
Liquidity Provider
: Means, with respect to the Certificates of any series, a bank,
insurance company, financial institution or other Person that agrees to provide a Liquidity
Facility for the benefit of the holders of Certificates of such series.
Loan Trustee
: Means, with respect to any Equipment Note or the Indenture applicable
thereto, the bank, trust company or other financial institution designated as loan or indenture
trustee under such Indenture, and any successor to such Loan Trustee as such trustee; and Loan
Trustees means all of the Loan Trustees under the Indentures.
Note Documents
: Means, with respect to the Certificates of any series, the Equipment
Notes with respect to such Certificates and, with respect to such Equipment Notes, the related
Participation Agreement, Indenture, Note Purchase Agreement, Purchase Agreement Assignment and, if
the related Aircraft is leased to the Company, the Lease and the Trust Agreement relating to such
Aircraft, and, if the Parent has guaranteed the obligations of the Company under any such Equipment
Notes or Leases, the Guarantee.
Note Purchase Agreement
: Means, with respect to the Certificates of any series, any
note purchase, refunding, participation or similar agreement providing for, among other things, the
purchase of Equipment Notes by the Trustee on behalf of the relevant Trust; and Note Purchase
Agreements means all such agreements.
Officers Certificate
: Means a certificate signed, (a) in the case of the Company by
(i) the Chairman or Vice Chairman of the Board of Directors, the President, any Executive Vice
President, any Senior Vice President or the Treasurer of the Company signing alone, or (ii) any
Vice President of the Company signing together with the Secretary, the Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Company or (b) in the case of the Trustee or an Owner
Trustee or a Loan Trustee, a Responsible Officer of the Trustee or such Owner Trustee or such Loan
Trustee, as the case may be.
6
Opinion of Counsel
: Means a written opinion of legal counsel who (a) in the case of
counsel for the Company may be (i) a senior attorney of the Company one of whose principal duties
is furnishing advice as to legal matters, (ii) Latham & Watkins LLP or (iii) such other counsel
designated by the Company and reasonably acceptable to the Trustee and (b) in the case of any Owner
Trustee or any Loan Trustee, may be such counsel as may be designated by any of them whether or not
such counsel is an employee of any of them, and who shall be reasonably acceptable to the Trustee.
Other Agreements
: Has the meaning specified in Section 6.01(b).
Outstanding
: When used with respect to Certificates of any series, means, as of the
date of determination, all Certificates of such series theretofore authenticated and delivered
under this Agreement, except:
(i) Certificates of such series theretofore cancelled by the Registrar or
delivered to the Trustee or the Registrar for cancellation;
(ii) All of the Certificates of such series if money in the full amount
required to make the final distribution with respect to such series pursuant to
Section 11.01 hereof has been theretofore deposited with the Trustee in trust for
the Holders of the Certificates of such series as provided in Section 4.01, pending
distribution of such money to such Certificateholders pursuant to payment of such
final distribution payment; and
(iii) Certificates of such series in exchange for or in lieu of which other
Certificates of such series have been authenticated and delivered pursuant to this
Agreement.
Owner Participant
: Means, with respect to any Equipment Note, the Owner
Participant, if any, as referred to in the Indenture pursuant to which such Equipment Note is
issued and any permitted successor or assign of such Owner Participant; and Owner Participants at
any time of determination means all of the Owner Participants thus referred to in the Indentures.
Owner Trustee
: Means, with respect to any Equipment Note, the Owner Trustee, if
any, as referred to in the Indenture pursuant to which such Equipment Note is issued, not in its
individual capacity but solely as trustee; and Owner Trustees means all of the Owner Trustees
party to any of the related Indentures.
Parent
: Means US Airways Group, Inc., a Delaware corporation, and its successors and
assigns.
Paying Agent
: Means, with respect to the Certificates of any series, the paying agent
maintained and appointed for the Certificates of such series pursuant to Section 7.12.
Permitted Investments
: Means obligations of the United States of America or agencies
or instrumentalities thereof for the payment of which the full faith and credit of the United
States of America is pledged, maturing in not more than 60 days after the date of acquisition
thereof or
7
such lesser time as is required for the distribution of any Special Payments on a Special
Distribution Date.
Person
: Means any person, including any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust, trustee,
unincorporated organization, or government or any agency or political subdivision thereof.
Pool Balance
: Means, with respect to the Certificates of any series as of any date,
except to the extent otherwise provided in the applicable Trust Supplement, (i) the original
aggregate face amount of the Certificates of such series less (ii) the aggregate amount of all
distributions made in respect of such Certificates other than distributions made in respect of
interest or premium thereon or reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any Distribution Date shall be computed after giving effect to
the payment of principal, if any, on the Equipment Notes or other Trust Property held in the Trust
and the distribution thereof to be made on such Distribution Date.
Pool Factor
: Means, with respect to any series of Certificates as of any date, except
to the extent otherwise provided in the applicable Trust Supplement, the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance of such series as of such date by
(ii) the original aggregate face amount of the Certificates of such series. The Pool Factor as of
any Distribution Date shall be computed after giving effect to the payment of principal, if any, on
the Equipment Notes or other Trust Property held in the Trust relating to such series and the
distribution thereof to be made on such Distribution Date.
Postponed Notes
: Means, with respect to any Trust or the related series of
Certificates, the Equipment Notes to be held in such Trust as to which a Postponement Notice shall
have been delivered pursuant to Section 2.02(b).
Postponement Notice
: Means, with respect to any Trust or the related series of
Certificates, an Officers Certificate of the Company (1) requesting that the Trustee temporarily
postpone purchase of the related Equipment Notes to a date later than the Issuance Date of such
series of Certificates, (2) identifying the amount of the purchase price of each such Equipment
Note and the aggregate purchase price for all such Equipment Notes, (3) setting forth the reasons
for such postponement and (4) with respect to each such Equipment Note, either (a) setting or
resetting a new Transfer Date (which shall be on or prior to the applicable Cut-off Date) for
payment by the Trustee of such purchase price and issuance of the related Equipment Note (subject
to subsequent change from time to time in accordance with the relevant Note Purchase Agreement), or
(b) indicating that such new Transfer Date (which shall be on or prior to the applicable Cut-off
Date) will be set by subsequent written notice not less than one Business Day prior to such new
Transfer Date (subject to subsequent change from time to time in accordance with the relevant Note
Purchase Agreement).
Potential Purchaser
: Has the meaning, with respect to any Certificateholder,
specified in Section 6.01(b).
PTC Event of Default
: Means, with respect to the Certificates of any series, any
failure to pay within ten Business Days of the due date thereof: (i) the outstanding Pool Balance
of such
8
series of Certificates on the date specified in any Trust Supplement for such payment or (ii)
interest due on the Certificates of such series on any Distribution Date (unless the related
Subordination Agent shall have made an Interest Drawing or Drawings (as defined in the related
Intercreditor Agreement), or a withdrawal or withdrawals pursuant to a cash collateral account
under such Intercreditor Agreement, with respect thereto in an aggregate amount sufficient to pay
such interest and shall have distributed such amount to the Trustee).
Purchase Agreement Assignment
: Has the meaning, with respect to the Certificates of
any series, specified therefor in the related Participation Agreement.
Purchasing Certificateholder
: Has the meaning, with respect to any Certificateholder,
specified in Section 6.01(b).
Record Date
: Means, with respect to any Trust or the related series of Certificates,
(i) for Scheduled Payments to be distributed on any Regular Distribution Date, other than the final
distribution with respect to such series, the 15th day (whether or not a Business Day) preceding
such Regular Distribution Date, or such other date as shall be specified for such series in the
applicable Trust Supplement, and (ii) for Special Payments to be distributed on any Special
Distribution Date, other than the final distribution with respect to such series, the 15th day
(whether or not a Business Day) preceding such Special Distribution Date, or such other date as
shall be specified for such series in the applicable Trust Supplement.
Register
and
Registrar
: Means, each with respect to the Certificates of any
series, the register maintained and the registrar appointed pursuant to Sections 3.04 and 7.12.
Regular Distribution Date
: Means, with respect to distributions of Scheduled Payments
in respect of any series of Certificates, each date designated as such in this Agreement, until
payment of all the Scheduled Payments to be made under the Equipment Notes held in the Trust have
been made, or until such Equipment Notes have been redeemed or otherwise prepaid in full;
provided
that, if any such day is not a Business Day, the related distribution shall be
made on the next succeeding Business Day.
Request
: Means a request by the Company setting forth the subject matter of the
request accompanied by an Officers Certificate and an Opinion of Counsel as provided in Section
1.02 of this Basic Agreement.
Responsible Officer
: Means, with respect to any Trustee, any Loan Trustee and any
Owner Trustee, any officer in the Corporate Trust Department or similar department of the Trustee,
Loan Trustee or Owner Trustee or any other officer customarily performing functions similar to
those performed by the persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity with a particular
subject.
Responsible Party
: Means, with respect to the Certificates of any series, the Person
designated as such in the related Trust Supplement.
Scheduled Payment
: Means, with respect to any Equipment Note, except to the extent
otherwise provided in the applicable Trust Supplement, (i) any payment of principal or interest
9
on such Equipment Note (other than any such payment which is not in fact received by the
Trustee or any Subordination Agent within five days after the date on which such payment is
scheduled to be made) or (ii) any payment of interest on the Certificates of any series with funds
drawn under the Liquidity Facility for such series (other than any such payment which is not in
fact received by the Trustee or any Subordination Agent within five days after the date upon which
payment is scheduled to be made), which payment in the case of clauses (i) or (ii) represents an
installment of principal on such Equipment Note at the stated maturity of such installment, the
payment of regularly scheduled interest accrued on the unpaid principal amount of such Equipment
Note, or both;
provided
,
however
, that any payment of principal, premium, if any,
or interest resulting from the redemption or purchase of any Equipment Note shall not constitute a
Scheduled Payment.
SEC
: Means the Securities and Exchange Commission, as from time to time constituted
or created under the Securities Exchange Act of 1934, as amended, or, if at any time after the
execution of this instrument such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing such duties on such date.
Selling Certificateholder
: Has the meaning, with respect to any Certificateholder,
specified in Section 6.01(b).
Special Distribution Date
: Means, with respect to the Certificates of any series,
each date on which a Special Payment is to be distributed as specified in this Agreement;
provided
that, if any such day is not a Business Day, the related distribution shall be
made on the next succeeding Business Day.
Special Payment
: Means, except to the extent otherwise provided in the applicable
Trust Supplement, (i) any payment (other than a Scheduled Payment) in respect of, or any proceeds
of, any Equipment Note or Trust Indenture Estate (as defined in each Indenture relating to such
Trust), (ii) the amounts required to be distributed pursuant to the last paragraph of Section
2.02(b), or (iii) the amounts required to be distributed pursuant to the penultimate paragraph of
Section 2.02(b).
Special Payment Accounts
: Means, with respect to the Certificates of any series, the
account or accounts created and maintained for such series pursuant to Section 4.01(b) and the
related Trust Supplement.
Specified Investments
: Means, with respect to any Trust, unless otherwise specified
in the related Trust Supplement, (i) obligations of, or guaranteed by, the United States Government
or agencies thereof, (ii) open market commercial paper of any corporation incorporated under the
laws of the United States of America or any state thereof rated at least P-2 or its equivalent by
Moodys Investors Service, Inc. (
Moodys
) or at least A-2 or its equivalent by Standard &
Poors Ratings Services, a Standard & Poors Financial Services LLC business (
S&P
), (iii)
certificates of deposit issued by commercial banks organized under the laws of the United States or
of any political subdivision thereof having a combined capital and surplus in excess of
$500,000,000 which banks or their holding companies have a rating of A or its equivalent by Moodys
or A2 or its equivalent by S&P;
provided
,
however
, that the aggregate amount at any
one time so invested in certificates of deposit issued by any one bank shall not exceed 5% of
10
such banks capital and surplus, (iv) U.S. dollar-denominated offshore certificates of deposit
issued by, or offshore time deposits with, any commercial bank described in clause (iii) above or
any subsidiary thereof and (v) repurchase agreements with any financial institution having combined
capital and surplus of at least $500,000,000 with any of the obligations described in clauses (i)
through (iv) above as collateral;
provided
further
, that if all of the above
investments are unavailable, the entire amounts to be invested may be used to purchase federal
funds from an entity described in clause (iii) above.
Subordination Agent
: Has the meaning, with respect to the Certificates of any series,
specified therefor in the relevant Intercreditor Agreement.
Substitute Aircraft
: Means, with respect to any Trust, any Aircraft of a type
specified in this Agreement and, at the election of the Company, substituted prior to the
applicable Cut-off Date, if any, pursuant to the terms of this Agreement.
Transfer Date
: Has the meaning, with respect to the Certificates of any series,
assigned to that term or any of the terms Delivery Date, Funding Date or Closing Date in any
relevant Note Purchase Agreement, and in any event refers to any such date as it may be changed
from time to time in accordance with the terms of such Note Purchase Agreement.
Triggering Event
: Has the meaning, with respect to the Certificates of any series,
specified therefor in the relevant Intercreditor Agreement.
Trust
: Means, with respect to the Certificates of any series, the separate trust
created under this Agreement.
Trustee
: Means Wilmington Trust Company, or its successor in interest, and any
successor or other trustee appointed as provided herein.
Trust Indenture Act
: Except as otherwise provided in Section 9.06, means, with
respect to any particular Trust, the Trust Indenture Act of 1939, as in force at the date as of
which the related Trust Supplement was executed.
Trust Property
: Means, with respect to any Trust, except to the extent otherwise
provided in the applicable Trust Supplement, (i) subject to any related Intercreditor Agreement,
the Equipment Notes held as the property of such Trust, the related Guarantee, if any, all monies
at any time paid thereon and all monies due and to become due thereunder, (ii) debt instruments
issued by the Company in accordance with the first paragraph of Section 2.02(b), (iii) funds from
time to time deposited in the related Escrow Account, the related Certificate Account and the
related Special Payments Account and, subject to any related Intercreditor Agreement, any proceeds
from the sale by the Trustee pursuant to Article VI hereof of any Equipment Note referred to in (i)
above, (iv) all rights of such Trust and the Trustee, on behalf of the Trust, under any
Intercreditor Agreement or Note Purchase Agreement, including, without limitation, all monies
receivable in respect of such rights, and (v) all monies receivable under any Liquidity Facility
for such Trust.
Trust Supplement
: Means an agreement supplemental hereto pursuant to which (i) a
separate Trust is created for the benefit of the Holders of the Certificates of a series, (ii) the
11
issuance of the Certificates of such series representing fractional undivided interests in
such Trust is authorized and (iii) the terms of the Certificates of such series are established, as
such agreement may from time to time be supplemented, amended or otherwise modified.
Section 1.02.
Compliance Certificates and Opinions
. Upon any application or request
(except with respect to matters set forth in Article II) by the Company, any Owner Trustee or any
Loan Trustee to the Trustee to take any action under any provision of this Basic Agreement or, in
respect of the Certificates of any series, this Agreement, the Company, such Owner Trustee or such
Loan Trustee, as the case may be, shall furnish to the Trustee (i) an Officers Certificate stating
that, in the opinion of the signer or signers, all conditions precedent, if any, provided for in
this Basic Agreement or this Agreement relating to the proposed action have been complied with and
(ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by any provision of
this Basic Agreement or this Agreement relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every Officers Certificate or Opinion of Counsel with respect to compliance with a condition
or covenant provided for in this Basic Agreement or, in respect of the Certificates of any series,
this Agreement (other than a certificate provided pursuant to Section 8.04(d)) or any Trust
Supplement shall include:
(1) a statement that (x) each individual signing such certificate or (y) each firm or
person executing such Opinion of Counsel has read such covenant or condition and the
definitions in this Basic Agreement or this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or Opinion of Counsel
are based;
(3) a statement that, in the opinion of each such individual or firm, he or it has made
such examination or investigation as is necessary to enable him or it to express an informed
opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual or firm, such
condition or covenant has been complied with.
Section 1.03.
Form of Documents Delivered to Trustee
. In any case where several
matters are required to be certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other such Persons as to
other matters and any such Person may certify or give an opinion as to such matters in one or
several documents.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Basic
12
Agreement or, in respect of the Certificates of any series, this Agreement, they may, but need
not, be consolidated and form one instrument.
Section 1.04.
Directions of Certificateholders
. (a) Any direction, consent, request,
demand, authorization, notice, waiver or other action provided by this Agreement in respect of the
Certificates of any series to be given or taken by Certificateholders (a
Direction
) may
be embodied in and evidenced by one or more instruments of substantially similar tenor signed by
such Certificateholders in person or by an agent or proxy duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, when it is expressly required pursuant to this
Agreement, to the Company or any Loan Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
Act
of
the Certificateholders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent or proxy shall be sufficient for any purpose
of this Agreement and conclusive in favor of the Trustee, the Company and the related Loan Trustee,
if made in the manner provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the certificate of any notary public or other officer of any jurisdiction authorized to
take acknowledgments of deeds or administer oaths that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or such other officer, and where such execution is by an officer of a
corporation or association or a member of a partnership, on behalf of such corporation, association
or partnership, such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other reasonable manner which the
Trustee deems sufficient.
(c) In determining whether the Certificateholders of the requisite Fractional Undivided
Interests of Certificates of any series Outstanding have given any Direction under this Agreement,
Certificates owned by the Company, any related Owner Trustee, any related Owner Participant or any
Affiliate of any such Person shall be disregarded and deemed not to be Outstanding for purposes of
any such determination. In determining whether the Trustee shall be protected in relying upon any
such Direction, only Certificates which the Trustee knows to be so owned shall be so disregarded.
Notwithstanding the foregoing, (i) if any such Person owns 100% of the Certificates of any series
Outstanding, such Certificates shall not be so disregarded, and (ii) if any amount of Certificates
of any series so owned by any such Person have been pledged in good faith, such Certificates shall
not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgees
right so to act with respect to such Certificates and that the pledgee is not the Company, any
related Owner Trustee, any related Owner Participant or any Affiliate of any such Person.
(d) The Company may, at its option, by delivery of an Officers Certificate to the Trustee,
set a record date to determine the Certificateholders in respect of the Certificates of any series
entitled to give any Direction. Notwithstanding Section 316 (c) of the Trust Indenture Act, such
record date shall be the record date specified in such Officers Certificate, which shall be a date
not more than 30 days prior to the first solicitation of Certificateholders of the
13
applicable series in connection therewith. If such a record date is fixed, such Direction may
be given before or after such record date, but only the Certificateholders of record of the
applicable series at the close of business on such record date shall be deemed to be
Certificateholders for the purposes of determining whether Certificateholders of the requisite
proportion of Outstanding Certificates of such series have authorized or agreed or consented to
such Direction, and for that purpose the Outstanding Certificates of such series shall be computed
as of such record date;
provided
,
however
, that no such Direction by the
Certificateholders on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Agreement not later than one year after such record date.
(e) Any Direction by the Holder of any Certificate shall bind the Holder of every Certificate
issued upon the transfer thereof or in exchange therefor or in lieu thereof, whether or not
notation of such Direction is made upon such Certificate.
(f) Except as otherwise provided in Section 1.04(c), Certificates of any series owned by or
pledged to any Person shall have an equal and proportionate benefit under the provisions of this
Agreement, without preference, priority or distinction as among all of the Certificates of such
series.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES: ACQUISITION OF TRUST PROPERTY
Section 2.01.
Amount Unlimited; Issuable in Series
. (a) The aggregate face amount of
Certificates that may be authenticated and delivered under this Basic Agreement is unlimited. The
Certificates may be issued from time to time in one or more series and shall be designated
generally as the Pass Through Certificates, with such further designations added or incorporated
in such title for the Certificates of each series as are specified in the related Trust Supplement.
Each Certificate shall bear upon its face the designation so selected for the series to which it
belongs. All Certificates of the same series shall be substantially identical except that the
Certificates of a series may differ as to denomination and as may otherwise be provided in the
Trust Supplement establishing the Certificates of such series. Each series of Certificates issued
pursuant to this Agreement will evidence fractional undivided interests in the related Trust and,
except as may be specified in any Intercreditor Agreement or in the applicable Trust Supplement,
will have no rights, benefits or interests in respect of any other Trust or the Trust Property held
therein. All Certificates of the same series shall be in all respects equally and ratably entitled
to the benefits of this Agreement without preference, priority or distinction on account of the
actual time or times of authentication and delivery, all in accordance with the terms and
provisions of this Agreement.
(b) The following matters shall be established with respect to the Certificates of each series
issued under this Agreement by a Trust Supplement executed and delivered (x) by and between the
Company and the Trustee, or (y) if the Parent will guarantee the obligations of the Company under
any Equipment Notes or any Leases related to Equipment Notes to be acquired and held in the Trust
formed by such Trust Supplement, by and among the Parent, the Company and the Trustee:
14
(1) the formation of the Trust as to which the Certificates of such series represent
fractional undivided interests and its designation (which designation shall distinguish such
Trust from each other Trust created under this Basic Agreement and a Trust Supplement);
(2) the specific title of the Certificates of such series (which title shall
distinguish the Certificates of such series from each other series of Certificates created
under this Basic Agreement and a Trust Supplement);
(3) subject to Section 2.01(a), any limit upon the aggregate face amount of the
Certificates of such series which may be authenticated and delivered under this Basic
Agreement (which limit shall not pertain to Certificates authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Certificates of the
series pursuant to Sections 3.03, 3.04, 3.05(d) and 3.06);
(4) the Cut-off Date with respect to the Certificates of such series and the related
Trust;
(5) the Regular Distribution Dates applicable to the Certificates of such series;
(6) the Special Distribution Dates applicable to the Certificates of such series;
(7) if other than as provided in Sections 3.04 or 7.12(b), the Registrar or the Paying
Agent for the Certificates of such series, including any Co-Registrar or additional Paying
Agent;
(8) if other than as provided in Section 3.01, the denominations in which the
Certificates of such series shall be issuable;
(9) if other than United States dollars, the currency or currencies (including
composite currencies or currency units) in which the Certificates of such series shall be
denominated or payable, in whole or in part;
(10) the specific form of the Certificates of such series (including the interest rate
applicable thereto) and whether or not Certificates of such series are to be issued as
Book-Entry Certificates and, if such Certificates are to be Book-Entry Certificates, the
form of Letter of Representations, if any (or, in the case of any Certificates denominated
or payable in a currency other than United States dollars and if other than as provided in
Section 3.05, whether and the circumstances under which beneficial owners of interests in
such Certificates in permanent global form may exchange such interests for Certificates of
such series and of like tenor of any authorized form and denomination);
(11) a description of the Equipment Notes, and, if applicable, of any notes issued by a
trust or other entity secured by Equipment Notes, to be acquired and held in the Trust
formed by such Trust Supplement and of the related Aircraft, if determined, and Note
Documents, if determined;
15
(12) provisions with respect to the terms for which the definitions set forth in
Article I hereof or the terms of any Section of this Basic Agreement, including Section
11.01, permit or require further specification in the related Trust Supplement;
(13) any restrictions (including legends) in respect of ERISA or tax matters;
(14) the acceptance of appointment by the institution named to act as Trustee with
respect to such Trust, if different from the institution executing this Basic Agreement or
its successor;
(15) whether such series will be subject to an Intercreditor Agreement and, if so, the
specific designation of such Intercreditor Agreement and the rights of Potential Purchasers
upon the occurrence of a Triggering Event;
(16) whether such series will have the benefit of a Liquidity Facility or other form of
credit enhancement and, if so, any terms appropriate thereto;
(17) whether the Parent will guarantee the obligations of the Company under any
Equipment Notes or any Leases related to Equipment Notes to be acquired and held in the
Trust formed by such Trust Supplement and, if so, the specific form of such Guarantee or
Guarantees and a statement that the Parent shall be an obligor as such term is defined in
and solely for purposes of the Trust Indenture Act and shall be required to comply with
those provisions of this Agreement compliance with which is required by an obligor under
the Trust Indenture Act;
(18) whether there will be a deposit agreement, escrow agreement or other arrangement
prior to the delivery of one or more Aircraft or the commencement of the Lease with respect
to one or more Aircraft, and, if so, any terms appropriate thereto;
(19) the extent, if any, to which the Company may acquire Certificates and deliver such
Certificates or cash to the respective Trusts and obtain the release of Equipment Notes or
other Trust Property held by such Trusts;
(20) if the Certificates of such series are to be issued in bearer form, the forms
thereof and any other special terms relating thereto;
(21) the Responsible Party for purposes of directing the Trustee to make Specified
Investments; and
(22) any other terms of the Certificates of such series or any related Guarantee (which
terms shall not be inconsistent with the provisions of the Trust Indenture Act but may
modify, amend, supplement or delete any of the terms of this Basic Agreement), including any
terms of the Certificates of such series which may be required or advisable under United
States laws or regulations or advisable (as determined by the Company) in connection with
the marketing of Certificates of the series.
(c) At any time and from time to time after the execution and delivery of this Basic Agreement
and a Trust Supplement forming a Trust and establishing the terms of
16
Certificates of a series, Certificates of such series shall be executed, authenticated and
delivered by the Trustee to the Person or Persons specified by the Company upon request of the
Company and upon satisfaction or waiver of any conditions precedent set forth in such Trust
Supplement or in any other document to which a Trustee is a party relating to the issuance of the
Certificates of such series.
Section 2.02.
Acquisition of Equipment Notes
. (a) Unless otherwise specified in the
related Trust Supplement, on or prior to the Issuance Date of the Certificates of a series, the
Trustee shall execute and deliver the related Note Purchase Agreements in the form delivered to the
Trustee by the Company and shall, subject to the respective terms thereof, perform its obligations
under such Note Purchase Agreements. Unless otherwise specified in the related Trust Supplement,
the Trustee shall issue and sell such Certificates, in authorized denominations and in such
Fractional Undivided Interests, so as to result in the receipt of consideration in an amount equal
to the aggregate purchase price of the Equipment Notes (and/or, if applicable, any notes issued by
a trust or other entity secured by Equipment Notes) contemplated to be purchased by the Trustee
under the related Note Purchase Agreements and, concurrently therewith (unless the Company shall
have delivered to the Trustee the Postponement Notice relating to one or more Postponed Notes
pursuant to Subsection (b) below), the Trustee shall purchase, pursuant to the terms and conditions
of the Note Purchase Agreements, such Equipment Notes (except Postponed Notes, if any)(or other
notes) at a purchase price equal to the amount of such consideration so received. Except as
provided in Sections 3.03, 3.04, 3.05 and 3.06 hereof, the Trustee shall not execute, authenticate
or deliver Certificates of such series in excess of the aggregate amount specified in this
paragraph. The provisions of this Subsection (a) are subject to the provisions of Subsection (b)
below.
(b) Unless otherwise specified in the related Trust Supplement, if on or prior to the Issuance
Date with respect to a series of Certificates the Company shall deliver to the Trustee a
Postponement Notice relating to one or more Postponed Notes, the Trustee shall postpone the
purchase of such Postponed Notes and shall deposit into an escrow account (as to the related Trust,
the
Escrow Account
) to be maintained as part of the related Trust an amount equal to the
purchase price of such Postponed Notes (the
Escrowed Funds
). The portion of the Escrowed
Funds so deposited with respect to any particular Postponed Notes shall be invested (a) by the
Trustee at the written direction and risk of, and for the benefit of, the Responsible Party in
Specified Investments or (b) if provided in the Trust Supplement relating to such series of
Certificates and subject to the terms and conditions set forth therein, in debt instruments of the
Company, in each case (i) maturing no later than any scheduled Transfer Date relating to such
Postponed Notes, or (ii) if no such Transfer Date has been scheduled, maturing on the next Business
Day, or (iii) if subsequent to the giving of the applicable Postponement Notice the Company has
given notice to the Trustee that such Postponed Notes will not be issued, maturing on the next
applicable Special Distribution Date, if such investments are reasonably available for purchase.
The Trustee shall make withdrawals from the Escrow Account only as provided in this Agreement.
Upon request of the Company on one or more occasions and the satisfaction or waiver of the closing
conditions specified in the applicable Note Purchase Agreements on or prior to the related Cut-off
Date, the Trustee shall purchase the applicable Postponed Notes, on the terms specified in such
Note Purchase Agreements, with the Escrowed Funds withdrawn from the Escrow Account.
17
The Trustee shall hold all Specified Investments until the maturity thereof and will not sell
or otherwise transfer Specified Investments. If Specified Investments held in an Escrow Account
mature prior to any applicable Transfer Date, any proceeds received on the maturity of such
Specified Investments (other than any earnings thereon) shall be reinvested by the Trustee at the
written direction and risk of, and for the benefit of, the Responsible Party in Specified
Investments maturing as provided in the preceding paragraph.
Subject to the provisions of the Intercreditor Agreement, any earnings on Specified
Investments received from time to time by the Trustee shall be promptly distributed to the
Responsible Party. The Responsible Party shall pay to the Trustee for deposit to the relevant
Escrow Account an amount equal to any net losses on any Specified Investments made at its direction
and risk as incurred. On any Regular Distribution Date in respect of the Certificates of any
series occurring prior to the date of purchase of any Postponed Notes by the Trustee, the
Responsible Party will pay (in immediately available funds) to the Trustee an amount equal to the
interest that would have accrued on such Postponed Notes if such Postponed Notes had been purchased
on the later of the Issuance Date or the previous Regular Distribution Date in respect of the
Certificates of such series to, but not including, such Regular Distribution Date. On the first
Regular Distribution Date in respect of the Certificates of any series following the purchase of
any Postponed Notes by the Trustee, the Responsible Party will pay (in immediately available funds)
to the Trustee an amount equal to the interest that would have accrued on such Postponed Notes if
such Postponed Notes had been purchased on the later of the Issuance Date or the previous Regular
Distribution Date in respect of the Certificates of such series to, but not including, the date of
the purchase of such Postponed Notes by the Trustee.
If, in respect of the Certificates of any series, the Company notifies the Trustee prior to
the Cut-off Date that any Postponed Notes will not be issued on or prior to the Cut-off Date for
any reason, on the next Special Distribution Date for such Certificates occurring not less than 15
days following the date of such notice, (i) the Responsible Party shall pay (in immediately
available funds) to the Trustee for deposit in the related Special Payments Account, an amount
equal to the interest that would have accrued on the Postponed Notes designated in such notice from
the later of the Issuance Date or the previous Regular Distribution Date in respect of the
Certificates of such series to, but not including, such Special Distribution Date and (ii) the
Trustee shall transfer an amount equal to that amount of Escrowed Funds that would have been used
to purchase the Postponed Notes designated in such notice and the amount paid by the Responsible
Party pursuant to the immediately preceding clause (i) to the related Special Payments Account for
distribution as a Special Payment in accordance with the provisions hereof.
If, on such Cut-off Date, an amount equal to less than all of the Escrowed Funds (other than
Escrowed Funds referred to in the immediately preceding paragraph) has been used to purchase
Postponed Notes, on the next Special Distribution Date occurring not less than 15 days following
such Cut-off Date (i) the Responsible Party shall pay to the Trustee for deposit in such Special
Payments Account, in immediately available funds, an amount equal to the interest that would have
accrued on such Postponed Notes contemplated to be purchased with such unused Escrowed Funds (other
than Escrowed Funds referred to in the immediately preceding paragraph) but not so purchased from
the later of the Issuance Date or the previous Regular Distribution Date in respect of the
Certificates of such series to, but not including, such
18
Special Distribution Date and (ii) the Trustee shall transfer such unused Escrowed Funds and the
amount paid by the Responsible Party pursuant to the immediately preceding clause (i) to such
Special Payments Account for distribution as a Special Payment in accordance with the provisions
hereof.
Section 2.03.
Acceptance by Trustee
. The Trustee, by the execution and delivery of a
Trust Supplement creating a Trust and establishing a series of Certificates, shall acknowledge its
acceptance of all right, title and interest in and to the Trust Property to be acquired pursuant to
Section 2.02 hereof and the related Note Purchase Agreements and shall declare that the Trustee
holds and will hold such right, title and interest for the benefit of all then present and future
Certificateholders of such series, upon the trusts herein and in such Trust Supplement set forth.
By the acceptance of each Certificate of such series issued to it under this Agreement, each
initial Holder of such series as grantor of such Trust shall thereby join in the creation and
declaration of such Trust.
Section 2.04.
Limitation of Powers
. Each Trust shall be constituted solely for the
purpose of making the investment in the Equipment Notes provided for in the related Trust
Supplement, and, except as set forth in this Agreement, the Trustee shall not be authorized or
empowered to acquire any other investments or engage in any other activities and, in particular,
the Trustee shall not be authorized or empowered to do anything that would cause such Trust to fail
to qualify as a grantor trust for federal income tax purposes (including, as subject to this
restriction, acquiring any Aircraft (as defined in the related Indentures) by bidding for such
Equipment Notes or otherwise, or taking any action with respect to any such Aircraft once
acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01.
Form, Denomination and Execution of Certificates
. Except to the extent
otherwise provided in the applicable Trust Supplement, the Certificates of each series shall be
issued in fully registered form without coupons and shall be substantially in the form attached to
the related Trust Supplement, with such omissions, variations and insertions as are permitted by
this Agreement, and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with any applicable laws,
rules, regulations, or the rules of any securities exchange on which such Certificates may be
listed or to conform to any usage in respect thereof, or as may, consistently with this Agreement,
be determined by the Trustee or the officers executing such Certificates, as evidenced by the
Trustees or such officers execution of the Certificates.
Except as provided in Section 3.05, the definitive Certificates of such series shall be typed,
printed, lithographed or engraved or produced by any combination of these methods or may be
produced in any other manner permitted by the rules of any securities exchange on which the
Certificates may be listed, all as determined by the officers executing such Certificates, as
evidenced by their execution of such Certificates.
19
Except as otherwise provided in the related Trust Supplement, the Certificates of each series
shall be issued in minimum denominations of $1,000 or integral multiples thereof except that one
Certificate of such series may be issued in a different denomination.
The Certificates of such series shall be executed on behalf of the Trustee by manual or
facsimile signature of a Responsible Officer of the Trustee. Certificates of any series bearing
the manual or facsimile signature of an individual who was, at the time when such signature was
affixed, authorized to sign on behalf of the Trustee shall be valid and binding obligations of the
Trustee, notwithstanding that such individual has ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such office at the date of such
Certificates.
Section 3.02.
Authentication of Certificates
. (a) Except to the extent otherwise
provided in the applicable Trust Supplement, on the Issuance Date, the Trustee shall duly execute,
authenticate and deliver Certificates of each series in authorized denominations equaling in the
aggregate the aggregate principal amount of the Equipment Notes that may be purchased by the
Trustee pursuant to the related Note Purchase Agreements, and evidencing the entire ownership of
the related Trust. Thereafter, the Trustee shall duly execute, authenticate and deliver the
Certificates of such series as provided in this Agreement.
(b) No Certificate of any series shall be entitled to any benefit under this Agreement, or be
valid for any purpose, unless there appears on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A executed by the Trustee by manual signature, and
such certificate of authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered hereunder. All
Certificates of any series shall be dated the date of their authentication.
Section 3.03.
Temporary Certificates
. Until definitive Certificates are ready for
delivery, the Trustee shall execute, authenticate and deliver temporary Certificates of each
series. Temporary Certificates of each series shall be substantially in the form of definitive
Certificates of such series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the officers executing the temporary Certificates of such series,
as evidenced by their execution of such temporary Certificates. If temporary Certificates of any
series are issued, the Trustee will cause definitive Certificates of such series to be prepared
without unreasonable delay. After the preparation of definitive Certificates of such series, the
temporary Certificates shall be exchangeable for definitive Certificates upon surrender of such
temporary Certificates at the office or agency of the Trustee designated for such purpose pursuant
to Section 7.12, without charge to the Certificateholder. Upon surrender for cancellation of any
one or more temporary Certificates, the Trustee shall execute, authenticate and deliver in exchange
therefor a like face amount of definitive Certificates of like series, in authorized denominations
and of a like Fractional Undivided Interest. Until so exchanged, such temporary Certificates shall
be entitled to the same benefits under this Agreement as definitive Certificates of such series.
Section 3.04.
Transfer and Exchange
. The Trustee shall cause to be kept at the office
or agency to be maintained by it in accordance with the provisions of Section 7.12 a register (the
Register
) for each series of Certificates in which, subject to such reasonable
20
regulations as it may prescribe, the Trustee shall provide for the registration of
Certificates of such series and of transfers and exchanges of such Certificates as herein provided.
The Trustee shall initially be the registrar (the
Registrar
) for the purpose of
registering such Certificates of each series and transfers and exchanges of such Certificates as
herein provided.
All Certificates issued upon any registration of transfer or exchange of Certificates of any
series shall be valid obligations of the applicable Trust, evidencing the same interest therein,
and entitled to the same benefits under this Agreement, as the Certificates of such series
surrendered upon such registration of transfer or exchange.
Upon surrender for registration of transfer of any Certificate at the Corporate Trust Office
or such other office or agency, the Trustee shall execute, authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Certificates of like series, in
authorized denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be exchanged for other Certificates of
like series, in authorized denominations and of a like aggregate Fractional Undivided Interest,
upon surrender of the Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute, authenticate and deliver
the Certificates that the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form satisfactory to the Trustee and
the Registrar duly executed by the Certificateholder thereof or its attorney duly authorized in
writing.
Except to the extent otherwise provided in the applicable Trust Supplement, no service charge
shall be made to a Certificateholder for any registration of transfer or exchange of Certificates,
but the Trustee shall require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Certificates. All Certificates
surrendered for registration of transfer or exchange shall be cancelled and subsequently destroyed
by the Trustee.
Section 3.05.
Book-Entry and Definitive Certificates
. (a) Except for one Certificate
of each series that may be issued in a denomination of other than an even multiple of $1,000, the
Certificates of any series may be issued at the option of the Company in the form of one or more
typewritten Certificates representing the Book-Entry Certificates of such series, to be delivered
to The Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the Company. In
such case, the Certificates of such series delivered to The Depository Trust Company shall
initially be registered on the Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Certificate Owner will receive a definitive certificate representing such
Certificate Owners interest in the Certificates of such series, except as provided above and in
Subsection (d) below. As to the Certificates of any such series (other than the one Certificate of
such series issued in a denomination of other than an even multiple of $1,000), unless and until
definitive, fully registered Certificates (the
Definitive Certificates
) have been issued
pursuant to Subsection (d) below:
(i) the provisions of this Section 3.05 shall be in full force and effect;
21
(ii) the Company, the Paying Agent, the Registrar and the Trustee may deal with the
Clearing Agency for all purposes (including the making of distributions on the
Certificates);
(iii) to the extent that the provisions of this Section 3.05 conflict with any other
provisions of this Agreement (other than the provisions of any Trust Supplement expressly
amending this Section 3.05 as permitted by this Basic Agreement), the provisions of this
Section 3.05 shall control;
(iv) the rights of Certificate Owners shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency and/or the Clearing Agency Participants; and
until Definitive Certificates are issued pursuant to Subsection (d) below, the Clearing
Agency will make book-entry transfers among the Clearing Agency Participants and receive and
transmit distributions of principal, interest and premium, if any, on the Certificates to
such Clearing Agency Participants;
(v) such Certificates of such series may be transferred in whole, but not in part, and
in the manner provided in Section 3.04, by the Clearing Agency holding such Certificates to
a nominee of such Clearing Agency, or by such Clearing Agency to a successor Clearing Agency
that has been selected or approved by the Company or to a nominee of such successor Clearing
Agency; and
(vi) whenever this Agreement requires or permits actions to be taken based upon
instructions or directions of Certificateholders of such series holding Certificates of such
series evidencing a specified percentage of the Fractional Undivided Interests in the
related Trust, the Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Clearing Agency Participants
owning or representing, respectively, such required percentage of the beneficial interest in
Certificates of such series and has delivered such instructions to the Trustee. None of the
Company, the Parent or the Trustee or any agent of any of them shall have any obligation to
determine whether the Clearing Agency has in fact received any such instructions.
(b) Whenever notice or other communication to the Certificateholders of a series is required
under this Agreement, unless and until Definitive Certificates shall have been issued pursuant to
Subsection (d) below, the Trustee shall give all such notices and communications specified in this
Agreement to be given to Certificateholders of such series to the Clearing Agency.
(c) Unless and until Definitive Certificates of a series are issued pursuant to Subsection (d)
below, on the Record Date prior to each applicable Regular Distribution Date and Special
Distribution Date, the Trustee will request from the Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on the Clearing Agencys
books as holding interests in the Certificates on such Record Date.
22
(d) If with respect to the Certificates of any series (i) the Company advises the Trustee in
writing that the Clearing Agency is no longer willing or able to discharge properly its
responsibilities and the Trustee or the Company is unable to locate a qualified successor, (ii) the
Company, at its option, advises the Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency or (iii) after the occurrence of an Event of Default,
Certificate Owners of Book-Entry Certificates of such series evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the related Trust, by Act of such
Certificate Owners delivered to the Company and the Trustee, advise the Company, the Trustee and
the Clearing Agency through the Clearing Agency Participants in writing that the continuation of a
book-entry system through the Clearing Agency Participants is no longer in the best interests of
the Certificate Owners of such series, then the Trustee shall notify all Certificate Owners of such
series, through the Clearing Agency, of the occurrence of any such event and of the availability of
Definitive Certificates. Upon surrender to the Trustee of all the Certificates of such series held
by the Clearing Agency, accompanied by registration instructions from the Clearing Agency
Participants for registration of Definitive Certificates in the names of Certificate Owners of such
series, the Trustee shall issue and deliver the Definitive Certificates of such series in
accordance with the instructions of the Clearing Agency. None of the Company, the Registrar, the
Paying Agent or the Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such registration instructions. Upon
the issuance of Definitive Certificates of such series, the Trustee shall recognize the Persons in
whose names the Definitive Certificates are registered in the Register as Certificateholders under
this Agreement. Neither the Company nor the Trustee shall be liable if the Trustee or the Company
is unable to locate a qualified successor Clearing Agency.
(e) Except as otherwise provided in the related Trust Supplement, the Trustee shall enter into
the applicable Letter of Representations with respect to such series of Certificates and fulfill
its responsibilities thereunder.
(f) The provisions of this Section 3.05 may be made inapplicable to any series or may be
amended with respect to any series in the related Trust Supplement.
Section 3.06.
Mutilated, Destroyed, Lost or Stolen Certificates
. If (a) any mutilated
Certificate is surrendered to the Registrar, or the Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate, and (b) there is delivered to the Registrar
and the Trustee such security, indemnity or bond, as may be required by them to save each of them
and the Company harmless, then, in the absence of notice to the Registrar or the Trustee that such
destroyed, lost or stolen Certificate has been acquired by a protected purchaser, and
provided
that the requirements of Section 8-405 of the Uniform Commercial Code in effect in
any applicable jurisdiction are met, the Trustee shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate or Certificates of like series, in authorized denominations and of like Fractional
Undivided Interest and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Certificate under this Section 3.06, the Trustee
shall require the payment of a sum sufficient to cover any tax or other governmental
23
charge that may be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee and the Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.06 shall constitute conclusive
evidence of the appropriate Fractional Undivided Interest in the related Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.
The provisions of this Section 3.06 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Certificates.
Section 3.07.
Persons Deemed Owners
. Prior to due presentment of a Certificate for
registration of transfer, the Company, the Trustee, the Registrar and any Paying Agent may treat
the Person in whose name any Certificate is registered (as of the day of determination) on the
Register as the owner of such Certificate and the Certificateholder for the purpose of receiving
distributions pursuant to Article IV and for all other purposes whatsoever, and none of the
Company, the Trustee, the Registrar or any Paying Agent shall be affected by any notice to the
contrary. All payments or distributions made to any such Person shall be valid and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable on
any such Certificate.
Unless otherwise provided with respect to any Certificates pursuant to Section 2.01(b), the
Company, the Parent, any other obligor upon any Certificates and any Affiliate of any thereof may
acquire, tender for, purchase, own, hold, become the pledgee of and otherwise deal with any
Certificates.
Section 3.08.
Cancellation
. All Certificates surrendered for payment or transfer or
exchange shall, if surrendered to the Trustee or any agent of the Trustee other than the Registrar,
be delivered to the Registrar for cancellation and shall promptly be cancelled by it. No
Certificates shall be authenticated in lieu of or in exchange for any Certificates cancelled as
provided in this Section 3.08, except as expressly permitted by this Agreement. All cancelled
Certificates held by the Registrar shall be destroyed and a certification of their destruction
delivered to the Trustee.
Section 3.09.
Limitation of Liability for Payments
. All payments and distributions
made to Certificateholders of any series in respect of the Certificates of such series shall be
made only from the Trust Property of the related Trust and only to the extent that the Trustee
shall have sufficient income or proceeds from such Trust Property to make such payments in
accordance with the terms of Article IV of this Agreement. The Certificates do not represent
indebtedness of the related Trusts, and references herein or in any Trust Supplement to interest
accruing on any Certificates are intended for purposes of computation only. Each
Certificateholder, by its acceptance of a Certificate, agrees that it will look solely to the
income and proceeds from the Trust Property of the related Trust for any payment or distribution
due to such Certificateholder pursuant to the terms of this Agreement and that it will not have any
recourse to the Company, the Trustee, any Liquidity Providers, the Loan Trustees, any Owner
24
Trustee or any Owner Participant, except as otherwise expressly provided in this Agreement, in
any Note Document or in any related Intercreditor Agreement.
The Company is a party to this Agreement solely for purposes of meeting the requirements of
the Trust Indenture Act, and therefore the Company shall not have any right, obligation or
liability hereunder, or under the terms of any Trust Supplement or any Certificates (except as
otherwise expressly provided herein or therein).
Section 3.10.
CUSIP Numbers
. The Certificates may include CUSIP numbers (if then
generally in use), and if so, the Trustee may use the CUSIP numbers in notices in respect of the
Certificates;
provided
,
however
, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number printed in the notice
or on the Certificates, that reliance may be placed only on the other identification numbers
printed on the Certificates, and any such notice shall not be affected by any defect or omission of
such CUSIP numbers.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01.
Certificate Account and Special Payments Account
. (a) The Trustee shall
establish and maintain on behalf of the Certificateholders of each series a Certificate Account as
one or more non-interest-bearing accounts. The Trustee shall hold such Certificate Account in
trust for the benefit of the Certificateholders of such series, and shall make or permit
withdrawals therefrom only as provided in this Agreement or any Intercreditor Agreement. On each
day when a Scheduled Payment is made to the Trustee with respect to the Certificates of any series,
the Trustee, upon receipt thereof, shall immediately deposit the aggregate amount of such Scheduled
Payment in the applicable Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the Certificateholders of each
series a Special Payments Account as one or more accounts, which shall be non-interest bearing
except as provided in Section 4.04. The Trustee shall hold the Special Payments Account in trust
for the benefit of the Certificateholders of such series and shall make or permit withdrawals
therefrom only as provided in this Agreement or any Intercreditor Agreement. On each day when one
or more Special Payments are made to the Trustee with respect to the Certificates of any series,
the Trustee, upon receipt thereof, shall immediately deposit the aggregate amount of such Special
Payments in the applicable Special Payments Account.
(c) The Trustee shall present (or, if applicable, cause the Subordination Agent to present) to
the related Loan Trustee of each Equipment Note such Equipment Note on the date of its stated final
maturity or, in the case of any Equipment Note which is to be redeemed or purchased in whole
pursuant to the related Indenture, on the applicable redemption or purchase date under such
Indenture.
Section 4.02.
Distributions from Certificate Account and Special Payments Account
.
(a) Subject to the provisions of the Intercreditor Agreement, on each Regular
25
Distribution Date with respect to a series of Certificates or as soon thereafter as the
Trustee has confirmed receipt of the payment of all or any part of the Scheduled Payments due on
the Equipment Notes held in the related Trust on such date, the Trustee shall distribute out of the
applicable Certificate Account the entire amount deposited therein pursuant to Section 4.01(a).
There shall be so distributed to each Certificateholder of record of such series on the Record Date
with respect to such Regular Distribution Date (other than as provided in Section 11.01 concerning
the final distribution) by check mailed to such Certificateholder, at the address appearing in the
Register, such Certificateholders pro rata share (based on the aggregate Fractional Undivided
Interest in the related Trust held by such Certificateholder) of the total amount in the applicable
Certificate Account, except that, with respect to Certificates registered on the Record Date in the
name of a Clearing Agency (or its nominee), such distribution shall be made by wire transfer in
immediately available funds to the account designated by such Clearing Agency (or such nominee).
(b) Subject to the provisions of the Intercreditor Agreement, on each Special Distribution
Date with respect to any Special Payment with respect to a series of Certificates or as soon
thereafter as the Trustee has confirmed receipt of any Special Payments due on the Equipment Notes
held in the related Trust or realized upon the sale of such Equipment Notes, the Trustee shall
distribute out of the applicable Special Payments Account the entire amount of such applicable
Special Payment deposited therein pursuant to Section 4.01(b). There shall be so distributed to
each Certificateholder of record of such series on the Record Date with respect to such Special
Distribution Date (other than as provided in Section 11.01 concerning the final distribution) by
check mailed to such Certificateholder, at the address appearing in the Register, such
Certificateholders pro rata share (based on the aggregate Fractional Undivided Interest in the
related Trust held by such Certificateholder) of the total amount in the applicable Special
Payments Account on account of such Special Payment, except that, with respect to Certificates
registered on the Record Date in the name of a Clearing Agency (or its nominee), such distribution
shall be made by wire transfer in immediately available funds to the account designated by such
Clearing Agency (or such nominee).
(c) The Trustee shall, at the expense of the Company, cause notice of each Special Payment
with respect to a series of Certificates to be mailed to each Certificateholder of such series at
such Certificateholders address as it appears in the Register. Subject to the provisions of the
Intercreditor Agreement: (i) in the event of redemption or purchase of Equipment Notes held in the
related Trust, such notice shall be mailed not less than 15 days prior to the Special Distribution
Date for the Special Payment resulting from such redemption or purchase, which Special Distribution
Date shall be the date of such redemption or purchase; (ii) in the event that the Trustee receives
a notice from the Company pursuant to Section 2.02 that Postponed Notes will not be purchased by
the Trustee, such notice of Special Payment shall be mailed as soon as practicable after receipt of
such notice from the Company and shall state the Special Distribution Date for such Special
Payment, which shall occur 15 days after the date of such notice of Special Payment or (if such
15th day is not practicable) as soon as practicable thereafter; (iii) in the event that any Special
Payment is to be made pursuant to the last paragraph of Section 2.02(b) hereof, such notice of
Special Payment shall be mailed on the Cut-off Date (or, if such mailing on the Cut-off Date is not
practicable, as soon as practicable after the Cut-off Date), and shall state the Special
Distribution Date for such Special Payment, which shall occur 15 days after the date of such notice
of Special Payment (or, if such 15th day is not practicable,
26
as soon as practicable thereafter); and (iv) in the case of any other Special
Payments, such notice of Special Payment shall be mailed as soon as practicable after the Trustee
has confirmed that it has received funds for such Special Payment, and shall state the Special
Distribution Date for such Special Payment, which shall occur 15 days after the date of such notice
of Special Payment or (if such 15th day is not practicable) as soon as practicable thereafter.
Notices mailed by the Trustee as provided in the paragraphs above shall set forth:
(i) the Special Distribution Date and the Record Date therefor (except as otherwise
provided in Section 11.01);
(ii) the amount of the Special Payment (taking into account any payment to be made by
the Responsible Party pursuant to Section 2.02(b)) for each $1,000 face amount Certificate
and the amount thereof constituting principal, premium, if any, and interest;
(iii) the reason for the Special Payment; and
(iv) if the Special Distribution Date is the same date as a Regular Distribution Date
for the Certificates of such series, the total amount to be received on such date for each
$1,000 face amount Certificate.
If the amount of premium, if any, payable upon the redemption or purchase of an Equipment Note
has not been calculated at the time that the Trustee mails notice of a Special Payment, it shall be
sufficient if the notice sets forth the other amounts to be distributed and states that any premium
received will also be distributed.
If any redemption or purchase of the Equipment Notes held in any Trust is cancelled, the
Trustee, as soon as possible after learning thereof, shall cause notice thereof to be mailed to
each Certificateholder of the related series at its address as it appears on the Register.
Section 4.03.
Statements to Certificateholders
. (a) On each Regular Distribution Date
and Special Distribution Date, the Trustee will include with each distribution of a Scheduled
Payment or Special Payment, as the case may be, to Certificateholders of the related series a
statement setting forth the information provided below. Such statement shall, except to the extent
otherwise provided in the applicable Trust Supplement, set forth (per $1,000 aggregate face amount
of Certificate as to (i), (ii) and (iii) below) the following information:
(i) the aggregate amount of funds distributed on such Distribution Date under this
Agreement, indicating the amount allocable to each source including any portion thereof
provided by the Liquidity Providers;
(ii) the amount of such distribution under this Agreement allocable to principal and
the amount allocable to premium, if any;
(iii) the amount of such distribution under this Agreement allocable to interest; and
(iv) the Pool Balance and the Pool Factor of the related Trust.
27
With respect to the Certificates registered in the name of a Clearing Agency or its nominee,
on the Record Date prior to each Distribution Date, the Trustee will, at the expense of the
Company, request from the Clearing Agency a securities position listing setting forth the names of
all the Clearing Agency Participants reflected on the Clearing Agencys books as holding interests
in the Certificates on such Record Date. On each Distribution Date, the applicable Trustee will
mail to each such Clearing Agency Participant the statement described above and will make available
additional copies as requested by such Clearing Agency Participant for forwarding to holders of
interests in the Certificates.
(b) Within a reasonable period of time after the end of each calendar year but not later than
the latest date permitted by law, except to the extent otherwise provided in the applicable Trust
Supplement, the Trustee shall furnish to each Person who at any time during such calendar year was
a Certificateholder of record a statement containing the sum of the amounts determined pursuant to
clauses (a)(i), (a)(ii) and (a)(iii) above with respect to the related Trust for such calendar year
or, in the event such Person was a Certificateholder of record during a portion of such calendar
year, for the applicable portion of such year, and such other items as are readily available to the
Trustee and which a Certificateholder shall reasonably request as necessary for the purpose of such
Certificateholders preparation of its federal income tax returns. With respect to Certificates
registered in the name of a Clearing Agency or its nominee, such statement and such other items
shall be prepared on the basis of information supplied to the Trustee by the Clearing Agency
Participants and shall be delivered by the Trustee to such Clearing Agency Participants to be
available for forwarding by such Clearing Agency Participants to the holders of interests in the
Certificates.
Section 4.04.
Investment of Special Payment Moneys
. Any money received by the Trustee
pursuant to Section 4.01(b) representing a Special Payment which is not distributed on the date
received shall, to the extent practicable, be invested by the Trustee in Permitted Investments
selected by the Controlling Party in telephonic (confirmed in writing) or written instructions to
the Trustee pending distribution of such Special Payment pursuant to Section 4.02. Absent receipt
of such instructions from the Controlling Party, such Special Payment shall remain uninvested by
the Trustee pending receipt of investment instructions. Any investment made pursuant to this
Section 4.04 shall be in such Permitted Investments having maturities not later than the date that
such moneys are required to be used to make the payment required under Section 4.02 on the
applicable Special Distribution Date and the Trustee shall hold any such Permitted Investments
until maturity. The Trustee shall have no liability with respect to any investment made pursuant
to this Section 4.04, other than by reason of the willful misconduct or negligence of the Trustee.
All income and earnings from such investments shall be distributed on such Special Distribution
Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01.
Maintenance of Corporate Existence
. The Company, at its own cost and
expense, will do or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises, except as otherwise specifically permitted
in Section 5.02;
provided
,
however
, that the Company shall not be required to
preserve
28
any right or franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 5.02.
Consolidation, Merger, Etc
. The Company shall not consolidate with or
merge into any other Person under circumstances in which the Company is not the surviving
corporation or convey, transfer or lease substantially all of its assets as an entirety to any
Person unless:
(a) the Person formed by such consolidation or into which the Company is merged or the Person
that acquires by conveyance, transfer or lease substantially all of the assets of the Company as an
entirety shall (i) be organized and validly existing under the laws of the United States of America
or any state thereof or the District of Columbia, (ii) be a citizen of the United States as
defined in 49 U.S.C. Sections 40102 (a) (15), as amended, and (iii) hold an air carrier operating
certificate issued pursuant to Chapter 447 of Title 49 of the United States Code for aircraft
capable of carrying 10 or more individuals or 6,000 pounds or more of cargo, if and so long as such
status is a condition of entitlement to the benefits of Section 1110 of the Bankruptcy Reform Act
of 1978, as amended (11 U.S.C. Sections 1110), with respect to the Leases or the Aircraft owned by
the Company; and
(b) the Person formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance, transfer or lease substantially all of the assets of the Company as
an entirety shall execute and deliver to the Trustee applicable to the Certificates of each series
a duly authorized, valid, binding and enforceable agreement in form and substance reasonably
satisfactory to the Trustee containing an assumption by such successor corporation or Person of the
due and punctual performance and observance of each covenant and condition of the Note Documents
and of this Agreement applicable to the Certificates of each series to be performed or observed by
the Company.
The Trustee may request an Officers Certificate of the Company and an Opinion of Counsel of
the Company (that may be the Companys General Counsel, Deputy General Counsel, Associate General
Counsel or other senior attorney of the Company) reasonably satisfactory to the Trustee, each
stating that such consolidation, merger, conveyance, transfer or lease and the assumption agreement
mentioned in clause (b) above comply with this Section 5.02 and that all conditions precedent
herein provided for relating to such transaction have been complied with.
Upon any consolidation or merger, or any conveyance, transfer or lease of substantially all of
the assets of the Company as an entirety in accordance with this Section 5.02, the successor
corporation or Person formed by such consolidation or into which the Company 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, the Company under this Agreement applicable to the Certificates
of each series with the same effect as if such successor corporation or Person had been named as
the Company herein. No such conveyance, transfer or lease of substantially all of the assets of
the Company as an entirety shall have the effect of releasing any successor corporation or Person
which shall have become such in the manner prescribed in this Section 5.02 from its liability in
respect of this Agreement and any Note Document applicable to the Certificates of such series to
which it is a party.
29
ARTICLE VI
DEFAULT
Section 6.01.
Indenture Events of Default and Triggering Events
. (a) Upon the
occurrence and during the continuation of any Indenture Event of Default under any Indenture, the
Trustee may (i) to the extent it is the Controlling Party at such time (as determined pursuant to
the related Intercreditor Agreement), direct the exercise of remedies as provided in such related
Intercreditor Agreement and (ii) if there is no related Intercreditor Agreement, direct the
exercise of remedies or take other action as provided in the relevant Indenture to the extent that
it may do so as the holder of the Equipment Notes issued under such Indenture and held in the
related Trust.
(b) By acceptance of its Certificate, each Certificateholder agrees that at any time after the
occurrence and during the continuation of a Triggering Event, each Certificateholder of
Certificates of certain series (each, a
Potential Purchaser
and, collectively, the
Potential Purchasers
) may have certain rights to purchase the Certificates of one or more
other series, all as set forth in the Trust Supplement applicable to the Certificates held by such
Potential Purchaser. The purchase price with respect to the Certificates of any series shall be
equal to the Pool Balance of the Certificates of such series, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including any other amounts
then due and payable to the Certificateholders of such series under this Agreement, any related
Intercreditor Agreement or any other Note Document or on or in respect of the Certificates of such
series;
provided
,
however
, that if such purchase occurs after a Record Date, such
purchase price shall be reduced by the amount to be distributed under this Agreement on the related
Distribution Date (which deducted amounts shall remain distributable to, and may be retained by,
the Certificateholder as of such Record Date);
provided
,
further
, that no such
purchase of Certificates of such series shall be effective unless the purchasing Certificateholder
(each, a
Purchasing Certificateholder
and, collectively, the
Purchasing
Certificateholders
) shall certify to the Trustee that contemporaneously with such purchase,
one or more Purchasing Certificateholders are purchasing, pursuant to the terms of this Agreement
and the other Agreements, if any, relating to the Certificates of a series that are subject to the
same Intercreditor Agreement (such other Agreements, the
Other Agreements
), the
Certificates of each such series that the Trust Supplement applicable to the Certificates held by
the Purchasing Certificateholder specifies may be purchased by such Purchasing Certificateholder.
Each payment of the purchase price of the Certificates of any series shall be made to an account or
accounts designated by the Trustee and each such purchase shall be subject to the terms of this
Section 6.01. By acceptance of its Certificate, each Certificateholder (each, a
Selling
Certificateholder
and, collectively, the
Selling Certificateholders
) of a series
that is subject to purchase by Potential Purchasers, all as set forth in the Trust Supplement
applicable to the Certificates held by the Selling Certificateholders, agrees that, at any time
after the occurrence and during the continuance of a Triggering Event, it will, upon payment of the
purchase price specified in this Agreement by one or more Purchasing Certificateholders, forthwith
sell, assign, transfer and convey to such Purchasing Certificateholder (without recourse,
representation or warranty of any kind except for its own acts), all of the right, title, interest
and obligation of such Selling Certificateholder in this Agreement, any related Intercreditor
Agreement, the related Liquidity Facility, the related Note Documents and all Certificates of such
series held by such
30
Selling Certificateholder (excluding all right, title and interest under any of the foregoing
to the extent such right, title or interest is with respect to an obligation not then due and
payable as respects any action or inaction or state of affairs occurring prior to such sale) and
the Purchasing Certificateholder shall assume all of such Selling Certificateholders obligations
under this Agreement, any related Intercreditor Agreement, any related Liquidity Facility and the
related Note Documents. The Certificates of such series will be deemed to be purchased on the date
payment of the purchase price is made notwithstanding the failure of any Selling Certificateholder
to deliver any Certificates of such series and, upon such a purchase, (i) the only rights of the
Selling Certificateholders will be to deliver the Certificates to the Purchasing Certificateholder
and receive the purchase price for such Certificates of such series and (ii) if the Purchasing
Certificateholder shall so request, such Selling Certificateholder will comply with all of the
provisions of Section 3.04 hereof to enable new Certificates of such series to be issued to the
Purchasing Certificateholder in such denominations as it shall request. All charges and expenses
in connection with the issuance of any such new Certificates shall be borne by the Purchasing
Certificateholder.
Section 6.02.
Incidents of Sale of Equipment Notes
. Upon any sale of all or any part
of the Equipment Notes held in the Trust made either under the power of sale given under this
Agreement or otherwise for the enforcement of this Agreement, the following shall be applicable:
(1) Certificateholders and Trustee May Purchase Equipment Notes. Any
Certificateholder, the Trustee in its individual or any other capacity or any other Person
may bid for and purchase any of the Equipment Notes held in the Trust, and upon compliance
with the terms of sale, may hold, retain, possess and dispose of such Equipment Notes in
their own absolute right without further accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of the Trustee making
such sale shall be a sufficient discharge to any purchaser for its purchase money, and,
after paying such purchase money and receiving such receipt, such purchaser or its personal
representative or assigns shall not be obliged to see to the application of such purchase
money, or be in any way answerable for any loss, misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys collected by the Trustee upon
any sale made either under the power of sale given by this Agreement or otherwise for the
enforcement of this Agreement shall be applied as provided in Section 4.02.
Section 6.03.
Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit
. If
there shall be a failure to make payment of the principal of, premium, if any, or interest on any
Equipment Note held in the related Trust, or if there shall be any failure to pay Rent (as defined
in the relevant Lease) under any Lease when due and payable, then the Trustee, in its own name and
as trustee of an express trust, as holder of such Equipment Notes, to the extent permitted by and
in accordance with the terms of any related Intercreditor Agreement and any related Note Documents
(subject to rights of the applicable Owner Trustee or Owner Participant to cure any such failure to
pay principal of, premium, if any, or interest on any Equipment Note
31
or to pay Rent under any Lease in accordance with the applicable Indenture and to the rights
of the Lessee under any applicable Lease), shall be entitled and empowered to institute any suits,
actions or proceedings at law, in equity or otherwise, for the collection of the sums so due and
unpaid on such Equipment Notes or under such Lease and may prosecute any such claim or proceeding
to judgment or final decree with respect to the whole amount of any such sums so due and unpaid.
Section 6.04.
Control by Certificateholders
. Subject to Section 6.03 and any related
Intercreditor Agreement, the Certificateholders holding Certificates of a series evidencing
Fractional Undivided Interests aggregating not less than a majority in interest in the related
Trust shall have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee with respect to such Trust or pursuant to the terms of such
Intercreditor Agreement, or exercising any trust or power conferred on the Trustee under this
Agreement or such Intercreditor Agreement, including any right of the Trustee as Controlling Party
under such Intercreditor Agreement or as holder of the Equipment Notes held in the related Trust;
provided
,
however
, that
(1) such Direction shall not in the opinion of the Trustee be in conflict with any rule
of law or with this Agreement and would not involve the Trustee in personal liability or
expense;
(2) the Trustee shall not determine that the action so directed would be unjustly
prejudicial to the Certificateholders of such series not taking part in such Direction; and
(3) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such Direction.
Section 6.05.
Waiver of Past Defaults
. Subject to any related Intercreditor
Agreement, the Certificateholders holding Certificates of a series evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the related Trust (i) may on behalf
of all of the Certificateholders of such series waive any past default or Event of Default under
this Agreement and its consequences or (ii) if the Trustee is the Controlling Party, may direct the
Trustee to instruct the applicable Loan Trustee to waive any past Indenture default, Indenture
Event of Default, or, if applicable, the corresponding Lease default, under any related Indenture
and its consequences, and thereby annul any Direction given by such Certificateholders or the
Trustee to such Loan Trustee with respect thereto, except a default:
(1) in the deposit of any Scheduled Payment or Special Payment under Section 4.01 or in
the distribution of any payment under Section 4.02 on the Certificates of a series; or
(2) in the payment of the principal of, premium, if any, or interest, if any, on the
Equipment Notes held in the related Trust; or
(3) in respect of a covenant or provision hereof which under Article IX hereof cannot
be modified or amended without the consent of each Certificateholder holding an Outstanding
Certificate of the series affected thereby.
32
Upon any such waiver, such default shall cease to exist with respect to the Certificates of
such series and any Event of Default arising therefrom shall be deemed to have been cured for every
purpose and any direction given by the Trustee on behalf of the Certificateholders of such series
to the relevant Loan Trustee shall be annulled with respect thereto; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any right consequent
thereon. Upon any such waiver, the Trustee shall vote the Equipment Notes issued under the
relevant Indenture to waive the corresponding Indenture Event of Default (and, if applicable, the
corresponding Lease default).
Section 6.06.
Right of Certificateholders to Receive Payments Not to Be Impaired
.
Anything in this Agreement to the contrary notwithstanding, including, without limitation, Section
6.07 hereof, but subject to any related Intercreditor Agreement, the right of any Certificateholder
to receive distributions of payments required pursuant to Section 4.02 hereof on the applicable
Certificates when due, or to institute suit for the enforcement of any such payment on or after the
applicable Regular Distribution Date or Special Distribution Date, shall not be impaired or
affected without the consent of such Certificateholder.
Section 6.07.
Certificateholders May Not Bring Suit Except Under Certain Conditions
.
A Certificateholder of any series shall not have the right to institute any suit, action or
proceeding at law or in equity or otherwise with respect to this Agreement, for the appointment of
a receiver or for the enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written notice to the Trustee of
a continuing Event of Default;
(2) Certificateholders holding Certificates of such series evidencing Fractional
Undivided Interests aggregating not less than 25% of the related Trust shall have requested
the Trustee in writing to institute such action, suit or proceeding and shall have offered
to the Trustee indemnity as provided in Section 7.03(e);
(3) the Trustee shall have refused or neglected to institute any such action, suit or
proceeding for 60 days after receipt of such notice, request and offer of indemnity; and
(4) no direction inconsistent with such written request shall have been given to the
Trustee during such 60-day period by Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than a majority in interest
in the related Trust.
Except to the extent provided in any applicable Intercreditor Agreement or in any applicable
Trust Supplement, it is understood and intended that no one or more of the Certificateholders of
any series shall have any right in any manner whatsoever hereunder or under the related Trust
Supplement or under the Certificates of such series to (i) surrender, impair, waive, affect,
disturb or prejudice any property in the Trust Property of the related Trust, or the lien of any
related Indenture on any property subject thereto, or the rights of the Certificateholders of such
series or the holders of the related Equipment Notes, (ii) obtain or seek
33
to obtain priority over or preference with respect to any other such Certificateholder of such
series or (iii) enforce any right under this Agreement, except in the manner provided in this
Agreement and for the equal, ratable and common benefit of all the Certificateholders of such
series subject to the provisions of this Agreement.
Section 6.08.
Remedies Cumulative
. Every remedy given under this Agreement to the
Trustee or to any of the Certificateholders of any series shall not be exclusive of any other
remedy or remedies, and every such remedy shall be cumulative and in addition to every other remedy
given under this Agreement or now or hereafter given by statute, law, equity or otherwise.
Section 6.09.
Undertaking for Costs
. In any suit for the enforcement of any right or
remedy under this Agreement, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act;
provided
,
however
, that neither this Section 6.09 nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment in any suit
instituted by the Company.
ARTICLE VII
THE TRUSTEE
Section 7.01.
Certain Duties and Responsibilities
. (a) Except during the continuance
of an Event of Default in respect of a Trust, the Trustee undertakes to perform such duties in
respect of such Trust as are specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Trustee.
(b) In case an Event of Default in respect of a Trust has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this Agreement in respect of
such Trust, and use the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Agreement shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that:
(1) this Subsection (c) shall not be construed to limit the effect of Subsection (a) of
this Section 7.01; and
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts.
(d) Whether or not herein expressly so provided, every provision of this Agreement relating to
the conduct or affecting the liability of or affording protection to the Trustee shall be subject
to the provisions of this Section 7.01.
34
Section 7.02.
Notice of Defaults
. (a) As promptly as practicable after, and in any
event within 90 days after, the occurrence of any default (as such term is defined below) hereunder
known to the Trustee, the Trustee shall transmit by mail to the Company, any related Owner
Trustees, any related Owner Participants, the related Loan Trustees and the Certificateholders
holding Certificates of the related series, in the manner and to the extent provided in Section 313
(c) of the Trust Indenture Act, notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived;
provided
,
however
, that, except in the
case of a default in the payment of the principal, premium, if any, or interest on any Equipment
Note, the Trustee shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or Responsible Officers of
the Trustee in good faith shall determine that the withholding of such notice is in the interests
of the Certificateholders of the related series. For the purpose of this Section 7.02 in respect
of any Trust, the term default means any event that is, or after notice or lapse of time or both
would become, an Event of Default in respect of that Trust.
(b) The Trustee shall not be deemed to have knowledge of any Default unless a Responsible
Officer of the Trustee shall have received written notice of such Default;
provided
,
however
, that the Trustee shall be deemed to have notice of any failure to receive
Scheduled Payments under this Agreement.
Section 7.03.
Certain Rights of Trustee
. Subject to the provisions of Section 315 of
the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in
reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Request;
(c) whenever in the administration of this Agreement or any Intercreditor Agreement, the
Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers Certificate of the
Company, any related Owner Trustee or any related Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Agreement or any Intercreditor Agreement at the Direction of any of the
Certificateholders pursuant to this Agreement or any Intercreditor Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or indemnity against the
cost, expenses and liabilities which might be incurred by it in compliance with such Direction;
35
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this Agreement or any
Intercreditor Agreement or perform any duties under this Agreement or any Intercreditor Agreement
either directly or by or through agents or attorneys, and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed with due care by it
under this Agreement or any Intercreditor Agreement;
(h) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the Direction of the Certificateholders holding Certificates of
any series evidencing Fractional Undivided Interests aggregating not less than a majority in
interest in the related Trust relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement or any Intercreditor Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in the performance of
any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or adequate indemnity
against such risk is not reasonably assured to it.
Section 7.04.
Not Responsible for Recitals or Issuance of Certificates
. The recitals
contained herein and in the Certificates of each series, except the certificates of authentication,
shall not be taken as the statements of the Trustee, and the Trustee assumes no responsibility for
their correctness. Subject to Section 7.15, the Trustee makes no representations as to the
validity or sufficiency of this Basic Agreement, any Equipment Notes, any Intercreditor Agreement,
any Liquidity Facility to which the Trustee may be a party, the Certificates of any series, any
Trust Supplement or any Note Documents, except that the Trustee hereby represents and warrants that
this Basic Agreement has been, and each Trust Supplement, each Certificate, each Note Purchase
Agreement, each Intercreditor Agreement and any such Liquidity Facility of, or relating to, each
series will be executed and delivered by one of its officers who is duly authorized to execute and
deliver such document on its behalf.
Section 7.05.
May Hold Certificates
. The Trustee, any Paying Agent, Registrar or any
of their Affiliates or any other agent, in their respective individual or any other capacity, may
become the owner or pledgee of Certificates and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, if applicable, may otherwise deal with the Company, the Parent, any Owner Trustees,
any Owner Participants or the Loan Trustees with the same rights it would have if it were not
Trustee, Paying Agent, Registrar or such other agent.
Section 7.06.
Money Held in Trust
. Money held by the Trustee or the Paying Agent in
trust under this Agreement need not be segregated from other funds except to the extent required in
this Agreement or by law and neither the Trustee nor the Paying Agent shall have any liability for
interest upon any such moneys except as provided for in this Agreement.
Section 7.07.
Compensation and Reimbursement
. The Company agrees:
36
(1) to pay, or cause to be paid, to the Trustee from time to time such reasonable
compensation for all services rendered by it under this Agreement as the Company and the
Trustee may agree in writing from time to time (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express trust); and
(2) except as otherwise expressly provided herein or in any Trust Supplement, to
reimburse, or cause to be reimbursed, the Trustee upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Basic Agreement, any Trust Supplement, any
Intercreditor Agreement or any Liquidity Facility to which the Trustee may be a party
(including the reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be attributable to the
Trustees negligence, willful misconduct or bad faith or as may be incurred due to the
Trustees breach of its representations and warranties set forth in Section 7.15; and
(3) to indemnify, or cause to be indemnified, the Trustee with respect to the
Certificates of any series, pursuant to the particular sections of the Note Purchase
Agreement specified in the related Trust Supplement.
The Trustee shall be entitled to reimbursement from, and shall have a lien prior to the
Certificates of each series upon, all property and funds held or collected by the Trustee in its
capacity as Trustee with respect to such series or the related Trust for any tax incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or in connection with the
acceptance or administration of such Trust (other than any tax attributable to the Trustees
compensation for serving as such), including any reasonable costs and expenses incurred in
contesting the imposition of any such tax. The Trustee shall notify the Company of any claim for
any tax for which it may seek reimbursement. If the Trustee reimburses itself from the Trust
Property of such Trust for any such tax, it will mail a brief report within 30 days setting forth
the amount of such tax and the circumstances thereof to all Certificateholders of such series as
their names and addresses appear in the Register.
Section 7.08.
Corporate Trustee Required; Eligibility
. Each Trust shall at all times
have a Trustee which shall be a bank, trust company or other financial institution organized and
doing business under the laws of the United States or any state thereof, shall be eligible to act
as a trustee under Section 310(a) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $75,000,000 (or a combined capital and surplus in excess of $5,000,000 and the
obligations of which, whether now in existence or hereafter incurred, are fully and unconditionally
guaranteed by a corporation organized and doing business under the laws of the United States, any
state or territory thereof or the District of Columbia and having a combined capital and surplus of
at least $75,000,000). If such bank, trust company or other financial institution or such
corporation publishes reports of conditions at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 7.08 the combined capital and surplus of such
bank, trust company or other financial institution or such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of conditions so published.
37
In case at any time the Trustee shall cease to be eligible in accordance with the provisions
of this Section 7.08 to act as Trustee of any Trust, the Trustee shall resign immediately as
Trustee of such Trust in the manner and with the effect specified in Section 7.09.
Section 7.09.
Resignation and Removal; Appointment of Successor
. (a) No resignation
or removal of the Trustee and no appointment of a successor Trustee of any Trust pursuant to this
Article VII shall become effective until the acceptance of appointment by the successor Trustee
under Section 7.10.
(b) The Trustee may resign at any time as Trustee of any or all Trusts by giving prior written
notice thereof to the Company, the Authorized Agents, any related Owner Trustees and the related
Loan Trustees. If an instrument of acceptance by a successor Trustee shall not have been delivered
to the Company, any related Owner Trustees and the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(c) The Trustee may be removed at any time as the Trustee of any Trust by Direction of the
Certificateholders of the related series holding Certificates of such series evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in such Trust delivered to the
Trustee and to the Company, any related Owner Trustees and the related Loan Trustees.
(d) If at any time in respect of any Trust:
(1) the Trustee shall fail to comply with Section 310 of the Trust Indenture Act, if
applicable, after written request therefore by the Company or by any Certificateholder who
has been a bona fide Certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.08 and shall fail to resign
after written request therefor by the Company or by any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may remove the Trustee or (ii) any Certificateholder of the
related series who has been a bona fide Certificateholder for at least six months may, on behalf of
itself and all others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee of such Trust.
(e) If a Responsible Officer of the Trustee shall obtain actual knowledge of an Avoidable Tax
(as defined below) in respect of any Trust which has been or is likely to be asserted, the Trustee
shall promptly notify the Company and shall, within 30 days of such notification, resign as Trustee
of such Trust hereunder unless within such 30-day period the Trustee shall have received notice
that the Company has agreed to pay such tax. The Company shall promptly appoint a successor
Trustee of such Trust in a jurisdiction where there are no Avoidable Taxes. As used herein, an
Avoidable Tax
in respect of such Trust means a state or
38
local tax: (i) upon (w) such Trust, (x) such Trust Property, (y) Certificateholders of such
Trust or (z) the Trustee for which the Trustee is entitled to seek reimbursement from the Trust
Property of such Trust, and (ii) which would be avoided if the Trustee were located in another
state, or jurisdiction within a state, within the United States of America. A tax shall not be an
Avoidable Tax in respect of any Trust if the Company or any Owner Trustee shall agree to pay, and
shall pay, such tax.
(f) If the Trustee shall resign, be removed or become incapable of acting as Trustee of any
Trust or if a vacancy shall occur in the office of the Trustee of any Trust for any cause, the
Company shall promptly appoint a successor Trustee of such Trust. If, within one year after such
resignation, removal or incapability, or other occurrence of such vacancy, a successor Trustee of
such Trust shall be appointed by Direction of the Certificateholders of the related series holding
Certificates of such series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in such Trust delivered to the Company, any related Owner Trustees, the
related Loan Trustee and the retiring Trustee, then the successor Trustee of such Trust so
appointed shall, with the approval of the Company of such appointment, which approval shall not be
unreasonably withheld, forthwith upon its acceptance of such appointment, become the successor
Trustee of such Trust and supersede the successor Trustee of such Trust appointed by the Company as
provided above. If no successor Trustee shall have been so appointed by the Company as provided
above and accepted appointment in the manner hereinafter provided, the resigning Trustee or any
Certificateholder who has been a bona fide Certificateholder of the related series for at least six
months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee of such Trust.
(g) The successor Trustee of a Trust shall give notice of the resignation and removal of the
Trustee and appointment of the successor Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to the Certificateholders of the related series as their names
and addresses appear in the Register. Each notice shall include the name of such successor Trustee
and the address of its Corporate Trust Office.
Section 7.10.
Acceptance of Appointment by Successor
. Every successor Trustee
appointed hereunder shall execute and deliver to the Company and to the retiring Trustee with
respect to any or all Trusts an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee with respect to such trust or Trusts shall become
effective and such successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall execute and deliver an instrument
transferring to such successor Trustee all such rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all Trust Property held by
such retiring Trustee in respect of such Trusts hereunder (subject nevertheless to its lien, if
any, provided for in Section 7.07) and all books and records, or true, correct and complete copies
thereof, held by such retiring Trustee in respect of such Trusts hereunder. Upon request of any
such successor Trustee, the Company, the retiring Trustee and such successor Trustee shall execute
and deliver any and all instruments containing such provisions as shall be necessary or desirable
to transfer and confirm to, and for more fully and certainly vesting in, such successor Trustee all
such rights, powers and trusts.
39
If a successor Trustee is appointed with respect to one or more (but not all) Trusts, the
Company, the predecessor Trustee and each successor Trustee with respect to any Trust shall execute
and deliver a supplemental agreement hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all of the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Trusts as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or change any of the
provisions of this Basic Agreement and the applicable Trust Supplements as shall be necessary to
provide for or facilitate the administration of the Trusts under this Agreement by more than one
Trustee, it being understood that nothing herein or in such supplemental agreement shall constitute
such Trustees as co-Trustees of the same Trust and that each such Trustee shall be Trustee of
separate Trusts.
No institution shall accept its appointment as a Trustee hereunder unless at the time of such
acceptance such institution shall be qualified and eligible under this Article VII.
Section 7.11.
Merger, Conversion, Consolidation or Succession to Business
. Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided
,
however
, that such corporation shall be otherwise qualified and eligible under this Article
VII, without the execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Certificates shall have been executed or authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such execution or authentication and deliver the Certificates
so executed or authenticated with the same effect as if such successor Trustee had itself executed
or authenticated such Certificates.
Section 7.12.
Maintenance of Agencies
. (a) With respect to each series of
Certificates, there shall at all times be maintained an office or agency in the location set forth
in Section 12.04 or at such other location as may be specified in the applicable Trust Supplement
where Certificates of such series may be presented or surrendered for registration of transfer or
for exchange, and for payment thereof, and where notices and demands to or upon the Trustee in
respect of such Certificates or this Agreement may be served;
provided
,
however
,
that, if it shall be necessary that the Trustee maintain an office or agency in another location
with respect to the Certificates of any series (e.g., the Certificates of such series shall be
represented by Definitive Certificates and shall be listed on a national securities exchange), the
Trustee will make all reasonable efforts to establish such an office or agency. Written notice of
the location of each such other office or agency and of any change of location thereof shall be
given by the Trustee to the Company, any Owner Trustees, the Loan Trustees (in the case of any
Owner Trustee or Loan Trustee, at its address specified in the Note Documents or such other address
as may be notified to the Trustee) and the Certificateholders of such series. In the event that no
such office or agency shall be maintained or no such notice of location or of change of location
shall be given, presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee.
40
(b) There shall at all times be a Registrar and a Paying Agent hereunder with respect to the
Certificates of each series. Each such Authorized Agent shall be a bank, trust company, or other
financial institution organized and doing business under the laws of the United States or any state
thereof, with a combined capital and surplus of at least $75,000,000 (or a combined capital and
surplus in excess of $5,000,000, the obligations of which are fully and unconditionally guaranteed
by a corporation organized and doing business under the laws of the United States or any state or
territory thereof or the District of Columbia, with a combined capital and surplus of at least
$75,000,000), and shall be authorized under such laws to exercise corporate trust powers, subject
to supervision by federal or state authorities. The Trustee shall initially be the Paying Agent
and, as provided in Section 3.04, Registrar hereunder with respect to the Certificates of each
series. Each Registrar other than the Trustee shall furnish to the Trustee, at stated intervals of
not more than six months, and at such other times as the Trustee may request in writing, a copy of
the Register maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, consolidation or conversion
to which any Authorized Agent shall be a party, or any corporation succeeding to the corporate
trust business of any Authorized Agent, shall be the successor of such Authorized Agent, if such
successor corporation is otherwise eligible under this Section 7.12, without the execution or
filing of any paper or any further act on the part of the parties hereto or such Authorized Agent
or such successor corporation.
(d) Any Authorized Agent may at any time resign by giving written notice of resignation to the
Trustee, the Company, any related Owner Trustees and the related Loan Trustees. The Company may,
and at the request of the Trustee shall, at any time terminate the agency of any Authorized Agent
by giving written notice of termination to such Authorized Agent and to the Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any time any such Authorized Agent
shall cease to be eligible under this Section 7.12 (when, in either case, no other Authorized Agent
performing the functions of such Authorized Agent shall have been appointed), the Company shall
promptly appoint one or more qualified successor Authorized Agents, reasonably satisfactory to the
Trustee, to perform the functions of the Authorized Agent which has resigned or whose agency has
been terminated or who shall have ceased to be eligible under this Section 7.12. The Company shall
give written notice of any such appointment made by it to the Trustee, any related Owner Trustees
and the related Loan Trustees; and in each case the Trustee shall mail notice of such appointment
to all Certificateholders of the related series as their names and addresses appear on the Register
for such series.
(e) The Company agrees to pay, or cause to be paid, from time to time to each Authorized Agent
such compensation for its services as the Company and the Trustee may agree in writing from time to
time and to reimburse it for its reasonable expenses to the extent set forth in Section 7.07(2).
Section 7.13.
Money for Certificate Payments to Be Held in Trust
. All moneys
deposited with any Paying Agent for the purpose of any payment on Certificates shall be deposited
and held in trust for the benefit of the Certificateholders entitled to such payment, subject to
the provisions of this Section 7.13. Moneys so deposited and held in trust shall
constitute a separate trust fund for the benefit of the Certificateholders with respect to
which such money was deposited.
41
The Trustee may at any time, for the purpose of obtaining the satisfaction and discharge of
this Agreement or for any other purpose, direct any Paying Agent to pay to the Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further liability with respect
to such money.
Section 7.14.
Registration of Equipment Notes in Trustees Name
. Subject to the
provisions of any Intercreditor Agreement and Section 12.03 hereof, the Trustee agrees that all
Equipment Notes to be purchased by any Trust, Specified Investments, if any, to be held by the
Trustee on behalf of a Trust and Permitted Investments, if any, to be held by the Trustee on behalf
of a Trust shall be issued in the name of the Trustee as trustee for the applicable Trust or its
nominee and held by the Trustee in trust for the benefit of the Certificateholders of such series,
or, if not so held, the Trustee or its nominee shall be reflected as the owner of such Equipment
Notes, Specified Investments or Permitted Investments, as the case may be, in the register of the
issuer of such Equipment Notes, Specified Investments or Permitted Investments, as the case may be.
In no event shall the Trustee invest in, or hold, Equipment Notes, Specified Investments or
Permitted Investments in a manner that would cause the Trustee not to have the ownership interest
in (or a securities entitlement with respect to) such Equipment Notes, Specified Investments or
Permitted Investments under the applicable provisions of the Uniform Commercial Code in effect
where the Trustee holds such Equipment Notes, Specified Investments or Permitted Investments or
other applicable law then in effect.
Section 7.15.
Representations and Warranties of Trustee
. The Trustee hereby
represents and warrants that:
(a) the Trustee is a Delaware banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware.
(b) the Trustee has full power, authority and legal right to execute, deliver and perform this
Agreement, any Intercreditor Agreement, any Liquidity Facility, the Certificates and the Note
Purchase Agreements and has taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement, any Intercreditor Agreement, any Liquidity Facility, the
Certificates and the Note Purchase Agreements;
(c) the execution, delivery and performance by the Trustee of this Agreement, any
Intercreditor Agreement, any Liquidity Facility, the Certificates and the Note Purchase Agreements
(i) will not violate any provision of any United States federal law or the law of the state of the
United States where it is located governing the banking and trust powers of the Trustee or any
order, writ, judgment, or decree of any court, arbitrator or governmental authority applicable to
the Trustee or any of its assets, (ii) will not violate any provision of the charter documents or
by-laws of the Trustee, and (iii) will not violate any provision of, or constitute, with or without
notice or lapse of time or both, a default under, or result in the creation or imposition of any
lien on any properties included in the Trust Property pursuant to the provisions
42
of any mortgage, indenture, contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to have an adverse effect on the
Trustees performance or ability to perform its duties hereunder or thereunder or on the
transactions contemplated herein or therein;
(d) the execution, delivery and performance by the Trustee of this Agreement, any
Intercreditor Agreement, any Liquidity Facility, the Certificates and the Note Purchase Agreements
will not require the authorization, consent, or approval of, the giving of notice to, the filing or
registration with, or the taking of any other action in respect of, any governmental authority or
agency of the United States or the state of the United States where it is located regulating the
banking and corporate trust activities of the Trustee;
(e) this Agreement, any Intercreditor Agreement, any Liquidity Facility, the Certificates and
the Note Purchase Agreements have been or will be duly executed and delivered by the Trustee and
constitute or upon such execution and delivery will constitute the legal, valid and binding
agreements of the Trustee, enforceable against it in accordance with their respective terms;
provided
,
however
, that enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally
and (ii) general principles of equity; and
(f) the statements made by it in a Statement of Eligibility on Form T-l supplied or to be
supplied to the Company in connection with the registration of any Certificates are and will be
true and accurate subject to the qualifications set forth therein; and that such statement complies
and will comply in all material respects with the requirements of the Trust Indenture Act and the
Securities Act of 1933, as amended.
The representation and warranties set forth above shall be deemed to be made by the Trustee on
each Issuance Date, except as otherwise provided in the applicable Trust Supplement.
Section 7.16.
Withholding Taxes; Information Reporting
. As to the Certificates of any
series, the Trustee, as trustee of the related grantor trust created by this Agreement, shall
exclude and withhold from each distribution of principal, premium, if any, and interest and other
amounts due under this Agreement or under the Certificates of such series any and all withholding
taxes applicable thereto as required by law. The Trustee agrees to act as such withholding agent
and, in connection therewith, whenever any present or future taxes or similar charges are required
to be withheld with respect to any amounts payable in respect of the Certificates of such series,
to withhold such amounts and timely pay the same to the appropriate authority in the name of and on
behalf of the Certificateholders of such series, that it will file any necessary withholding tax
returns or statements when due, and that, as promptly as possible after the payment thereof, it
will deliver to each such Certificateholder of such series appropriate documentation showing the
payment thereof, together with such additional documentary evidence as such Certificateholders may
reasonably request from time to time. The Trustee agrees to file any other information reports as
it may be required to file under United States law.
Section 7.17.
Trustees Liens
. The Trustee in its individual capacity agrees that it
will, in respect of each Trust created by this Agreement, at its own cost and expense (and
43
without the right of indemnity hereunder, including Section 7.07), promptly take any action as
may be necessary to duly discharge and satisfy in full any mortgage, pledge, lien, charge,
encumbrance, security interest or claim (
Trustees Liens
) on or with respect to the Trust
Property of such Trust which is attributable to the Trustee either (i) in its individual capacity
and which is unrelated to the transactions contemplated by this Agreement or the related Note
Documents or (ii) as Trustee under this Agreement or in its individual capacity and which arises
out of acts or omissions which are not contemplated by this Agreement.
Section 7.18.
Preferential Collection of Claims
. The Trustee shall comply with
Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section
311(b) of the Trust Indenture Act. If the Trustee shall resign or be removed as Trustee, it shall
be subject to Section 311(a) of the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS LISTS AND REPORTS BY TRUSTEE
Section 8.01.
The Company to Furnish Trustee with Names and Addresses of
Certificateholders
. The Company will furnish to the Trustee within 15 days after each Record
Date with respect to a Scheduled Payment, and at such other times as the Trustee may request in
writing within 30 days after receipt by the Company of any such request, a list, in such form as
the Trustee may reasonably require, of all information in the possession or control of the Company
as to the names and addresses of the Certificateholders of each series, in each case as of a date
not more than 15 days prior to the time such list is furnished;
provided
,
however
,
that so long as the Trustee is the sole Registrar for such series, no such list need be furnished;
and
provided
further
,
however
, that no such list need be furnished for so
long as a copy of the Register is being furnished to the Trustee pursuant to Section 7.12.
Section 8.02.
Preservation of Information; Communications to Certificateholders
. The
Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses
of Certificateholders of each series contained in the most recent list furnished to the Trustee as
provided in Section 7.12 or Section 8.01, as the case may be, and the names and addresses of
Certificateholders of each series received by the Trustee in its capacity as Registrar, if so
acting. The Trustee may destroy any list furnished to it as provided in Section 7.12 or Section
8.01, as the case may be, upon receipt of a new list so furnished.
Section 8.03.
Reports by Trustee
. Within 60 days after May 15 of each year commencing
with the first full year following the issuance of any series of Certificates, the Trustee shall
transmit to the Certificateholders of such series, as provided in Section 313(c) of the Trust
Indenture Act, a brief report dated as of such May 15, if required by and in compliance with
Section 313(a) of the Trust Indenture Act. The Trustee shall also transmit to Certificateholders
such reports, if any, as may be required pursuant to Section 313(b) of the Trust Indenture Act at
the times and in the manner provided pursuant thereto and to Section 313(c) thereof.
Section 8.04.
Reports by the Company
. The Company shall:
44
(a) file with the Trustee, within 30 days after the Company is required to file the same with
the SEC, copies of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may from time to time by rules and
regulations prescribe) which the Company is required to file with the SEC pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934, as amended; or, if the Company is not
required to file information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the SEC, in accordance with rules and regulations prescribed by the SEC,
such of the supplementary and periodic information, documents and reports which may be required
pursuant to section 13 of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed in such rules and
regulations;
(b) file with the Trustee and the SEC, in accordance with the rules and regulations prescribed
by the SEC, such additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of the Company provided for in this Agreement, as may be
required by such rules and regulations, including, in the case of annual reports, if required by
such rules and regulations, certificates or opinions of independent public accountants, conforming
to the requirements of Section 1.02;
(c) transmit to all Certificateholders, in the manner and to the extent provided in Section
313 (c) of the Trust Indenture Act, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of this Section 8.04 as may
be required by rules and regulations prescribed by the SEC; and
(d) furnish to the Trustee, not less often than annually, a brief certificate from the
principal executive officer, principal financial officer or principal accounting officer as to his
or her knowledge of the Companys compliance with all conditions and covenants of the Company under
this Agreement (it being understood that for purposes of this paragraph (d), such compliance shall
be determined without regard to any period of grace or requirement of notice provided under this
Agreement).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01.
Supplemental Agreements without Consent of Certificateholders
. Without
the consent of any Certificateholders, the Company may (but will not be required to), and the
Trustee (subject to Section 9.03) shall, at the Companys request, at any time and from time to
time, enter into one or more agreements supplemental hereto or, if applicable, to an Intercreditor
Agreement, a Note Purchase Agreement, a Liquidity Facility or a Guarantee, for any of the following
purposes:
(1) to provide for the formation of a Trust, the issuance of a series of Certificates
and other matters contemplated by Section 2.01(b) or to add, or to change or eliminate, any
provision effecting a series of Certificates not yet issued, including to make appropriate
provisions for a Guarantee; or
45
(2) to evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein contained or of the Companys
obligations under any Intercreditor Agreement, any Note Purchase Agreement, or any Liquidity
Facility or, if applicable, to evidence the succession of another Person to the Parent and
the assumption by any such successor of the covenants of the Parent contained in this
Agreement or of the Parents obligations under any Guarantee; or
(3) to add to the covenants of the Company or the Parent for the benefit of the
Certificateholders of any series, or to surrender any right or power conferred upon the
Company or the Parent in this Agreement, any Note Purchase Agreement, any Intercreditor
Agreement, any Liquidity Facility or any Guarantee; or
(4) to correct or supplement any provision in this Agreement, any Intercreditor
Agreement, any Note Purchase Agreement, any Liquidity Facility or any Guarantee which may be
defective or inconsistent with any other provision herein or therein or to cure any
ambiguity or to modify any other provision with respect to matters or questions arising
under this Agreement, any Intercreditor Agreement, any Note Purchase Agreement, any
Liquidity Facility or any Guarantee,
provided
,
however
, that any such action
shall not materially adversely affect the interests of the Certificateholders of any series;
to correct any mistake in this Agreement, any Intercreditor Agreement, any Note Purchase
Agreement, any Liquidity Facility or any Guarantee; or, as provided in any Intercreditor
Agreement, to give effect to or provide for a Replacement Liquidity Facility (as defined in
such Intercreditor Agreement); or
(5) to comply with any requirement of the SEC, any applicable law, rules or regulations
of any exchange or quotation system on which the Certificates of any series are listed or of
any regulatory body; or
(6) to modify, eliminate or add to the provisions of this Agreement, any Intercreditor
Agreement, any Note Purchase Agreement, any Liquidity Facility or any Guarantee to such
extent as shall be necessary to continue or obtain the qualification of this Agreement, any
Intercreditor Agreement, any Note Purchase Agreement, any Liquidity Facility or any
Guarantee under the Trust Indenture Act or under any similar Federal statute hereafter
enacted, and to add to this Agreement, any Intercreditor Agreement, any Note Purchase
Agreement, any Liquidity Facility or any Guarantee such other provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act as in effect at the date as of which this Basic
Agreement was executed or any corresponding provision in any similar Federal statute
hereafter enacted; or
(7) to evidence and provide for the acceptance of appointment under this Agreement, any
Intercreditor Agreement, any Note Purchase Agreement, any Liquidity Facility or any
Guarantee by a successor Trustee with respect to one or more Trusts and to add to or change
any of the provisions of this Agreement, any Intercreditor Agreement, any Note Purchase
Agreement, any Liquidity Facility or any Guarantee as shall be
necessary to provide for or facilitate the administration of the Trust, pursuant to the
requirements of Section 7.10; or
46
(8) to provide the information required under Section 7.12 and Section 12.04 as to the
Trustee; or
(9) to add to or change any of the provisions of the Certificate of any series or this
Agreement to such extent as shall be necessary to facilitate the issuance of Certificates of
such series in bearer form or to facilitate or provide for the issuance of Certificates of
such series in global form in addition to or in place of Certificates in certificated form;
or
(10) to provide for the delivery of agreements supplemental to this Agreement or the
Certificates of any series in or by any means of any computerized, electronic or other
medium, including without limitation by computer diskette; or
(11) to correct or supplement the description of any property constituting property of
the Trust; or
(12) to modify, eliminate or add to the provisions of this Basic Agreement, any Trust
Supplement or any applicable Note Purchase Agreement in order to reflect the substitution of
a Substitute Aircraft for any Aircraft; or
(13) to comply with any requirement of the SEC in connection with the qualification of
this Agreement, any Guarantee or any other agreement or instrument related to the
Certificates of any series under the Trust Indenture Act; or
(14) to make any other amendments or modifications hereto,
provided
,
however
, that such amendments or modifications shall apply to Certificates of any
series to be thereafter issued;
provided
,
however
, that no such supplemental agreement shall adversely affect the
status of any Trust 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, for U.S. federal income tax purposes.
Section 9.02.
Supplemental Agreements with Consent of Certificateholders
. With
respect to each separate Trust and the series of Certificates relating thereto, with the consent of
the Certificateholders holding Certificates of such series (including consents obtained in
connection with a tender offer or exchange offer for the Certificates) evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in such Trust, by Direction of
said Certificateholders delivered to the Company and the Trustee, the Company, and, if applicable,
the Parent may, but shall not be obligated to, and the Trustee (subject to Section 9.03) shall,
enter into an agreement or agreements supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Agreement, any
Intercreditor Agreement, any Liquidity Facility or any Guarantee to the extent applicable to such
Certificateholders or of modifying in any manner the rights and obligations of such
Certificateholders under this Agreement, any Intercreditor Agreement, any Liquidity Facility or
47
any Guarantee;
provided
,
however
, that no such agreement shall, without the
consent of the Certificateholder of each Outstanding Certificate adversely affected thereby:
(1) reduce in any manner the amount of, or delay the timing of, any receipt by the
Trustee of payments on the Equipment Notes held in such Trust or distributions that are
required to be made herein on any Certificate of such series, or change any date of payment
on any Certificate of such series, or change the place of payment where, or the coin or
currency in which, any Certificate of such series is payable (other than as provided for in
such Certificate), or impair the right to institute suit for the enforcement of any such
payment or distribution on or after the Regular Distribution Date or Special Distribution
Date applicable thereto; or
(2) permit the disposition of any Equipment Note included in the Trust Property of such
Trust except as permitted by this Agreement or any Intercreditor Agreement, or otherwise
deprive such Certificateholder of the benefit of the ownership of the Equipment Notes in
such Trust; or
(3) alter the priority of distributions specified in the relevant Intercreditor
Agreement, if any, in a manner materially adverse to the interests of the Certificateholders
of such series; or
(4) reduce the specified percentage of the aggregate Fractional Undivided Interests of
such Trust that is required for any such supplemental agreement, or reduce such specified
percentage required for any waiver (of compliance with certain provisions of this Agreement
or certain defaults hereunder and their consequences) provided for in this Agreement; or
(5) modify any of the provisions of this Section 9.02 or Section 6.05, except to
increase any such percentage or to provide that certain other provisions of this Agreement
cannot be modified or waived without the consent of the Certificateholder of each
Certificate of such series affected thereby;
(6) adversely affect the status of any Trust 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,
for U.S. federal income tax purposes; or
(7) if a Guarantee is issued guaranteeing the Equipment Notes held in such Trust or any
Leases related to Equipment Notes to be acquired and held in such Trust, modify such
Guarantee in a manner materially adverse to the interests of the Certificateholders of such
series.
It shall not be necessary for any Direction of such Certificateholders under this Section 9.02
to approve the particular form of any proposed supplemental agreement, but it shall be sufficient
if such Direction shall approve the substance thereof.
Section 9.03.
Documents Affecting Immunity or Indemnity
. If in the opinion of the
Trustee any document required to be executed by it pursuant to the terms of Section 9.01 or 9.02
affects any interest, right, duty, immunity or indemnity in favor of the Trustee under this
Basic Agreement or any Trust Supplement, the Trustee may in its discretion decline to execute
such document.
48
Section 9.04.
Execution of Supplemental Agreements
. In executing, or accepting the
additional trusts created by, any supplemental agreement permitted by this Article IX or the
modifications thereby of the trusts created by this Agreement, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental agreement is authorized or permitted by this Agreement.
Section 9.05.
Effect of Supplemental Agreements
. Upon the execution of any agreement
supplemental to this Agreement under this Article IX, this Agreement shall be modified in
accordance therewith, and such supplemental agreement shall form a part of this Agreement for all
purposes; and every Certificateholder of each series theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby to the extent applicable to such series.
Section 9.06.
Conformity with Trust Indenture Act
. Every supplemental agreement
executed pursuant to this Article IX shall conform to the requirements of the Trust Indenture Act
as then in effect.
Section 9.07.
Reference in Certificates to Supplemental Agreements
. Certificates of
each series authenticated and delivered after the execution of any supplemental agreement
applicable to such series pursuant to this Article IX may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental agreement; and, in such case, suitable
notation may be made upon Outstanding Certificates of such series after proper presentation and
demand.
ARTICLE X
AMENDMENTS TO INDENTURES AND OTHER NOTE DOCUMENTS
Section 10.01.
Amendments and Supplements to Indentures and Other Note Documents
. In
the event that the Trustee, as holder (or beneficial owner through the Subordination Agent) of any
Equipment Notes (or as a prospective purchaser of any Postponed Notes) in trust for the benefit of
the Certificateholders of any series or as Controlling Party under an Intercreditor Agreement,
receives (directly or indirectly through the Subordination Agent) a request for a consent to any
amendment, modification, waiver or supplement under any Indenture, other Note Document or any other
related document, the Trustee shall forthwith send a notice of such proposed amendment,
modification, waiver or supplement to each Certificateholder of such series registered on the
Register as of the date of such notice. The Trustee shall request from the Certificateholders of
such series a Direction as to (a) whether or not to take or refrain from taking (or direct the
Subordination Agent to take or refrain from taking) any action which a holder of (or, with respect
to Postponed Notes, a prospective purchaser of) such Equipment Note or a Controlling Party has the
option to direct, (b) whether or not to give or execute (or direct the Subordination Agent to give
or execute) any waivers, consents, amendments, modifications or supplements as a holder of (or,
with respect to Postponed Notes, a prospective purchaser of) such Equipment Note or a Controlling
Party and
49
(c) how to vote (or direct the Subordination Agent to vote) any Equipment Note (or, with
respect to a Postponed Note, its commitment to acquire such Postponed Note) if a vote has been
called for with respect thereto. Provided such a request for Certificateholder Direction shall
have been made, in directing any action or casting any vote or giving any consent as the holder of
any Equipment Note (or in directing the Subordination Agent in any of the foregoing), (i) other
than as Controlling Party, the Trustee shall vote for or give consent to any such action with
respect to such Equipment Note (or Postponed Note) in the same proportion as that of (A) the
aggregate face amount of all Certificates actually voted in favor of or for giving consent to such
action by such Direction of Certificateholders to (B) the aggregate face amount of all Outstanding
Certificates and (ii) as Controlling Party, the Trustee shall vote as directed in such
Certificateholder Direction by the Certificateholders of such series evidencing a Fractional
Undivided Interest aggregating not less than a majority in interest in the Trust. For purposes of
the immediately preceding sentence, a Certificate shall have been actually voted if the Holder of
such Certificate has delivered to the Trustee an instrument evidencing such Holders consent to
such Direction prior to one Business Day before the Trustee directs such action or casts such vote
or gives such consent. Notwithstanding the foregoing, but subject to Section 6.04 and any
Intercreditor Agreement, the Trustee may, with respect to the Certificates of any series, in its
own discretion and at its own direction, consent and notify the relevant Loan Trustee of such
consent (or direct the Subordination Agent to consent and notify the Loan Trustee of such consent)
to any amendment, modification, waiver or supplement under any related Indenture or any other
related Note Document if an Event of Default hereunder shall have occurred and be continuing or if
such amendment, modification, waiver or supplement will not materially adversely affect the
interests of the Certificateholders of such series.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01.
Termination of the Trusts
. In respect of each Trust created by the
Basic Agreement as supplemented by a related Trust Supplement, the respective obligations and
responsibilities of the Company and the Trustee and, if applicable, the Parent, with respect to
such Trust shall terminate upon the distribution to all Holders of Certificates of the series of
such Trust and the Trustee of all amounts required to be distributed to them pursuant to this
Agreement and the disposition of all property held as part of the Trust Property of such Trust;
provided
,
however
, that in no event shall such Trust continue beyond 21 years less
one day following the death of the last survivor of all descendants living on the date hereof of
Joseph P. Kennedy, Sr., unless applicable law shall permit a longer term, in which case such longer
term shall apply.
Notice of any termination of a Trust, specifying the applicable Regular Distribution Date (or
applicable Special Distribution Date, as the case may be) upon which the Certificateholders of any
series may surrender their Certificates to the Trustee for payment of the final distribution and
cancellation, shall be mailed promptly by the Trustee to Certificateholders of such series not
earlier than the minimum number of days and not later than the maximum number of days specified
therefor in the related Trust Supplement preceding such final distribution specifying (A) the
Regular Distribution Date (or Special Distribution Date, as the case may be) upon which the
proposed final payment of the Certificates of such series will be
50
made upon presentation and surrender of Certificates of such series at the office or agency of
the Trustee therein specified, (B) the amount of any such proposed final payment, and (C) that the
Record Date otherwise applicable to such Regular Distribution Date (or Special Distribution Date,
as the case may be) is not applicable, payments being made only upon presentation and surrender of
the Certificates of such series at the office or agency of the Trustee therein specified. The
Trustee shall give such notice to the Registrar at the time such notice is given to
Certificateholders of such series. Upon presentation and surrender of the Certificates of such
series in accordance with such notice, the Trustee shall cause to be distributed to
Certificateholders of such series amounts distributable on such Regular Distribution Date (or
Special Distribution Date, as the case may be) pursuant to Section 4.02.
In the event that all of the Certificateholders of such series shall not surrender their
Certificates for cancellation within six months after the date specified in the above-mentioned
written notice, the Trustee shall give a second written notice to the remaining Certificateholders
of such series to surrender their Certificates for cancellation and receive the final distribution
with respect thereto. No additional interest shall accrue on the Certificates of such series after
any Regular Distribution Date (or Special Distribution Date, as the case may be) of such series, as
specified in the first written notice. In the event that any money held by the Trustee for the
payment of distributions on the Certificates of such series shall remain unclaimed for two years
(or such lesser time as the Trustee shall be satisfied, after 60 days notice from the Company, is
one month prior to the escheat period provided under applicable law) after the final distribution
date with respect thereto, the Trustee shall pay to each Loan Trustee the appropriate amount of
money relating to such Loan Trustee and shall give written notice thereof to any related Owner
Trustees and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01.
Limitation on Rights of Certificateholders
. (a) The insolvency, death
or incapacity of any Certificateholder of any series shall not operate to terminate this Agreement
or the related Trust, nor entitle such Certificateholders legal representatives or heirs to claim
an accounting or to take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them. No Certificateholder of any series shall be entitled to revoke the
related Trust.
(b) No transfer, by operation of law or otherwise, of any Certificate or other right, title
and interest of any Certificateholder in and to the applicable Trust Property or under the related
Trust shall operate to terminate the Trust or entitle such Certificateholder or any successor or
transferee of such Certificateholder to an accounting or to the transfer to it of legal title to
any part of such Trust Property.
Section 12.02.
Certificates Nonassessable and Fully Paid
. Except as set forth in the
last sentence of this Section 12.02, Certificateholders of each series shall not be personally
liable for obligations of the related Trust, the Fractional Undivided Interests represented by the
Certificates of such series shall be nonassessable for any losses or expenses of such Trust or for
51
any reason whatsoever, and Certificates of such series upon authentication thereof by the
Trustee pursuant to Section 3.02 are and shall be deemed fully paid. No Certificateholder of such
series shall have any right (except as expressly provided herein) to vote or in any manner
otherwise control the operation and management of the related Trust Property, the related Trust, or
the obligations of the parties hereto, nor shall anything set forth herein, or contained in the
terms of the Certificates of such series, be construed so as to constitute the Certificateholders
of such series from time to time as partners or members of an association. Neither the existence
of the Trust nor any provision in this Agreement is intended to or shall limit the liability the
Certificateholders would otherwise incur if the Certificateholders owned Trust Property as
co-owners, or incurred any obligations of the Trust, directly rather than through the Trust.
Section 12.03.
Registration of Equipment Notes in Name of Subordination Agent
. If a
Trust is party to an Intercreditor Agreement, the Trustee agrees that all Equipment Notes to be
purchased by such Trust may be issued in the name of the Subordination Agent under such
Intercreditor Agreement or its nominee and held by such Subordination Agent in trust for the
benefit of the Certificateholders, or, if not so held, such Subordination Agent or its nominee
shall be reflected as the owner of such Equipment Notes in the register of the issuer of such
Equipment Notes.
Section 12.04.
Notices
. (a) Unless otherwise specifically provided or permitted
herein or in the applicable Trust Supplement with respect to any Trust, all notices required or
permitted under the terms and provisions of this Basic Agreement or such Trust Supplement with
respect to such Trust shall be in English and in writing, and any such notice may be given by
United States mail, courier service or facsimile, or any other customary means of communication,
and any such notice shall be effective when delivered or received or, if mailed, three days after
deposit in the United States mail with proper postage for ordinary mail prepaid, and if delivered
by facsimile, upon completion of transmission and confirmation by the sender (by a telephone call
to a representative of the recipient or by machine confirmation) that the transmission was
received),
if to the Company:
US Airways, Inc.
111 West Rio Salado Parkway
Tempe, AZ 85281
Attention: Treasurer
Telephone: (480) 693-3685
Facsimile: (480) 693-5886
with a copy to the attention of the Companys Office
of the General Counsel at the same address:
Attention: Aircraft Counsel
Facsimile: (480) 693-5932
if to the Trustee:
Wilmington Trust Company, as Trustee
52
100 North Market Street
Wilmington, DE 19890-1605
Attention: Corporate Trust Administration
Telephone: (302) 636-6000
Facsimile: (302) 636-4140
(b) The Company or the Trustee, by notice to the other, may designate additional or different
addresses for subsequent notices or communications.
(c) Any notice or communication to Certificateholders of any series shall be mailed by
first-class mail to the addresses for Certificateholders of such series shown on the Register kept
by the Registrar and to addresses filed with the Trustee for Certificate Owners of such series;
provided
,
however
, that if The Depository Trust Company, or Cede & Co., as its
nominee, is the sole Certificateholder of record, such notices or communications need only be sent
to The Depository Trust Company and may be sent by any means permitted under subsection (a) above.
Failure so to mail a notice or communication or any defect in such notice or communication shall
not affect its sufficiency with respect to other Certificateholders or Certificate Owners of such
series.
(d) If a notice or communication is mailed in the manner provided above within the time
prescribed, it is conclusively presumed to have been duly given, whether or not the addressee
receives it.
(e) If the Company mails a notice or communication to the Certificateholders of such series,
it shall mail a copy to the Trustee and to each Paying Agent for such series at the same time.
(f) Notwithstanding the foregoing, all communications or notices to the Trustee shall be
deemed to be given only when received by a Responsible Officer of the Trustee.
(g) The Trustee shall promptly furnish the Company with a copy of any report, demand, notice
or written communication received by the Trustee hereunder from, or sent or furnished by the
Trustee hereunder to, any Certificateholder, Owner Trustee, Loan Trustee, Liquidity Provider,
Subordination Agent or other Person.
Section 12.05.
Governing Law and Venue; Waiver of Jury Trial
. (a) THIS BASIC
AGREEMENT, TOGETHER WITH ALL TRUST SUPPLEMENTS AND CERTIFICATES (UNLESS SPECIFIED OTHERWISE IN A
TRUST SUPPLEMENT), SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED,
CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE CONFLICTS OF LAW PRINCIPLES THEREOF. The parties hereby irrevocably submit to the jurisdiction
of the courts of the State of New York and the federal courts of the United States of America
located in the State of New York, solely in respect of the interpretation and enforcement of the
provisions of this Basic Agreement and of the documents referred to in this Basic Agreement, and in
respect of the transactions contemplated hereby, and hereby waive, and agree not to assert, as a
defense in any action, suit or proceeding for the interpretation or enforcement hereof or of any
such document,
53
that it is not subject thereto or that such action, suit or proceeding may not be brought or
is not maintainable in said courts or that the venue thereof may not be appropriate or that this
Basic Agreement or any such document may not be enforced in or by such courts, and the parties
hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard
and determine in such courts. The parties hereby consent to and grant any such court jurisdiction
over the person of such parties and consent to the jurisdiction of any such court over the subject
matter of such dispute and agree that mailing of process or other papers in connection with any
such action or proceeding in the manner provided in Section 12.04 or in such other manner as may be
permitted by law shall be valid and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS BASIC
AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS BASIC AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 12.05.
Section 12.06.
Severability of Provisions
. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or the related Trust, or of
the Certificates of such series or the rights of the Certificateholders thereof.
Section 12.07.
Trust Indenture Act Controls
. This Agreement is subject to the
provisions of the Trust Indenture Act and shall, to the extent applicable, be governed by such
provisions. If any provision of this Agreement limits, qualifies or conflicts with another
provision which is required to be included in this Agreement by the Trust Indenture Act, the
required provision shall control.
Section 12.08.
Effect of Headings and Table of Contents
. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 12.09.
Successors and Assigns
. All covenants, agreements, representations and
warranties in this Agreement by the Trustee and the Company shall bind and, to the extent permitted
hereby, shall inure to the benefit of and be enforceable by their respective
54
successors and assigns, whether so expressed or not. Any request, notice, direction, consent,
waiver or other instrument or action by any Certificateholder shall bind the successors and assigns
of such Certificateholder.
Section 12.10.
Benefits of Agreement
. Nothing in this Agreement or in the
Certificates of any series, express or implied, shall give to any Person, other than the parties to
this Agreement and their successors under this Agreement, and the Certificateholders of each
series, any benefit or any legal or equitable right, remedy or claim under this Agreement, except
as provided expressly herein.
Section 12.11.
Legal Holidays
. In any case where any Regular Distribution Date or
Special Distribution Date relating to any Certificate of any series shall not be a Business Day
with respect to such series, then (notwithstanding any other provision of this Agreement) payment
need not be made on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on such Regular Distribution Date or Special Distribution Date, and no
interest shall accrue during the intervening period.
Section 12.12.
Counterparts
. For the purpose of facilitating the execution of this
Agreement and for other purposes, this Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
Section 12.13.
Communication by Certificateholders with Other Certificateholders
.
Certificateholders of any series may communicate with other Certificateholders of such series with
respect to their rights under this Basic Agreement, the related Trust Supplement or the
Certificates of such series pursuant to Section 312(b) of the Trust Indenture Act. The Company,
the Trustee and any and all other persons benefited by this Agreement shall have the protection
afforded by Section 312(c) of the Trust Indenture Act.
Section 12.14.
Intention of Parties
. The parties to this Agreement intend that each
Trust be classified for U.S. federal income tax purposes as a grantor trust under Subpart E, Part I
of Subchapter J of the Internal Revenue Code of 1986, as amended, and not as a trust or association
taxable as a corporation or as a partnership. The powers granted and obligations undertaken
pursuant to this Agreement shall be construed so as to further such intent.
Section 12.15.
No Recourse Against Others
. No past, present or future director,
officer, employee, agent, member, manager, trustee or stockholder, as such, of the Company, the
Parent or any successor Person or any Affiliate of any thereof shall have any liability for any
obligations of the Company, the Parent or any successor Person or any Affiliate of any thereof,
either directly or through the Company, the Parent or any successor Person or any Affiliate of any
thereof, under the Certificates, this Agreement or any Guarantee or for any claim based on, in
respect of or by reason of such obligations or their creation, whether by virtue of any rule of
law, statute or constitutional provision or by the enforcement of any assessment or by any legal or
equitable proceeding or otherwise. By accepting a Certificate, each Certificateholder agrees to
the provisions of this Section 12.15 and waives and releases all such liability. Such waiver and
release shall be part of the consideration for the issue of the Certificates.
55
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the day and year first written above.
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US AIRWAYS, INC.
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By:
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/s/ Thomas T. Weir
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Name:
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Thomas T. Weir
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Title:
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Vice President and Treasurer
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WILMINGTON TRUST COMPANY,
as Trustee
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By:
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/s/ Robert P. Hines, Jr.
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Name:
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Robert P. Hines, Jr.
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Title:
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Assistant Vice President
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Signature Page to Pass Through Trust Agreement
Exhibit 4.2
EXECUTION VERSION
TRUST SUPPLEMENT No. 2010-1A-O
Dated as of December 21, 2010
between
WILMINGTON TRUST COMPANY
as Trustee,
and
US AIRWAYS, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of December 21, 2010
$262,857,000
US Airways Pass Through Trust 2010-1A-O
6.25% US Airways
Pass Through Certificates,
Series 2010-1A-O
TABLE OF CONTENTS
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Page
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ARTICLE I THE CERTIFICATES
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2
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Section 1.01. The Certificates
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2
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ARTICLE II DEFINITIONS
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4
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Section 2.01. Definitions
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4
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ARTICLE III DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
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10
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Section 3.01. Statements to Applicable Certificateholders
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10
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Section 3.02. Special Payments Account
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11
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Section 3.03. Distributions from Special Payments Account
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12
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Section 3.04. Limitation of Liability for Payments
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13
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ARTICLE IV DEFAULT
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13
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Section 4.01. Purchase Rights of Certificateholders
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13
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Section 4.02. Amendment of Section 6.05 of the Basic Agreement
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15
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ARTICLE V THE TRUSTEE
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15
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Section 5.01. Delivery of Documents; Delivery Dates
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15
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Section 5.02. Withdrawal of Deposits
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17
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Section 5.03. The Trustee
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17
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Section 5.04. Representations and Warranties of the Trustee
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17
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Section 5.05. Trustee Liens
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18
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ARTICLE VI ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
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18
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Section 6.01. Amendment of Section 5.02 of the Basic Agreement
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18
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Section 6.02. Supplemental Agreements Without Consent of Applicable Certificateholders
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18
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Section 6.03. Supplemental Agreements with Consent of Applicable Certificateholders
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19
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Section 6.04. Consent of Holders of Certificates Issued under Other Trusts
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19
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ARTICLE VII TERMINATION OF TRUST
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19
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Section 7.01. Termination of the Applicable Trust
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19
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ARTICLE VIII MISCELLANEOUS PROVISIONS
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22
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Section 8.01. Basic Agreement Ratified
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22
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Section 8.02. GOVERNING LAW
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22
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Section 8.03. Execution in Counterparts
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22
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Section 8.04. Intention of Parties
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22
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Exhibit A
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Form of Certificate
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Exhibit B
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DTC Letter of Representations
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Exhibit C
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Form of Assignment and Assumption Agreement
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This Trust Supplement No. 2010-1A-O, dated as of December 21, 2010 (herein called the
Trust Supplement
), between US Airways, Inc., a Delaware corporation (the
Company
), and Wilmington Trust Company (the
Trustee
), to the Pass Through Trust
Agreement, dated as of December 21, 2010, between the Company and the Trustee (the
Basic
Agreement
).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the Basic Agreement, unlimited as to the aggregate principal amount of Certificates
(unless otherwise specified herein, capitalized terms used herein without definition having the
respective meanings specified in the Basic Agreement) which may be issued thereunder, has
heretofore been executed and delivered;
WHEREAS, the Company currently owns eight (8) Aircraft;
WHEREAS, the Company intends to re-finance each Aircraft (to the extent such Aircraft is
subject to an existing security interest, after such security interest has been discharged);
WHEREAS, with respect to each Aircraft, the Company will issue pursuant to an Indenture, on a
recourse basis, Equipment Notes to re-finance such Aircraft (to the extent such Aircraft is subject
to an existing security interest, after such security interest has been discharged);
WHEREAS, the Trustee hereby declares the creation of the US Airways Pass Through Trust
2010-1A-O (the
Applicable Trust
) for the benefit of the Applicable Certificateholders,
and the initial Applicable Certificateholders as the grantors of the Applicable Trust, by their
respective acceptances of the Applicable Certificates, join in the creation of the Applicable Trust
with the Trustee;
WHEREAS, all Certificates to be issued by the Applicable Trust will evidence fractional
undivided interests in the Applicable Trust and will convey no rights, benefits or interests in
respect of any property other than the Trust Property except for those Certificates to which an
Escrow Receipt has been affixed;
WHEREAS, the Escrow Agent and the Underwriters have contemporaneously herewith entered into an
Escrow Agreement with the Escrow Paying Agent pursuant to which the Underwriters have delivered to
the Escrow Agent the proceeds from the sale of the Applicable Certificates, and have irrevocably
instructed the Escrow Agent to withdraw and pay funds from such proceeds upon request and proper
certification by the Trustee to purchase Equipment Notes as the conditions set forth in the NPA for
such purchase are satisfied from time to time prior to the Delivery Period Termination Date;
WHEREAS, the Escrow Agent on behalf of the Applicable Certificateholders has contemporaneously
herewith entered into a Deposit Agreement with the Depositary under which
2
the Deposits referred to therein will be made and from which it will withdraw funds to allow
the Trustee to purchase Equipment Notes from time to time prior to the Delivery Period Termination
Date;
WHEREAS, pursuant to the terms and conditions of the Basic Agreement as supplemented by this
Trust Supplement (the
Agreement
) and the NPA, upon the financing of an Aircraft under the
NPA, the Trustee on behalf of the Applicable Trust, using funds withdrawn under the Escrow
Agreement, shall purchase one or more Equipment Notes having the same interest rate as, and final
maturity date not later than the final Regular Distribution Date of, the Applicable Certificates
issued hereunder and shall hold such Equipment Notes in trust for the benefit of the Applicable
Certificateholders;
WHEREAS, all of the conditions and requirements necessary to make this Trust Supplement, when
duly executed and delivered, a valid, binding and legal instrument in accordance with its terms and
for the purposes herein expressed, have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms hereof have been in all respects
duly authorized;
WHEREAS, this Trust Supplement is subject to the provisions of the Trust Indenture Act of
1939, as amended, and shall, to the extent applicable, be governed by such provisions;
NOW THEREFORE, in consideration of the premises herein, it is agreed between the Company and
the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01.
The Certificates
. There is hereby created a series of Certificates to
be issued under the Agreement to be distinguished and known as US Airways Pass Through
Certificates, Series 2010-1A-O (hereinafter defined as the
Applicable Certificates
).
Each Applicable Certificate represents a fractional undivided interest in the Applicable Trust
created hereby. The Applicable Certificates shall be the only instruments evidencing a fractional
undivided interest in the Applicable Trust.
The terms and conditions applicable to the Applicable Certificates are as follows:
(a) The aggregate principal amount of the Applicable Certificates that shall be
authenticated under the Agreement (except for Applicable Certificates authenticated and
delivered under Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement) is $262,857,000.
(b) The Regular Distribution Dates with respect to any payment of Scheduled Payments
means April 22 and October 22 of each year, commencing on April 22, 2011, until payment of
all of the Scheduled Payments to be made under the Equipment Notes has been made.
3
(c) The Special Distribution Dates with respect to the Applicable Certificates means
any Business Day on which a Special Payment is to be distributed pursuant to the Agreement.
(d) At the Escrow Agents request under the Escrow Agreement, the Trustee shall affix
the corresponding Escrow Receipt to each Applicable Certificate. In any event, any transfer
or exchange of any Applicable Certificate shall also effect a transfer or exchange of the
related Escrow Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of any
Applicable Certificate shall be permitted unless the corresponding Escrow Receipt is
attached thereto and also is so transferred or exchanged. By acceptance of any Applicable
Certificate to which an Escrow Receipt is attached, each Holder of such an Applicable
Certificate acknowledges and accepts the restrictions on transfer of the Escrow Receipt set
forth herein and in the Escrow Agreement.
(e) (i) The Applicable Certificates shall be in the form attached hereto as Exhibit A.
Any Person acquiring or accepting an Applicable Certificate or an interest therein will, by
such acquisition or acceptance, be deemed to represent and warrant to and for the benefit of
the Company that either (i) the assets of an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended (
ERISA
), or of a plan
subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the
Code
), have not been used to purchase or hold Applicable Certificates or an
interest therein or (ii) the purchase and holding of Applicable Certificates or an interest
therein is exempt from the prohibited transaction restrictions of ERISA and the Code
pursuant to one or more prohibited transaction statutory or administrative exemptions.
(ii) The Applicable Certificates shall be Book-Entry Certificates and shall be subject
to the conditions set forth in the Letter of Representations between the Company and the
Clearing Agency attached hereto as Exhibit B.
(f) The Participation Agreements as defined in this Trust Supplement are the Note
Purchase Agreements referred to in the Basic Agreement.
(g) The Applicable Certificates are subject to the Intercreditor Agreement, the Deposit
Agreement and the Escrow Agreement.
(h) The Applicable Certificates are entitled to the benefits of the Liquidity Facility.
(i) The Responsible Party is the Company.
(j) The date referred to in clause (i) of the definition of the term PTC Event of
Default in the Basic Agreement is the Final Maturity Date.
4
(k) The particular sections of the Note Purchase Agreement, for purposes of clause
(3) of Section 7.07 of the Basic Agreement, are Section 8.1 of each Participation Agreement.
(l) The Equipment Notes to be acquired and held in the Applicable Trust, and the
related Aircraft and Note Documents, are described in the NPA.
ARTICLE II
DEFINITIONS
Section 2.01.
Definitions
. For all purposes of the Basic Agreement as supplemented
by this Trust Supplement, the following capitalized terms have the following meanings (any term
used herein which is defined in both this Trust Supplement and the Basic Agreement shall have the
meaning assigned thereto in this Trust Supplement for purposes of the Basic Agreement as
supplemented by this Trust Supplement):
Agreement
: Has the meaning specified in the recitals hereto.
Aircraft
: Means each of the aircraft in respect of which a Participation
Agreement is to be or is, as the case may be, entered into in accordance with the NPA (or
any replacement aircraft, including engines therefor, owned by the Company and securing one
or more Equipment Notes).
Aircraft Purchase Agreement
: Has the meaning specified in the NPA.
Applicable Certificate
: Has the meaning specified in Section 1.01 of this
Trust Supplement.
Applicable Certificateholder
: Means the Person in whose name an Applicable
Certificate is registered on the Register for the Applicable Certificates.
Applicable Closing Date
: Has the meaning specified in Section 5.01(b) of this
Trust Supplement.
Applicable Participation Agreement
: Has the meaning specified in Section
5.01(b) of this Trust Supplement.
Applicable Trust
: Has the meaning specified in the recitals hereto.
Assignment and Assumption Agreement
: Means the assignment and assumption
agreement substantially in the form of Exhibit C hereto executed and delivered in accordance
with Section 7.01 of this Trust Supplement.
Basic Agreement
: Has the meaning specified in the first paragraph of this
Trust Supplement.
5
Business Day
: Means any day other than a Saturday, a Sunday or a day on which
commercial banks are required or authorized to close in Phoenix, Arizona, New York, New
York, or, so long as any Applicable Certificate is Outstanding, the city and state in which
the Trustee, the Subordination Agent or any Loan Trustee maintains its Corporate Trust
Office or receives and disburses funds.
Certificate
: Has the meaning specified in the Intercreditor Agreement.
Certificate Buyout Event
: Means that a US Airways Bankruptcy Event has occurred
and is continuing and the following events have occurred: (A) (i) the 60-day period
specified in Section 1110(a)(2)(A) of the U.S. Bankruptcy Code (the
60-Day Period
)
has expired and (ii) US Airways has not entered into one or more agreements under Section
1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations under all of the
Indentures or, if it has entered into such agreements, has at any time thereafter failed to
cure any default under any of the Indentures in accordance with Section 1110(a)(2)(B) of the
Bankruptcy Code; or (B) if prior to the expiry of the 60-Day Period, US Airways shall have
abandoned any Aircraft.
Class
: Has the meaning specified in the Intercreditor Agreement.
Closing Notice
: Has the meaning specified in the NPA.
Company
: Has the meaning specified in the first paragraph of this Trust
Supplement.
Controlling Party
: Has the meaning specified in the Intercreditor Agreement.
Cut-off Date
: Means the earlier of (a) the Delivery Period Termination Date
and (b) the date on which a Triggering Event occurs.
Delivery Period Termination Date
: Means the earlier of (a) January 21, 2011,
and (b) the date on which Equipment Notes issued with respect to all of the Aircraft (as
defined in the NPA) have been purchased by the Applicable Trust in accordance with the NPA.
Deposit Agreement
: Means the Deposit Agreement dated as of December 21, 2010,
relating to the Applicable Certificates between the Depositary and the Escrow Agent, as the
same may be amended, supplemented or otherwise modified from time to time in accordance with
its terms.
Depositary
: Means The Bank of New York Mellon, a bank chartered under the laws
of the State of New York.
Deposits
: Has the meaning specified in the Deposit Agreement.
6
Distribution Date
: Means any Regular Distribution Date or Special Distribution
Date as the context requires.
Escrow Agent
: Means, initially, Wells Fargo Bank Northwest, National
Association, and any replacement or successor therefor appointed in accordance with the
Escrow Agreement.
Escrow Agreement
: Means the Escrow and Paying Agent Agreement dated as of
December 21, 2010 relating to the Applicable Certificates, among the Escrow Agent, the
Escrow Paying Agent, the Trustee and Underwriters, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
Escrow Paying Agent
: Means the Person acting as paying agent under the Escrow
Agreement.
Escrow Receipt
: Means the receipt substantially in the form annexed to the
Escrow Agreement representing a fractional undivided interest in the funds held in escrow
thereunder.
Final Maturity Date
: Means October 22, 2024.
Final Withdrawal
: Has the meaning specified in the Escrow Agreement.
Final Withdrawal Date
: Has the meaning specified in the Escrow Agreement.
Final Withdrawal Notice
: Has the meaning specified in Section 5.02 of this
Trust Supplement.
Guarantee
: Means the Guarantee dated as of December 21, 2010 of US Airways
Group, Inc. covering the Guaranteed Obligations referred to therein including the Equipment
Notes.
Indenture
: Means each of the separate trust indentures and mortgages relating
to the Aircraft, each as specified or described in a Closing Notice delivered pursuant to
the NPA or the related Participation Agreement, in each case as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its terms.
Intercreditor Agreement
: Means the Intercreditor Agreement dated as of
December 21, 2010, among the Trustee, the Other Trustees, the Liquidity Provider, the
liquidity provider relating to the Class B Certificates and Wilmington Trust Company, as
Subordination Agent and as trustee thereunder, as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Investors
: Means the Underwriters, together with all subsequent beneficial
owners of the Applicable Certificates.
7
Liquidity Facility
: Means, initially, the Revolving Credit Agreement dated as
of December 21, 2010 relating to the Applicable Certificates, between the Liquidity Provider
and Wilmington Trust Company, as Subordination Agent, as agent and trustee for the
Applicable Trust, and, from and after the replacement of such agreement pursuant to the
Intercreditor Agreement, the replacement liquidity facility therefor, in each case as
amended, supplemented or otherwise modified from time to time in accordance with their
respective terms.
Liquidity Provider
: Means, initially, Morgan Stanley Bank, N.A., organized
under the laws of the United States of America, and any replacements or successors therefor
appointed in accordance with the Intercreditor Agreement.
Note Documents
: Means the Equipment Notes with respect to the Applicable
Certificates and, with respect to any such Equipment Note, the Indenture, the Guarantee and
the Participation Agreement relating to such Equipment Note.
Notice of Purchase Withdrawal
: Has the meaning specified in the Deposit
Agreement.
NPA
: Means the Note Purchase Agreement dated as of December 21, 2010 among the
Trustee, the Other Trustees, the Company, the Escrow Agent, the Escrow Paying Agent and the
Subordination Agent, providing for, among other things, the purchase of Equipment Notes by
the Trustee on behalf of the Applicable Trust, as the same may be amended, supplemented or
otherwise modified from time to time, in accordance with its terms.
Other Agreements
: Means (i) the Basic Agreement as supplemented by Trust
Supplement No. 2010-1B-O dated as of the date hereof relating to US Airways Pass Through
Trust 2010-1B-O, (ii) the Basic Agreement as supplemented by a Trust Supplement relating to
any Additional Trust and (iii) the Basic Agreement as supplemented by a Trust Supplement
relating to any Refinancing Trust.
Other Trustees
: Means the trustees under the Other Agreements, and any
successor or other trustee appointed as provided therein.
Other Trusts
: Means the US Airways Pass Through Trust 2010-1B-O, an Additional
Trust, if any, and a Refinancing Trust or Trusts, if any, created by the Other Agreements.
Participation Agreement
: Means each Participation Agreement to be entered
into, or entered into (as the case may be), by the Trustee pursuant to the NPA, as the same
may be amended, supplemented or otherwise modified in accordance with its terms.
Pool Balance
: Means, as of any date, (i) the original aggregate face amount of
the Applicable Certificates less (ii) the aggregate amount of all payments made as of such
date in respect of such Applicable Certificates or in respect of Deposits other than
8
payments made in respect of interest or premium thereon or reimbursement of any costs
or expenses incurred in connection therewith. The Pool Balance as of any date shall be
computed after giving effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes or payment with respect to other Trust Property
and the distribution thereof to be made on that date.
Pool Factor
: Means, as of any Distribution Date, the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance by (ii) the original
aggregate face amount of the Applicable Certificates. The Pool Factor as of any
Distribution Date shall be computed after giving effect to any special distribution with
respect to unused Deposits, payment of principal of the Equipment Notes or payment with
respect to other Trust Property and the distribution thereof to be made on that date.
Prospectus Supplement
: Means the final Prospectus Supplement dated December
15, 2010, relating to the offering of the Applicable Certificates and the Class B
Certificates.
Ratings Confirmation
: Has the meaning specified in the Intercreditor
Agreement.
Related Pass Through Trust Agreement
: Means the Basic Agreement as
supplemented by the Trust Supplement No. 2010-1A-S dated as of the date hereof relating to
the US Airways Pass Through Trust 2010-1A-S and entered into by the Company and the Related
Trustee, which agreement becomes effective upon the execution and delivery of the Assignment
and Assumption Agreement pursuant to Section 7.01 of this Trust Supplement.
Related Trust
: Means the US Airways Pass Through Trust 2010-1A-S, to be formed
under the Related Pass Through Trust Agreement.
Related Trustee
: Means the trustee under the Related Pass Through Trust
Agreement.
Scheduled Closing Date
: Has the meaning specified in the NPA.
Scheduled Payment
: Means, with respect to any Equipment Note, (i) any payment
of principal or interest on such Equipment Note (other than any such payment which is not in
fact received by the Trustee or the Subordination Agent within five days of the date on
which such payment is scheduled to be made) or (ii) any payment of interest on the
Applicable Certificates with funds drawn under the Liquidity Facility, which payment in any
such case represents the installment of principal on such Equipment Note at the stated
maturity of such installment, the payment of regularly scheduled interest accrued on the
unpaid principal amount of such Equipment Note, or both;
provided
,
however
,
that any payment of principal, premium, if any, or interest resulting from the redemption or
purchase of any Equipment Note shall not constitute a Scheduled Payment.
9
Special Payment
: Means any payment (other than a Scheduled Payment) in respect
of, or any proceeds of, any Equipment Note or Collateral (as defined in each Indenture).
Transfer Date
: Has the meaning specified in Section 7.01 of this Trust
Supplement.
Triggering Event
: Has the meaning assigned to such term in the Intercreditor
Agreement.
Trust Property
: Means (i) subject to the Intercreditor Agreement, the
Equipment Notes held as the property of the Applicable Trust, the Guarantee with respect to
such Equipment Notes, all monies at any time paid thereon and all monies due and to become
due thereunder, (ii) funds from time to time deposited in the Certificate Account and the
Special Payments Account and, subject to the Intercreditor Agreement, any proceeds from the
sale by the Trustee pursuant to Article VI of the Basic Agreement of any Equipment Note and
(iii) all rights of the Applicable Trust and the Trustee, on behalf of the Applicable Trust,
under the Intercreditor Agreement, the Escrow Agreement, the NPA and the Liquidity Facility,
including, without limitation, all rights to receive certain payments thereunder, and all
monies paid to the Trustee on behalf of the Applicable Trust pursuant to the Intercreditor
Agreement or the Liquidity Facility,
provided
that rights with respect to the
Deposits or under the Escrow Agreement, except for the right to direct withdrawals for the
purchase of Equipment Notes to be held herein, will not constitute Trust Property.
Trust Supplement
: Has the meaning specified in the first paragraph of this
trust supplement.
Trustee
: Has the meaning specified in the first paragraph of this Trust
Supplement.
Underwriters
: Means, collectively, Morgan Stanley & Co. Incorporated,
Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
Underwriting Agreement
: Means the Underwriting Agreement dated December 15,
2010 among the Underwriters, the Company, US Airways Group, Inc. and the Depositary, as the
same may be amended, supplemented or otherwise modified from time to time in accordance with
its terms.
US Airways Bankruptcy Event
: Has the meaning specified in the Intercreditor
Agreement.
10
ARTICLE III
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01.
Statements to Applicable Certificateholders
. (a) On each Distribution
Date, the Trustee will include with each distribution to Applicable Certificateholders of a
Scheduled Payment or Special Payment, as the case may be, a statement setting forth the information
provided below (in the case of a Special Payment, reflecting in part the information provided by
the Escrow Paying Agent under the Escrow Agreement). Such statement shall set forth (per $1,000
face amount Applicable Certificate as to (ii), (iii), (iv) and (v) below) the following
information:
(i) the aggregate amount of funds distributed on such Distribution Date under the
Agreement and under the Escrow Agreement, indicating the amount allocable to each source,
including any portion thereof paid by the Liquidity Provider;
(ii) the amount of such distribution under the Agreement allocable to principal and the
amount allocable to premium, if any;
(iii) the amount of such distribution under the Agreement allocable to interest;
(iv) the amount of such distribution under the Escrow Agreement allocable to interest;
(v) the amount of such distribution under the Escrow Agreement allocable to unused
Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name of a Clearing Agency or its
nominee, on the Record Date prior to each Distribution Date, the Trustee will, at the expense of
the Company, request that such Clearing Agency post on its Internet bulletin board a securities
position listing setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agencys books as holding interests in the Applicable Certificates on such Record Date.
On each Distribution Date, the Trustee will mail to each such Clearing Agency Participant the
statement described above and will make available additional copies as requested by such Clearing
Agency Participant for forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each calendar year but not later than
the latest date permitted by law, the Trustee shall furnish to each Person who at any time during
such calendar year was an Applicable Certificateholder of record a statement containing the sum of
the amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v) above for
such calendar year or, in the event such Person was an Applicable Certificateholder of record
during a portion of such calendar year, for such portion of such year, and such other items as are
readily available to the Trustee and which an Applicable Certificateholder shall reasonably request
as necessary for the purpose of such Applicable Certificateholders preparation of its U.S. federal
income tax returns. Such statement and such
11
other items shall be prepared on the basis of information supplied to the Trustee by the
Clearing Agency Participants and shall be delivered by the Trustee to such Clearing Agency
Participants to be available for forwarding by such Clearing Agency Participants to the holders of
interests in the Applicable Certificates in the manner described in Section 3.01(a) of this Trust
Supplement.
(c) If the aggregate principal payments scheduled for a Regular Distribution Date prior to the
Delivery Period Termination Date differ from the amount thereof set forth for the Applicable
Certificates on page S-82 of the Prospectus Supplement, by no later than the 15
th
day
prior to such Regular Distribution Date, the Trustee shall mail written notice of the actual amount
of such scheduled payments to the Applicable Certificateholders of record as of a date within 15
Business Days prior to the date of mailing.
(d) Promptly following (i) the Delivery Period Termination Date, if there has been any change
in the information set forth in clauses (y) and (z) below from that set forth in page S-82 of the
Prospectus Supplement, and (ii) the date of any early redemption of, or any default in the payment
of principal or interest in respect of, any of the Equipment Notes held in the Applicable Trust, or
any Final Withdrawal, the Trustee shall furnish to Applicable Certificateholders of record on such
date a statement setting forth (x) the expected Pool Balances for each subsequent Regular
Distribution Date following the Delivery Period Termination Date, (y) the related Pool Factors for
such Regular Distribution Dates and (z) the expected principal distribution schedule of the
Equipment Notes, in the aggregate, held as Trust Property at the date of such notice. With respect
to the Applicable Certificates registered in the name of a Clearing Agency, on the Delivery Period
Termination Date, the Trustee will request from such Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on such Clearing Agencys
books as holding interests in the Applicable Certificates on such date. The Trustee will mail to
each such Clearing Agency Participant the statement described above and will make available
additional copies as requested by such Clearing Agency Participant for forwarding to holders of
interests in the Applicable Certificates.
(e) The Trustee shall provide promptly to the Applicable Certificateholders all material
non-confidential information received by the Trustee from the Company.
(f) This Section 3.01 supersedes and replaces Section 4.03 of the Basic Agreement, with
respect to the Applicable Trust.
Section 3.02.
Special Payments Account
. (a) The Trustee shall establish and
maintain on behalf of the Applicable Certificateholders a Special Payments Account as one or more
accounts, which shall be non-interest bearing except as provided in Section 4.04 of the Basic
Agreement. The Trustee shall hold the Special Payments Account in trust for the benefit of the
Applicable Certificateholders and shall make or permit withdrawals therefrom only as provided in
the Agreement. On each day when one or more Special Payments are made to the Trustee under the
Intercreditor Agreement, the Trustee, upon receipt thereof, shall immediately deposit the aggregate
amount of such Special Payments in the Special Payments Account.
(b) This Section 3.02 supersedes and replaces Section 4.01(b) of the Basic Agreement in its
entirety, with respect to the Applicable Trust.
12
Section 3.03.
Distributions from Special Payments Account
. (a) On each Special
Distribution Date with respect to any Special Payment or as soon thereafter as the Trustee has
confirmed receipt of any Special Payments due on the Equipment Notes held (subject to the
Intercreditor Agreement) in the Applicable Trust or realized upon the sale of such Equipment Notes,
the Trustee shall distribute out of the Special Payments Account the entire amount of such Special
Payment deposited therein pursuant to Section 3.02(a) of this Trust Supplement. There shall be so
distributed to each Applicable Certificateholder of record on the Record Date with respect to such
Special Distribution Date (other than as provided in Section 7.01 of this Trust Supplement
concerning the final distribution) by check mailed to such Applicable Certificateholder, at the
address appearing in the Register, such Applicable Certificateholders
pro rata
share (based on the
Fractional Undivided Interest in the Applicable Trust held by such Applicable Certificateholder) of
the total amount in the Special Payments Account on account of such Special Payment, except that,
with respect to Applicable Certificates registered on the Record Date in the name of a Clearing
Agency (or its nominee), such distribution shall be made by wire transfer in immediately available
funds to the account designated by such Clearing Agency (or such nominee).
(b) The Trustee shall, at the expense of the Company, cause notice of each Special Payment to
be mailed to each Applicable Certificateholder at his address as it appears in the Register. In
the event of redemption or purchase of Equipment Notes held in the Applicable Trust, such notice
shall be mailed not less than 15 days prior to the Special Distribution Date for the Special
Payment resulting from such redemption or purchase, which Special Distribution Date shall be the
date of such redemption or purchase. In the case of any Special Payments, such notice shall be
mailed as soon as practicable after the Trustee has confirmed that it has received funds for such
Special Payment, stating the Special Distribution Date for such Special Payment which shall occur
not less than 15 days after the date of such notice and as soon as practicable thereafter. Notices
with respect to a Special Payment mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor (except as otherwise
provided in Section 7.01 of this Trust Supplement),
(ii) the amount of the Special Payment for each $1,000 face amount Applicable
Certificate and the amount thereof constituting principal, premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular Distribution Date,
the total amount to be received on such date for each $1,000 face amount Applicable
Certificate.
If the amount of premium, if any, payable upon the redemption or purchase of an Equipment Note has
not been calculated at the time that the Trustee mails notice of a Special Payment, it shall be
sufficient if the notice sets forth the other amounts to be distributed and states that any premium
received will also be distributed.
13
If any redemption of the Equipment Notes held in the Trust is canceled, the Trustee, as soon
as possible after learning thereof, shall cause notice thereof to be mailed to each Applicable
Certificateholder at its address as it appears on the Register.
(b) This Section 3.03 supersedes and replaces Section 4.02(b) and Section 4.02(c) of the
Basic Agreement in their entirety, with respect to the Applicable Trust.
Section 3.04.
Limitation of Liability for Payments
. Section 3.09 of the Basic
Agreement shall be amended, with respect to the Applicable Trust, by deleting the phrase any Owner
Trustee or any Owner Participant in the third sentence thereof.
ARTICLE IV
DEFAULT
Section 4.01.
Purchase Rights of Certificateholders
. (a) By acceptance of its
Applicable Certificate, each Applicable Certificateholder agrees that at any time after the
occurrence and during the continuation of a Certificate Buyout Event:
(i) each Class B Certificateholder (other than the Company or any of its Affiliates)
shall have the right to purchase all, but not less than all, of the Applicable Certificates
upon 15 days written notice to the Trustee and each other Class B Certificateholder, on the
third Business Day next following the expiry of such 15-day notice period,
provided
that (A) if prior to the end of such 15-day period any other Class B Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing Class B
Certificateholder that such other Class B Certificateholder wants to participate in such
purchase, then such other Class B Certificateholder (other than the Company or any of its
Affiliates) may join with the purchasing Class B Certificateholder to purchase all, but not
less than all, of the Applicable Certificates pro rata based on the Fractional Undivided
Interest in the Class B Trust held by each such Class B Certificateholder and (B) if prior
to the end of such 15-day period any other Class B Certificateholder fails to notify the
purchasing Class B Certificateholder of such other Class B Certificateholders desire to
participate in such a purchase, then such other Class B Certificateholder shall lose its
right to purchase the Applicable Certificates pursuant to this Section 4.01(a)(i);
(ii) if any Additional Certificates are issued pursuant to any Additional Trust, each
Additional Certificateholder (other than the Company or any of its Affiliates), shall have
the right (which shall not expire upon any purchase of the Applicable Certificates pursuant
to clause (i) above) to purchase all, but not less than all, of the Applicable Certificates
and the Class B Certificates upon 15 days written notice to the Trustee, the Class B
Trustee and each other Additional Certificateholder, on the third Business Day next
following the expiry of such 15-day notice period,
provided
that (A) if prior to the
end of such 15-day period any other Additional Certificateholder (other than the Company or
any of its Affiliates) notifies such purchasing Additional Certificateholder that such other
Additional Certificateholder wants to participate in such purchase, then such other
Additional Certificateholder (other than the Company or any of its Affiliates)
14
may join with the purchasing Additional Certificateholder to purchase all, but not less
than all, of the Applicable Certificates and the Class B Certificates pro rata based on the
Fractional Undivided Interest in the Additional Trust held by each such Additional
Certificateholder and (B) if prior to the end of such 15-day period any other Additional
Certificateholder fails to notify the purchasing Additional Certificateholder of such other
Additional Certificateholders desire to participate in such a purchase, then such other
Additional Certificateholder shall lose its right to purchase the Applicable Certificates
and the Class B Certificates pursuant to this Section 4.01(a)(ii); and
(iii) if any Refinancing Certificates are issued, each Refinancing Certificateholder
shall have the same right (subject to the same terms and conditions) to purchase
Certificates pursuant to this Section 4.01(a) (and to receive notice in connection
therewith) as the Certificateholders of the Class that such Refinancing Certificates
refinanced.
The purchase price with respect to the Applicable Certificates shall be equal to the Pool
Balance of the Applicable Certificates, together with accrued and unpaid interest thereon to the
date of such purchase, without premium, but including any other amounts then due and payable to the
Applicable Certificateholders under the Agreement, the Intercreditor Agreement, the Escrow
Agreement or any Note Document or on or in respect of the Applicable Certificates;
provided
,
however
, that no such purchase of Applicable Certificates shall be
effective unless the purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the Agreement and the
Other Agreements, (A) in the case of any purchase of the Applicable Certificates pursuant to clause
(i) above, all of the Applicable Certificates or (B) in the case of any purchase of Applicable
Certificates and Class B Certificates pursuant to clause (ii) above, all of the Applicable
Certificates and the Class B Certificates. Each payment of the purchase price of the Applicable
Certificates referred to in the first sentence hereof shall be made to an account or accounts
designated by the Trustee and each such purchase shall be subject to the terms of this Section
4.01. Each Applicable Certificateholder agrees by its acceptance of its Applicable Certificate
that (at any time after the occurrence of a Certificate Buyout Event) it will, upon payment from
such Class B Certificateholder(s), Additional Certificateholder(s) or Refinancing
Certificateholder(s), as the case may be, of the purchase price set forth in the first sentence of
this paragraph, (i) forthwith sell, assign, transfer and convey to the purchaser(s) thereof
(without recourse, representation or warranty of any kind except for its own acts), all of the
right, title, interest and obligation of such Applicable Certificateholder in the Agreement, the
Escrow Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity Facility, the
NPA, the Note Documents and all Applicable Certificates and Escrow Receipts held by such Applicable
Certificateholder (excluding all right, title and interest under any of the foregoing to the extent
such right, title or interest is with respect to an obligation not then due and payable as respects
any action or inaction or state of affairs occurring prior to such sale) (and the purchaser shall
assume all of such Applicable Certificateholders obligations under the Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity Facility, the NPA, the
Note Documents and all such Applicable Certificates and Escrow Receipts), (ii) if such purchase
occurs after a record date specified in Section 2.03 of the Escrow Agreement relating to the
distribution of unused Deposits and/or accrued and unpaid interest on Deposits
15
and prior to or on the related distribution date thereunder, forthwith turn over to the
purchaser(s) of its Applicable Certificate all amounts, if any, received by it on account of such
distribution, and (iii) if such purchase occurs after a Record Date relating to any distribution
and prior to or on the related Distribution Date, forthwith turn over to the purchaser(s) of its
Applicable Certificate all amounts, if any, received by it on account of such distribution. The
Applicable Certificates will be deemed to be purchased on the date payment of the purchase price is
made notwithstanding the failure of the Applicable Certificateholders to deliver any Applicable
Certificates and, upon such a purchase, (I) the only rights of the Applicable Certificateholders
will be to deliver the Applicable Certificates to the purchaser(s) and receive the purchase price
for such Applicable Certificates and (II) if the purchaser(s) shall so request, such Applicable
Certificateholder will comply with all the provisions of Section 3.04 of the Basic Agreement to
enable new Applicable Certificates to be issued to the purchaser in such denominations as it shall
request. All charges and expenses in connection with the issuance of any such new Applicable
Certificates shall be borne by the purchaser thereof.
As used in this Section 4.01 and elsewhere in this Trust Supplement, the terms Additional
Certificate, Additional Certificateholder, Additional Equipment Notes, Additional Trust,
Class B Certificate, Class B Certificateholder, Class B Trust, Class B Trustee,
Refinancing Certificates, Refinancing Certificateholder, Refinancing Equipment Notes and
Refinancing Trust shall have the respective meanings assigned to such terms in the Intercreditor
Agreement.
(b) This Section 4.01 supersedes and replaces Section 6.01(b) of the Basic Agreement, with
respect to the Applicable Trust.
Section 4.02.
Amendment of Section 6.05 of the Basic Agreement
. Section 6.05 of the
Basic Agreement shall be amended, with respect to the Applicable Trust, by deleting the phrase and
thereby annul any Direction given by such Certificateholders or the Trustee to such Loan Trustee
with respect thereto, set forth in the first sentence thereof.
ARTICLE V
THE TRUSTEE
Section 5.01.
Delivery of Documents; Delivery Dates
. (a) The Trustee is hereby
directed (i) to execute and deliver the Intercreditor Agreement, the Escrow Agreement and the NPA
on or prior to the Issuance Date, each in the form delivered to the Trustee by the Company, and
(ii) subject to the respective terms thereof, to perform its obligations thereunder. Upon request
of the Company and the satisfaction or waiver of the closing conditions specified in the
Underwriting Agreement, the Trustee shall execute, deliver, authenticate, issue and sell Applicable
Certificates in authorized denominations equaling in the aggregate the amount set forth, with
respect to the Applicable Trust, in Schedule I to the Underwriting Agreement evidencing the entire
ownership interest in the Applicable Trust, which amount equals the maximum aggregate principal
amount of Equipment Notes which may be purchased by the Trustee pursuant to the NPA. Except as
provided in Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement, the Trustee shall not
execute, authenticate or deliver Applicable Certificates in excess of the aggregate amount
specified in this paragraph. The provisions of this
16
Section 5.01(a) supersede and replace the first sentence of Section 3.02(a) of the Basic Agreement,
with respect to the Applicable Trust.
(b) After the Issuance Date, the Company may deliver from time to time to the Trustee a
Closing Notice relating to one or more Equipment Notes. After receipt of a Closing Notice and in
any case no later than one Business Day prior to a Scheduled Closing Date as to which such Closing
Notice relates (the
Applicable Closing Date
), the Trustee shall (as and when specified in
the Closing Notice) instruct the Escrow Agent to provide a Notice of Purchase Withdrawal to the
Depositary requesting (A) the withdrawal of one or more Deposits on the Applicable Closing Date in
accordance with and to the extent permitted by the terms of the Escrow Agreement and the Deposit
Agreement and (B) the payment of all, or a portion, of such Deposit or Deposits in an amount equal
in the aggregate to the purchase price of such Equipment Notes to or on behalf of the Company, all
as shall be described in the Closing Notice. The Trustee shall (as and when specified in such
Closing Notice), subject to the conditions set forth in Section 2 of the NPA, enter into and
perform its obligations under the Participation Agreement specified in such Closing Notice (the
Applicable Participation Agreement
) and cause such certificates, documents and legal
opinions relating to the Trustee to be duly delivered as required by the Applicable Participation
Agreement. If at any time prior to the Applicable Closing Date, the Trustee receives a notice of
postponement pursuant to Section 1(e) or 1(f) of the NPA, then the Trustee shall give the
Depositary (with a copy to the Escrow Agent) a notice of cancellation of such Notice of Purchase
Withdrawal relating to such Deposit or Deposits on such Applicable Closing Date. Upon satisfaction
of the conditions specified in the NPA and the Applicable Participation Agreement, the Trustee
shall purchase the applicable Equipment Notes with the proceeds of the withdrawals of one or more
Deposits made on the Applicable Closing Date in accordance with the terms of the Deposit Agreement
and the Escrow Agreement. The purchase price of such Equipment Notes shall equal the principal
amount of such Equipment Notes. Amounts withdrawn from such Deposit or Deposits in excess of the
purchase price of the Equipment Notes or to the extent not applied on the Applicable Closing Date
to the purchase price of the Equipment Notes, shall be re-deposited by the Trustee with the
Depositary on the Applicable Closing Date in accordance with the terms of the Deposit Agreement.
The provisions of this Section 5.01(b) supersede and replace the provisions of Section 2.02 of the
Basic Agreement with respect to the Applicable Trust, and all provisions of the Basic Agreement
relating to Postponed Notes and Section 2.02 of the Basic Agreement shall not apply to the
Applicable Trust.
(c) The Trustee acknowledges its acceptance of all right, title and interest in and to the
Trust Property to be acquired pursuant to Section 5.01(b) of this Trust Supplement, the NPA and
each Applicable Participation Agreement, and declares that it holds and will hold such right, title
and interest for the benefit of all present and future Applicable Certificateholders, upon the
trusts set forth in the Agreement. By its acceptance of an Applicable Certificate, each initial
Applicable Certificateholder, as a grantor of the Applicable Trust, joins with the Trustee in the
creation of the Applicable Trust. The provisions of this Section 5.01(c) supersede and replace the
provisions of Section 2.03 of the Basic Agreement, with respect to the Applicable Trust.
17
Section 5.02.
Withdrawal of Deposits
. If any Deposits remain outstanding on the
Business Day next succeeding the Cut-off Date, the Trustee shall promptly give the Escrow Agent
notice that the Trustees obligation to purchase Equipment Notes under the NPA has terminated and
instruct the Escrow Agent to provide a notice of Final Withdrawal to the Depositary substantially
in the form of Exhibit B to the Deposit Agreement (the
Final Withdrawal Notice
).
Section 5.03.
The Trustee
. (a) Subject to Section 5.04 of this Trust Supplement and
Section 7.15 of the Basic Agreement, the Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Trust Supplement, the Deposit Agreement,
the NPA or the Escrow Agreement or the due execution hereof or thereof by the Company or the other
parties thereto (other than the Trustee), or for or in respect of the recitals and statements
contained herein or therein, all of which recitals and statements are made solely by the Company,
except that the Trustee hereby represents and warrants that each of this Trust Supplement, the
Basic Agreement, each Applicable Certificate, the Intercreditor Agreement, the NPA and the Escrow
Agreement has been executed and delivered by one of its officers who is duly authorized to execute
and deliver such document on its behalf.
(b) Except as herein otherwise provided and except during the continuation of an Event of
Default in respect of the Applicable Trust created hereby, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this
Trust Supplement other than as set forth in the Agreement, and this Trust Supplement is executed
and accepted on behalf of the Trustee, subject to all the terms and conditions set forth in the
Agreement, as fully to all intents as if the same were herein set forth at length.
Section 5.04.
Representations and Warranties of the Trustee
. The Trustee hereby
represents and warrants that:
(a) the Trustee has full power, authority and legal right to execute, deliver and
perform this Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA
and the Note Documents to which it is or is to become a party and has taken all necessary
action to authorize the execution, delivery and performance by it of this Trust Supplement,
the Intercreditor Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is or is to become a party;
(b) the execution, delivery and performance by the Trustee of this Trust Supplement,
the Intercreditor Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is or is to become a party (i) will not violate any provision of any United States
federal law or the law of the state of the United States where it is located governing the
banking and trust powers of the Trustee or any order, writ, judgment, or decree of any
court, arbitrator or governmental authority applicable to the Trustee or any of its assets,
(ii) will not violate any provision of the articles of association or by-laws of the
Trustee, and (iii) will not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of any lien on
any properties included in the Trust Property pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a party,
18
which violation, default or lien could reasonably be expected to have an adverse effect
on the Trustees performance or ability to perform its duties hereunder or thereunder or on
the transactions contemplated herein or therein;
(c) the execution, delivery and performance by the Trustee of this Trust Supplement,
the Intercreditor Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is or is to become a party will not require the authorization, consent, or approval of,
the giving of notice to, the filing or registration with, or the taking of any other action
in respect of, any governmental authority or agency of the United States or the state of the
United States where it is located regulating the banking and corporate trust activities of
the Trustee; and
(d) this Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA
and the Note Documents to which it is or is to become a party have been, or will be, as
applicable, duly executed and delivered by the Trustee and constitute, or will constitute,
as applicable, the legal, valid and binding agreements of the Trustee, enforceable against
it in accordance with their respective terms;
provided
,
however
, that
enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and (ii) general
principles of equity.
Section 5.05.
Trustee Liens
. The Trustee in its individual capacity agrees, in
addition to the agreements contained in Section 7.17 of the Basic Agreement, that it will at its
own cost and expense promptly take any action as may be necessary to duly discharge and satisfy in
full any Trustees Liens on or with respect to the Trust Property which is attributable to the
Trustee in its individual capacity and which is unrelated to the transactions contemplated by the
Intercreditor Agreement or the NPA.
ARTICLE VI
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section 6.01.
Amendment of Section 5.02 of the Basic Agreement
. Section 5.02 of the
Basic Agreement shall be amended, with respect to the Applicable Trust, by (i) replacing the phrase
of the Note Documents and of this Agreement set forth in paragraph (b) thereof with the phrase
of the Note Documents, of the NPA and of this Agreement and (ii) replacing the phrase of this
Agreement and any Note Document set forth in the last paragraph of Section 5.02 with the phrase
of this Agreement, the NPA and any Note Document.
Section 6.02.
Supplemental Agreements Without Consent of Applicable
Certificateholders
. Without limitation of Section 9.01 of the Basic Agreement, under the terms
of, and subject to the limitations contained in, Section 9.01 of the Basic Agreement, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03 of the Basic Agreement)
shall, at the Companys request, at any time and from time to time, (i) enter into one or more
agreements supplemental to the Escrow Agreement, the NPA or the Deposit Agreement, for any of the
purposes set forth in clauses (1) through (14) of such Section 9.01, and (without limitation of the
foregoing or Section 9.01 of the Basic Agreement) references in clauses (4), (6)
19
and (7) of such Section 9.01 to any Intercreditor Agreement, any Note Purchase Agreement, any
Liquidity Facility or any Guarantee shall also be deemed to refer to the Intercreditor Agreement,
the Liquidity Facility, the Escrow Agreement, the NPA, the Guarantee or the Deposit Agreement;
(ii) enter into one or more agreements supplemental to the Agreement, the Intercreditor Agreement
or the NPA to provide for the formation of a single Additional Trust, the issuance of Additional
Certificates, the purchase by the Additional Trust (if any) of applicable Additional Equipment
Notes and other matters incidental thereto or otherwise contemplated by Section 2.01(b) of the
Basic Agreement, subject to the provisions of Section 4(a)(vi) of the NPA and Section 9.1 of the
Intercreditor Agreement, and (iii) enter into one or more agreements supplemental to the Agreement
to provide for the formation of one or more Refinancing Trusts, the issuance of Refinancing
Certificates, the purchase by any Refinancing Trust of applicable Refinancing Equipment Notes and
other matters incidental thereto or as otherwise contemplated by Section 2.01(b) of the Basic
Agreement, subject to the provisions of Section 4(a)(vi) of the NPA and Section 9.1(c) of the
Intercreditor Agreement.
Section 6.03.
Supplemental Agreements with Consent of Applicable Certificateholders
.
Without limitation of Section 9.02 of the Basic Agreement, the provisions of Section 9.02 of the
Basic Agreement shall apply to agreements or amendments for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Escrow Agreement, the Deposit
Agreement, the Liquidity Facility, the Guarantee or the NPA or modifying in any manner the rights
and obligations of the Applicable Certificateholders under the Escrow Agreement, the Deposit
Agreement, the Liquidity Facility, the Guarantee or the NPA;
provided
that the provisions
of Section 9.02(1) of the Basic Agreement shall be deemed to include reductions in any manner of,
or delay in the timing of, any receipt by the Applicable Certificateholders of payments upon the
Deposits.
Section 6.04.
Consent of Holders of Certificates Issued under Other Trusts
.
Notwithstanding any provision in Section 6.02 or Section 6.03 of this Trust Supplement to the
contrary, no amendment or modification of Section 4.01 of this Trust Supplement shall be effective
unless the trustee for each Class of Certificates affected by such amendment or modification shall
have consented thereto.
ARTICLE VII
TERMINATION OF TRUST
Section 7.01.
Termination of the Applicable Trust
. (a) The respective obligations
and responsibilities of the Company and the Trustee with respect to the Applicable Trust shall
terminate upon the earlier of (A) the completion of the assignment, transfer and discharge
described in the first sentence of the immediately following paragraph and (B) distribution to all
Applicable Certificateholders and the Trustee of all amounts required to be distributed to them
pursuant to the Agreement and the disposition of all property held as part of the Trust Property;
provided
,
however
, that in no event shall the Applicable Trust continue beyond one
hundred ten (110) years following the date of the execution of this Trust Supplement.
20
Upon the earlier of (i) the first Business Day following January 21, 2011 and (ii) the fifth
Business Day following the date on which a Triggering Event occurs (such date, the
Transfer
Date
), or, if later, the date on which all of the conditions set forth in the immediately
following sentence have been satisfied, the Trustee is hereby directed (subject only to the
immediately following sentence) to, and the Company shall direct the institution that will serve as
the Related Trustee under the Related Pass Through Trust Agreement to, execute and deliver the
Assignment and Assumption Agreement, pursuant to which the Trustee shall assign, transfer and
deliver all of the Trustees right, title and interest to the Trust Property to the Related Trustee
under the Related Pass Through Trust Agreement. The Trustee and the Related Trustee shall execute
and deliver the Assignment and Assumption Agreement upon the satisfaction of the following
conditions:
(i) The Trustee, the Related Trustee and each of the Rating Agencies then rating the
Applicable Certificates shall have received an Officers Certificate and an Opinion of
Counsel dated the date of the Assignment and Assumption Agreement and each satisfying the
requirements of Section 1.02 of the Basic Agreement, which Opinion of Counsel shall be
substantially to the effect set forth below and may be relied upon by the Beneficiaries (as
defined in the Assignment and Assumption Agreement):
(I) Upon the execution and delivery thereof by the parties thereto in accordance with
the terms of the Agreement and the Related Pass Through Trust Agreement, the Assignment and
Assumption Agreement will constitute the valid and binding obligation of each of the parties
thereto enforceable against each such party in accordance with its terms;
(II) Upon the execution and delivery of the Assignment and Assumption Agreement in
accordance with the terms of the Agreement and the Related Pass Through Trust Agreement,
each of the Applicable Certificates then Outstanding will be entitled to the benefits of the
Related Pass Through Trust Agreement;
(III) The Related Trust is not required to be registered as an investment company under
the Investment Company Act of 1940, as amended;
(IV) The Related Pass Through Trust Agreement constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance with its terms; and
(V) Neither the execution and delivery of the Assignment and Assumption Agreement in
accordance with the terms of the Agreement and the Related Pass Through Trust Agreement, nor
the consummation by the parties thereto of the transactions contemplated to be consummated
thereunder on the date thereof, will violate any law or governmental rule or regulation of
the State of New York or the United States of America known to such counsel to be applicable
to the transactions contemplated by the Assignment and Assumption Agreement.
21
(ii) The Trustee and the Company shall have received (x) a copy of the articles of
incorporation and bylaws of the Related Trustee certified as of the Transfer Date by the
Secretary or Assistant Secretary of such institution and (y) a copy of the filing (including
all attachments thereto) made by the institution serving as the Related Trustee with the
Office of the Superintendent, State of New York Banking Department for the qualification of
the Related Trustee under Section 131(3) of the New York Banking Law.
Upon the execution of the Assignment and Assumption Agreement by the parties thereto, the
Applicable Trust shall be terminated, the Applicable Certificateholders shall receive beneficial
interests in the Related Trust in exchange for their interests in the Applicable Trust equal to
their respective beneficial interests in the Applicable Trust, and the Outstanding Applicable
Certificates representing Fractional Undivided Interests in the Applicable Trust shall be deemed
for all purposes of the Agreement and the Related Pass Through Trust Agreement, without further
signature or action of any party or Applicable Certificateholder, to be certificates representing
the same fractional undivided interests in the Related Trust and its trust property. By acceptance
of its Applicable Certificate, each Applicable Certificateholder consents to such assignment,
transfer and delivery of the Trust Property to the trustee of the Related Trust upon the execution
and delivery of the Assignment and Assumption Agreement.
In connection with the occurrence of the event set forth in clause (B) above of the first
paragraph of this Section 7.01, notice of such termination, specifying the Distribution Date upon
which the Applicable Certificateholders may surrender their Applicable Certificates to the Trustee
for payment of the final distribution and cancellation, shall be mailed promptly by the Trustee to
Applicable Certificateholders not earlier than the 60
th
day and not later than the
15
th
day next preceding such final Distribution Date specifying (A) the Distribution
Date upon which the proposed final payment of the Applicable Certificates will be made upon
presentation and surrender of Applicable Certificates at the office or agency of the Trustee
therein specified, (B) the amount of any such proposed final payment, and (C) that the Record Date
otherwise applicable to such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Applicable Certificates at the office or agency of the Trustee
therein specified. The Trustee shall give such notice to the Registrar at the time such notice is
given to Applicable Certificateholders. Upon presentation and surrender of the Applicable
Certificates in accordance with such notice, the Trustee shall cause to be distributed to
Applicable Certificateholders such final payments.
In the event that all of the Applicable Certificateholders shall not surrender their
Applicable Certificates for cancellation within six months after the date specified in the
above-mentioned written notice, the Trustee shall give a second written notice to the remaining
Applicable Certificateholders to surrender their Applicable Certificates for cancellation and
receive the final distribution with respect thereto. No additional interest shall accrue on the
Applicable Certificates after the Distribution Date specified in the first written notice. In the
event that any money held by the Trustee for the payment of distributions on the Applicable
Certificates shall remain unclaimed for two years (or such lesser time as the Trustee shall be
satisfied, after sixty days notice from the Company, is one month prior to the escheat period
provided under applicable law) after the final distribution date with respect thereto, the Trustee
22
shall pay to each Loan Trustee the appropriate amount of money relating to such Loan Trustee
and shall give written notice thereof to the Company.
(b) The provisions of this Section 7.01 supersede and replace the provisions of Section 11.01
of the Basic Agreement in its entirety, with respect to the Applicable Trust.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01.
Basic Agreement Ratified
. Except and so far as herein expressly
provided, all of the provisions, terms and conditions of the Basic Agreement are in all respects
ratified and confirmed; and the Basic Agreement and this Trust Supplement shall be taken, read and
construed as one and the same instrument. All replacements of provisions of, and other
modifications of the Basic Agreement set forth in this Trust Supplement are solely with respect to
the Applicable Trust.
Section 8.02.
GOVERNING LAW
. THE AGREEMENT AND, UNTIL THE TRANSFER DATE, THE
APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE. THIS SECTION 8.02 SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC AGREEMENT, WITH
RESPECT TO THE APPLICABLE TRUST.
Section 8.03.
Execution in Counterparts
. This Trust Supplement may be executed in
any number of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
Section 8.04.
Intention of Parties
. The parties hereto intend that the Applicable
Trust be classified for U.S. federal income tax purposes as a grantor trust under Subpart E, Part I
of Subchapter J of the Internal Revenue Code of 1986, as amended, and not as a trust or association
taxable as a corporation or as a partnership. Each Applicable Certificateholder and Investor, by
its acceptance of its Applicable Certificate or a beneficial interest therein, agrees to treat the
Applicable Trust as a grantor trust for all U.S. federal, state and local income tax purposes. The
powers granted and obligations undertaken pursuant to the Agreement shall be so construed so as to
further such intent.
IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust Supplement to be duly
executed by their respective officers thereto duly authorized, as of the day and year first written
above.
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US AIRWAYS, INC.
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By:
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/s/ Thomas T. Weir
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Name:
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Thomas T. Weir
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Title:
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Vice President and Treasurer
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WILMINGTON TRUST COMPANY,
as Trustee
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By:
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/s/ Robert P. Hines, Jr.
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Name:
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Robert P. Hines, Jr.
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Title:
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Assistant Vice President
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Signature Page to Trust Supplement No. 2010-1A-O
EXHIBIT A
FORM OF CERTIFICATE
Certificate
No.
[Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (
DTC
), to Issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch the registered owner hereof, Cede & Co., has an interest herein.]
*
US AIRWAYS PASS THROUGH TRUST 2010-1A-O
US Airways Pass Through Certificate, Series 2010-1A-O
Issuance Date: December 21, 2010
Final Maturity Date: October 22, 2024
Evidencing A Fractional Undivided Interest In The US Airways Pass Through
Trust 2010-1A-O, The Property Of Which Shall Include Certain Equipment Notes
Each Secured By An Aircraft Owned By US Airways, Inc.
$[_____________] Fractional Undivided Interest
representing 0.0003804350% of the Trust per $1,000 face amount
THIS CERTIFIES THAT __________, for value received, is the registered owner of a $___________
(_____________________ DOLLARS) Fractional Undivided Interest in the US Airways Pass Through Trust
2010-1A-O (the
Trust
) created by Wilmington Trust Company, as trustee (the
Trustee
), pursuant to a Pass Through Trust Agreement, dated as of December 21, 2010 (the
Basic Agreement
), between the Trustee and US Airways, Inc., a corporation incorporated
under Delaware law (the
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*
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This legend to appear on Book-Entry Certificates to be
deposited with the Depository Trust Company.
|
A-2
Company
), as supplemented by Trust Supplement No. 2010-1A-O thereto, dated as of
December 21, 2010 (the
Trust Supplement
and, together with the Basic Agreement, the
Agreement
), a summary of certain of the pertinent provisions of which is set forth below.
To the extent not otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement. This Certificate is one of the duly authorized Certificates
designated as US Airways Pass Through Certificates, Series 2010-1A-O (herein called the
Certificates
). This Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement. By virtue of its acceptance hereof, the holder of this
Certificate (the
Certificateholder
and, together with all other holders of Certificates
issued by the Trust, the
Certificateholders
) assents to and agrees to be bound by the
provisions of the Agreement and the Intercreditor Agreement. The property of the Trust includes
certain Equipment Notes, the Guarantee with respect to such Equipment Notes and all rights of the
Trust to receive payments under the Intercreditor Agreement and the Liquidity Facility (the
Trust Property
). Each issue of the Equipment Notes is secured by, among other things, a
security interest in an Aircraft owned by the Company.
The Certificates represent Fractional Undivided Interests in the Trust and the Trust Property
and have no rights, benefits or interest in respect of any other separate trust established
pursuant to the terms of the Basic Agreement for any other series of certificates issued pursuant
thereto.
Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement,
from funds then available to the Trustee, there will be distributed on April 22 and October 22 of
each year (a
Regular Distribution Date
) commencing April 22, 2011 to the Person in whose
name this Certificate is registered at the close of business on the 15th day preceding the Regular
Distribution Date, an amount in respect of the Scheduled Payments on the Equipment Notes due on
such Regular Distribution Date, the receipt of which has been confirmed by the Trustee, equal to
the product of the percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Scheduled Payments. Subject to and in accordance with the terms of the
Agreement and the Intercreditor Agreement, in the event that Special Payments on the Equipment
Notes are received by the Trustee, from funds then available to the Trustee, there shall be
distributed on the applicable Special Distribution Date, to the Person in whose name this
Certificate is registered at the close of business on the 15th day preceding the Special
Distribution Date, an amount in respect of such Special Payments on the Equipment Notes, the
receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest
in the Trust evidenced by this Certificate and an amount equal to the sum of such Special Payments
so received. If a Regular Distribution Date or Special Distribution Date is not a Business Day,
distribution shall be made on the immediately following Business Day with the same force and effect
as if made on such Regular Distribution Date or Special Distribution Date and interest shall accrue
during the intervening period. The Trustee shall mail notice of each Special Payment and the
Special Distribution Date therefor to the Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by check mailed to the Person
entitled thereto, without presentation or surrender of this Certificate or the making of any
notation hereon, except that with respect to Certificates registered on the Record Date in the
A-3
name of a Clearing Agency (or its nominee), such distribution shall be made by wire transfer.
Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution
on this Certificate will be made after notice mailed by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the office or agency
of the Trustee specified in such notice.
The Certificates do not represent a direct obligation of, or an obligation guaranteed by, or
an interest in, the Company or the Trustee or any affiliate thereof. The Certificates are limited
in right of payment, all as more specifically set forth on the face hereof and in the Agreement.
All payments or distributions made to Certificateholders under the Agreement shall be made only
from the Trust Property and only to the extent that the Trustee shall have sufficient income or
proceeds from the Trust Property to make such payments in accordance with the terms of the
Agreement. Each Certificateholder of this Certificate, by its acceptance hereof, agrees that it
will look solely to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This Certificate does not
purport to summarize the Agreement and reference is made to the Agreement for information with
respect to the interests, rights, benefits, obligations, privileges, and duties evidenced hereby.
A copy of the Agreement may be examined during normal business hours at the principal office of the
Trustee, and at such other places, if any, designated by the Trustee, by any Certificateholder upon
request.
The Agreement permits, with certain exceptions therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the Certificateholders
under the Agreement at any time by the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the Certificateholder of this
Certificate shall be conclusive and binding on such Certificateholder and upon all future
Certificateholders of this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of the Certificateholders of any of the Certificates.
As provided in the Agreement and subject to certain limitations set forth therein, the
transfer of this Certificate is registrable in the Register upon surrender of this Certificate for
registration of transfer at the offices or agencies maintained by the Trustee in its capacity as
Registrar, or by any successor Registrar, duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Registrar, duly executed by the
Certificateholder hereof or such Certificateholders attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust will be issued to the designated transferee or
transferees.
Under certain circumstances set forth in Section 7.01 of the Trust Supplement, all of the
Trustees right, title and interest to the Trust Property may be assigned, transferred and
delivered to the Related Trustee of the Related Trust pursuant to the Assignment and Assumption
Agreement. Upon the effectiveness of such Assignment and Assumption Agreement (the
A-4
Transfer
), the Trust shall be terminated, the Certificateholders shall receive
beneficial interests in the Related Trust in exchange for their interests in the Trust equal to
their respective beneficial interests in the Trust, the Certificates representing Fractional
Undivided Interests in the Trust shall be deemed for all purposes of the Agreement and the Related
Pass Through Trust Agreement to be certificates representing the same fractional undivided
interests in the Related Trust and its trust property. Each Certificateholder, by its acceptance
of this Certificate or a beneficial interest herein, agrees to be bound by the Assignment and
Assumption Agreement and subject to the terms of the Related Pass Through Trust Agreement as a
Certificateholder thereunder. From and after the Transfer, unless and to the extent the context
otherwise requires, references herein to the Trust, the Agreement and the Trustee shall constitute
references to the Related Trust, the Related Pass Through Trust Agreement and trustee of the
Related Trust, respectively.
The Certificates are issuable only as registered Certificates without coupons in minimum
denominations of $1,000 Fractional Undivided Interest and integral multiples thereof, except that
one Certificate may be issued in a different denomination. As provided in the Agreement and
subject to certain limitations therein set forth, the Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust, as requested by the Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer or exchange, but the
Trustee shall require payment of a sum sufficient to cover any tax or governmental charge payable
in connection therewith.
Each Certificateholder and Investor, by its acceptance of this Certificate or a beneficial
interest herein, agrees to treat the Trust as a grantor trust for all U.S. federal, state and local
income tax purposes.
The Trustee, the Registrar, and any agent of the Trustee or the Registrar may treat the person
in whose name this Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Registrar, nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the Trust created thereby
shall terminate upon the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to the Agreement and the disposition of all property held as part of
the Trust Property.
Any Person acquiring or accepting this Certificate or an interest herein will, by such
acquisition or acceptance, be deemed to have represented and warranted to and for the benefit of
the Company that either: (i) the assets of an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended (
ERISA
), or of a plan subject
to Section 4975 of the Internal Revenue Code of 1986, as amended (the
Code
), have not
been used to purchase or hold this Certificate or an interest herein or (ii) the purchase and
holding of this Certificate or an interest herein are exempt from the prohibited transaction
A-5
restrictions of ERISA and the Code pursuant to one or more prohibited transaction statutory or
administrative exemptions.
THE AGREEMENT AND, UNTIL THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. THE RELATED PASS THROUGH TRUST
AGREEMENT AND, FROM AND AFTER THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon has been executed by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid
for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
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US AIRWAYS PASS THROUGH TRUST
2010-1A-O
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By:
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WILMINGTON TRUST COMPANY,
as Trustee
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By:
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Name:
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Title:
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FORM OF THE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
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WILMINGTON TRUST COMPANY,
as Trustee
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By:
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Name:
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Title:
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EXHIBIT B
[DTC Letter of Representations]
The Depository Trust Company
A subsidiary of the Depository Trust & Clearing Corporation
ISSUER LETTER OF REPRESENTATIONS
(To be completed by Issuer and Co-issuer(s), if applicable)
US Airways Pass Through Trust 2010-1A
(Name of Issuer and Co-Issuer(s), If applicable)
6.25%
US Airways Pass Through Certificates, Series 2010-1A
(Security Description, including series designation if applicable)
90345K AA8
(CUSIP Number(s) of the Securities)
Attention: Underwriting Department
The Depository Trust Company
55 Water Street, ISL
New York, NY 10041-0099
Ladies and Gentlemen:
This letter sets forth our understanding with respect to the Securities represented by the CUSIP
number(s) referenced above (the Securities). Issuer requests that The Depository Trust Company (DTC)
accept the Securities as eligible for deposit at DTC.
Issuer is:
(Note:
Issuer must represent one and cross out the other
.)
[formed
under the laws of] Delaware.
The DTC Clearing Participant Morgan Stanley & Co. Incorporated will distribute the Securities through DTC.
To induce DTC to accept the Securities as eligible for deposit at DTC, and to act in accordance with
DTCs Rules with respect to the Securities, Issuer represents to DTC that Issuer will comply with the
requirements stated in DTCs Operational Arrangements, as they
may be amended from time to time.
Note
:
Schedule A contains statements that DTC believes accurately describe DTC, the method
of effecting book-entry transfers of securities
distributed through DTC, and certain related
matters.
Received and Accepted
THE DEPOSITORY TRUST COMPANY
The Depository Trust &
Clearing Corporation
Very truly yours,
US Airways Pass Through Trust 2010-1A
By: Wilmington Trust Company, as Trustee
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By:
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/s/ Robert P. Hines, Jr.
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(Authorized Officers Signature)
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Robert P. Hines, Jr.
Wilmington Trust Company
1100 N. Market Street
Wilmington,
Delaware, USA 19890-1606
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(City)
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(State)
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(Country)
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(Zip Code)
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(302) 636-6197
rhines@wilmingtontrust.com
ILOR
03/25/08
S
chedule
A
(To Issuer Letter of Representations)
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC-brackcted material may be applicable only to certain issues)
1. The Depository Trust Company (DTC), New York, NY, will act as securities depository
for the securities (the Securities). The Securities will be issued as fully-registered
securities registered in the name of Cede & Co. (DTCs partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will be issued for [each
issue of] the Securities, [each] in the aggregate principal amount of such issue, and will be deposited with
DTC. [If, however, the aggregate principal amount of [any] issue exceeds $500 million, one certificate
will be issued with respect to each $500 million of principal amount, and an additional certificate will be
issued with respect to any remaining principal amount of such issue.]
2. DTC, the worlds largest securities depository, is a limited-purpose trust company
organized under the New York Banking Law, a banking organization within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a clearing corporation within the meaning of
the New York Uniform Commercial Code, and a clearing agency registered pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934. DTC holds and provides asset servicing for over 3.5
million issues of U.S. and non - U.S. equity issues, corporate and municipal debt issues, and money market
instruments (from over 100 countries) that DTCs participants (Direct Participants) deposit with DTC. DTC
also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions
in deposited securities, through electronic computerized book-entry transfers and pledges between Direct
Participants accounts. This eliminates the need for physical movement of securities certificates.
Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust &
Clearing Corporation (DTCC). DTCC is the holding company for DTC, National Securities Clearing
Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is
owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others
such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations
that clear through or maintain a custodial relationship with a Direct Participant, either directly or
indirectly (Indirect Participants). DTC has Standard & Poors highest rating: AAA. The DTC Rules applicable
to its Participants are on file with the Securities and Exchange Commission. More information about
DTC can be found at
www.dtcc.com
and www.dtc.org.
3. Purchases of Securities under the DTC system must be made by or through Direct
Participants,
which will receive a credit for the Securities on DTCs records. The ownership interest of
each actual
purchaser of each Security (Beneficial Owner) is in turn to be recorded on the Direct and
Indirect
Participants records. Beneficial Owners will not receive written confirmation from DTC of
their purchase.
Beneficial Owners are, however, expected to receive written confirmations providing details
of the
transaction, as well as periodic statements of their holdings, from the Direct or Indirect
Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership interests in
the Securities
are to be accomplished by entries made on the books of Direct and Indirect Participants acting
on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing their
ownership interests in
Securities, except in the event that use of the book-entry system for the Securities is
discontinued.
4. To facilitate subsequent transfers, all Securities deposited by Direct Participants with
DTC are
registered in the name of DTCs partnership nominee, Cede & Co., or such other name as may be
requested
by an authorized representative of DTC. The deposit of Securities with DTC and their
registration in the
name of Cede & Co. or such other DTC nominee do not effect any change in beneficial ownership.
DTC has
no knowledge of the actual Beneficial Owners of the Securities; DTCs records reflect only the
identity of
the Direct Participants to whose accounts such Securities arc credited, which may or may not
be the
Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping
account of their
holdings on behalf of their customers.
ILOR 03/25/08
S
chedule
A
(To Issuer Letter of Representations)
5. Conveyance of notices and other communications by DTC to Direct Participants, by Direct
Participants to Indirect Participants, and by Direct Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time. [Beneficial Owners of Securities may
wish to take certain steps to augment the transmission to them of notices of significant events
with respect to the Securities, such as redemptions, tenders, defaults, and proposed amendments to
the Security documents. For example, Beneficial Owners of Securities may wish to ascertain that the
nominee holding the Securities for their benefit has agreed to obtain and transmit notices to
Beneficial Owners. In the alternative, Beneficial Owners may wish to provide their names and
addresses to the registrar and request that copies of notices be provided directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the Securities within an
issue arc being redeemed, DTCs practice is to determine by lot the amount of the interest of each
Direct Participant in such issue to be redeemed.]
7. Neither
DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect
to Securities unless authorized by a Direct Participant in accordance
with DTCs MMI
Procedures. Under its
usual procedures, DTC mails an Omnibus Proxy to Issuer as soon as possible after the record
date. The
Omnibus Proxy assigns Cede & Co.s consenting or voting rights to those Direct Participants to
whose
accounts Securities are credited on the record date (identified in a listing attached to the
Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the Securities will be made to
Cede & Co., or such other nominee as may be requested by an authorized representative of DTC.
DTCs
practice is to credit Direct Participants accounts upon DTCs receipt of funds and
corresponding detail
information from Issuer or Agent, on payable date in accordance with their respective holdings
shown on
DTCs records. Payments by Participants to Beneficial Owners will be governed by standing
instructions
and customary practices, as is the case with securities held for the accounts of customers in
bearer form or
registered in street name, and will be the responsibility of such Participant and not of
DTC, Agent, or
Issuer, subject to any statutory or regulatory requirements as may be in effect from tune to
time. Payment
of redemption proceeds, distributions, and dividend payments to Cede & Co. (or such other
nominee as may
be requested by an authorized representative of DTC) is the responsibility of Issuer or Agent,
disbursement
of such payments to Direct Participants will be the responsibility of DTC, and disbursement of
such
payments to the Beneficial Owners will be the responsibility of Direct and Indirect
Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities purchased or
tendered, through its Participant, to [Tender/Remarketing] Agent, and shall effect delivery of
such Securities by causing the Direct Participant to transfer the Participants interest in the
Securities, on DTCs records, to [Tender/Remarketing] Agent. The requirement for physical delivery
of Securities in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct Participants on
DTCs records and followed by a book-entry credit of tendered Securities to [Tender/Remarketing]
Agents DTC account.]
10. DTC may discontinue providing its services as depository with respect to the Securities at
any time by giving reasonable notice to Issuer or Agent. Under such circumstances, in the event
that a successor
depository is not obtained, Security certificates are required to be
printed and delivered.
11. Issuer may decide to discontinue use of the system of book-entry-only transfers through
DTC (or a successor securities depository). In that event, Security certificates will be printed
and delivered to DTC.
12. The information in this section concerning DTC and DTCs book-entry system has been
obtained from sources that Issuer believes to be reliable, but Issuer takes no responsibility for
the accuracy thereof.
ILOR
03/25/08
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
US Airways Pass Through Trust 2010-1A-O
ASSIGNMENT AND ASSUMPTION AGREEMENT (2010-1A-O), dated ________ __, ____ (the
Assignment
Agreement
), between Wilmington Trust Company, a Delaware banking corporation (WTC), not in
its individual capacity except as expressly provided herein, but solely as trustee under the Pass
Through Trust Agreement dated as of December 21, 2010 (as amended or modified from time to time,
the
Basic Agreement
), as supplemented by the Trust Supplement No. 2010-1A-O dated as of
December 21, 2010 (the
Trust Supplement
and together with the Basic Agreement, the
Agreement
) in respect of the US Airways Pass Through Trust 2010-1A-O (the
Assignor
), and Wilmington Trust Company, a Delaware banking corporation, not in its
individual capacity except as expressly provided herein, but solely as trustee under the Basic
Agreement as supplemented by the Trust Supplement No. 2010-1A-S dated as of December 21, 2010 (the
New Supplement
, and, together with the Basic Agreement, the
New Agreement
) in
respect of the US Airways Pass Through Trust 2010-1A-S (the
Assignee
).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the parties hereto desire to effect on the date hereof (the
Transfer Date
)
(a) the transfer by the Assignor to the Assignee of all of the right, title and interest of the
Assignor in, under and with respect to, among other things, the Trust Property and each of the
documents listed in Schedule I hereto (the
Scheduled Documents
) and (b) the assumption by
the Assignee of the obligations of the Assignor (i) under the Scheduled Documents and (ii) in
respect of the Applicable Certificates issued under the Agreement; and
WHEREAS, the Scheduled Documents permit such transfer upon satisfaction of certain conditions
heretofore or concurrently herewith being complied with;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
herein contained, the parties hereto do hereby agree as follows (capitalized terms used herein
without definition having the meaning ascribed thereto in the Agreement):
1.
Assignment
. The Assignor does hereby sell, assign, convey, transfer and set over
unto the Assignee as of the Transfer Date all of its present and future right, title and interest
in, under and with respect to the Trust Property and the Scheduled Documents and each other
contract, agreement, document or instrument relating to the Trust Property or the Scheduled
Documents (such other contracts, agreements, documents or instruments, together with the Scheduled
Documents, to be referred to as the
Assigned Documents
), and any proceeds therefrom,
together with all documents and instruments evidencing any of such right, title and interest.
C-2
2.
Assumption
. The Assignee hereby assumes for the benefit of the Assignor and each
of the parties listed in Schedule II hereto (collectively, the
Beneficiaries
) all of the
duties and obligations of the Assignor, whenever accrued, pursuant to the Assigned Documents and
hereby confirms that it shall be deemed a party to each of the Assigned Documents to which the
Assignor is a party and shall be bound by all the terms thereof (including the agreements and
obligations of the Assignor set forth therein) as if therein named as the Assignor. Further, the
Assignee hereby assumes for the benefit of the Assignor and the Beneficiaries all of the duties and
obligations of the Assignor under the Outstanding Applicable Certificates and hereby confirms that
the Applicable Certificates representing Fractional Undivided Interests under the Agreement shall
be deemed for all purposes of the Agreement and the New Agreement to be certificates representing
the same fractional undivided interests under the New Agreement equal to their respective
beneficial interests in the trust created under the Agreement.
3.
Effectiveness
. This Assignment Agreement shall be effective upon the execution and
delivery hereof by the parties hereto, and each Applicable Certificateholder, by its acceptance of
its Applicable Certificate or a beneficial interest therein, agrees to be bound by the terms of
this Assignment Agreement.
4.
Payments
. The Assignor hereby covenants and agrees to pay over to the Assignee, if
and when received following the Transfer Date, any amounts (including any sums payable as interest
in respect thereof) paid to or for the benefit of the Assignor that, under Section 1 hereof, belong
to the Assignee.
5.
Further Assurances
. The Assignor shall, at any time and from time to time, upon
the request of the Assignee, promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as the Assignee may reasonably request to
obtain the full benefits of this Assignment Agreement and of the rights and powers herein granted.
The Assignor agrees to deliver any Applicable Certificates, and all Trust Property, if any, then in
the physical possession of the Assignor, to the Assignee.
6.
Representations and Warranties
. (a) The Assignee represents and warrants to the
Assignor and each of the Beneficiaries that:
(i) it has all requisite power and authority and legal right to enter into and carry
out the transactions contemplated hereby and to carry out and perform the obligations of the
Pass Through Trustee under the Assigned Documents;
(ii) on and as of the date hereof, the representations and warranties of the Assignee
set forth in Section 7.15 of the Basic Agreement and Section 5.04 of the New Supplement are
true and correct.
(b) The Assignor represents and warrants to the Assignee that:
(i) it is duly incorporated, validly existing and in good standing under the laws of
the State of Delaware and has the full trust power, authority and legal right under
C-3
the laws of the State of Delaware and the United States pertaining to its trust and
fiduciary powers to execute and deliver this Assignment Agreement;
(ii) the execution and delivery by it of this Assignment Agreement and the performance
by it of its obligations hereunder have been duly authorized by it 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; and
(iii) this Assignment Agreement constitutes the legal, valid and binding obligations of
it enforceable against it in accordance with its 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.
7.
GOVERNING LAW
. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
8.
Counterparts
. This Assignment Agreement may be executed in any number of
counterparts, all of which together shall constitute a single instrument. It shall not be
necessary that any counterpart be signed by both parties so long as each party shall sign at least
one counterpart.
9.
Third Party Beneficiaries
. The Assignee hereby agrees, for the benefit of the
Beneficiaries, that its representations, warranties and covenants contained herein are also
intended to be for the benefit of each Beneficiary, and each Beneficiary shall be deemed to be an
express third party beneficiary with respect thereto, entitled to enforce directly and in its own
name any rights or claims it may have against such party as such beneficiary.
10.
Notice
. Promptly following the Transfer Date, the Assignee shall notify the
Depositary of the occurrence of the assignment hereunder and the name and contact information of
the Assignee.
C-4
IN WITNESS WHEREOF, the parties hereto, through their respective officers thereunto duly
authorized, have duly executed this Assignment Agreement as of the day and year first above
written.
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ASSIGNOR:
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WILMINGTON TRUST COMPANY, not in its
individual capacity except as expressly
provided herein, but solely as trustee
under the Pass Through Trust Agreement and
Trust Supplement in respect of the US
Airways Pass Through Trust 2010-1A-O
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By:
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Name:
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Title:
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ASSIGNEE:
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WILMINGTON TRUST COMPANY, not in its
individual capacity except as expressly
provided herein, but solely as trustee
under the Pass Through Trust Agreement and
Trust Supplement in respect of the US
Airways Pass Through Trust 2010-1A-S
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By:
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Name:
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Title:
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Schedule I
Schedule of Assigned Documents
(1) Intercreditor Agreement dated as of December 21, 2010 among the Trustee, the Other
Trustees, the Liquidity Provider, the liquidity provider relating to the Class B Certificates and
the Subordination Agent.
(2) Escrow and Paying Agent Agreement (Class A) dated as of December 21, 2010 among the Escrow
Agent, the Underwriters, the Trustee and the Paying Agent.
(3) Note Purchase Agreement dated as of December 21, 2010 among the Company, the Trustee, the
Other Trustees, the Subordination Agent, the Escrow Agent and the Paying Agent.
(4) Deposit Agreement (Class A) dated as of December 21, 2010 between the Escrow Agent and the
Depositary.
(5) Each of the Operative Agreements (as defined in the Participation Agreement for each
Aircraft) in effect as of the Transfer Date.
Schedule II
Schedule of Beneficiaries
Wilmington Trust Company, not in its individual capacity but solely as Subordination Agent
Wilmington Trust Company, not in its individual capacity but solely as Paying Agent
Morgan Stanley Bank, N.A., as Liquidity Provider
The Bank of New York Mellon, as Depositary
US Airways, Inc.
Morgan Stanley & Co. Incorporated, as Underwriter
Citigroup Global Markets Inc., as Underwriter
Credit Suisse Securities (USA) LLC, as Underwriter
Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Underwriter
Wells Fargo Bank Northwest, National Association, as Escrow Agent
Each of the other parties to the Assigned Documents
Exhibit 4.3
EXECUTION VERSION
TRUST SUPPLEMENT No. 2010-1A-S
Dated as of December 21, 2010
between
WILMINGTON TRUST COMPANY
as Trustee,
and
US AIRWAYS, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of December 21, 2010
$262,857,000
US Airways Pass Through Trust 2010-1A-S
6.25% US Airways
Pass Through Certificates,
Series 2010-1A-S
TABLE OF CONTENTS
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Page
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ARTICLE I THE CERTIFICATES
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2
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Section 1.01. The Certificates
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2
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ARTICLE II DEFINITIONS
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4
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Section 2.01. Definitions
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4
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ARTICLE III DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
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10
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Section 3.01. Statements to Applicable Certificateholders
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10
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Section 3.02. Special Payments Account
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12
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Section 3.03. Distributions from Special Payments Account
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12
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Section 3.04. Limitation of Liability for Payments
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13
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ARTICLE IV DEFAULT
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14
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Section 4.01. Purchase Rights of Certificateholders
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14
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Section 4.02. Amendment of Section 6.05 of the Basic Agreement
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16
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ARTICLE V THE TRUSTEE
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16
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Section 5.01. Acquisition of Trust Property
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16
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Section 5.02.[Intentionally Omitted]
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17
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Section 5.03. The Trustee
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17
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Section 5.04. Representations and Warranties of the Trustee
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17
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Section 5.05. Trustee Liens
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18
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ARTICLE VI ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
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19
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Section 6.01. Amendment of Section 5.02 of the Basic Agreement
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19
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Section 6.02. Supplemental Agreements Without Consent of Applicable
Certificateholders
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19
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Section 6.03. Supplemental Agreements with Consent of Applicable
Certificateholders
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19
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Section 6.04. Consent of Holders of Certificates Issued under Other Trusts
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20
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ARTICLE VII TERMINATION OF TRUST
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20
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Section 7.01. Termination of the Applicable Trust
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20
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ARTICLE VIII MISCELLANEOUS PROVISIONS
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21
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Section 8.01. Basic Agreement Ratified
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21
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Section 8.02. GOVERNING LAW
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21
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Section 8.03. Execution in Counterparts
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21
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Section 8.04. Intention of Parties
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21
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This Trust Supplement No. 2010-1A-S, dated as of December 21, 2010 (herein called the
Trust Supplement
), between US Airways, Inc., a Delaware corporation (the
Company
), and Wilmington Trust Company (the
Trustee
), to the Pass Through Trust
Agreement, dated as of December 21, 2010, between the Company and the Trustee (the
Basic
Agreement
).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the Basic Agreement, unlimited as to the aggregate principal amount of Certificates
(unless otherwise specified herein, capitalized terms used herein without definition having the
respective meanings specified in the Basic Agreement) which may be issued thereunder, has
heretofore been executed and delivered;
WHEREAS, the Company currently owns eight (8) Aircraft;
WHEREAS, as of the Transfer Date (as defined below), the Company will have re-financed each
Aircraft (to the extent such Aircraft is subject to an existing security interest, after such
security interest has been discharged);
WHEREAS, as of the Transfer Date, with respect to each Aircraft, the Company will have issued
pursuant to an Indenture, on a recourse basis, Equipment Notes to re-finance such Aircraft (to the
extent such Aircraft is subject to an existing security interest, after such security interest has
been discharged);
WHEREAS, as of the Transfer Date, the Related Trustee will assign, transfer and deliver all of
such trustees right, title and interest to the trust property held by the Related Trustee to the
Trustee pursuant to the Assignment and Assumption Agreement (as defined below);
WHEREAS, the Trustee, effective only, but automatically, upon execution and delivery of the
Assignment and Assumption Agreement, will be deemed to have declared the creation of the US Airways
Pass Through Trust 2010-1A-S (the
Applicable Trust
) for the benefit of the Applicable
Certificateholders, and each Holder of Applicable Certificates outstanding as of the Transfer Date,
as the grantors of the Applicable Trust, by their respective acceptances of such Applicable
Certificates, will join in the creation of the Applicable Trust with the Trustee;
WHEREAS, all Applicable Certificates (as defined below) deemed issued by the Applicable Trust
will evidence fractional undivided interests in the Applicable Trust and will convey no rights,
benefits or interests in respect of any property other than the Trust Property except for those
Applicable Certificates to which an Escrow Receipt (as defined below) has been affixed;
WHEREAS, upon the execution and delivery of the Assignment and Assumption Agreement, all of
the conditions and requirements necessary to make this Trust Supplement, when duly executed and
delivered, a valid, binding and legal instrument in accordance with its
2
terms and for the purposes herein expressed, have been done, performed and fulfilled, and the
execution and delivery of this Trust Supplement in the form and with the terms hereof have been in
all respects duly authorized;
WHEREAS, this Trust Supplement is subject to the provisions of the Trust Indenture Act of
1939, as amended, and shall, to the extent applicable, be governed by such provisions;
NOW THEREFORE, in consideration of the premises herein, it is agreed between the Company and
the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01.
The Certificates
. The Applicable Certificates shall be known as US Airways Pass Through Certificates, Series
2010-1A-S. Each Applicable Certificate represents a fractional undivided interest in the
Applicable Trust created hereby. The Applicable Certificates shall be the only instruments
evidencing a fractional undivided interest in the Applicable Trust.
The terms and conditions applicable to the Applicable Certificates are as follows:
(a) The aggregate principal amount of the Applicable Certificates that shall be
initially deemed issued under the Agreement shall be equal to the aggregate principal amount
of Outstanding pass through certificates representing fractional undivided interests in
the Related Trust on the Transfer Date. Subject to the preceding sentence and Section 5.01
of this Trust Supplement and except for Applicable Certificates authenticated and delivered
under Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement, no Applicable Certificates
shall be authenticated under the Agreement.
(b) The Regular Distribution Dates with respect to any payment of Scheduled Payments
means April 22 and October 22 of each year, commencing on April 22, 2011, until payment of
all of the Scheduled Payments to be made under the Equipment Notes has been made.
(c) The Special Distribution Dates with respect to the Applicable Certificates means
any Business Day on which a Special Payment is to be distributed pursuant to the Agreement.
(d) At the Escrow Agents request under the Escrow Agreement, the Trustee shall affix
the corresponding Escrow Receipt to each Applicable Certificate. In any event, any transfer
or exchange of any Applicable Certificate shall also effect a transfer or exchange of the
related Escrow Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of any
Applicable Certificate shall be permitted unless the corresponding Escrow Receipt is
attached thereto and also is so transferred or exchanged.
3
By acceptance of any Applicable Certificate to which an Escrow Receipt is attached, each
Holder of such an Applicable Certificate acknowledges and accepts the restrictions on
transfer of the Escrow Receipt set forth herein and in the Escrow Agreement.
(e) (i) The Applicable Certificates shall be in the form attached as Exhibit A to the
Related Pass Through Trust Supplement, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the Related Pass Through
Trust Agreement or the Agreement, as the case may be, or as the Trustee may deem
appropriate, to reflect the fact that the Applicable Certificates are being issued under the
Agreement as opposed to under the Related Pass Through Trust Agreement. Any Person
acquiring or accepting an Applicable Certificate or an interest therein will, by such
acquisition or acceptance, be deemed to represent and warrant to and for the benefit of the
Company that either (i) the assets of an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended (
ERISA
), or of a plan
subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the
Code
), have not been used to purchase or hold Applicable Certificates or an
interest therein or (ii) the purchase and holding of Applicable Certificates or an interest
therein is exempt from the prohibited transaction restrictions of ERISA and the Code
pursuant to one or more prohibited transaction statutory or administrative exemptions.
(ii) The Applicable Certificates shall be Book-Entry Certificates and shall be subject
to the conditions set forth in the Letter of Representations between the Company and the
Clearing Agency attached as Exhibit B to the Related Pass Through Trust Supplement.
(f) The Participation Agreements as defined in this Trust Supplement are the Note
Purchase Agreements referred to in the Basic Agreement.
(g) The Applicable Certificates are subject to the Intercreditor Agreement, the Deposit
Agreement and the Escrow Agreement.
(h) The Applicable Certificates are entitled to the benefits of the Liquidity Facility.
(i) The Responsible Party is the Company.
(j) The date referred to in clause (i) of the definition of the term PTC Event of
Default in the Basic Agreement is the Final Maturity Date.
(k) The particular sections of the Note Purchase Agreement, for purposes of clause
(3) of Section 7.07 of the Basic Agreement, are Section 8.1 of each Participation Agreement.
(l) The Equipment Notes to be acquired and held in the Applicable Trust, and the
related Aircraft and Note Documents, are described in the NPA.
4
ARTICLE II
DEFINITIONS
Section 2.01.
Definitions
. For all purposes of the Basic Agreement as supplemented by this Trust Supplement, the following
capitalized terms have the following meanings (any term used herein which is defined in both this
Trust Supplement and the Basic Agreement shall have the meaning assigned thereto in this Trust
Supplement for purposes of the Basic Agreement as supplemented by this Trust Supplement):
Agreement
: Means the Basic Agreement, as supplemented by this Trust
Supplement.
Aircraft
: Means each of the aircraft in respect of which a Participation
Agreement is to be or is, as the case may be, entered into in accordance with the NPA (or
any replacement aircraft, including engines therefor, owned by the Company and securing one
or more Equipment Notes).
Aircraft Purchase Agreement
: Has the meaning specified in the NPA.
Applicable Certificate
: Means any of the Applicable Certificates issued by
the Related Trust and that are Outstanding (as defined in the Related Pass Through Trust
Agreement) as of the Transfer Date (the
Transfer Date Certificates
) and any
Certificate issued in exchange therefor or replacement thereof pursuant to the Agreement.
Applicable Certificateholder
: Means the Person in whose name an Applicable
Certificate is registered on the Register for the Applicable Certificates.
Applicable Trust
: Has the meaning specified in the recitals hereto.
Assignment and Assumption Agreement
: Means the assignment and assumption agreement substantially in the form of Exhibit C
to the Related Pass Through Trust Supplement executed and delivered in accordance with Section 7.01 of the Related Pass
Through Trust Supplement.
Basic Agreement
: Has the meaning specified in the first paragraph of this Trust Supplement.
Business Day
: Means any day other than a Saturday, a Sunday or a day on which commercial banks are required or authorized
to close in Phoenix, Arizona, New York, New York, or, so long as any Applicable Certificate is Outstanding, the city and
state in which the Trustee, the Subordination Agent or any Loan Trustee maintains its Corporate Trust Office or receives
and disburses funds.
Certificate
: Has the meaning specified in the Intercreditor Agreement.
5
Certificate Buyout Event
: Means that a US Airways Bankruptcy Event has occurred
and is continuing and the following events have occurred: (A) (i) the 60-day period
specified in Section 1110(a)(2)(A) of the U.S. Bankruptcy Code (the
60-Day Period
)
has expired and (ii) US Airways has not entered into one or more agreements under Section
1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations under all of the
Indentures or, if it has entered into such agreements, has at any time thereafter failed to
cure any default under any of the Indentures in accordance with Section 1110(a)(2)(B) of the
Bankruptcy Code; or (B) if prior to the expiry of the 60-Day Period, US Airways shall have
abandoned any Aircraft.
Class
: Has the meaning specified in the Intercreditor Agreement.
Closing Notice
: Has the meaning specified in the NPA.
Company
: Has the meaning specified in the first paragraph of this Trust Supplement.
Controlling Party
: Has the meaning specified in the Intercreditor Agreement.
Cut-off Date
: Means the earlier of (a) the Delivery Period Termination Date and (b) the date on which a Triggering Event
occurs.
Delivery Period Termination Date
: Has the meaning specified in the Related Pass Through Trust Supplement.
Deposit Agreement
: Means the Deposit Agreement dated as of December 21, 2010 relating to the Applicable Certificates
between the Depositary and the Escrow Agent, as the same may be amended, supplemented or otherwise modified from time to
time in accordance with its terms.
Depositary
: Means The Bank of New York Mellon, a bank chartered under the laws of the State of New York.
Deposits
: Has the meaning specified in the Deposit Agreement.
Distribution Date
: Means any Regular Distribution Date or Special Distribution Date as the context requires.
Escrow Agent
: Means, initially, Wells Fargo Bank Northwest, National Association, and any replacement or successor
therefor appointed in accordance with the Escrow Agreement.
Escrow Agreement
: Means the Escrow and Paying Agent Agreement dated as of December 21, 2010 relating to the Applicable
Certificates, among the Escrow Agent, the Escrow Paying Agent, the Related Trustee (and after the Transfer Date, the Trustee) and
6
the
Underwriters, as the same may be amended, supplemented or otherwise modified from time to
time in accordance with its terms.
Escrow Paying Agent
: Means the Person acting as paying agent under the Escrow
Agreement.
Escrow Receipt
: Means the receipt substantially in the form annexed to the
Escrow Agreement representing a fractional undivided interest in the funds held in escrow
thereunder.
Final Maturity Date
: Means October 22, 2024.
Final Withdrawal
: Has the meaning specified in the Escrow Agreement.
Final Withdrawal Date
: Has the meaning specified in the Escrow Agreement.
Guarantee
: Means the Guarantee dated as of December 21, 2010 of US Airways
Group, Inc. covering the Guaranteed Obligations referred to therein including the Equipment
Notes.
Indenture
: Means each of the separate trust indentures and mortgages relating
to the Aircraft, each as specified or described in a Closing Notice delivered pursuant to
the NPA or the related Participation Agreement, in each case as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its terms.
Intercreditor Agreement
: Means the Intercreditor Agreement dated as of
December 21, 2010 among the Related Trustee (and after the Transfer Date, the Trustee), the
Related Other Trustees (and after the Transfer Date, the Other Trustees), the Liquidity
Provider, the liquidity provider relating to the Class B Certificates and Wilmington Trust
Company, as Subordination Agent and as trustee thereunder, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Investors
: Means the Underwriters, together with all subsequent beneficial
owners of the Applicable Certificates.
Liquidity Facility
: Means, initially, the Revolving Credit Agreement dated as
of December 21, 2010 relating to the Applicable Certificates, between the Liquidity Provider
and Wilmington Trust Company, as Subordination Agent, as agent and trustee for the
Applicable Trust, and, from and after the replacement of such agreement pursuant to the
Intercreditor Agreement, the replacement liquidity facility therefor, in each case as
amended, supplemented or otherwise modified from time to time in accordance with their
respective terms.
7
Liquidity Provider
: Means, initially, Morgan Stanley Bank, N.A., organized
under the laws of the United States of America, and any replacements or successors therefor
appointed in accordance with the Intercreditor Agreement.
Note Documents
: Means the Equipment Notes with respect to the Applicable
Certificates and, with respect to any such Equipment Note, the Indenture, the Guarantee and
the Participation Agreement relating to such Equipment Note.
NPA
: Means the Note Purchase Agreement dated as of December 21, 2010 among the
Related Trustee (and after the Transfer Date, the Trustee), the Related Other Trustees (and
after the Transfer Date, the Other Trustees), the Company, the Escrow Agent, the Escrow
Paying Agent and the Subordination Agent, as the same may be amended, supplemented or
otherwise modified from time to time, in accordance with its terms.
Other Agreements
: Means (i) the Basic Agreement as supplemented by Trust
Supplement No. 2010-1B-S dated as of the date hereof relating to US Airways Pass Through
Trust 2010-1B-S, (ii) the Basic Agreement as supplemented by a Trust Supplement relating to
any Additional Trust and (iii) the Basic Agreement as supplemented by a Trust Supplement
relating to any Refinancing Trust.
Other Trustees
: Means the trustees under the Other Agreements, and any
successor or other trustee appointed as provided therein.
Other Trusts
: Means the US Airways Pass Through Trust 2010-1B-S, an Additional
Trust, if any, and a Refinancing Trust or Trusts, if any, created by the Other Agreements.
Outstanding
: When used with respect to Applicable Certificates, means, as of
the date of determination, all Transfer Date Certificates, and all other Applicable
Certificates theretofore authenticated and delivered under the Agreement, in each case
except:
(i) Applicable Certificates theretofore canceled by the Registrar or delivered
to the Trustee or the Registrar for cancellation;
(ii) Applicable Certificates for which money in the full amount required to
make the final distribution with respect to such Applicable Certificates pursuant to
Section 11.01 of the Basic Agreement has been theretofore deposited with the Trustee
in trust for the Applicable Certificateholders as provided in Section 4.01 of the
Basic Agreement pending distribution of such money to such Applicable
Certificateholders pursuant to payment of such final distribution; and
(iii) Applicable Certificates in exchange for or in lieu of which other
Applicable Certificates have been authenticated and delivered pursuant to the
Agreement.
8
Participation Agreement
: Means each Participation Agreement entered into by
the Related Trustee pursuant to the NPA, as the same may be amended, supplemented or
otherwise modified in accordance with its terms.
Pool Balance
: Means, as of any date, (i) the original aggregate face amount of
the Applicable Certificates as defined in the Related Pass Through Trust Agreement, less
(ii) the aggregate amount of all payments made as of such date in respect of such
Certificates, the Applicable Certificates (as defined in the Related Pass Through Trust
Agreement) or the Deposits, other than payments made in respect of interest or premium
thereon or reimbursement of any costs or expenses incurred in connection therewith. The
Pool Balance as of any date shall be computed after giving effect to any special
distribution with respect to unused Deposits, payment of principal of the Equipment Notes,
or payment with respect to other Trust Property and the distribution thereof to be made on
that date.
Pool Factor
: Means, as of any Distribution Date, the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance by (ii) the original
aggregate face amount of the Applicable Certificates as defined in the Related Pass
Through Trust Agreement. The Pool Factor as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused Deposits, payment of
principal of the Equipment Notes, or payment with respect to other Trust Property and the
distribution thereof to be made on that date.
Prospectus Supplement
: Means the final Prospectus Supplement dated December
15, 2010 relating to the offering of the Applicable Certificates and the Class B
Certificates.
Ratings Confirmation
: Has the meaning specified in the Intercreditor
Agreement.
Related Other Pass Through Trust Agreements
: Means the Other Agreements as
defined in the Related Pass Through Trust Agreement.
Related Other Trustees
: Means the Other Trustees as defined in the Related
Pass Through Trust Agreement.
Related Other Trusts
: Means the Other Trusts as defined in the Related Pass
Through Trust Agreement.
.
Related Pass Through Trust Agreement
: Means the Basic Agreement as
supplemented by the Related Pass Through Trust Supplement.
Related Pass Through Trust Supplement
: Means the Trust Supplement No.
2010-1A-O dated as of the date hereof, relating to the US Airways Pass Through Trust 2010-
9
1A-O and entered into by the Company and the Related Trustee, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Related Trust
: Means the US Airways Pass Through Trust 2010-1A-O, formed under
the Related Pass Through Trust Agreement.
Related Trustee
: Means the trustee under the Related Pass Through Trust
Agreement.
Scheduled Payment
: Means, with respect to any Equipment Note, (i) any payment
of principal or interest on such Equipment Note (other than any such payment which is not in
fact received by the Trustee or the Subordination Agent within five days of the date on
which such payment is scheduled to be made) or (ii) any payment of interest on the
Applicable Certificates with funds drawn under the Liquidity Facility, which payment in any
such case represents the installment of principal on such Equipment Note at the stated
maturity of such installment, the payment of regularly scheduled interest accrued on the
unpaid principal amount of such Equipment Note, or both;
provided
,
however
,
that any payment of principal, premium, if any, or interest resulting from the redemption or
purchase of any Equipment Note shall not constitute a Scheduled Payment.
Special Payment
: Means any payment (other than a Scheduled Payment) in respect
of, or any proceeds of, any Equipment Note or Collateral (as defined in each Indenture).
Transfer Date
: Means the moment of execution and delivery of the Assignment
and Assumption Agreement by each of the parties thereto.
Transfer Date Certificates
: Has the meaning specified in the definition of
Applicable Certificates.
Triggering Event
: Has the meaning assigned to such term in the Intercreditor
Agreement.
Trust Property
: Means (i) subject to the Intercreditor Agreement, the
Equipment Notes held as the property of the Applicable Trust, the Guarantee with respect to
such Equipment Notes, all monies at any time paid thereon and all monies due and to become
due thereunder, (ii) funds from time to time deposited in the Certificate Account and the
Special Payments Account and, subject to the Intercreditor Agreement, any proceeds from the
sale by the Trustee pursuant to Article VI of the Basic Agreement of any Equipment Note and
(iii) all rights of the Applicable Trust and the Trustee, on behalf of the Applicable Trust,
under the Intercreditor Agreement, the Escrow Agreement, the NPA and the Liquidity Facility,
including, without limitation, all rights to receive certain payments thereunder, and all
monies paid to the Trustee on behalf of the Applicable Trust pursuant to the Intercreditor
Agreement or the Liquidity Facility,
provided
that rights
10
with respect to the Deposits or under the Escrow Agreement will not constitute Trust
Property.
Trust Supplement
: Has the meaning specified in the first paragraph of this
trust supplement.
Trustee
: Has the meaning specified in the first paragraph of this Trust
Supplement.
Underwriters
: Means, collectively, Morgan Stanley & Co. Incorporated,
Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
Underwriting Agreement
: Means the Underwriting Agreement dated December 15,
2010 among the Underwriters, the Company, US Airways Group, Inc. and the Depositary, as the
same may be amended, supplemented or otherwise modified from time to time in accordance with
its terms.
US Airways Bankruptcy Event
: Has the meaning specified in the Intercreditor
Agreement.
ARTICLE III
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01.
Statements to Applicable Certificateholders
. (a) On each Distribution Date, the Trustee will include with each distribution to Applicable
Certificateholders of a Scheduled Payment or Special Payment, as the case may be, a statement
setting forth the information provided below (in the case of a Special Payment, reflecting in part
the information provided by the Escrow Paying Agent under the Escrow Agreement). Such statement
shall set forth (per $1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v)
below) the following information:
(i) the aggregate amount of funds distributed on such Distribution Date under the
Agreement and under the Escrow Agreement, indicating the amount allocable to each source,
including any portion thereof paid by the Liquidity Provider;
(ii) the amount of such distribution under the Agreement allocable to principal and the
amount allocable to premium, if any;
(iii) the amount of such distribution under the Agreement allocable to interest;
(iv) the amount of such distribution under the Escrow Agreement allocable to interest;
11
(v) the amount of such distribution under the Escrow Agreement allocable to unused
Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name of a Clearing Agency or its
nominee, on the Record Date prior to each Distribution Date, the Trustee will, at the expense of
the Company, request that such Clearing Agency post on its Internet bulletin board a securities
position listing setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agencys books as holding interests in the Applicable Certificates on such Record Date.
On each Distribution Date, the Trustee will mail to each such Clearing Agency Participant the
statement described above and will make available additional copies as requested by such Clearing
Agency Participant for forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each calendar year but not later than
the latest date permitted by law, the Trustee shall furnish to each Person who at any time during
such calendar year was an Applicable Certificateholder of record a statement containing the sum of
the amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v) above for
such calendar year or, in the event such Person was an Applicable Certificateholder of record
during a portion of such calendar year, for such portion of such year, and such other items as are
readily available to the Trustee and which an Applicable Certificateholder shall reasonably request
as necessary for the purpose of such Applicable Certificateholders preparation of its U.S. federal
income tax returns. Such statement and such other items shall be prepared on the basis of
information supplied to the Trustee by the Clearing Agency Participants and shall be delivered by
the Trustee to such Clearing Agency Participants to be available for forwarding by such Clearing
Agency Participants to the holders of interests in the Applicable Certificates in the manner
described in Section 3.01(a) of this Trust Supplement.
(c) If the aggregate principal payments scheduled for a Regular Distribution Date prior to the
Delivery Period Termination Date differ from the amount thereof set forth for the Applicable
Certificates on page S-82 of the Prospectus Supplement, by no later than the 15
th
day
prior to such Regular Distribution Date, the Trustee (if the Related Trustee has not already done
so) shall mail written notice of the actual amount of such scheduled payments to the Applicable
Certificateholders of record as of a date within 15 Business Days prior to the date of mailing.
(d) Promptly following (i) the Delivery Period Termination Date, if there has been any change
in the information set forth in clauses (y) and (z) below from that set forth in page S-82 of the
Prospectus Supplement, and (ii) the date of any early redemption of, or any default in the payment
of principal or interest in respect of, any of the Equipment Notes held in the Applicable Trust, or
any Final Withdrawal, the Trustee (if the Related Trustee has not already done so) shall furnish to
Applicable Certificateholders of record on such date a statement setting forth (x) the expected
Pool Balances for each subsequent Regular Distribution Date following the Delivery Period
Termination Date, (y) the related Pool Factors for such Regular
12
Distribution Dates and (z) the expected principal distribution schedule of the Equipment Notes, in
the aggregate, held as Trust Property at the date of such notice. With respect to the Applicable
Certificates registered in the name of a Clearing Agency, on the Transfer Date, the Trustee (if the
Related Trustee has not already done so) will request from such Clearing Agency a securities
position listing setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agencys books as holding interests in the Applicable Certificates (as defined in the
Related Pass Through Trust Agreement) on the Delivery Period Termination Date. The Trustee (if the
Related Trustee has not already done so) will mail to each such Clearing Agency Participant the
statement described above and will make available additional copies as requested by such Clearing
Agency Participant for forwarding to holders of interests in the Applicable Certificates.
(e) The Trustee shall provide promptly to the Applicable Certificateholders all material
non-confidential information received by the Trustee from the Company.
(f) This Section 3.01 supersedes and replaces Section 4.03 of the Basic Agreement, with
respect to the Applicable Trust.
Section 3.02.
Special Payments Account
. (a) The Trustee shall establish and maintain on behalf of the Applicable Certificateholders a
Special Payments Account as one or more accounts, which shall be non-interest bearing except as
provided in Section 4.04 of the Basic Agreement. The Trustee shall hold the Special Payments
Account in trust for the benefit of the Applicable Certificateholders and shall make or permit
withdrawals therefrom only as provided in the Agreement. On each day when one or more Special
Payments are made to the Trustee under the Intercreditor Agreement, the Trustee, upon receipt
thereof, shall immediately deposit the aggregate amount of such Special Payments in the Special
Payments Account.
(b) This Section 3.02 supersedes and replaces Section 4.01(b) of the Basic Agreement in its
entirety, with respect to the Applicable Trust.
Section 3.03.
Distributions from Special Payments Account
. (a) On each Special Distribution Date with respect to any Special Payment or as soon thereafter
as the Trustee has confirmed receipt of any Special Payments due on the Equipment Notes held
(subject to the Intercreditor Agreement) in the Applicable Trust or realized upon the sale of such
Equipment Notes, the Trustee shall distribute out of the Special Payments Account the entire amount
of such Special Payment deposited therein pursuant to Section 3.02(a) of this Trust Supplement.
There shall be so distributed to each Applicable Certificateholder of record on the Record Date
with respect to such Special Distribution Date (other than as provided in Section 7.01 of this
Trust Supplement concerning the final distribution) by check mailed to such Applicable
Certificateholder, at the address appearing in the Register, such Applicable Certificateholders
pro rata share (based on the Fractional Undivided Interest in the Applicable Trust held by such
Applicable Certificateholder) of the total amount in the Special Payments Account on account of
such Special Payment, except that, with respect to Applicable Certificates registered on the Record
Date in the name of a Clearing Agency (or its nominee), such
distribution shall be made by wire transfer in immediately available funds to the account
designated by such Clearing Agency (or such nominee).
13
(b) The Trustee shall, at the expense of the Company, cause notice of each Special Payment to
be mailed to each Applicable Certificateholder at his address as it appears in the Register. In
the event of redemption or purchase of Equipment Notes held in the Applicable Trust, such notice
shall be mailed not less than 15 days prior to the Special Distribution Date for the Special
Payment resulting from such redemption or purchase, which Special Distribution Date shall be the
date of such redemption or purchase. In the case of any Special Payments, such notice shall be
mailed as soon as practicable after the Trustee has confirmed that it has received funds for such
Special Payment, stating the Special Distribution Date for such Special Payment which shall occur
not less than 15 days after the date of such notice and as soon as practicable thereafter. Notices
with respect to a Special Payment mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor (except as otherwise
provided in Section 7.01 of this Trust Supplement),
(ii) the amount of the Special Payment for each $1,000 face amount Applicable
Certificate and the amount thereof constituting principal, premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular Distribution Date,
the total amount to be received on such date for each $1,000 face amount Applicable
Certificate.
If the amount of premium, if any, payable upon the redemption or purchase of an Equipment Note has
not been calculated at the time that the Trustee mails notice of a Special Payment, it shall be
sufficient if the notice sets forth the other amounts to be distributed and states that any premium
received will also be distributed.
If any redemption of the Equipment Notes held in the Trust is canceled, the Trustee, as soon
as possible after learning thereof, shall cause notice thereof to be mailed to each Applicable
Certificateholder at its address as it appears on the Register.
(b) This Section 3.03 supersedes and replaces Section 4.02(b) and Section 4.02(c) of the
Basic Agreement in their entirety, with respect to the Applicable Trust.
Section 3.04.
Limitation of Liability for Payments
. Section 3.09 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by
deleting the phrase any Owner Trustee or any Owner Participant in the third sentence thereof.
14
ARTICLE IV
DEFAULT
Section 4.01.
Purchase Rights of Certificateholders
. (a) By acceptance of its Applicable Certificate, each Applicable Certificateholder agrees that
at any time after the occurrence and during the continuation of a Certificate Buyout Event:
(i) each Class B Certificateholder (other than the Company or any of its Affiliates)
shall have the right to purchase all, but not less than all, of the Applicable Certificates
upon 15 days written notice to the Trustee and each other Class B Certificateholder, on the
third Business Day next following the expiry of such 15-day notice period,
provided
that (A) if prior to the end of such 15-day period any other Class B Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing Class B
Certificateholder that such other Class B Certificateholder wants to participate in such
purchase, then such other Class B Certificateholder (other than the Company or any of its
Affiliates) may join with the purchasing Class B Certificateholder to purchase all, but not
less than all, of the Applicable Certificates pro rata based on the Fractional Undivided
Interest in the Class B Trust held by each such Class B Certificateholder and (B) if prior
to the end of such 15-day period any other Class B Certificateholder fails to notify the
purchasing Class B Certificateholder of such other Class B Certificateholders desire to
participate in such a purchase, then such other Class B Certificateholder shall lose its
right to purchase the Applicable Certificates pursuant to this Section 4.01(a)(i);
(ii) if any Additional Certificates are issued pursuant to any Additional Trust, each
Additional Certificateholder (other than the Company or any of its Affiliates), shall have
the right (which shall not expire upon any purchase of the Applicable Certificates pursuant
to clause (i) above) to purchase all, but not less than all, of the Applicable Certificates
and the Class B Certificates upon 15 days written notice to the Trustee, the Class B
Trustee and each other Additional Certificateholder, on the third Business Day next
following the expiry of such 15-day notice period, provided that (A) if prior to the end of
such 15-day period any other Additional Certificateholder (other than the Company or any of
its Affiliates) notifies such purchasing Additional Certificateholder that such other
Additional Certificateholder wants to participate in such purchase, then such other
Additional Certificateholder (other than the Company or any of its Affiliates) may join with
the purchasing Additional Certificateholder to purchase all, but not less than all, of the
Applicable Certificates and the Class B Certificates pro rata based on the Fractional
Undivided Interest in the Additional Trust held by each such Additional Certificateholder
and (B) if prior to the end of such 15-day period any other Additional Certificateholder
fails to notify the purchasing Additional Certificateholder of such other Additional
Certificateholders desire to participate in such a purchase, then such other Additional
Certificateholder shall lose its right to purchase the Applicable Certificates and the Class
B Certificates pursuant to this Section 4.01(a)(ii); and
15
(iii) if any Refinancing Certificates are issued, each Refinancing Certificateholder
shall have the same right (subject to the same terms and conditions) to purchase
Certificates pursuant to this Section 4.01(a) (and to receive notice in connection
therewith) as the Certificateholders of the Class that such Refinancing Certificates
refinanced.
The purchase price with respect to the Applicable Certificates shall be equal to the Pool
Balance of the Applicable Certificates, together with accrued and unpaid interest thereon to the
date of such purchase, without premium, but including any other amounts then due and payable to the
Applicable Certificateholders under the Agreement, the Intercreditor Agreement, the Escrow
Agreement or any Note Document or on or in respect of the Applicable Certificates;
provided
,
however
, that no such purchase of Applicable Certificates shall be
effective unless the purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the Agreement and the
Other Agreements, (A) in the case of any purchase of the Applicable Certificates pursuant to clause
(i) above, all of the Applicable Certificates or (B) in the case of any purchase of Applicable
Certificates and Class B Certificates pursuant to clause (ii) above, all of the Applicable
Certificates and the Class B Certificates. Each payment of the purchase price of the Applicable
Certificates referred to in the first sentence hereof shall be made to an account or accounts
designated by the Trustee and each such purchase shall be subject to the terms of this Section
4.01. Each Applicable Certificateholder agrees by its acceptance of its Applicable Certificate
that (at any time after the occurrence of a Certificate Buyout Event) it will, upon payment from
such Class B Certificateholder(s), Additional Certificateholder(s) or Refinancing
Certificateholder(s), as the case may be, of the purchase price set forth in the first sentence of
this paragraph, (i) forthwith sell, assign, transfer and convey to the purchaser(s) thereof
(without recourse, representation or warranty of any kind except for its own acts), all of the
right, title, interest and obligation of such Applicable Certificateholder in the Agreement, the
Escrow Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity Facility, the
NPA, the Note Documents and all Applicable Certificates and Escrow Receipts held by such Applicable
Certificateholder (excluding all right, title and interest under any of the foregoing to the extent
such right, title or interest is with respect to an obligation not then due and payable as respects
any action or inaction or state of affairs occurring prior to such sale) (and the purchaser shall
assume all of such Applicable Certificateholders obligations under the Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity Facility, the NPA, the
Note Documents and all such Applicable Certificates and Escrow Receipts), (ii) if such purchase
occurs after a record date specified in Section 2.03 of the Escrow Agreement relating to the
distribution of unused Deposits and/or accrued and unpaid interest on Deposits and prior to or on
the related distribution date thereunder, forthwith turn over to the purchaser(s) of its Applicable
Certificate all amounts, if any, received by it on account of such distribution, and (iii) if such
purchase occurs after a Record Date relating to any distribution and prior to or on the related
Distribution Date, forthwith turn over to the purchaser(s) of its Applicable Certificate all
amounts, if any, received by it on account of such distribution. The Applicable Certificates will
be deemed to be purchased on the date payment of the purchase price is made notwithstanding the
failure of the Applicable Certificateholders to deliver any Applicable Certificates and, upon such
a purchase, (I) the only rights of the Applicable Certificateholders
16
will be to deliver the Applicable Certificates to the purchaser(s) and receive the purchase
price for such Applicable Certificates and (II) if the purchaser(s) shall so request, such
Applicable Certificateholder will comply with all the provisions of Section 3.04 of the Basic
Agreement to enable new Applicable Certificates to be issued to the purchaser in such denominations
as it shall request. All charges and expenses in connection with the issuance of any such new
Applicable Certificates shall be borne by the purchaser thereof.
As used in this Section 4.01 and elsewhere in this Trust Supplement, the terms Additional
Certificate, Additional Certificateholder, Additional Equipment Notes, Additional Trust,
Class B Certificate, Class B Certificateholder, Class B Trust, Class B Trustee,
Refinancing Certificates, Refinancing Certificateholder, Refinancing Equipment Notes and
Refinancing Trust shall have the respective meanings assigned to such terms in the Intercreditor
Agreement.
(b) This Section 4.01 supersedes and replaces Section 6.01(b) of the Basic Agreement, with
respect to the Applicable Trust.
Section 4.02.
Amendment of Section 6.05 of the Basic Agreement
. Section 6.05 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by
deleting the phrase and thereby annul any Direction given by such Certificateholders or the
Trustee to such Loan Trustee with respect thereto, set forth in the first sentence thereof.
ARTICLE V
THE TRUSTEE
Section 5.01.
Acquisition of Trust Property
. (a) The Trustee is hereby irrevocably authorized and directed to execute and deliver the
Assignment and Assumption Agreement on the date specified in Section 7.01 of the Related Pass
Through Trust Supplement, subject only to the satisfaction of the conditions set forth in said
Section 7.01. The Agreement (except only for this sentence and the immediately preceding sentence
hereof, which are effective upon execution and delivery hereof) shall become effective upon the
execution and delivery of the Assignment and Assumption Agreement by the Trustee and the Related
Trustee, automatically and without any further signature or action on the part of the Company and
the Trustee, and shall thereupon constitute the legal, valid and binding obligation of the parties
hereto enforceable against each of the parties hereto in accordance with its terms. Upon such
execution and delivery of the Assignment and Assumption Agreement, the Related Trust shall be
terminated, the Applicable Certificateholders shall receive beneficial interests in the Applicable
Trust in exchange for their interests in the Related Trust equal to their respective beneficial
interests in the Related Trust and the Outstanding (as defined in the Related Pass Through Trust
Agreement) pass through certificates representing fractional undivided interests in the Related
Trust shall be deemed for all purposes of the Agreement, without further signature or action of any
party or Certificateholder, to be Certificates representing the same Fractional Undivided Interests
in the Applicable Trust and Trust Property. By acceptance of its Applicable Certificate, each
Applicable Certificateholder consents to and ratifies such assignment, transfer and delivery of the
trust property of the Related Trust to the
Trustee upon the execution and
17
delivery of the Assignment and Assumption Agreement. The provisions
of this Section 5.01(a) supersede and replace the provisions of Section 2.02 of the Basic Agreement
with respect to the Applicable Trust, and all provisions of the Basic Agreement relating to
Postponed Notes or Section 2.02 of the Basic Agreement shall not apply to the Applicable Trust.
(b) The Trustee, upon the execution and delivery of the Assignment and Assumption Agreement,
acknowledges its acceptance of all right, title and interest in and to the Trust Property and
declares that the Trustee holds and will hold such right, title and interest for the benefit of all
then present and future Applicable Certificateholders, upon the trusts herein and in the Basic
Agreement set forth. By the acceptance of each Applicable Certificate issued to it under the
Related Pass Through Trust Agreement and deemed issued under the Agreement, each Holder of any such
Applicable Certificate as grantor of the Applicable Trust thereby joins in the creation and
declaration of the Applicable Trust. The provisions of this Section 5.01(b) supersede and replace
the provisions of Section 2.03 of the Basic Agreement, with respect to the Applicable Trust.
Section 5.02. [Intentionally Omitted]
Section 5.03.
The Trustee
. (a) Subject to Section 5.04 of this Trust Supplement and Section 7.15 of the Basic Agreement,
the Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Trust Supplement, the Deposit Agreement, the NPA or the Escrow Agreement or the
due execution hereof or thereof by the Company or the other parties thereto (other than the
Trustee), or for or in respect of the recitals and statements contained herein or therein, all of
which recitals and statements are made solely by the Company, except that the Trustee hereby
represents and warrants that each of this Trust Supplement, the Basic Agreement, each Applicable
Certificate, the Intercreditor Agreement, the NPA and the Escrow Agreement has been executed and
delivered by one of its officers who is duly authorized to execute and deliver such document on its
behalf.
(b) Except as herein otherwise provided and except during the continuation of an Event of
Default in respect of the Applicable Trust created hereby, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this
Trust Supplement other than as set forth in the Agreement, and this Trust Supplement is executed
and accepted on behalf of the Trustee, subject to all the terms and conditions set forth in the
Agreement, as fully to all intents as if the same were herein set forth at length.
Section 5.04.
Representations and Warranties of the Trustee
. The Trustee hereby represents and warrants, on the Transfer Date, that:
(a) the Trustee has full power, authority and legal right to receive the Trust Property
assigned by the Related Trustee, assume the obligations under, and perform, the Assignment
and Assumption Agreement, this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the NPA and the Note Documents to which it is a
party and has taken all necessary action to authorize such receipt, assumption and
18
performance by it of this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the NPA and the Note Documents to which it is a party;
(b) the receipt of the Trust Property under the Assignment and Assumption Agreement and
the performance by the Trustee of the Assignment and Assumption Agreement, this Trust
Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA and the Note
Documents to which it is a party (i) will not violate any provision of any United States
federal law or the law of the state of the United States where it is located governing the
banking and trust powers of the Trustee or any order, writ, judgment, or decree of any
court, arbitrator or governmental authority applicable to the Trustee or any of its assets,
(ii) will not violate any provision of the articles of association or by-laws of the
Trustee, and (iii) will not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of any lien on
any properties included in the Trust Property pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a party, which violation,
default or lien could reasonably be expected to have an adverse effect on the Trustees
performance or ability to perform its duties hereunder or thereunder or on the transactions
contemplated herein or therein;
(c) the receipt of the Trust Property under the Assignment and Assumption Agreement and
the performance by the Trustee of the Assignment and Assumption Agreement, this Trust
Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA and the Note
Documents to which it is a party will not require the authorization, consent, or approval
of, the giving of notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency of the United States or the state
of the United States where it is located regulating the banking and corporate trust
activities of the Trustee; and
(d) the Assignment and Assumption Agreement has been duly executed and delivered by the
Trustee and this Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and the Note Documents to which it is a party have been, or will be, as applicable, duly
executed and delivered by the Trustee and constitute, or will constitute, as applicable, the
legal, valid and binding agreements of the Trustee, enforceable against it in accordance
with their respective terms;
provided
,
however
, that enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles of equity.
Section 5.05.
Trustee Liens
. The Trustee in its individual capacity agrees, in addition to the agreements contained in
Section 7.17 of the Basic Agreement, that it will at its own cost and expense promptly take any
action as may be necessary to duly discharge and satisfy in full any Trustees Liens on or with
respect to the Trust Property which is attributable to the Trustee in its individual capacity and
which is unrelated to the transactions contemplated by the Intercreditor Agreement or the NPA.
19
ARTICLE VI
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section 6.01.
Amendment of Section 5.02 of the Basic Agreement
. Section 5.02 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by
(i) replacing the phrase of the Note Documents and of this Agreement set forth in paragraph (b)
thereof with the phrase of the Note Documents, of the NPA and of this Agreement and (ii)
replacing the phrase of this Agreement and any Note Document set forth in the last paragraph of
Section 5.02 with the phrase of this Agreement, the NPA and any Note Document.
Section 6.02.
Supplemental Agreements Without Consent of Applicable
Certificateholders
. Without limitation of Section 9.01 of the Basic Agreement, under the terms of, and subject to
the limitations contained in, Section 9.01 of the Basic Agreement, the Company may (but will not be
required to), and the Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the
Companys request, at any time and from time to time, (i) enter into one or more agreements
supplemental to the Escrow Agreement, the NPA or the Deposit Agreement, for any of the purposes set
forth in clauses (1) through (14) of such Section 9.01, and (without limitation of the foregoing or
Section 9.01 of the Basic Agreement) references in clauses (4), (6) and (7) of such Section 9.01 to
any Intercreditor Agreement, any Note Purchase Agreement, any Liquidity Facility or any Guarantee
shall also be deemed to refer to the Intercreditor Agreement, the Liquidity Facility, the Escrow
Agreement, the NPA, the Guarantee or the Deposit Agreement, (ii) enter into one or more agreements
supplemental to the Agreement, the Intercreditor Agreement or the NPA to provide for the formation
of a single Additional Trust, the issuance of Additional Certificates, the purchase by the
Additional Trust (if any) of applicable Additional Equipment Notes and other matters incidental
thereto or otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject to the
provisions of Section 4(a)(vi) of the NPA and Section 9.1 of the Intercreditor Agreement, and (iii)
enter into one or more agreements supplemental to the Agreement to provide for the formation of one
or more Refinancing Trusts, the issuance of Refinancing Certificates, the purchase by any
Refinancing Trust of applicable Refinancing Equipment Notes and other matters incidental thereto or
as otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject to the provisions of
Section 4(a)(vi) of the NPA and Section 9.1(c) of the Intercreditor Agreement.
Section 6.03.
Supplemental Agreements with Consent of Applicable Certificateholders
. Without limitation of Section 9.02 of the Basic Agreement, the provisions of Section 9.02 of the
Basic Agreement shall apply to agreements or amendments for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Escrow Agreement, the Deposit
Agreement, the Liquidity Facility, the Guarantee or the NPA or modifying in any manner the rights
and obligations of the Applicable Certificateholders under the Escrow Agreement, the Deposit
Agreement, the Liquidity Facility, the Guarantee or the NPA; provided that the provisions of
Section 9.02(1) of the Basic Agreement shall be deemed to include reductions in any manner of, or
delay in the timing of, any receipt by the Applicable Certificateholders of payments upon the
Deposits.
20
Section 6.04.
Consent of Holders of Certificates Issued under Other Trusts
. Notwithstanding any provision in Section 6.02 or Section 6.03 of this Trust Supplement to the
contrary, no amendment or modification of Section 4.01 of this Trust Supplement shall be effective
unless the trustee for each Class of Certificates affected by such amendment or modification shall
have consented thereto.
ARTICLE VII
TERMINATION OF TRUST
Section 7.01.
Termination of the Applicable Trust
. (a) The respective obligations and responsibilities of the Company and the Trustee with respect
to the Applicable Trust shall terminate upon the distribution to all Applicable Certificateholders
and the Trustee of all amounts required to be distributed to them pursuant to the Agreement and the
disposition of all property held as part of the Trust Property;
provided
,
however
,
that in no event shall the Applicable Trust continue beyond one hundred ten (110) years following
the date of the execution of this Trust Supplement.
Notice of any termination, specifying the Distribution Date upon which the Applicable
Certificateholders may surrender their Applicable Certificates to the Trustee for payment of the
final distribution and cancellation, shall be mailed promptly by the Trustee to Applicable
Certificateholders not earlier than the 60
th
day and not later than the 15
th
day next preceding such final Distribution Date specifying (A) the Distribution Date upon which the
proposed final payment of the Applicable Certificates will be made upon presentation and surrender
of Applicable Certificates at the office or agency of the Trustee therein specified, (B) the amount
of any such proposed final payment, and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation and surrender of
the Applicable Certificates at the office or agency of the Trustee therein specified. The Trustee
shall give such notice to the Registrar at the time such notice is given to Applicable
Certificateholders. Upon presentation and surrender of the Applicable Certificates in accordance
with such notice, the Trustee shall cause to be distributed to Applicable Certificateholders such
final payments.
In the event that all of the Applicable Certificateholders shall not surrender their
Applicable Certificates for cancellation within six months after the date specified in the
above-mentioned written notice, the Trustee shall give a second written notice to the remaining
Applicable Certificateholders to surrender their Applicable Certificates for cancellation and
receive the final distribution with respect thereto. No additional interest shall accrue on the
Applicable Certificates after the Distribution Date specified in the first written notice. In the
event that any money held by the Trustee for the payment of distributions on the Applicable
Certificates shall remain unclaimed for two years (or such lesser time as the Trustee shall be
satisfied, after sixty days notice from the Company, is one month prior to the escheat period
provided under applicable law) after the final distribution date with respect thereto, the Trustee
shall pay to each Loan Trustee the appropriate amount of money relating to such Loan Trustee and
shall give written notice thereof to the Company.
21
(b) The provisions of this Section 7.01 supersede and replace the provisions of Section 11.01
of the Basic Agreement in its entirety, with respect to the Applicable Trust.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01.
Basic Agreement Ratified
. Except and so far as herein expressly provided, all of the provisions, terms and conditions of
the Basic Agreement are in all respects ratified and confirmed; and the Basic Agreement and this
Trust Supplement shall be taken, read and construed as one and the same instrument. All
replacements of provisions of, and other modifications of the Basic Agreement set forth in this
Trust Supplement are solely with respect to the Applicable Trust.
Section 8.02.
GOVERNING LAW
.
THE AGREEMENT AND THE APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. THIS SECTION 8.02 SUPERSEDES AND REPLACES SECTION 12.05 OF
THE BASIC AGREEMENT, WITH RESPECT TO THE APPLICABLE TRUST.
Section 8.03.
Execution in Counterparts
. This Trust Supplement may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same instrument.
Section 8.04.
Intention of Parties
. The parties hereto intend that the Applicable Trust be classified for U.S. federal income tax
purposes as a grantor trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended, and not as a trust or association taxable as a corporation or as a partnership.
Each Applicable Certificateholder and Investor, by its acceptance of its Applicable Certificate or
a beneficial interest therein, agrees to treat the Applicable Trust as a grantor trust for all U.S.
federal, state and local income tax purposes. The powers granted and obligations undertaken
pursuant to the Agreement shall be so construed so as to further such intent.
IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust Supplement to be duly
executed by their respective officers thereto duly authorized, as of the day and year first written
above.
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US AIRWAYS, INC.
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By:
Name:
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/s/ Thomas T. Weir
Thomas T. Weir
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Title:
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Vice President and Treasurer
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WILMINGTON TRUST COMPANY,
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as Trustee
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By:
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/s/ Robert P. Hines, Jr.
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Name:
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Robert P. Hines, Jr.
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Title:
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Assistant Vice President
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Signature Page to Trust Supplement No. 2010-1A-S
Exhibit 4.4
EXECUTION VERSION
TRUST SUPPLEMENT No. 2010-1B-O
Dated as of December 21, 2010
between
WILMINGTON TRUST COMPANY
as Trustee,
and
US AIRWAYS, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of December 21, 2010
$77,398,000
US Airways Pass Through Trust 2010-1B-O
8.50% US Airways
Pass Through Certificates,
Series 2010-1B-O
TABLE OF CONTENTS
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Page
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ARTICLE I THE CERTIFICATES
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2
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Section 1.01. The Certificates
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2
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ARTICLE II DEFINITIONS
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4
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Section 2.01. Definitions
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4
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ARTICLE III DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
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10
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Section 3.01. Statements to Applicable Certificateholders
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10
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Section 3.02. Special Payments Account
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11
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Section 3.03. Distributions from Special Payments Account
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12
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Section 3.04. Limitation of Liability for Payments
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13
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ARTICLE IV DEFAULT
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13
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Section 4.01. Purchase Rights of Certificateholders
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13
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Section 4.02. Amendment of Section 6.05 of the Basic Agreement
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15
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ARTICLE V THE TRUSTEE
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15
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Section 5.01. Delivery of Documents; Delivery Dates
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15
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Section 5.02. Withdrawal of Deposits
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16
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Section 5.03. The Trustee
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17
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Section 5.04. Representations and Warranties of the Trustee
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17
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Section 5.05. Trustee Liens
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18
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ARTICLE VI ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
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18
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Section 6.01. Amendment of Section 5.02 of the Basic Agreement
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18
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Section 6.02. Supplemental Agreements Without Consent of Applicable Certificateholders
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18
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Section 6.03. Supplemental Agreements with Consent of Applicable Certificateholders
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19
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Section 6.04. Consent of Holders of Certificates Issued under Other Trusts
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19
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ARTICLE VII TERMINATION OF TRUST
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19
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Section 7.01. Termination of the Applicable Trust
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19
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ARTICLE VIII MISCELLANEOUS PROVISIONS
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22
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Section 8.01. Basic Agreement Ratified
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22
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Section 8.02. GOVERNING LAW
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22
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Section 8.03. Execution in Counterparts
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22
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Section 8.04. Intention of Parties
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22
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Exhibit A
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Form of Certificate
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Exhibit B
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DTC Letter of Representations
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Exhibit C
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Form of Assignment and Assumption Agreement
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This Trust Supplement No. 2010-1B-O, dated as of December 21, 2010 (herein called the
Trust Supplement
), between US Airways, Inc., a Delaware corporation (the
Company
), and Wilmington Trust Company (the
Trustee
), to the Pass Through Trust
Agreement, dated as of December 21, 2010, between the Company and the Trustee (the
Basic
Agreement
).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the Basic Agreement, unlimited as to the aggregate principal amount of Certificates
(unless otherwise specified herein, capitalized terms used herein without definition having the
respective meanings specified in the Basic Agreement) which may be issued thereunder, has
heretofore been executed and delivered;
WHEREAS, the Company currently owns eight (8) Aircraft;
WHEREAS, the Company intends to re-finance each Aircraft (to the extent such Aircraft is
subject to an existing security interest, after such security interest has been discharged);
WHEREAS, with respect to each Aircraft, the Company will issue pursuant to an Indenture, on a
recourse basis, Equipment Notes to re-finance such Aircraft (to the extent such Aircraft is subject
to an existing security interest, after such security interest has been discharged);
WHEREAS, the Trustee hereby declares the creation of the US Airways Pass Through Trust
2010-1B-O (the
Applicable Trust
) for the benefit of the Applicable Certificateholders,
and the initial Applicable Certificateholders as the grantors of the Applicable Trust, by their
respective acceptances of the Applicable Certificates, join in the creation of the Applicable Trust
with the Trustee;
WHEREAS, all Certificates to be issued by the Applicable Trust will evidence fractional
undivided interests in the Applicable Trust and will convey no rights, benefits or interests in
respect of any property other than the Trust Property except for those Certificates to which an
Escrow Receipt has been affixed;
WHEREAS, the Escrow Agent and the Underwriters have contemporaneously herewith entered into an
Escrow Agreement with the Escrow Paying Agent pursuant to which the Underwriters have delivered to
the Escrow Agent the proceeds from the sale of the Applicable Certificates, and have irrevocably
instructed the Escrow Agent to withdraw and pay funds from such proceeds upon request and proper
certification by the Trustee to purchase Equipment Notes as the conditions set forth in the NPA for
such purchase are satisfied from time to time prior to the Delivery Period Termination Date;
WHEREAS, the Escrow Agent on behalf of the Applicable Certificateholders has contemporaneously
herewith entered into a Deposit Agreement with the Depositary under which
2
the Deposits referred to therein will be made and from which it will withdraw funds to allow
the Trustee to purchase Equipment Notes from time to time prior to the Delivery Period Termination
Date;
WHEREAS, pursuant to the terms and conditions of the Basic Agreement as supplemented by this
Trust Supplement (the
Agreement
) and the NPA, upon the financing of an Aircraft under the
NPA, the Trustee on behalf of the Applicable Trust, using funds withdrawn under the Escrow
Agreement, shall purchase one or more Equipment Notes having the same interest rate as, and final
maturity date not later than the final Regular Distribution Date of, the Applicable Certificates
issued hereunder and shall hold such Equipment Notes in trust for the benefit of the Applicable
Certificateholders;
WHEREAS, all of the conditions and requirements necessary to make this Trust Supplement, when
duly executed and delivered, a valid, binding and legal instrument in accordance with its terms and
for the purposes herein expressed, have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms hereof have been in all respects
duly authorized;
WHEREAS, this Trust Supplement is subject to the provisions of the Trust Indenture Act of
1939, as amended, and shall, to the extent applicable, be governed by such provisions;
NOW THEREFORE, in consideration of the premises herein, it is agreed between the Company and
the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01.
The Certificates
. There is hereby created a series of Certificates to be
issued under the Agreement to be distinguished and known as US Airways Pass Through Certificates,
Series 2010-1B-O (hereinafter defined as the
Applicable Certificates
). Each Applicable
Certificate represents a fractional undivided interest in the Applicable Trust created hereby. The
Applicable Certificates shall be the only instruments evidencing a fractional undivided interest in
the Applicable Trust.
The terms and conditions applicable to the Applicable Certificates are as follows:
(a) The aggregate principal amount of the Applicable Certificates that shall be
authenticated under the Agreement (except for Applicable Certificates authenticated and
delivered under Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement) is $77,398,000.
(b) The Regular Distribution Dates with respect to any payment of Scheduled Payments
means April 22 and October 22 of each year, commencing on April 22, 2011, until payment of
all of the Scheduled Payments to be made under the Equipment Notes has been made.
3
(c) The Special Distribution Dates with respect to the Applicable Certificates means
any Business Day on which a Special Payment is to be distributed pursuant to the Agreement.
(d) At the Escrow Agents request under the Escrow Agreement, the Trustee shall affix
the corresponding Escrow Receipt to each Applicable Certificate. In any event, any transfer
or exchange of any Applicable Certificate shall also effect a transfer or exchange of the
related Escrow Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of any
Applicable Certificate shall be permitted unless the corresponding Escrow Receipt is
attached thereto and also is so transferred or exchanged. By acceptance of any Applicable
Certificate to which an Escrow Receipt is attached, each Holder of such an Applicable
Certificate acknowledges and accepts the restrictions on transfer of the Escrow Receipt set
forth herein and in the Escrow Agreement.
(e) (i) The Applicable Certificates shall be in the form attached hereto as Exhibit A.
Any Person acquiring or accepting an Applicable Certificate or an interest therein will, by
such acquisition or acceptance, be deemed to represent and warrant to and for the benefit of
the Company that either (i) the assets of an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended (
ERISA
), or of a plan
subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the
Code
), have not been used to purchase or hold Applicable Certificates or an
interest therein or (ii) the purchase and holding of Applicable Certificates or an interest
therein is exempt from the prohibited transaction restrictions of ERISA and the Code
pursuant to one or more prohibited transaction statutory or administrative exemptions.
(ii) The Applicable Certificates shall be Book-Entry Certificates and shall be subject
to the conditions set forth in the Letter of Representations between the Company and the
Clearing Agency attached hereto as Exhibit B.
(f) The Participation Agreements as defined in this Trust Supplement are the Note
Purchase Agreements referred to in the Basic Agreement.
(g) The Applicable Certificates are subject to the Intercreditor Agreement, the Deposit
Agreement and the Escrow Agreement.
(h) The Applicable Certificates are entitled to the benefits of the Liquidity Facility.
(i) The Responsible Party is the Company.
(j) The date referred to in clause (i) of the definition of the term PTC Event of
Default in the Basic Agreement is the Final Maturity Date.
4
(k) The particular sections of the Note Purchase Agreement, for purposes of clause
(3) of Section 7.07 of the Basic Agreement, are Section 8.1 of each Participation Agreement.
(l) The Equipment Notes to be acquired and held in the Applicable Trust, and the
related Aircraft and Note Documents, are described in the NPA.
ARTICLE II
DEFINITIONS
Section 2.01.
Definitions
. For all purposes of the Basic Agreement as supplemented by
this Trust Supplement, the following capitalized terms have the following meanings (any term used
herein which is defined in both this Trust Supplement and the Basic Agreement shall have the
meaning assigned thereto in this Trust Supplement for purposes of the Basic Agreement as
supplemented by this Trust Supplement):
Agreement
: Has the meaning specified in the recitals hereto.
Aircraft
: Means each of the aircraft in respect of which a Participation
Agreement is to be or is, as the case may be, entered into in accordance with the NPA (or
any replacement aircraft, including engines therefor, owned by the Company and securing one
or more Equipment Notes).
Aircraft Purchase Agreement
: Has the meaning specified in the NPA.
Applicable Certificate
: Has the meaning specified in Section 1.01 of this
Trust Supplement.
Applicable Certificateholder
: Means the Person in whose name an Applicable
Certificate is registered on the Register for the Applicable Certificates.
Applicable Closing Date
: Has the meaning specified in Section 5.01(b) of this
Trust Supplement.
Applicable Participation Agreement
: Has the meaning specified in Section
5.01(b) of this Trust Supplement.
Applicable Trust
: Has the meaning specified in the recitals hereto.
Assignment and Assumption Agreement
: Means the assignment and assumption
agreement substantially in the form of Exhibit C hereto executed and delivered in accordance
with Section 7.01 of this Trust Supplement.
Basic Agreement
: Has the meaning specified in the first paragraph of this
Trust Supplement.
5
Business Day
: Means any day other than a Saturday, a Sunday or a day on which
commercial banks are required or authorized to close in Phoenix, Arizona, New York, New
York, or, so long as any Applicable Certificate is Outstanding, the city and state in which
the Trustee, the Subordination Agent or any Loan Trustee maintains its Corporate Trust
Office or receives and disburses funds.
Certificate
: Has the meaning specified in the Intercreditor Agreement.
Certificate Buyout Event
: Means that a US Airways Bankruptcy Event has occurred
and is continuing and the following events have occurred: (A) (i) the 60-day period
specified in Section 1110(a)(2)(A) of the U.S. Bankruptcy Code (the
60-Day Period
)
has expired and (ii) US Airways has not entered into one or more agreements under Section
1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations under all of the
Indentures or, if it has entered into such agreements, has at any time thereafter failed to
cure any default under any of the Indentures in accordance with Section 1110(a)(2)(B) of the
Bankruptcy Code; or (B) if prior to the expiry of the 60-Day Period, US Airways shall have
abandoned any Aircraft.
Class
: Has the meaning specified in the Intercreditor Agreement.
Closing Notice
: Has the meaning specified in the NPA.
Company
: Has the meaning specified in the first paragraph of this Trust
Supplement.
Controlling Party
: Has the meaning specified in the Intercreditor Agreement.
Cut-off Date
: Means the earlier of (a) the Delivery Period Termination Date
and (b) the date on which a Triggering Event occurs.
Delivery Period Termination Date
: Means the earlier of (a) January 21, 2011,
and (b) the date on which Equipment Notes issued with respect to all of the Aircraft (as
defined in the NPA) have been purchased by the Applicable Trust in accordance with the NPA.
Deposit Agreement
: Means the Deposit Agreement dated as of December 21, 2010,
relating to the Applicable Certificates between the Depositary and the Escrow Agent, as the
same may be amended, supplemented or otherwise modified from time to time in accordance with
its terms.
Depositary
: Means The Bank of New York Mellon, a bank chartered under the laws
of the State of New York.
Deposits
: Has the meaning specified in the Deposit Agreement.
6
Distribution Date
: Means any Regular Distribution Date or Special Distribution
Date as the context requires.
Escrow Agent
: Means, initially, Wells Fargo Bank Northwest, National
Association, and any replacement or successor therefor appointed in accordance with the
Escrow Agreement.
Escrow Agreement
: Means the Escrow and Paying Agent Agreement dated as of
December 21, 2010 relating to the Applicable Certificates, among the Escrow Agent, the
Escrow Paying Agent, the Trustee and Underwriters, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
Escrow Paying Agent
: Means the Person acting as paying agent under the Escrow
Agreement.
Escrow Receipt
: Means the receipt substantially in the form annexed to the
Escrow Agreement representing a fractional undivided interest in the funds held in escrow
thereunder.
Final Maturity Date
: Means October 22, 2018.
Final Withdrawal
: Has the meaning specified in the Escrow Agreement.
Final Withdrawal Date
: Has the meaning specified in the Escrow Agreement.
Final Withdrawal Notice
: Has the meaning specified in Section 5.02 of this
Trust Supplement.
Guarantee
: Means the Guarantee dated as of December 21, 2010 of US Airways
Group, Inc. covering the Guaranteed Obligations referred to therein including the Equipment
Notes.
Indenture
: Means each of the separate trust indentures and mortgages relating
to the Aircraft, each as specified or described in a Closing Notice delivered pursuant to
the NPA or the related Participation Agreement, in each case as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its terms.
Intercreditor Agreement
: Means the Intercreditor Agreement dated as of
December 21, 2010, among the Trustee, the Other Trustees, the Liquidity Provider, the
liquidity provider relating to the Class A Certificates and Wilmington Trust Company, as
Subordination Agent and as trustee thereunder, as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Investors
: Means the Underwriters, together with all subsequent beneficial
owners of the Applicable Certificates.
7
Liquidity Facility
: Means, initially, the Revolving Credit Agreement dated as
of December 21, 2010 relating to the Applicable Certificates, between the Liquidity Provider
and Wilmington Trust Company, as Subordination Agent, as agent and trustee for the
Applicable Trust, and, from and after the replacement of such agreement pursuant to the
Intercreditor Agreement, the replacement liquidity facility therefor, in each case as
amended, supplemented or otherwise modified from time to time in accordance with their
respective terms.
Liquidity Provider
: Means, initially, Morgan Stanley Bank, N.A, organized
under the laws of the United States of America, and any replacements or successors therefor
appointed in accordance with the Intercreditor Agreement.
Note Documents
: Means the Equipment Notes with respect to the Applicable
Certificates and, with respect to any such Equipment Note, the Indenture, the Guarantee and
the Participation Agreement relating to such Equipment Note.
Notice of Purchase Withdrawal
: Has the meaning specified in the Deposit
Agreement.
NPA
: Means the Note Purchase Agreement dated as of December 21, 2010 among the
Trustee, the Other Trustees, the Company, the Escrow Agent, the Escrow Paying Agent and the
Subordination Agent, providing for, among other things, the purchase of Equipment Notes by
the Trustee on behalf of the Applicable Trust, as the same may be amended, supplemented or
otherwise modified from time to time, in accordance with its terms.
Other Agreements
: Means (i) the Basic Agreement as supplemented by Trust
Supplement No. 2010-1A-O dated as of the date hereof relating to US Airways Pass Through
Trust 2010-1A-O, (ii) the Basic Agreement as supplemented by a Trust Supplement relating to
any Additional Trust and (iii) the Basic Agreement as supplemented by a Trust Supplement
relating to any Refinancing Trust.
Other Trustees
: Means the trustees under the Other Agreements, and any
successor or other trustee appointed as provided therein.
Other Trusts
: Means the US Airways Pass Through Trust 2010-1A-O, an Additional
Trust, if any, and a Refinancing Trust or Trusts, if any, created by the Other Agreements.
Participation Agreement
: Means each Participation Agreement to be entered
into, or entered into (as the case may be), by the Trustee pursuant to the NPA, as the same
may be amended, supplemented or otherwise modified in accordance with its terms.
Pool Balance
: Means, as of any date, (i) the original aggregate face amount of
the Applicable Certificates less (ii) the aggregate amount of all payments made as of such
date in respect of such Applicable Certificates or in respect of Deposits other than
8
payments made in respect of interest or premium thereon or reimbursement of any costs
or expenses incurred in connection therewith. The Pool Balance as of any date shall be
computed after giving effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes or payment with respect to other Trust Property
and the distribution thereof to be made on that date.
Pool Factor
: Means, as of any Distribution Date, the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance by (ii) the original
aggregate face amount of the Applicable Certificates. The Pool Factor as of any
Distribution Date shall be computed after giving effect to any special distribution with
respect to unused Deposits, payment of principal of the Equipment Notes or payment with
respect to other Trust Property and the distribution thereof to be made on that date.
Prospectus Supplement
: Means the final Prospectus Supplement dated December
15, 2010, relating to the offering of the Applicable Certificates and the Class A
Certificates.
Ratings Confirmation
: Has the meaning specified in the Intercreditor
Agreement.
Related Pass Through Trust Agreement
: Means the Basic Agreement as
supplemented by the Trust Supplement No. 2010-1B-S dated as of the date hereof relating to
the US Airways Pass Through Trust 2010-1B-S and entered into by the Company and the Related
Trustee, which agreement becomes effective upon the execution and delivery of the Assignment
and Assumption Agreement pursuant to Section 7.01 of this Trust Supplement.
Related Trust
: Means the US Airways Pass Through Trust 2010-1B-S, to be formed
under the Related Pass Through Trust Agreement.
Related Trustee
: Means the trustee under the Related Pass Through Trust
Agreement.
Scheduled Closing Date
: Has the meaning specified in the NPA.
Scheduled Payment
: Means, with respect to any Equipment Note, (i) any payment
of principal or interest on such Equipment Note (other than any such payment which is not in
fact received by the Trustee or the Subordination Agent within five days of the date on
which such payment is scheduled to be made) or (ii) any payment of interest on the
Applicable Certificates with funds drawn under the Liquidity Facility, which payment in any
such case represents the installment of principal on such Equipment Note at the stated
maturity of such installment, the payment of regularly scheduled interest accrued on the
unpaid principal amount of such Equipment Note, or both;
provided
,
however
,
that any payment of principal, premium, if any, or interest resulting from the redemption or
purchase of any Equipment Note shall not constitute a Scheduled Payment.
9
Special Payment
: Means any payment (other than a Scheduled Payment) in respect
of, or any proceeds of, any Equipment Note or Collateral (as defined in each Indenture).
Transfer Date
: Has the meaning specified in Section 7.01 of this Trust
Supplement.
Triggering Event
: Has the meaning assigned to such term in the Intercreditor
Agreement.
Trust Property
: Means (i) subject to the Intercreditor Agreement, the
Equipment Notes held as the property of the Applicable Trust, the Guarantee with respect to
such Equipment Notes, all monies at any time paid thereon and all monies due and to become
due thereunder, (ii) funds from time to time deposited in the Certificate Account and the
Special Payments Account and, subject to the Intercreditor Agreement, any proceeds from the
sale by the Trustee pursuant to Article VI of the Basic Agreement of any Equipment Note and
(iii) all rights of the Applicable Trust and the Trustee, on behalf of the Applicable Trust,
under the Intercreditor Agreement, the Escrow Agreement, the NPA and the Liquidity Facility,
including, without limitation, all rights to receive certain payments thereunder, and all
monies paid to the Trustee on behalf of the Applicable Trust pursuant to the Intercreditor
Agreement or the Liquidity Facility,
provided
that rights with respect to the
Deposits or under the Escrow Agreement, except for the right to direct withdrawals for the
purchase of Equipment Notes to be held herein, will not constitute Trust Property.
Trust Supplement
: Has the meaning specified in the first paragraph of this
trust supplement.
Trustee
: Has the meaning specified in the first paragraph of this Trust
Supplement.
Underwriters
: Means, collectively, Morgan Stanley & Co. Incorporated,
Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
Underwriting Agreement
: Means the Underwriting Agreement dated December 15,
2010 among the Underwriters, the Company, US Airways Group, Inc. and the Depositary, as the
same may be amended, supplemented or otherwise modified from time to time in accordance with
its terms.
US Airways Bankruptcy Event
: Has the meaning specified in the Intercreditor
Agreement.
10
ARTICLE III
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01.
Statements to Applicable Certificateholders
. (a) On each Distribution
Date, the Trustee will include with each distribution to Applicable Certificateholders of a
Scheduled Payment or Special Payment, as the case may be, a statement setting forth the information
provided below (in the case of a Special Payment, reflecting in part the information provided by
the Escrow Paying Agent under the Escrow Agreement). Such statement shall set forth (per $1,000
face amount Applicable Certificate as to (ii), (iii), (iv) and (v) below) the following
information:
(i) the aggregate amount of funds distributed on such Distribution Date under the
Agreement and under the Escrow Agreement, indicating the amount allocable to each source,
including any portion thereof paid by the Liquidity Provider;
(ii) the amount of such distribution under the Agreement allocable to principal and the
amount allocable to premium, if any;
(iii) the amount of such distribution under the Agreement allocable to interest;
(iv) the amount of such distribution under the Escrow Agreement allocable to interest;
(v) the amount of such distribution under the Escrow Agreement allocable to unused
Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name of a Clearing Agency or its
nominee, on the Record Date prior to each Distribution Date, the Trustee will, at the expense of
the Company, request that such Clearing Agency post on its Internet bulletin board a securities
position listing setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agencys books as holding interests in the Applicable Certificates on such Record Date.
On each Distribution Date, the Trustee will mail to each such Clearing Agency Participant the
statement described above and will make available additional copies as requested by such Clearing
Agency Participant for forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each calendar year but not later than
the latest date permitted by law, the Trustee shall furnish to each Person who at any time during
such calendar year was an Applicable Certificateholder of record a statement containing the sum of
the amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v) above for
such calendar year or, in the event such Person was an Applicable Certificateholder of record
during a portion of such calendar year, for such portion of such year, and such other items as are
readily available to the Trustee and which an Applicable Certificateholder shall reasonably request
as necessary for the purpose of such Applicable Certificateholders preparation of its U.S. federal
income tax returns. Such statement and such
11
other items shall be prepared on the basis of information supplied to the Trustee by the
Clearing Agency Participants and shall be delivered by the Trustee to such Clearing Agency
Participants to be available for forwarding by such Clearing Agency Participants to the holders of
interests in the Applicable Certificates in the manner described in Section 3.01(a) of this Trust
Supplement.
(c) If the aggregate principal payments scheduled for a Regular Distribution Date prior to the
Delivery Period Termination Date differ from the amount thereof set forth for the Applicable
Certificates on page S-82 of the Prospectus Supplement, by no later than the 15
th
day
prior to such Regular Distribution Date, the Trustee shall mail written notice of the actual amount
of such scheduled payments to the Applicable Certificateholders of record as of a date within 15
Business Days prior to the date of mailing.
(d) Promptly following (i) the Delivery Period Termination Date, if there has been any change
in the information set forth in clauses (y) and (z) below from that set forth in page S-82 of the
Prospectus Supplement, and (ii) the date of any early redemption of, or any default in the payment
of principal or interest in respect of, any of the Equipment Notes held in the Applicable Trust, or
any Final Withdrawal, the Trustee shall furnish to Applicable Certificateholders of record on such
date a statement setting forth (x) the expected Pool Balances for each subsequent Regular
Distribution Date following the Delivery Period Termination Date, (y) the related Pool Factors for
such Regular Distribution Dates and (z) the expected principal distribution schedule of the
Equipment Notes, in the aggregate, held as Trust Property at the date of such notice. With respect
to the Applicable Certificates registered in the name of a Clearing Agency, on the Delivery Period
Termination Date, the Trustee will request from such Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on such Clearing Agencys
books as holding interests in the Applicable Certificates on such date. The Trustee will mail to
each such Clearing Agency Participant the statement described above and will make available
additional copies as requested by such Clearing Agency Participant for forwarding to holders of
interests in the Applicable Certificates.
(e) The Trustee shall provide promptly to the Applicable Certificateholders all material
non-confidential information received by the Trustee from the Company.
(f) This Section 3.01 supersedes and replaces Section 4.03 of the Basic Agreement, with
respect to the Applicable Trust.
Section 3.02.
Special Payments Account
. (a) The Trustee shall establish and maintain on
behalf of the Applicable Certificateholders a Special Payments Account as one or more accounts,
which shall be non-interest bearing except as provided in Section 4.04 of the Basic Agreement. The
Trustee shall hold the Special Payments Account in trust for the benefit of the Applicable
Certificateholders and shall make or permit withdrawals therefrom only as provided in the
Agreement. On each day when one or more Special Payments are made to the Trustee under the
Intercreditor Agreement, the Trustee, upon receipt thereof, shall immediately deposit the aggregate
amount of such Special Payments in the Special Payments Account.
(b) This Section 3.02 supersedes and replaces Section 4.01(b) of the Basic Agreement in its
entirety, with respect to the Applicable Trust.
12
Section 3.03.
Distributions from Special Payments Account
. (a) On each Special
Distribution Date with respect to any Special Payment or as soon thereafter as the Trustee has
confirmed receipt of any Special Payments due on the Equipment Notes held (subject to the
Intercreditor Agreement) in the Applicable Trust or realized upon the sale of such Equipment Notes,
the Trustee shall distribute out of the Special Payments Account the entire amount of such Special
Payment deposited therein pursuant to Section 3.02(a) of this Trust Supplement. There shall be so
distributed to each Applicable Certificateholder of record on the Record Date with respect to such
Special Distribution Date (other than as provided in Section 7.01 of this Trust Supplement
concerning the final distribution) by check mailed to such Applicable Certificateholder, at the
address appearing in the Register, such Applicable Certificateholders
pro rata
share (based on the
Fractional Undivided Interest in the Applicable Trust held by such Applicable Certificateholder) of
the total amount in the Special Payments Account on account of such Special Payment, except that,
with respect to Applicable Certificates registered on the Record Date in the name of a Clearing
Agency (or its nominee), such distribution shall be made by wire transfer in immediately available
funds to the account designated by such Clearing Agency (or such nominee).
(b) The Trustee shall, at the expense of the Company, cause notice of each Special Payment to
be mailed to each Applicable Certificateholder at his address as it appears in the Register. In
the event of redemption or purchase of Equipment Notes held in the Applicable Trust, such notice
shall be mailed not less than 15 days prior to the Special Distribution Date for the Special
Payment resulting from such redemption or purchase, which Special Distribution Date shall be the
date of such redemption or purchase. In the case of any Special Payments, such notice shall be
mailed as soon as practicable after the Trustee has confirmed that it has received funds for such
Special Payment, stating the Special Distribution Date for such Special Payment which shall occur
not less than 15 days after the date of such notice and as soon as practicable thereafter. Notices
with respect to a Special Payment mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor (except as otherwise
provided in Section 7.01 of this Trust Supplement),
(ii) the amount of the Special Payment for each $1,000 face amount Applicable
Certificate and the amount thereof constituting principal, premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular Distribution Date,
the total amount to be received on such date for each $1,000 face amount Applicable
Certificate.
If the amount of premium, if any, payable upon the redemption or purchase of an Equipment Note has
not been calculated at the time that the Trustee mails notice of a
Special Payment, it shall be sufficient if the notice sets forth the other amounts to be distributed and states that
any premium received will also be distributed.
13
If any redemption of the Equipment Notes held in the Trust is canceled, the Trustee, as soon
as possible after learning thereof, shall cause notice thereof to be mailed to each Applicable
Certificateholder at its address as it appears on the Register.
(b) This Section 3.03 supersedes and replaces Section 4.02(b) and Section 4.02(c) of the
Basic Agreement in their entirety, with respect to the Applicable Trust.
Section 3.04.
Limitation of Liability for Payments
. Section 3.09 of the Basic Agreement
shall be amended, with respect to the Applicable Trust, by deleting the phrase any Owner Trustee
or any Owner Participant in the third sentence thereof.
ARTICLE IV
DEFAULT
Section 4.01.
Purchase Rights of Certificateholders
. (a) At any time after the occurrence
and during the continuation of a Certificate Buyout Event, each Applicable Certificateholder (other
than the Company or any of its Affiliates) shall have the right to purchase, for the purchase price
set forth in the Class A Trust Agreement, all, but not less than all, of the Class A Certificates
upon 15 days written notice to the Class A Trustee and each other Applicable Certificateholder, on
the third Business Day next following the expiry of such 15-day notice period,
provided
that (A) if prior to the end of such 15-day period any other Applicable Certificateholder (other
than the Company or any of its Affiliates) notifies such purchasing Applicable Certificateholder
that such other Applicable Certificateholder wants to participate in such purchase, then such other
Applicable Certificateholder (other than the Company or any of its Affiliates) may join with the
purchasing Applicable Certificateholder to purchase all, but not less than all, of the Class A
Certificates pro rata based on the Fractional Undivided Interest in the Applicable Trust held by
each such Applicable Certificateholder and (B) if prior to the end of such 15-day period any other
Applicable Certificateholder fails to notify the purchasing Applicable Certificateholder of such
other Applicable Certificateholders desire to participate in such a purchase, then such other
Applicable Certificateholder shall lose its right to purchase the Class A Certificates pursuant to
this Section 4.01(a).
(b) By acceptance of its Applicable Certificate, each Applicable Certificateholder agrees that
at any time after the occurrence and during the continuation of a Certificate Buyout Event:
(i) if any Additional Certificates are issued pursuant to any Additional Trust, each
Additional Certificateholder (other than the Company or any of its Affiliates), shall have
the right (which shall not expire upon any purchase of the Class A Certificates pursuant to
clause (a) above) to purchase all, but not less than all, of the Class A Certificates and
the Applicable Certificates upon 15 days written notice to the Trustee, the Class A Trustee
and each other Additional Certificateholder, on the third Business Day next following the
expiry of such 15-day notice period,
provided
that (A) if prior to
the end of such 15-day period any other Additional Certificateholder (other than the
Company or any of its Affiliates) notifies such purchasing Additional Certificateholder that
such other Additional Certificateholder wants to participate in such purchase, then such
other Additional Certificateholder (other than the Company or any of its Affiliates)
14
may
join with the purchasing Additional Certificateholder to purchase all, but not less than
all, of the Class A Certificates and the Applicable Certificates pro rata based on the
Fractional Undivided Interest in the Additional Trust held by each such Additional
Certificateholder and (B) if prior to the end of such 15-day period any other Additional
Certificateholder fails to notify the purchasing Additional Certificateholder of such other
Additional Certificateholders desire to participate in such a purchase, then such other
Additional Certificateholder shall lose its right to purchase the Class A Certificates and
the Applicable Certificates pursuant to this Section 4.01(b)(i); and
(ii) if any Refinancing Certificates are issued, each Refinancing Certificateholder
shall have the same right (subject to the same terms and conditions) to purchase
Certificates pursuant to this Section 4.01(b) (and to receive notice in connection
therewith) as the Certificateholders of the Class that such Refinancing Certificates
refinanced.
The purchase price with respect to the Applicable Certificates shall be equal to the Pool
Balance of the Applicable Certificates, together with accrued and unpaid interest thereon to the
date of such purchase, without premium, but including any other amounts then due and payable to the
Applicable Certificateholders under the Agreement, the Intercreditor Agreement, the Escrow
Agreement or any Note Document or on or in respect of the Applicable Certificates;
provided
,
however
, that no such purchase of Applicable Certificates shall be
effective unless the purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the Agreement and the
Other Agreements, all of the Applicable Certificates and the Class A Certificates. Each payment of
the purchase price of the Applicable Certificates referred to in the first sentence hereof shall be
made to an account or accounts designated by the Trustee and each such purchase shall be subject to
the terms of this Section 4.01. Each Applicable Certificateholder agrees by its acceptance of its
Applicable Certificate that (at any time after the occurrence of a Certificate Buyout Event) it
will, upon payment from Additional Certificateholder(s) or Refinancing Certificateholder(s), as the
case may be, of the purchase price set forth in the first sentence of this paragraph, (i) forthwith
sell, assign, transfer and convey to the purchaser(s) thereof (without recourse, representation or
warranty of any kind except for its own acts), all of the right, title, interest and obligation of
such Applicable Certificateholder in the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the Liquidity Facility, the NPA, the Note Documents and all Applicable
Certificates and Escrow Receipts held by such Applicable Certificateholder (excluding all right,
title and interest under any of the foregoing to the extent such right, title or interest is with
respect to an obligation not then due and payable as respects any action or inaction or state of
affairs occurring prior to such sale) (and the purchaser shall assume all of such Applicable
Certificateholders obligations under the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the Liquidity Facility, the NPA, the Note Documents and all such
Applicable Certificates and Escrow Receipts), (ii) if such purchase occurs after a record date
specified in Section 2.03 of the Escrow Agreement relating to
the distribution of unused Deposits and/or accrued and unpaid interest on Deposits and prior
to or on the related distribution date thereunder, forthwith turn over to the purchaser(s) of its
Applicable Certificate all amounts, if any, received by it on account of such distribution, and
(iii) if such purchase occurs after a Record Date relating to any distribution and prior to or on
the
15
related Distribution Date, forthwith turn over to the purchaser(s) of its Applicable
Certificate all amounts, if any, received by it on account of such distribution. The Applicable
Certificates will be deemed to be purchased on the date payment of the purchase price is made
notwithstanding the failure of the Applicable Certificateholders to deliver any Applicable
Certificates and, upon such a purchase, (I) the only rights of the Applicable Certificateholders
will be to deliver the Applicable Certificates to the purchaser(s) and receive the purchase price
for such Applicable Certificates and (II) if the purchaser(s) shall so request, such Applicable
Certificateholder will comply with all the provisions of Section 3.04 of the Basic Agreement to
enable new Applicable Certificates to be issued to the purchaser in such denominations as it shall
request. All charges and expenses in connection with the issuance of any such new Applicable
Certificates shall be borne by the purchaser thereof.
As used in this Section 4.01 and elsewhere in this Trust Supplement, the terms Additional
Certificate, Additional Certificateholder, Additional Equipment Notes, Additional Trust,
Class A Certificate, Class A Certificateholder, Class A Trust, Class A Trust Agreement,
Class A Trustee, Refinancing Certificates, Refinancing Certificateholder, Refinancing
Equipment Notes and Refinancing Trust shall have the respective meanings assigned to such terms
in the Intercreditor Agreement.
(c) This Section 4.01 supersedes and replaces Section 6.01(b) of the Basic Agreement, with
respect to the Applicable Trust.
Section 4.02.
Amendment of Section 6.05 of the Basic Agreement
. Section 6.05 of the Basic
Agreement shall be amended, with respect to the Applicable Trust, by deleting the phrase and
thereby annul any Direction given by such Certificateholders or the Trustee to such Loan Trustee
with respect thereto, set forth in the first sentence thereof.
ARTICLE V
THE TRUSTEE
Section 5.01.
Delivery of Documents; Delivery Dates
. (a) The Trustee is hereby directed
(i) to execute and deliver the Intercreditor Agreement, the Escrow Agreement and the NPA on or
prior to the Issuance Date, each in the form delivered to the Trustee by the Company, and (ii)
subject to the respective terms thereof, to perform its obligations thereunder. Upon request of
the Company and the satisfaction or waiver of the closing conditions specified in the Underwriting
Agreement, the Trustee shall execute, deliver, authenticate, issue and sell Applicable Certificates
in authorized denominations equaling in the aggregate the amount set forth, with respect to the
Applicable Trust, in Schedule I to the Underwriting Agreement evidencing the entire ownership
interest in the Applicable Trust, which amount equals the maximum aggregate principal amount of
Equipment Notes which may be purchased by the Trustee pursuant to the NPA. Except as provided in
Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement, the Trustee shall not execute,
authenticate or deliver
Applicable Certificates in excess of the aggregate amount specified in this paragraph. The
provisions of this Section 5.01(a) supersede and replace the first sentence of Section 3.02(a) of
the Basic Agreement, with respect to the Applicable Trust.
16
(b) After the Issuance Date, the Company may deliver from time to time to the Trustee a
Closing Notice relating to one or more Equipment Notes. After receipt of a Closing Notice and in
any case no later than one Business Day prior to a Scheduled Closing Date as to which such Closing
Notice relates (the
Applicable Closing Date
), the Trustee shall (as and when specified in
the Closing Notice) instruct the Escrow Agent to provide a Notice of Purchase Withdrawal to the
Depositary requesting (A) the withdrawal of one or more Deposits on the Applicable Closing Date in
accordance with and to the extent permitted by the terms of the Escrow Agreement and the Deposit
Agreement and (B) the payment of all, or a portion, of such Deposit or Deposits in an amount equal
in the aggregate to the purchase price of such Equipment Notes to or on behalf of the Company, all
as shall be described in the Closing Notice. The Trustee shall (as and when specified in such
Closing Notice), subject to the conditions set forth in Section 2 of the NPA, enter into and
perform its obligations under the Participation Agreement specified in such Closing Notice (the
Applicable Participation Agreement
) and cause such certificates, documents and legal
opinions relating to the Trustee to be duly delivered as required by the Applicable Participation
Agreement. If at any time prior to the Applicable Closing Date, the Trustee receives a notice of
postponement pursuant to Section 1(e) or 1(f) of the NPA, then the Trustee shall give the
Depositary (with a copy to the Escrow Agent) a notice of cancellation of such Notice of Purchase
Withdrawal relating to such Deposit or Deposits on such Applicable Closing Date. Upon satisfaction
of the conditions specified in the NPA and the Applicable Participation Agreement, the Trustee
shall purchase the applicable Equipment Notes with the proceeds of the withdrawals of one or more
Deposits made on the Applicable Closing Date in accordance with the terms of the Deposit Agreement
and the Escrow Agreement. The purchase price of such Equipment Notes shall equal the principal
amount of such Equipment Notes. Amounts withdrawn from such Deposit or Deposits in excess of the
purchase price of the Equipment Notes or to the extent not applied on the Applicable Closing Date
to the purchase price of the Equipment Notes, shall be re-deposited by the Trustee with the
Depositary on the Applicable Closing Date in accordance with the terms of the Deposit Agreement.
The provisions of this Section 5.01(b) supersede and replace the provisions of Section 2.02 of the
Basic Agreement with respect to the Applicable Trust, and all provisions of the Basic Agreement
relating to Postponed Notes and Section 2.02 of the Basic Agreement shall not apply to the
Applicable Trust.
(c) The Trustee acknowledges its acceptance of all right, title and interest in and to the
Trust Property to be acquired pursuant to Section 5.01(b) of this Trust Supplement, the NPA and
each Applicable Participation Agreement, and declares that it holds and will hold such right, title
and interest for the benefit of all present and future Applicable Certificateholders, upon the
trusts set forth in the Agreement. By its acceptance of an Applicable Certificate, each initial
Applicable Certificateholder, as a grantor of the Applicable Trust, joins with the Trustee in the
creation of the Applicable Trust. The provisions of this Section 5.01(c) supersede and replace the
provisions of Section 2.03 of the Basic Agreement, with respect to the Applicable Trust.
Section 5.02.
Withdrawal of Deposits
. If any Deposits remain outstanding on the Business
Day next succeeding the Cut-off Date, the Trustee shall promptly give the Escrow Agent notice that
the Trustees obligation to purchase Equipment Notes under the NPA has terminated and instruct the
Escrow Agent to provide a notice of Final Withdrawal to the
17
Depositary substantially in the form of
Exhibit B to the Deposit Agreement (the
Final Withdrawal Notice
).
Section 5.03.
The Trustee
. (a) Subject to Section 5.04 of this Trust Supplement and
Section 7.15 of the Basic Agreement, the Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Trust Supplement, the Deposit Agreement,
the NPA or the Escrow Agreement or the due execution hereof or thereof by the Company or the other
parties thereto (other than the Trustee), or for or in respect of the recitals and statements
contained herein or therein, all of which recitals and statements are made solely by the Company,
except that the Trustee hereby represents and warrants that each of this Trust Supplement, the
Basic Agreement, each Applicable Certificate, the Intercreditor Agreement, the NPA and the Escrow
Agreement has been executed and delivered by one of its officers who is duly authorized to execute
and deliver such document on its behalf.
(b) Except as herein otherwise provided and except during the continuation of an Event of
Default in respect of the Applicable Trust created hereby, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this
Trust Supplement other than as set forth in the Agreement, and this Trust Supplement is executed
and accepted on behalf of the Trustee, subject to all the terms and conditions set forth in the
Agreement, as fully to all intents as if the same were herein set forth at length.
Section 5.04.
Representations and Warranties of the Trustee
. The Trustee hereby
represents and warrants that:
(a) the Trustee has full power, authority and legal right to execute, deliver and
perform this Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA
and the Note Documents to which it is or is to become a party and has taken all necessary
action to authorize the execution, delivery and performance by it of this Trust Supplement,
the Intercreditor Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is or is to become a party;
(b) the execution, delivery and performance by the Trustee of this Trust Supplement,
the Intercreditor Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is or is to become a party (i) will not violate any provision of any United States
federal law or the law of the state of the United States where it is located governing the
banking and trust powers of the Trustee or any order, writ, judgment, or decree of any
court, arbitrator or governmental authority applicable to the Trustee or any of its assets,
(ii) will not violate any provision of the articles of association or by-laws of the
Trustee, and (iii) will not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of any lien on
any properties included in the Trust Property pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to have an adverse effect on
the Trustees performance or ability to perform its duties hereunder or thereunder or on the
transactions contemplated herein or therein;
18
(c) the execution, delivery and performance by the Trustee of this Trust Supplement,
the Intercreditor Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is or is to become a party will not require the authorization, consent, or approval of,
the giving of notice to, the filing or registration with, or the taking of any other action
in respect of, any governmental authority or agency of the United States or the state of the
United States where it is located regulating the banking and corporate trust activities of
the Trustee; and
(d) this Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA
and the Note Documents to which it is or is to become a party have been, or will be, as
applicable, duly executed and delivered by the Trustee and constitute, or will constitute,
as applicable, the legal, valid and binding agreements of the Trustee, enforceable against
it in accordance with their respective terms;
provided
,
however
, that
enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and (ii) general
principles of equity.
Section 5.05.
Trustee Liens
. The Trustee in its individual capacity agrees, in addition
to the agreements contained in Section 7.17 of the Basic Agreement, that it will at its own cost
and expense promptly take any action as may be necessary to duly discharge and satisfy in full any
Trustees Liens on or with respect to the Trust Property which is attributable to the Trustee in
its individual capacity and which is unrelated to the transactions contemplated by the
Intercreditor Agreement or the NPA.
ARTICLE VI
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section 6.01.
Amendment of Section 5.02 of the Basic Agreement
. Section 5.02 of the Basic
Agreement shall be amended, with respect to the Applicable Trust, by (i) replacing the phrase of
the Note Documents and of this Agreement set forth in paragraph (b) thereof with the phrase of
the Note Documents, of the NPA and of this Agreement and (ii) replacing the phrase of this
Agreement and any Note Document set forth in the last paragraph of Section 5.02 with the phrase
of this Agreement, the NPA and any Note Document.
Section 6.02.
Supplemental Agreements Without Consent of Applicable Certificateholders
.
Without limitation of Section 9.01 of the Basic Agreement, under the terms of, and subject to the
limitations contained in, Section 9.01 of the Basic Agreement, the Company may (but will not be
required to), and the Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the
Companys request, at any time and from time to time, (i) enter into one or more agreements
supplemental to the Escrow Agreement, the NPA or the Deposit Agreement, for any of the
purposes set forth in clauses (1) through (14) of such Section 9.01, and (without limitation of the
foregoing or Section 9.01 of the Basic Agreement) references in clauses (4), (6) and (7) of such
Section 9.01 to any Intercreditor Agreement, any Note Purchase Agreement, any Liquidity Facility
or any Guarantee shall also be deemed to refer to the Intercreditor Agreement, the Liquidity
Facility, the Escrow Agreement, the NPA, the Guarantee or the Deposit Agreement; (ii) enter into
one or more agreements supplemental to the Agreement, the
19
Intercreditor Agreement or the NPA to
provide for the formation of a single Additional Trust, the issuance of Additional Certificates,
the purchase by the Additional Trust (if any) of applicable Additional Equipment Notes and other
matters incidental thereto or otherwise contemplated by Section 2.01(b) of the Basic Agreement,
subject to the provisions of Section 4(a)(vi) of the NPA and Section 9.1 of the Intercreditor
Agreement, and (iii) enter into one or more agreements supplemental to the Agreement to provide for
the formation of one or more Refinancing Trusts, the issuance of Refinancing Certificates, the
purchase by any Refinancing Trust of applicable Refinancing Equipment Notes and other matters
incidental thereto or as otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject
to the provisions of Section 4(a)(vi) of the NPA and Section 9.1(c) of the Intercreditor Agreement.
Section 6.03.
Supplemental Agreements with Consent of Applicable Certificateholders
.
Without limitation of Section 9.02 of the Basic Agreement, the provisions of Section 9.02 of the
Basic Agreement shall apply to agreements or amendments for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Escrow Agreement, the Deposit
Agreement, the Liquidity Facility, the Guarantee or the NPA or modifying in any manner the rights
and obligations of the Applicable Certificateholders under the Escrow Agreement, the Deposit
Agreement, the Liquidity Facility, the Guarantee or the NPA;
provided
that the provisions
of Section 9.02(1) of the Basic Agreement shall be deemed to include reductions in any manner of,
or delay in the timing of, any receipt by the Applicable Certificateholders of payments upon the
Deposits.
Section 6.04.
Consent of Holders of Certificates Issued under Other Trusts
.
Notwithstanding any provision in Section 6.02 or Section 6.03 of this Trust Supplement to the
contrary, no amendment or modification of Section 4.01 of this Trust Supplement shall be effective
unless the trustee for each Class of Certificates affected by such amendment or modification shall
have consented thereto.
ARTICLE VII
TERMINATION OF TRUST
Section 7.01.
Termination of the Applicable Trust
. (a) The respective obligations and
responsibilities of the Company and the Trustee with respect to the Applicable Trust shall
terminate upon the earlier of (A) the completion of the assignment, transfer and discharge
described in the first sentence of the immediately following paragraph and (B) distribution to all
Applicable Certificateholders and the Trustee of all amounts required to be distributed to them
pursuant to the Agreement and the disposition of all property held as part of the Trust Property;
provided
,
however
, that in no event shall the Applicable Trust
continue beyond one hundred ten (110) years following the date of the execution of this Trust
Supplement.
Upon the earlier of (i) the first Business Day following January 21, 2011 and (ii) the fifth
Business Day following the date on which a Triggering Event occurs (such date, the
Transfer
Date
), or, if later, the date on which all of the conditions set forth in the immediately
following sentence have been satisfied, the Trustee is hereby directed (subject only to the
immediately following sentence) to, and the Company shall direct the institution that will serve
20
as
the Related Trustee under the Related Pass Through Trust Agreement to, execute and deliver the
Assignment and Assumption Agreement, pursuant to which the Trustee shall assign, transfer and
deliver all of the Trustees right, title and interest to the Trust Property to the Related Trustee
under the Related Pass Through Trust Agreement. The Trustee and the Related Trustee shall execute
and deliver the Assignment and Assumption Agreement upon the satisfaction of the following
conditions:
(i) The Trustee, the Related Trustee and each of the Rating Agencies then rating the
Applicable Certificates shall have received an Officers Certificate and an Opinion of
Counsel dated the date of the Assignment and Assumption Agreement and each satisfying the
requirements of Section 1.02 of the Basic Agreement, which Opinion of Counsel shall be
substantially to the effect set forth below and may be relied upon by the Beneficiaries (as
defined in the Assignment and Assumption Agreement):
(I) Upon the execution and delivery thereof by the parties thereto in accordance with
the terms of the Agreement and the Related Pass Through Trust Agreement, the Assignment and
Assumption Agreement will constitute the valid and binding obligation of each of the parties
thereto enforceable against each such party in accordance with its terms;
(II) Upon the execution and delivery of the Assignment and Assumption Agreement in
accordance with the terms of the Agreement and the Related Pass Through Trust Agreement,
each of the Applicable Certificates then Outstanding will be entitled to the benefits of the
Related Pass Through Trust Agreement;
(III) The Related Trust is not required to be registered as an investment company under
the Investment Company Act of 1940, as amended;
(IV) The Related Pass Through Trust Agreement constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance with its terms; and
(V) Neither the execution and delivery of the Assignment and Assumption Agreement in
accordance with the terms of the Agreement and the Related Pass Through Trust Agreement, nor
the consummation by the parties thereto of the transactions contemplated to be consummated
thereunder on the date thereof, will violate any law or governmental rule or regulation of
the State of New York or the United States of America
known to such counsel to be applicable to the transactions contemplated by the
Assignment and Assumption Agreement.
(ii) The Trustee and the Company shall have received (x) a copy of the articles of
incorporation and bylaws of the Related Trustee certified as of the Transfer Date by the
Secretary or Assistant Secretary of such institution and (y) a copy of the filing (including
all attachments thereto) made by the institution serving as the Related Trustee with the
Office of the Superintendent, State of New York Banking Department
21
for the qualification of
the Related Trustee under Section 131(3) of the New York Banking Law.
Upon the execution of the Assignment and Assumption Agreement by the parties thereto, the
Applicable Trust shall be terminated, the Applicable Certificateholders shall receive beneficial
interests in the Related Trust in exchange for their interests in the Applicable Trust equal to
their respective beneficial interests in the Applicable Trust, and the Outstanding Applicable
Certificates representing Fractional Undivided Interests in the Applicable Trust shall be deemed
for all purposes of the Agreement and the Related Pass Through Trust Agreement, without further
signature or action of any party or Applicable Certificateholder, to be certificates representing
the same fractional undivided interests in the Related Trust and its trust property. By acceptance
of its Applicable Certificate, each Applicable Certificateholder consents to such assignment,
transfer and delivery of the Trust Property to the trustee of the Related Trust upon the execution
and delivery of the Assignment and Assumption Agreement.
In connection with the occurrence of the event set forth in clause (B) above of the first
paragraph of this Section 7.01, notice of such termination, specifying the Distribution Date upon
which the Applicable Certificateholders may surrender their Applicable Certificates to the Trustee
for payment of the final distribution and cancellation, shall be mailed promptly by the Trustee to
Applicable Certificateholders not earlier than the 60
th
day and not later than the
15
th
day next preceding such final Distribution Date specifying (A) the Distribution
Date upon which the proposed final payment of the Applicable Certificates will be made upon
presentation and surrender of Applicable Certificates at the office or agency of the Trustee
therein specified, (B) the amount of any such proposed final payment, and (C) that the Record Date
otherwise applicable to such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Applicable Certificates at the office or agency of the Trustee
therein specified. The Trustee shall give such notice to the Registrar at the time such notice is
given to Applicable Certificateholders. Upon presentation and surrender of the Applicable
Certificates in accordance with such notice, the Trustee shall cause to be distributed to
Applicable Certificateholders such final payments.
In the event that all of the Applicable Certificateholders shall not surrender their
Applicable Certificates for cancellation within six months after the date specified in the
above-mentioned written notice, the Trustee shall give a second written notice to the remaining
Applicable Certificateholders to surrender their Applicable Certificates for cancellation and
receive the final distribution with respect thereto. No additional interest shall accrue on the
Applicable Certificates after the Distribution Date specified in the first written notice. In the
event that any money held by the Trustee for the payment of distributions on the Applicable
Certificates shall remain unclaimed for two years (or such lesser time as the Trustee shall be
satisfied, after sixty days notice from the Company, is one month prior to the escheat period
provided under applicable law) after the final distribution date with respect thereto, the Trustee
shall pay to each Loan Trustee the appropriate amount of money relating to such Loan Trustee and
shall give written notice thereof to the Company.
(b) The provisions of this Section 7.01 supersede and replace the provisions of Section 11.01
of the Basic Agreement in its entirety, with respect to the Applicable Trust.
22
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01.
Basic Agreement Ratified
. Except and so far as herein expressly provided,
all of the provisions, terms and conditions of the Basic Agreement are in all respects ratified and
confirmed; and the Basic Agreement and this Trust Supplement shall be taken, read and construed as
one and the same instrument. All replacements of provisions of, and other modifications of the
Basic Agreement set forth in this Trust Supplement are solely with respect to the Applicable Trust.
Section 8.02.
GOVERNING LAW
.
THE AGREEMENT AND, UNTIL THE TRANSFER DATE, THE APPLICABLE
CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE. THIS SECTION 8.02 SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC AGREEMENT, WITH
RESPECT TO THE APPLICABLE TRUST.
Section 8.03.
Execution in Counterparts
. This Trust Supplement may be executed in any
number of counterparts, each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 8.04.
Intention of Parties
. The parties hereto intend that the Applicable Trust
be classified for U.S. federal income tax purposes as a grantor trust under Subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, and not as a trust or association
taxable as a corporation or as a partnership. Each Applicable Certificateholder and Investor, by
its acceptance of its Applicable Certificate or a beneficial interest therein, agrees to treat the
Applicable Trust as a grantor trust for all U.S. federal, state and local income tax purposes. The
powers granted and obligations undertaken pursuant to the Agreement shall be so construed so as to
further such intent.
IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust Supplement to be duly
executed by their respective officers thereto duly authorized, as of the day and year first written
above.
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US AIRWAYS, INC.
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By:
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/s/ Thomas T. Weir
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Name:
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Thomas T. Weir
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Title:
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Vice President and Treasurer
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WILMINGTON TRUST COMPANY,
as Trustee
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By:
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/s/ Robert P. Hines, Jr.
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Name:
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Robert P. Hines, Jr.
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Title:
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Assistant Vice President
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Signature Page to Trust Supplement No. 2010-1B-O
EXHIBIT A
FORM OF CERTIFICATE
Certificate
No.
[Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (
DTC
), to Issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch the registered owner hereof, Cede & Co., has an interest herein.]
*
US AIRWAYS PASS THROUGH TRUST 2010-1B-O
US Airways Pass Through Certificate, Series 2010-1B-O
Issuance Date: December 21, 2010
Final Maturity Date: October 22, 2018
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Evidencing A Fractional Undivided Interest In The US Airways Pass Through
Trust 2010-1B-O, The Property Of Which Shall Include Certain Equipment Notes
Each Secured By An Aircraft Owned By US Airways, Inc.
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$[_____________] Fractional Undivided Interest
representing 0.0012920230% of the Trust per $1,000 face amount
THIS CERTIFIES THAT __________, for value received, is the registered owner of a $___________
(_____________________ DOLLARS) Fractional Undivided Interest in the US Airways Pass Through Trust
2010-1B-O (the
Trust
) created by Wilmington Trust Company, as trustee (the
Trustee
), pursuant to a Pass Through Trust Agreement, dated as of December 21, 2010 (the
Basic Agreement
), between the Trustee and US Airways, Inc., a corporation incorporated
under Delaware law (the
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*
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This legend to appear on Book-Entry Certificates to be deposited with the Depository Trust Company.
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A-2
Company
), as supplemented by Trust Supplement No. 2010-1B-O thereto, dated as of
December 21, 2010 (the
Trust Supplement
and, together with the Basic Agreement, the
Agreement
), a summary of certain of the pertinent provisions of which is set forth below.
To the extent not otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement. This Certificate is one of the duly authorized Certificates
designated as US Airways Pass Through Certificates, Series 2010-1B-O (herein called the
Certificates
). This Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement. By virtue of its acceptance hereof, the holder of this
Certificate (the
Certificateholder
and, together with all other holders of Certificates
issued by the Trust, the
Certificateholders
) assents to and agrees to be bound by the
provisions of the Agreement and the Intercreditor Agreement. The property of the Trust includes
certain Equipment Notes, the Guarantee with respect to such Equipment Notes and all rights of the
Trust to receive payments under the Intercreditor Agreement and the Liquidity Facility (the
Trust Property
). Each issue of the Equipment Notes is secured by, among other things, a
security interest in an Aircraft owned by the Company.
The Certificates represent Fractional Undivided Interests in the Trust and the Trust Property
and have no rights, benefits or interest in respect of any other separate trust established
pursuant to the terms of the Basic Agreement for any other series of certificates issued pursuant
thereto.
Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement,
from funds then available to the Trustee, there will be distributed on April 22 and October 22 of
each year (a
Regular Distribution Date
) commencing April 22, 2011 to the Person in whose
name this Certificate is registered at the close of business on the 15th day preceding the Regular
Distribution Date, an amount in respect of the Scheduled Payments on the Equipment Notes due on
such Regular Distribution Date, the receipt of which has been confirmed by the Trustee, equal to
the product of the percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Scheduled Payments. Subject to and in accordance with the terms of the
Agreement and the Intercreditor Agreement, in the event that Special Payments on the Equipment
Notes are received by the Trustee, from funds then available to the Trustee, there shall be
distributed on the applicable Special Distribution Date, to the Person in whose name this
Certificate is registered at the close of business on the 15th day preceding the Special
Distribution Date, an amount in respect of such Special Payments on the Equipment Notes, the
receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest
in the Trust evidenced by this Certificate and an amount equal to the sum of such Special Payments
so received. If a Regular Distribution Date or Special Distribution Date is not a Business Day,
distribution shall be made on the immediately following Business Day with the same force and effect
as if made on such Regular Distribution Date or Special Distribution Date and interest shall accrue
during the intervening period. The Trustee shall mail notice of each Special Payment and the
Special Distribution Date therefor to the Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by check mailed to the Person
entitled thereto, without presentation or surrender of this Certificate or the making of any
notation hereon, except that with respect to Certificates registered on the Record Date in the
A-3
name of a Clearing Agency (or its nominee), such distribution shall be made by wire transfer.
Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution
on this Certificate will be made after notice mailed by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the office or agency
of the Trustee specified in such notice.
The Certificates do not represent a direct obligation of, or an obligation guaranteed by, or
an interest in, the Company or the Trustee or any affiliate thereof. The Certificates are limited
in right of payment, all as more specifically set forth on the face hereof and in the Agreement.
All payments or distributions made to Certificateholders under the Agreement shall be made only
from the Trust Property and only to the extent that the Trustee shall have sufficient income or
proceeds from the Trust Property to make such payments in accordance with the terms of the
Agreement. Each Certificateholder of this Certificate, by its acceptance hereof, agrees that it
will look solely to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This Certificate does not
purport to summarize the Agreement and reference is made to the Agreement for information with
respect to the interests, rights, benefits, obligations, privileges, and duties evidenced hereby.
A copy of the Agreement may be examined during normal business hours at the principal office of the
Trustee, and at such other places, if any, designated by the Trustee, by any Certificateholder upon
request.
The Agreement permits, with certain exceptions therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the Certificateholders
under the Agreement at any time by the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the Certificateholder of this
Certificate shall be conclusive and binding on such Certificateholder and upon all future
Certificateholders of this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of the Certificateholders of any of the Certificates.
As provided in the Agreement and subject to certain limitations set forth therein, the
transfer of this Certificate is registrable in the Register upon surrender of this Certificate for
registration of transfer at the offices or agencies maintained by the Trustee in its capacity as
Registrar, or by any successor Registrar, duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Registrar, duly executed by the
Certificateholder hereof or such Certificateholders attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust will be issued to the designated transferee or
transferees.
Under certain circumstances set forth in Section 7.01 of the Trust Supplement, all of the
Trustees right, title and interest to the Trust Property may be assigned, transferred and
delivered to the Related Trustee of the Related Trust pursuant to the Assignment and Assumption
Agreement. Upon the effectiveness of such Assignment and Assumption Agreement (the
A-4
Transfer
), the Trust shall be terminated, the Certificateholders shall receive
beneficial interests in the Related Trust in exchange for their interests in the Trust equal to
their respective beneficial interests in the Trust, the Certificates representing Fractional
Undivided Interests in the Trust shall be deemed for all purposes of the Agreement and the Related
Pass Through Trust Agreement to be certificates representing the same fractional undivided
interests in the Related Trust and its trust property. Each Certificateholder, by its acceptance
of this Certificate or a beneficial interest herein, agrees to be bound by the Assignment and
Assumption Agreement and subject to the terms of the Related Pass Through Trust Agreement as a
Certificateholder thereunder. From and after the Transfer, unless and to the extent the context
otherwise requires, references herein to the Trust, the Agreement and the Trustee shall constitute
references to the Related Trust, the Related Pass Through Trust Agreement and trustee of the
Related Trust, respectively.
The Certificates are issuable only as registered Certificates without coupons in minimum
denominations of $1,000 Fractional Undivided Interest and integral multiples thereof, except that
one Certificate may be issued in a different denomination. As provided in the Agreement and
subject to certain limitations therein set forth, the Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust, as requested by the Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer or exchange, but the
Trustee shall require payment of a sum sufficient to cover any tax or governmental charge payable
in connection therewith.
Each Certificateholder and Investor, by its acceptance of this Certificate or a beneficial
interest herein, agrees to treat the Trust as a grantor trust for all U.S. federal, state and local
income tax purposes.
The Trustee, the Registrar, and any agent of the Trustee or the Registrar may treat the person
in whose name this Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Registrar, nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the Trust created thereby
shall terminate upon the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to the Agreement and the disposition of all property held as part of
the Trust Property.
Any Person acquiring or accepting this Certificate or an interest herein will, by such
acquisition or acceptance, be deemed to have represented and warranted to and for the benefit of
the Company that either: (i) the assets of an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended (
ERISA
), or of a plan subject
to Section 4975 of the Internal Revenue Code of 1986, as amended (the
Code
), have not
been used to purchase or hold this Certificate or an interest herein or (ii) the purchase and
holding of this Certificate or an interest herein are exempt from the prohibited transaction
A-5
restrictions of ERISA and the Code pursuant to one or more prohibited transaction statutory or
administrative exemptions.
THE AGREEMENT AND, UNTIL THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. THE RELATED PASS THROUGH TRUST
AGREEMENT AND, FROM AND AFTER THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon has been executed by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid
for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
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US AIRWAYS PASS THROUGH TRUST
2010-1B-O
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By:
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WILMINGTON TRUST COMPANY,
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as Trustee
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By:
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Name:
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Title:
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FORM OF THE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
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WILMINGTON TRUST COMPANY,
as Trustee
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By:
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Name:
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Title:
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EXHIBIT B
[DTC Letter of Representations]
The Depository Trust Company
A subsidiary of the Depository Trust & Cleanng Corporation
ISSUER LETTER OF REPRESENTATIONS
(To be completed by
Issuer and Co-issuer(s), if applicable)
US Airways Pass Through Trust 2010-1B
(Name of Issuer and
Co-Issuer(s), if applicable)
8.50% US Airways Pass Through Certificates, Series 2010-1B
(Security Description, Including series designation if applicable)
90345K AB6
(CUSIP Number(s) of the Securities)
Attention: Underwriting Department
The Depository Trust Company
55 Water Street, 1SL
New York, NY 10041-0099
Ladies and Gentlemen:
This letter sets forth our understanding with respect to the Securities represented by the
CUSIP number(s) referenced above (the Securities). Issuer requests that The Depository Trust
Company (DTC) accept the Securities as eligible for deposit at DTC.
Issuer is:
(Note:
Issuer must represent one and cross out the other
.)
[Illegible] [formed under the laws of] Delaware.
The DTC Clearing Participant Morgan Stanley & Co. Incorporated will distribute the
Securities through DTC.
To induce DTC to accept the Securities as eligible for deposit at DTC, and to act in
accordance with DTCs Rules with respect to the Securities, Issuer represents to DTC that Issuer
will comply with the requirements stated in DTCs Operational Arrangements, as they may be amended
from time to time.
Note
.:
Schedule A contains
statements that DTC
believes accurately
describe DTC, the method of
effecting book-entry
transfers of securities
distributed through DTC,
and certain related
matters.
Received and Accepted
THE DEPOSITORY TRUST COMPANY
The Depository Trust &
Clearing Corporation
Very truly yours,
US Airways Pass Through Trust 2010-1B
By: Wilmington Trust Company, as Trustee
(Issuer)
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By:
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/s/ Robert P. Hines, Jr.
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(Authorized Officers Signature)
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(Print Name)
Wilmington Trust Company
1100 N. Market Street
(Street Address)
Wilmington,
Delaware, USA 19890-1606
(City)
(State)
(Country)
(Zip Code)
(Phone Number)
rhines@wilmingtontrust.com
(E-mail Address)
ILOR 03/25/08
S
chedule
A
(To Issuer Letter of Representations)
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BQOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC-bracketed material may be applicable only to certain issues)
1. The Depository Trust Company (DTC), New York, NY, will act as securities depository
for the securities (the Securities), The Securities will be issued as fully-registered securities
registered in the name of Cede & Co. (DTCs partnership nominee) or such other name as may be
requested by an authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal amount of such
issue, and will be deposited with DTC. [If, however, the aggregate principal amount of [any]
issue exceeds $500 million, one certificate will be issued with
respect to each $500 million of
principal amount, and an additional certificate will be issued with respect to any remaining
principal amount of such issue.]
2. DTC, the worlds largest securities depository, is a limited-purpose trust company
organized under the New York Banking Law, a banking organization within the meaning of the New
York Banking Law, a member of the Federal Reserve System, a clearing corporation within the
meaning of the New York Uniform Commercial Code, and a clearing agency registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides asset
servicing for over 3.5 million issues of U.S. and non-U.S. equity issues, corporate and municipal
debt issues, and money market instruments (from over 100 countries) that DTCs participants
(Direct Participants) deposit with DTC. DTC also facilitates the post-trade settlement among
Direct Participants of sales and other securities transactions in deposited securities, through
electronic computerized book-entry transfers and pledges between Direct Participants accounts.
This eliminates the need for physical movement of securities certificates. Direct Participants
include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The Depository
Trust & Clearing Corporation (DTCC). DTCC is the holding company for DTC, National Securities
Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing
agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is
also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks,
trust companies, and clearing corporations that clear through or maintain a custodial relationship
with a Direct Participant, cither directly or indirectly (Indirect Participants). DTC has
Standard & Poors highest rating: AAA. The DTC Rules applicable to its Participants are on file
with the Securities and Exchange Commission. More information about DTC can be found at
www.dtcc.com
and www.dtc.org.
3. Purchases of Securities under the DTC system must be made by or through Direct
Participants, which will receive a credit for the Securities on DTCs records. The ownership
interest of each actual purchaser of each Security (Beneficial Owner) is in turn to be recorded
on the Direct and Indirect Participants records. Beneficial Owners will not receive written
continuation from DTC of their purchase. Beneficial Owners are, however, expected to receive
written confirmations providing details of the transaction, as well as periodic statements of their
holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into
the transaction. Transfers of ownership interests in the Securities are to be accomplished by
entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial
Owners. Beneficial Owners will not receive certificates representing their ownership interests in
Securities, except in the event that use of the book-entry system for the Securities is
discontinued.
4. To
facilitate subsequent transfers, all Securities deposited by Direct Participants with
DTC are registered in the name of DTCs partnership nominee, Cede & Co., or such other name as may
be requested by an authorized representative of DTC. The deposit of Securities with DTC and their
registration in the name of Cede & Co. or such other DTC nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Securities; DTCs
records reflect only the identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will
remain responsible for keeping account of their holdings on behalf of their customers.
ILOR 03/25/08
S
chedule
A
(To Issuer Letter of Representations)
5. Conveyance of notices and other communications by DTC to Direct Participants, by Direct
Participants to Indirect Participants, and by Direct Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time. [Beneficial Owners of Securities may
wish to take certain steps to augment the transmission to them of notices of significant events
with respect to the Securities, such as redemptions, tenders, defaults, and proposed amendments to
the Security documents. For example, Beneficial Owners of Securities
may wish to ascertain that the
nominee holding the Securities for their benefit has agreed to obtain and transmit notices to
Beneficial Owners. In the alternative, Beneficial Owners may wish 10 provide their names and
addresses to the registrar and request that copies of notices be provided directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the Securities within an issue
are being redeemed, DTCs practice is to determine by lot the amount of the interest of each Direct
Participant in such issue to be redeemed.]
7. Neither
DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to
Securities unless authorized by a Direct Participant in accordance with DTCs MMI Procedures, Under
its usual procedures, DTC mails an Omnibus Proxy to Issuer as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.s consenting or voting rights to those Direct
Participants to whose accounts Securities are credited on the record date (identified in a listing
attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the Securities will be made to
Cede & Co., or such other nominee as may be requested by an authorized representative of DTC.
DTCs practice is to credit Direct Participants accounts upon DTCs receipt of funds and
corresponding detail information from Issuer or Agent, on payable date in accordance with their
respective holdings shown on DTCs records. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices, as is the case with securities held for
the accounts of customers in bearer form or registered in street name, and will be the
responsibility of such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of redemption proceeds,
distributions, and dividend payments to Cede & Co. (or such other nominee as may be requested by an
authorized representative of DTC) is the responsibility of Issuer or Agent, disbursement of such
payments to Direct Participants will be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners will be the responsibility of
Direct and Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities purchased or tendered,
through its Participant, to [Tender/Remarketing] Agent, and shall effect delivery of such
Securities by causing the Direct Participant to transfer the Participants interest in the
Securities, on DTCs records, to [Tender/Remarketing] Agent. The requirement for physical delivery
of Securities in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct Participants on
DTCs records and followed by a book-entry credit of tendered Securities to [Tender/Remarketing]
Agents DTC account.]
10. DTC may discontinue providing its services as depository with respect to the Securities at
any time by giving reasonable notice to Issuer or Agent. Under such circumstances, in the event
that a successor depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry-only transfers through
DTC (or a successor securities depository). In that event, Security certificates will be printed
and delivered to DTC.
12. The information in this section concerning DTC and DTCs book-entry system has been
obtained from sources that Issuer believes to be reliable, but Issuer takes no responsibility for
the accuracy thereof.
ILOR 03/25/08
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
US Airways Pass Through Trust 2010-1B-O
ASSIGNMENT AND ASSUMPTION AGREEMENT (2010-1B-O), dated ________ __, ____ (the
Assignment
Agreement
), between Wilmington Trust Company, a Delaware banking corporation (
WTC
),
not in its individual capacity except as expressly provided herein, but solely as trustee under the
Pass Through Trust Agreement dated as of December 21, 2010 (as amended or modified from time to
time, the
Basic Agreement
), as supplemented by the Trust Supplement No. 2010-1B-O dated
as of December 21, 2010 (the
Trust Supplement
and together with the Basic Agreement, the
Agreement
) in respect of the US Airways Pass Through Trust 2010-1B-O (the
Assignor
), and Wilmington Trust Company, a Delaware banking corporation, not in its
individual capacity except as expressly provided herein, but solely as trustee under the Basic
Agreement as supplemented by the Trust Supplement No. 2010-1B-S dated as of December 21, 2010 (the
New Supplement
, and, together with the Basic Agreement, the
New Agreement
) in
respect of the US Airways Pass Through Trust 2010-1B-S (the
Assignee
).
W I T N E S S E T H:
WHEREAS, the parties hereto desire to effect on the date hereof (the
Transfer Date
)
(a) the transfer by the Assignor to the Assignee of all of the right, title and interest of the
Assignor in, under and with respect to, among other things, the Trust Property and each of the
documents listed in Schedule I hereto (the
Scheduled Documents
) and (b) the assumption by
the Assignee of the obligations of the Assignor (i) under the Scheduled Documents and (ii) in
respect of the Applicable Certificates issued under the Agreement; and
WHEREAS, the Scheduled Documents permit such transfer upon satisfaction of certain conditions
heretofore or concurrently herewith being complied with;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
herein contained, the parties hereto do hereby agree as follows (capitalized terms used herein
without definition having the meaning ascribed thereto in the Agreement):
1.
Assignment
. The Assignor does hereby sell, assign, convey, transfer and set over
unto the Assignee as of the Transfer Date all of its present and future right, title and interest
in, under and with respect to the Trust Property and the Scheduled Documents and each other
contract, agreement, document or instrument relating to the Trust Property or the Scheduled
Documents (such other contracts, agreements, documents or instruments, together with the Scheduled
Documents, to be referred to as the
Assigned Documents
), and any proceeds therefrom,
together with all documents and instruments evidencing any of such right, title and interest.
C-2
2.
Assumption
. The Assignee hereby assumes for the benefit of the Assignor and each
of the parties listed in Schedule II hereto (collectively, the
Beneficiaries
) all of the
duties and obligations of the Assignor, whenever accrued, pursuant to the Assigned Documents and
hereby confirms that it shall be deemed a party to each of the Assigned Documents to which the
Assignor is a party and shall be bound by all the terms thereof (including the agreements and
obligations of the Assignor set forth therein) as if therein named as the Assignor. Further, the
Assignee hereby assumes for the benefit of the Assignor and the Beneficiaries all of the duties and
obligations of the Assignor under the Outstanding Applicable Certificates and hereby confirms that
the Applicable Certificates representing Fractional Undivided Interests under the Agreement shall
be deemed for all purposes of the Agreement and the New Agreement to be certificates representing
the same fractional undivided interests under the New Agreement equal to their respective
beneficial interests in the trust created under the Agreement.
3.
Effectiveness
. This Assignment Agreement shall be effective upon the execution and
delivery hereof by the parties hereto, and each Applicable Certificateholder, by its acceptance of
its Applicable Certificate or a beneficial interest therein, agrees to be bound by the terms of
this Assignment Agreement.
4.
Payments
. The Assignor hereby covenants and agrees to pay over to the Assignee, if
and when received following the Transfer Date, any amounts (including any sums payable as interest
in respect thereof) paid to or for the benefit of the Assignor that, under Section 1 hereof, belong
to the Assignee.
5.
Further Assurances
. The Assignor shall, at any time and from time to time, upon
the request of the Assignee, promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as the Assignee may reasonably request to
obtain the full benefits of this Assignment Agreement and of the rights and powers herein granted.
The Assignor agrees to deliver any Applicable Certificates, and all Trust Property, if any, then in
the physical possession of the Assignor, to the Assignee.
6.
Representations and Warranties
. (a) The Assignee represents and warrants to the
Assignor and each of the Beneficiaries that:
(i) it has all requisite power and authority and legal right to enter into and carry
out the transactions contemplated hereby and to carry out and perform the obligations of the
Pass Through Trustee under the Assigned Documents;
(ii) on and as of the date hereof, the representations and warranties of the Assignee
set forth in Section 7.15 of the Basic Agreement and Section 5.04 of the New Supplement are
true and correct.
(b) The Assignor represents and warrants to the Assignee that:
(i) it is duly incorporated, validly existing and in good standing under the laws of
the State of Delaware and has the full trust power, authority and legal right under
C-3
the laws of the State of Delaware and the United States pertaining to its trust and
fiduciary powers to execute and deliver this Assignment Agreement;
(ii) the execution and delivery by it of this Assignment Agreement and the performance
by it of its obligations hereunder have been duly authorized by it 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; and
(iii) this Assignment Agreement constitutes the legal, valid and binding obligations of
it enforceable against it in accordance with its 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.
7.
GOVERNING LAW
. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
8.
Counterparts
. This Assignment Agreement may be executed in any number of
counterparts, all of which together shall constitute a single instrument. It shall not be
necessary that any counterpart be signed by both parties so long as each party shall sign at least
one counterpart.
9.
Third Party Beneficiaries
. The Assignee hereby agrees, for the benefit of the
Beneficiaries, that its representations, warranties and covenants contained herein are also
intended to be for the benefit of each Beneficiary, and each Beneficiary shall be deemed to be an
express third party beneficiary with respect thereto, entitled to enforce directly and in its own
name any rights or claims it may have against such party as such beneficiary.
10.
Notice
. Promptly following the Transfer Date, the Assignee shall notify the
Depositary of the occurrence of the assignment hereunder and the name and contact information of
the Assignee.
C-4
IN WITNESS WHEREOF, the parties hereto, through their respective officers thereunto duly
authorized, have duly executed this Assignment Agreement as of the day and year first above
written.
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ASSIGNOR:
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WILMINGTON TRUST COMPANY, not in its
individual capacity except as expressly
provided herein, but solely as trustee
under the Pass Through Trust Agreement and
Trust Supplement in respect of the US
Airways Pass Through Trust 2010-1B-O
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By:
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Name:
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Title:
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ASSIGNEE:
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WILMINGTON TRUST COMPANY, not in its
individual capacity except as expressly
provided herein, but solely as trustee
under the Pass Through Trust Agreement and
Trust Supplement in respect of the US
Airways Pass Through Trust 2010-1B-S
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By:
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Name:
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Title:
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Schedule I
Schedule of Assigned Documents
(1) Intercreditor Agreement dated as of December 21, 2010 among the Trustee, the Other
Trustees, the Liquidity Provider, the liquidity provider relating to the Class A Certificates and
the Subordination Agent.
(2) Escrow and Paying Agent Agreement (Class B) dated as of December 21, 2010 among the Escrow
Agent, the Underwriters, the Trustee and the Paying Agent.
(3) Note Purchase Agreement dated as of December 21, 2010 among the Company, the Trustee, the
Other Trustees, the Subordination Agent, the Escrow Agent and the Paying Agent.
(4) Deposit Agreement (Class B) dated as of December 21, 2010 between the Escrow Agent and the
Depositary.
(5) Each of the Operative Agreements (as defined in the Participation Agreement for each
Aircraft) in effect as of the Transfer Date.
Schedule II
Schedule of Beneficiaries
Wilmington Trust Company, not in its individual capacity but solely as Subordination Agent
Wilmington Trust Company, not in its individual capacity but solely as Paying Agent
Morgan Stanley Bank, N.A., as Liquidity Provider
The Bank of New York Mellon, as Depositary
US Airways, Inc.
Morgan Stanley & Co. Incorporated, as Underwriter
Citigroup Global Markets Inc., as Underwriter
Credit Suisse Securities (USA) LLC, as Underwriter
Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Underwriter
Wells Fargo Bank Northwest, National Association, as Escrow Agent
Each of the other parties to the Assigned Documents
Exhibit 4.5
EXECUTION VERSION
TRUST SUPPLEMENT No. 2010-1B-S
Dated as of December 21, 2010
between
WILMINGTON TRUST COMPANY
as Trustee,
and
US AIRWAYS, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of December 21, 2010
$77,398,000
US Airways Pass Through Trust 2010-1B-S
8.50% US Airways
Pass Through Certificates,
Series 2010-1B-S
TABLE OF CONTENTS
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Page
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ARTICLE I THE CERTIFICATES
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2
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Section 1.01. The Certificates
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2
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ARTICLE II DEFINITIONS
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4
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Section 2.01. Definitions
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4
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ARTICLE III DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
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10
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Section 3.01. Statements to Applicable Certificateholders
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10
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Section 3.02. Special Payments Account
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12
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Section 3.03. Distributions from Special Payments Account
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12
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Section 3.04. Limitation of Liability for Payments
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13
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ARTICLE IV DEFAULT
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13
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Section 4.01. Purchase Rights of Certificateholders
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13
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Section 4.02. Amendment of Section 6.05 of the Basic Agreement
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16
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ARTICLE V THE TRUSTEE
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Section 5.01. Acquisition of Trust Property
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Section 5.02. [Intentionally Omitted]
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Section 5.03. The Trustee
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Section 5.04. Representations and Warranties of the Trustee
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Section 5.05. Trustee Liens
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ARTICLE VI ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
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Section 6.01. Amendment of Section 5.02 of the Basic Agreement
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Section 6.02. Supplemental Agreements Without Consent of Applicable
Certificateholders
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Section 6.03. Supplemental Agreements with Consent of Applicable
Certificateholders
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Section 6.04. Consent of Holders of Certificates Issued under Other Trusts
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ARTICLE VII TERMINATION OF TRUST
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Section 7.01. Termination of the Applicable Trust
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ARTICLE VIII MISCELLANEOUS PROVISIONS
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Section 8.01. Basic Agreement Ratified
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Section 8.02. GOVERNING LAW
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Section 8.03. Execution in Counterparts
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Section 8.04. Intention of Parties
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This Trust Supplement No. 2010-1B-S, dated as of December 21, 2010 (herein called the
Trust Supplement
), between US Airways, Inc., a Delaware corporation (the
Company
), and Wilmington Trust Company (the
Trustee
), to the Pass Through Trust
Agreement, dated as of December 21, 2010, between the Company and the Trustee (the
Basic
Agreement
).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, the Basic Agreement, unlimited as to the aggregate principal amount of Certificates
(unless otherwise specified herein, capitalized terms used herein without definition having the
respective meanings specified in the Basic Agreement) which may be issued thereunder, has
heretofore been executed and delivered;
WHEREAS, the Company currently owns eight (8) Aircraft;
WHEREAS, as of the Transfer Date (as defined below), the Company will have re-financed each
Aircraft (to the extent such Aircraft is subject to an existing security interest, after such
security interest has been discharged);
WHEREAS, as of the Transfer Date, with respect to each Aircraft, the Company will have issued
pursuant to an Indenture, on a recourse basis, Equipment Notes to re-finance such Aircraft (to the
extent such Aircraft is subject to an existing security interest, after such security interest has
been discharged);
WHEREAS, as of the Transfer Date, the Related Trustee will assign, transfer and deliver all of
such trustees right, title and interest to the trust property held by the Related Trustee to the
Trustee pursuant to the Assignment and Assumption Agreement (as defined below);
WHEREAS, the Trustee, effective only, but automatically, upon execution and delivery of the
Assignment and Assumption Agreement, will be deemed to have declared the creation of the US Airways
Pass Through Trust 2010-1B-S (the
Applicable Trust
) for the benefit of the Applicable
Certificateholders, and each Holder of Applicable Certificates outstanding as of the Transfer Date,
as the grantors of the Applicable Trust, by their respective acceptances of such Applicable
Certificates, will join in the creation of the Applicable Trust with the Trustee;
WHEREAS, all Applicable Certificates (as defined below) deemed issued by the Applicable Trust
will evidence fractional undivided interests in the Applicable Trust and will convey no rights,
benefits or interests in respect of any property other than the Trust Property except for those
Applicable Certificates to which an Escrow Receipt (as defined below) has been affixed;
WHEREAS, upon the execution and delivery of the Assignment and Assumption Agreement, all of
the conditions and requirements necessary to make this Trust Supplement, when duly executed and
delivered, a valid, binding and legal instrument in accordance with its
2
terms and for the purposes herein expressed, have been done, performed and fulfilled, and the
execution and delivery of this Trust Supplement in the form and with the terms hereof have been in
all respects duly authorized;
WHEREAS, this Trust Supplement is subject to the provisions of the Trust Indenture Act of
1939, as amended, and shall, to the extent applicable, be governed by such provisions;
NOW THEREFORE, in consideration of the premises herein, it is agreed between the Company and
the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01.
The Certificates
. The Applicable Certificates shall be
known as US Airways Pass Through Certificates, Series
2010-1B-S. Each Applicable Certificate represents a fractional undivided interest in the
Applicable Trust created hereby. The Applicable Certificates shall be the only instruments
evidencing a fractional undivided interest in the Applicable Trust.
The terms and conditions applicable to the Applicable Certificates are as follows:
(a) The aggregate principal amount of the Applicable Certificates that shall be
initially deemed issued under the Agreement shall be equal to the aggregate principal amount
of Outstanding pass through certificates representing fractional undivided interests in
the Related Trust on the Transfer Date. Subject to the preceding sentence and Section 5.01
of this Trust Supplement and except for Applicable Certificates authenticated and delivered
under Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement, no Applicable Certificates
shall be authenticated under the Agreement.
(b) The Regular Distribution Dates with respect to any payment of Scheduled Payments
means April 22 and October 22 of each year, commencing on April 22, 2011, until payment of
all of the Scheduled Payments to be made under the Equipment Notes has been made.
(c) The Special Distribution Dates with respect to the Applicable Certificates means
any Business Day on which a Special Payment is to be distributed pursuant to the Agreement.
(d) At the Escrow Agents request under the Escrow Agreement, the Trustee shall affix
the corresponding Escrow Receipt to each Applicable Certificate. In any event, any transfer
or exchange of any Applicable Certificate shall also effect a transfer or exchange of the
related Escrow Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of any
Applicable Certificate shall be permitted unless the corresponding Escrow Receipt is
attached thereto and also is so transferred or exchanged.
3
By acceptance of any Applicable Certificate to which an Escrow Receipt is attached, each
Holder of such an Applicable Certificate acknowledges and accepts the restrictions on
transfer of the Escrow Receipt set forth herein and in the Escrow Agreement.
(e) (i) The Applicable Certificates shall be in the form attached as Exhibit A to the
Related Pass Through Trust Supplement, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the Related Pass Through
Trust Agreement or the Agreement, as the case may be, or as the Trustee may deem
appropriate, to reflect the fact that the Applicable Certificates are being issued under the
Agreement as opposed to under the Related Pass Through Trust Agreement. Any Person
acquiring or accepting an Applicable Certificate or an interest therein will, by such
acquisition or acceptance, be deemed to represent and warrant to and for the benefit of the
Company that either (i) the assets of an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended (
ERISA
), or of a plan
subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the
Code
), have not been used to purchase or hold Applicable Certificates or an
interest therein or (ii) the purchase and holding of Applicable Certificates or an interest
therein is exempt from the prohibited transaction restrictions of ERISA and the Code
pursuant to one or more prohibited transaction statutory or administrative exemptions.
(ii) The Applicable Certificates shall be Book-Entry Certificates and shall be subject
to the conditions set forth in the Letter of Representations between the Company and the
Clearing Agency attached as Exhibit B to the Related Pass Through Trust Supplement.
(f) The Participation Agreements as defined in this Trust Supplement are the Note
Purchase Agreements referred to in the Basic Agreement.
(g) The Applicable Certificates are subject to the Intercreditor Agreement, the Deposit
Agreement and the Escrow Agreement.
(h) The Applicable Certificates are entitled to the benefits of the Liquidity Facility.
(i) The Responsible Party is the Company.
(j) The date referred to in clause (i) of the definition of the term PTC Event of
Default in the Basic Agreement is the Final Maturity Date.
(k) The particular sections of the Note Purchase Agreement, for purposes of clause
(3) of Section 7.07 of the Basic Agreement, are Section 8.1 of each Participation Agreement.
(l) The Equipment Notes to be acquired and held in the Applicable Trust, and the
related Aircraft and Note Documents, are described in the NPA.
4
ARTICLE II
DEFINITIONS
Section 2.01.
Definitions
. For all purposes of the Basic Agreement as
supplemented by this Trust Supplement, the following
capitalized terms have the following meanings (any term used herein which is defined in both this
Trust Supplement and the Basic Agreement shall have the meaning assigned thereto in this Trust
Supplement for purposes of the Basic Agreement as supplemented by this Trust Supplement):
Agreement
: Means the Basic Agreement, as supplemented by this Trust
Supplement.
Aircraft
: Means each of the aircraft in respect of which a Participation
Agreement is to be or is, as the case may be, entered into in accordance with the NPA (or
any replacement aircraft, including engines therefor, owned by the Company and securing one
or more Equipment Notes).
Aircraft Purchase Agreement
: Has the meaning specified in the NPA.
Applicable Certificate
: Means any of the Applicable Certificates issued by
the Related Trust and that are Outstanding (as defined in the Related Pass Through Trust
Agreement) as of the Transfer Date (the
Transfer Date Certificates
) and any
Certificate issued in exchange therefor or replacement thereof pursuant to the Agreement.
Applicable Certificateholder
: Means the Person in whose name an Applicable
Certificate is registered on the Register for the Applicable Certificates.
Applicable Trust
: Has the meaning specified in the recitals hereto.
Assignment and Assumption Agreement
: Means the assignment and assumption agreement
substantially in the form of Exhibit C
to the Related Pass Through Trust Supplement executed and delivered in accordance
with Section 7.01 of the Related Pass
Through Trust Supplement.
Basic Agreement
: Has the meaning specified in the first paragraph of this Trust Supplement.
Business Day
: Means any day other than a Saturday, a Sunday or a day on which commercial banks are required or authorized
to close in Phoenix, Arizona, New York, New York, or, so long as any Applicable Certificate is Outstanding, the city and
state in which the Trustee, the Subordination Agent or any Loan Trustee maintains its Corporate Trust Office or receives
and disburses funds.
Certificate
: Has the meaning specified in the Intercreditor Agreement.
5
Certificate Buyout Event
: Means that a US Airways Bankruptcy Event has occurred
and is continuing and the following events have occurred: (A) (i) the 60-day period
specified in Section 1110(a)(2)(A) of the U.S. Bankruptcy Code (the
60-Day Period
)
has expired and (ii) US Airways has not entered into one or more agreements under Section
1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations under all of the
Indentures or, if it has entered into such agreements, has at any time thereafter failed to
cure any default under any of the Indentures in accordance with Section 1110(a)(2)(B) of the
Bankruptcy Code; or (B) if prior to the expiry of the 60-Day Period, US Airways shall have
abandoned any Aircraft.
Class
: Has the meaning specified in the Intercreditor Agreement.
Closing Notice
: Has the meaning specified in the NPA.
Company
: Has the meaning specified in the first paragraph of this Trust Supplement.
Controlling Party
: Has the meaning specified in the Intercreditor Agreement.
Cut-off Date
: Means the earlier of (a) the Delivery Period Termination Date and (b) the date on which a Triggering Event
occurs.
Delivery Period Termination Date
: Has the meaning specified in the Related Pass Through Trust Supplement.
Deposit Agreement
: Means the Deposit Agreement dated as of December 21, 2010 relating to the Applicable Certificates
between the Depositary and the Escrow Agent, as the same may be amended, supplemented or otherwise modified from time to
time in accordance with its terms.
Depositary
: Means The Bank of New York Mellon, a bank chartered under the laws of the State of New York.
Deposits
: Has the meaning specified in the Deposit Agreement.
Distribution Date
: Means any Regular Distribution Date or Special Distribution Date as the context requires.
Escrow Agent
: Means, initially, Wells Fargo Bank Northwest, National Association, and any replacement or successor
therefor appointed in accordance with the Escrow Agreement.
Escrow Agreement
: Means the Escrow and Paying Agent Agreement dated as of December 21, 2010 relating to the Applicable
Certificates, among the Escrow Agent, the Escrow Paying Agent, the Related Trustee (and after the Transfer Date, the Trustee) and
6
the
Underwriters, as the same may be amended, supplemented or otherwise modified from time to
time in accordance with its terms.
Escrow Paying Agent
: Means the Person acting as paying agent under the Escrow
Agreement.
Escrow Receipt
: Means the receipt substantially in the form annexed to the
Escrow Agreement representing a fractional undivided interest in the funds held in escrow
thereunder.
Final Maturity Date
: Means October 22, 2018.
Final Withdrawal
: Has the meaning specified in the Escrow Agreement.
Final Withdrawal Date
: Has the meaning specified in the Escrow Agreement.
Guarantee
: Means the Guarantee dated as of December 21, 2010 of US Airways
Group, Inc. covering the Guaranteed Obligations referred to therein including the Equipment
Notes.
Indenture
: Means each of the separate trust indentures and mortgages relating
to the Aircraft, each as specified or described in a Closing Notice delivered pursuant to
the NPA or the related Participation Agreement, in each case as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its terms.
Intercreditor Agreement
: Means the Intercreditor Agreement dated as of
December 21, 2010 among the Related Trustee (and after the Transfer Date, the Trustee), the
Related Other Trustees (and after the Transfer Date, the Other Trustees), the Liquidity
Provider, the liquidity provider relating to the Class A Certificates and Wilmington Trust
Company, as Subordination Agent and as trustee thereunder, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Investors
: Means the Underwriters, together with all subsequent beneficial
owners of the Applicable Certificates.
Liquidity Facility
: Means, initially, the Revolving Credit Agreement dated as
of December 21, 2010 relating to the Applicable Certificates, between the Liquidity Provider
and Wilmington Trust Company, as Subordination Agent, as agent and trustee for the
Applicable Trust, and, from and after the replacement of such agreement pursuant to the
Intercreditor Agreement, the replacement liquidity facility therefor, in each case as
amended, supplemented or otherwise modified from time to time in accordance with their
respective terms.
7
Liquidity Provider
: Means, initially, Morgan Stanley Bank, N.A. organized
under the laws of the United States of America, and any replacements or successors therefor
appointed in accordance with the Intercreditor Agreement.
Note Documents
: Means the Equipment Notes with respect to the Applicable
Certificates and, with respect to any such Equipment Note, the Indenture, the Guarantee and
the Participation Agreement relating to such Equipment Note.
NPA
: Means the Note Purchase Agreement dated as of December 21, 2010 among the
Related Trustee (and after the Transfer Date, the Trustee), the Related Other Trustees (and
after the Transfer Date, the Other Trustees), the Company, the Escrow Agent, the Escrow
Paying Agent and the Subordination Agent, as the same may be amended, supplemented or
otherwise modified from time to time, in accordance with its terms.
Other Agreements
: Means (i) the Basic Agreement as supplemented by Trust
Supplement No. 2010-1A-S dated as of the date hereof relating to US Airways Pass Through
Trust 2010-1A-S, (ii) the Basic Agreement as supplemented by a Trust Supplement relating to
any Additional Trust and (iii) the Basic Agreement as supplemented by a Trust Supplement
relating to any Refinancing Trust.
Other Trustees
: Means the trustees under the Other Agreements, and any
successor or other trustee appointed as provided therein.
Other Trusts
: Means the US Airways Pass Through Trust 2010-1A-S, an Additional
Trust, if any, and a Refinancing Trust or Trusts, if any, created by the Other Agreements.
Outstanding
: When used with respect to Applicable Certificates, means, as of
the date of determination, all Transfer Date Certificates, and all other Applicable
Certificates theretofore authenticated and delivered under the Agreement, in each case
except:
(i) Applicable Certificates theretofore canceled by the Registrar or delivered
to the Trustee or the Registrar for cancellation;
(ii) Applicable Certificates for which money in the full amount required to
make the final distribution with respect to such Applicable Certificates pursuant to
Section 11.01 of the Basic Agreement has been theretofore deposited with the Trustee
in trust for the Applicable Certificateholders as provided in Section 4.01 of the
Basic Agreement pending distribution of such money to such Applicable
Certificateholders pursuant to payment of such final distribution; and
(iii) Applicable Certificates in exchange for or in lieu of which other
Applicable Certificates have been authenticated and delivered pursuant to the
Agreement.
8
Participation Agreement
: Means each Participation Agreement entered into by
the Related Trustee pursuant to the NPA, as the same may be amended, supplemented or
otherwise modified in accordance with its terms.
Pool Balance
: Means, as of any date, (i) the original aggregate face amount of
the Applicable Certificates as defined in the Related Pass Through Trust Agreement, less
(ii) the aggregate amount of all payments made as of such date in respect of such
Certificates, the Applicable Certificates (as defined in the Related Pass Through Trust
Agreement) or the Deposits, other than payments made in respect of interest or premium
thereon or reimbursement of any costs or expenses incurred in connection therewith. The
Pool Balance as of any date shall be computed after giving effect to any special
distribution with respect to unused Deposits, payment of principal of the Equipment Notes,
or payment with respect to other Trust Property and the distribution thereof to be made on
that date.
Pool Factor
: Means, as of any Distribution Date, the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance by (ii) the original
aggregate face amount of the Applicable Certificates as defined in the Related Pass
Through Trust Agreement. The Pool Factor as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused Deposits, payment of
principal of the Equipment Notes, or payment with respect to other Trust Property and the
distribution thereof to be made on that date.
Prospectus Supplement
: Means the final Prospectus Supplement dated December
15, 2010 relating to the offering of the Applicable Certificates and the Class A
Certificates.
Ratings Confirmation
: Has the meaning specified in the Intercreditor
Agreement.
Related Other Pass Through Trust Agreements
: Means the Other Agreements as
defined in the Related Pass Through Trust Agreement.
Related Other Trustees
: Means the Other Trustees as defined in the Related
Pass Through Trust Agreement.
Related Other Trusts
: Means the Other Trusts as defined in the Related Pass
Through Trust Agreement.
Related Pass Through Trust Agreement
: Means the Basic Agreement as
supplemented by the Related Pass Through Trust Supplement.
Related Pass Through Trust Supplement
: Means the Trust Supplement No.
2010-1B-O dated as of the date hereof, relating to the US Airways Pass Through Trust 2010-
9
1B-O and entered into by the Company and the Related Trustee, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Related Trust
: Means the US Airways Pass Through Trust 2010-1B-O, formed under
the Related Pass Through Trust Agreement.
Related Trustee
: Means the trustee under the Related Pass Through Trust
Agreement.
Scheduled Payment
: Means, with respect to any Equipment Note, (i) any payment
of principal or interest on such Equipment Note (other than any such payment which is not in
fact received by the Trustee or the Subordination Agent within five days of the date on
which such payment is scheduled to be made) or (ii) any payment of interest on the
Applicable Certificates with funds drawn under the Liquidity Facility, which payment in any
such case represents the installment of principal on such Equipment Note at the stated
maturity of such installment, the payment of regularly scheduled interest accrued on the
unpaid principal amount of such Equipment Note, or both;
provided
,
however
,
that any payment of principal, premium, if any, or interest resulting from the redemption or
purchase of any Equipment Note shall not constitute a Scheduled Payment.
Special Payment
: Means any payment (other than a Scheduled Payment) in respect
of, or any proceeds of, any Equipment Note or Collateral (as defined in each Indenture).
Transfer Date
: Means the moment of execution and delivery of the Assignment
and Assumption Agreement by each of the parties thereto.
Transfer Date Certificates
: Has the meaning specified in the definition of
Applicable Certificates.
Triggering Event
: Has the meaning assigned to such term in the Intercreditor
Agreement.
Trust Property
: Means (i) subject to the Intercreditor Agreement, the
Equipment Notes held as the property of the Applicable Trust, the Guarantee with respect to
such Equipment Notes, all monies at any time paid thereon and all monies due and to become
due thereunder, (ii) funds from time to time deposited in the Certificate Account and the
Special Payments Account and, subject to the Intercreditor Agreement, any proceeds from the
sale by the Trustee pursuant to Article VI of the Basic Agreement of any Equipment Note and
(iii) all rights of the Applicable Trust and the Trustee, on behalf of the Applicable Trust,
under the Intercreditor Agreement, the Escrow Agreement, the NPA and the Liquidity Facility,
including, without limitation, all rights to receive certain payments thereunder, and all
monies paid to the Trustee on behalf of the Applicable Trust pursuant to the Intercreditor
Agreement or the Liquidity Facility,
provided
that rights
10
with respect to the Deposits or under the Escrow Agreement will not constitute Trust
Property.
Trust Supplement
: Has the meaning specified in the first paragraph of this
trust supplement.
Trustee
: Has the meaning specified in the first paragraph of this Trust
Supplement.
Underwriters
: Means, collectively, Morgan Stanley & Co. Incorporated,
Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
Underwriting Agreement
: Means the Underwriting Agreement dated December 15,
2010 among the Underwriters, the Company, US Airways Group, Inc. and the Depositary, as the
same may be amended, supplemented or otherwise modified from time to time in accordance with
its terms.
US Airways Bankruptcy Event
: Has the meaning specified in the Intercreditor
Agreement.
ARTICLE III
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01.
Statements to Applicable Certificateholders
. (a) On each Distribution Date, the
Trustee will include with each distribution to Applicable
Certificateholders of a Scheduled Payment or Special Payment, as the case may be, a statement
setting forth the information provided below (in the case of a Special Payment, reflecting in part
the information provided by the Escrow Paying Agent under the Escrow Agreement). Such statement
shall set forth (per $1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v)
below) the following information:
(i) the aggregate amount of funds distributed on such Distribution Date under the
Agreement and under the Escrow Agreement, indicating the amount allocable to each source,
including any portion thereof paid by the Liquidity Provider;
(ii) the amount of such distribution under the Agreement allocable to principal and the
amount allocable to premium, if any;
(iii) the amount of such distribution under the Agreement allocable to interest;
(iv) the amount of such distribution under the Escrow Agreement allocable to interest;
11
(v) the amount of such distribution under the Escrow Agreement allocable to unused
Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name of a Clearing Agency or its
nominee, on the Record Date prior to each Distribution Date, the Trustee will, at the expense of
the Company, request that such Clearing Agency post on its Internet bulletin board a securities
position listing setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agencys books as holding interests in the Applicable Certificates on such Record Date.
On each Distribution Date, the Trustee will mail to each such Clearing Agency Participant the
statement described above and will make available additional copies as requested by such Clearing
Agency Participant for forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each calendar year but not later than
the latest date permitted by law, the Trustee shall furnish to each Person who at any time during
such calendar year was an Applicable Certificateholder of record a statement containing the sum of
the amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v) above for
such calendar year or, in the event such Person was an Applicable Certificateholder of record
during a portion of such calendar year, for such portion of such year, and such other items as are
readily available to the Trustee and which an Applicable Certificateholder shall reasonably request
as necessary for the purpose of such Applicable Certificateholders preparation of its U.S. federal
income tax returns. Such statement and such other items shall be prepared on the basis of
information supplied to the Trustee by the Clearing Agency Participants and shall be delivered by
the Trustee to such Clearing Agency Participants to be available for forwarding by such Clearing
Agency Participants to the holders of interests in the Applicable Certificates in the manner
described in Section 3.01(a) of this Trust Supplement.
(c) If the aggregate principal payments scheduled for a Regular Distribution Date prior to the
Delivery Period Termination Date differ from the amount thereof set forth for the Applicable
Certificates on page S-82 of the Prospectus Supplement, by no later than the 15
th
day
prior to such Regular Distribution Date, the Trustee (if the Related Trustee has not already done
so) shall mail written notice of the actual amount of such scheduled payments to the Applicable
Certificateholders of record as of a date within 15 Business Days prior to the date of mailing.
(d) Promptly following (i) the Delivery Period Termination Date, if there has been any change
in the information set forth in clauses (y) and (z) below from that set forth in page S-82 of the
Prospectus Supplement, and (ii) the date of any early redemption of, or any default in the payment
of principal or interest in respect of, any of the Equipment Notes held in the Applicable Trust, or
any Final Withdrawal, the Trustee (if the Related Trustee has not already done so) shall furnish to
Applicable Certificateholders of record on such date a statement setting forth (x) the expected
Pool Balances for each subsequent Regular Distribution Date following the Delivery Period
Termination Date, (y) the related Pool Factors for such Regular
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Distribution Dates and (z) the expected principal distribution schedule of the Equipment Notes, in
the aggregate, held as Trust Property at the date of such notice. With respect to the Applicable
Certificates registered in the name of a Clearing Agency, on the Transfer Date, the Trustee (if the
Related Trustee has not already done so) will request from such Clearing Agency a securities
position listing setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agencys books as holding interests in the Applicable Certificates (as defined in the
Related Pass Through Trust Agreement) on the Delivery Period Termination Date. The Trustee (if the
Related Trustee has not already done so) will mail to each such Clearing Agency Participant the
statement described above and will make available additional copies as requested by such Clearing
Agency Participant for forwarding to holders of interests in the Applicable Certificates.
(e) The Trustee shall provide promptly to the Applicable Certificateholders all material
non-confidential information received by the Trustee from the Company.
(f) This Section 3.01 supersedes and replaces Section 4.03 of the Basic Agreement, with
respect to the Applicable Trust.
Section 3.02.
Special Payments Account
. (a) The Trustee shall establish and
maintain on behalf of the Applicable Certificateholders a
Special Payments Account as one or more accounts, which shall be non-interest bearing except as
provided in Section 4.04 of the Basic Agreement. The Trustee shall hold the Special Payments
Account in trust for the benefit of the Applicable Certificateholders and shall make or permit
withdrawals therefrom only as provided in the Agreement. On each day when one or more Special
Payments are made to the Trustee under the Intercreditor Agreement, the Trustee, upon receipt
thereof, shall immediately deposit the aggregate amount of such Special Payments in the Special
Payments Account.
(b) This Section 3.02 supersedes and replaces Section 4.01(b) of the Basic Agreement in its
entirety, with respect to the Applicable Trust.
Section 3.03.
Distributions from Special Payments Account
. (a) On each Special Distribution
Date with respect to any Special Payment or as soon thereafter
as the Trustee has confirmed receipt of any Special Payments due on the Equipment Notes held
(subject to the Intercreditor Agreement) in the Applicable Trust or realized upon the sale of such
Equipment Notes, the Trustee shall distribute out of the Special Payments Account the entire amount
of such Special Payment deposited therein pursuant to Section 3.02(a) of this Trust Supplement.
There shall be so distributed to each Applicable Certificateholder of record on the Record Date
with respect to such Special Distribution Date (other than as provided in Section 7.01 of this
Trust Supplement concerning the final distribution) by check mailed to such Applicable
Certificateholder, at the address appearing in the Register, such Applicable Certificateholders
pro rata share (based on the Fractional Undivided Interest in the Applicable Trust held by such
Applicable Certificateholder) of the total amount in the Special Payments Account on account of
such Special Payment, except that, with respect to Applicable Certificates registered on the Record
Date in the name of a Clearing Agency (or its nominee), such
distribution shall be made by wire transfer in immediately available funds to the account
designated by such Clearing Agency (or such nominee).
13
(b) The Trustee shall, at the expense of the Company, cause notice of each Special Payment to
be mailed to each Applicable Certificateholder at his address as it appears in the Register. In
the event of redemption or purchase of Equipment Notes held in the Applicable Trust, such notice
shall be mailed not less than 15 days prior to the Special Distribution Date for the Special
Payment resulting from such redemption or purchase, which Special Distribution Date shall be the
date of such redemption or purchase. In the case of any Special Payments, such notice shall be
mailed as soon as practicable after the Trustee has confirmed that it has received funds for such
Special Payment, stating the Special Distribution Date for such Special Payment which shall occur
not less than 15 days after the date of such notice and as soon as practicable thereafter. Notices
with respect to a Special Payment mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor (except as otherwise
provided in Section 7.01 of this Trust Supplement),
(ii) the amount of the Special Payment for each $1,000 face amount Applicable
Certificate and the amount thereof constituting principal, premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular Distribution Date,
the total amount to be received on such date for each $1,000 face amount Applicable
Certificate.
If the amount of premium, if any, payable upon the redemption or purchase of an Equipment Note has
not been calculated at the time that the Trustee mails notice of a Special Payment, it shall be
sufficient if the notice sets forth the other amounts to be distributed and states that any premium
received will also be distributed.
If any redemption of the Equipment Notes held in the Trust is canceled, the Trustee, as soon
as possible after learning thereof, shall cause notice thereof to be mailed to each Applicable
Certificateholder at its address as it appears on the Register.
(b) This Section 3.03 supersedes and replaces Section 4.02(b) and Section 4.02(c) of the
Basic Agreement in their entirety, with respect to the Applicable Trust.
Section 3.04.
Limitation of Liability for Payments
. Section 3.09 of the Basic Agreement
shall be amended, with respect to the Applicable Trust, by
deleting the phrase any Owner Trustee or any Owner Participant in the third sentence thereof.
ARTICLE IV
DEFAULT
Section 4.01.
Purchase Rights of Certificateholders
. (a) At any time after the occurrence
and during the continuation of a Certificate Buyout Event,
each Applicable
14
Certificateholder (other than the Company or any of its Affiliates) shall have the
right to purchase, for the purchase price set forth in the Class A Trust Agreement, all, but not
less than all, of the Class A Certificates upon 15 days written notice to the Class A Trustee and
each other Applicable Certificateholder, on the third Business Day next following the expiry of
such 15-day notice period,
provided
that (A) if prior to the end of such 15-day period any
other Applicable Certificateholder (other than the Company or any of its Affiliates) notifies such
purchasing Applicable Certificateholder that such other Applicable Certificateholder wants to
participate in such purchase, then such other Applicable Certificateholder (other than the Company
or any of its Affiliates) may join with the purchasing Applicable Certificateholder to purchase
all, but not less than all, of the Class A Certificates pro rata based on the Fractional Undivided
Interest in the Applicable Trust held by each such Applicable Certificateholder and (B) if prior to
the end of such 15-day period any other Applicable Certificateholder fails to notify the purchasing
Applicable Certificateholder of such other Applicable Certificateholders desire to participate in
such a purchase, then such other Applicable Certificateholder shall lose its right to purchase the
Class A Certificates pursuant to this Section 4.01(a).
(b) By acceptance of its Applicable Certificate, each Applicable Certificateholder agrees that
at any time after the occurrence and during the continuation of a Certificate Buyout Event:
(i) if any Additional Certificates are issued pursuant to any Additional Trust, each
Additional Certificateholder (other than the Company or any of its Affiliates), shall have
the right (which shall not expire upon any purchase of the Class A Certificates pursuant to
clause (a) above) to purchase all, but not less than all, of the Class A Certificates and
the Applicable Certificates upon 15 days written notice to the Trustee, the Class A Trustee
and each other Additional Certificateholder, on the third Business Day next following the
expiry of such 15-day notice period,
provided
that (A) if prior to the end of such
15-day period any other Additional Certificateholder (other than the Company or any of its
Affiliates) notifies such purchasing Additional Certificateholder that such other Additional
Certificateholder wants to participate in such purchase, then such other Additional
Certificateholder (other than the Company or any of its Affiliates) may join with the
purchasing Additional Certificateholder to purchase all, but not less than all, of the Class
A Certificates and the Applicable Certificates pro rata based on the Fractional Undivided
Interest in the Additional Trust held by each such Additional Certificateholder and (B) if
prior to the end of such 15-day period any other Additional Certificateholder fails to
notify the purchasing Additional Certificateholder of such other Additional
Certificateholders desire to participate in such a purchase, then such other Additional
Certificateholder shall lose its right to purchase the Class A Certificates and the
Applicable Certificates pursuant to this Section 4.01(b)(i); and
(ii) if any Refinancing Certificates are issued, each Refinancing Certificateholder
shall have the same right (subject to the same terms and conditions) to purchase
Certificates pursuant to this Section 4.01(b) (and to receive notice in connection
therewith) as the Certificateholders of the Class that such Refinancing Certificates
refinanced.
15
The purchase price with respect to the Applicable Certificates shall be equal to the Pool
Balance of the Applicable Certificates, together with accrued and unpaid interest thereon to the
date of such purchase, without premium, but including any other amounts then due and payable to the
Applicable Certificateholders under the Agreement, the Intercreditor Agreement, the Escrow
Agreement or any Note Document or on or in respect of the Applicable Certificates;
provided
,
however
, that no such purchase of Applicable Certificates shall be
effective unless the purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the Agreement and the
Other Agreements, all of the Applicable Certificates and the Class A Certificates. Each payment of
the purchase price of the Applicable Certificates referred to in the first sentence hereof shall be
made to an account or accounts designated by the Trustee and each such purchase shall be subject to
the terms of this Section 4.01. Each Applicable Certificateholder agrees by its acceptance of its
Applicable Certificate that (at any time after the occurrence of a Certificate Buyout Event) it
will, upon payment from Additional Certificateholder(s) or Refinancing Certificateholder(s), as the
case may be, of the purchase price set forth in the first sentence of this paragraph, (i) forthwith
sell, assign, transfer and convey to the purchaser(s) thereof (without recourse, representation or
warranty of any kind except for its own acts), all of the right, title, interest and obligation of
such Applicable Certificateholder in the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the Liquidity Facility, the NPA, the Note Documents and all Applicable
Certificates and Escrow Receipts held by such Applicable Certificateholder (excluding all right,
title and interest under any of the foregoing to the extent such right, title or interest is with
respect to an obligation not then due and payable as respects any action or inaction or state of
affairs occurring prior to such sale) (and the purchaser shall assume all of such Applicable
Certificateholders obligations under the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the Liquidity Facility, the NPA, the Note Documents and all such
Applicable Certificates and Escrow Receipts), (ii) if such purchase occurs after a record date
specified in Section 2.03 of the Escrow Agreement relating to the distribution of unused Deposits
and/or accrued and unpaid interest on Deposits and prior to or on the related distribution date
thereunder, forthwith turn over to the purchaser(s) of its Applicable Certificate all amounts, if
any, received by it on account of such distribution, and (iii) if such purchase occurs after a
Record Date relating to any distribution and prior to or on the related Distribution Date,
forthwith turn over to the purchaser(s) of its Applicable Certificate all amounts, if any, received
by it on account of such distribution. The Applicable Certificates will be deemed to be purchased
on the date payment of the purchase price is made notwithstanding the failure of the Applicable
Certificateholders to deliver any Applicable Certificates and, upon such a purchase, (I) the only
rights of the Applicable Certificateholders will be to deliver the Applicable Certificates to the
purchaser(s) and receive the purchase price for such Applicable Certificates and (II) if the
purchaser(s) shall so request, such Applicable Certificateholder will comply with all the
provisions of Section 3.04 of the Basic Agreement to enable new Applicable
Certificates to be issued to the purchaser in such denominations as it shall request. All
charges and expenses in connection with the issuance of any such new Applicable Certificates shall
be borne by the purchaser thereof.
As used in this Section 4.01 and elsewhere in this Trust Supplement, the terms Additional
Certificate, Additional Certificateholder, Additional Equipment Notes,
16
Additional Trust,
Class A Certificate, Class A Certificateholder, Class A Trust, Class A Trust Agreement,
Class A Trustee, Refinancing Certificates, Refinancing Certificateholder, Refinancing
Equipment Notes and Refinancing Trust shall have the respective meanings assigned to such terms
in the Intercreditor Agreement.
(c) This Section 4.01 supersedes and replaces Section 6.01(b) of the Basic Agreement, with
respect to the Applicable Trust.
Section 4.02.
Amendment of Section 6.05 of the Basic Agreement
. Section 6.05 of the Basic
Agreement shall be amended, with respect to the Applicable Trust, by
deleting the phrase and thereby annul any Direction given by such Certificateholders or the
Trustee to such Loan Trustee with respect thereto, set forth in the first sentence thereof.
ARTICLE V
THE TRUSTEE
Section 5.01.
Acquisition of Trust Property
. (a) The Trustee is hereby irrevocably
authorized and directed to execute and deliver the
Assignment and Assumption Agreement on the date specified in Section 7.01 of the Related Pass
Through Trust Supplement, subject only to the satisfaction of the conditions set forth in said
Section 7.01. The Agreement (except only for this sentence and the immediately preceding sentence
hereof, which are effective upon execution and delivery hereof) shall become effective upon the
execution and delivery of the Assignment and Assumption Agreement by the Trustee and the Related
Trustee, automatically and without any further signature or action on the part of the Company and
the Trustee, and shall thereupon constitute the legal, valid and binding obligation of the parties
hereto enforceable against each of the parties hereto in accordance with its terms. Upon such
execution and delivery of the Assignment and Assumption Agreement, the Related Trust shall be
terminated, the Applicable Certificateholders shall receive beneficial interests in the Applicable
Trust in exchange for their interests in the Related Trust equal to their respective beneficial
interests in the Related Trust and the Outstanding (as defined in the Related Pass Through Trust
Agreement) pass through certificates representing fractional undivided interests in the Related
Trust shall be deemed for all purposes of the Agreement, without further signature or action of any
party or Certificateholder, to be Certificates representing the same Fractional Undivided Interests
in the Applicable Trust and Trust Property. By acceptance of its Applicable Certificate, each
Applicable Certificateholder consents to and ratifies such assignment, transfer and delivery of the
trust property of the Related Trust to the Trustee upon the execution and delivery of the
Assignment and Assumption Agreement. The provisions of this Section 5.01(a) supersede and replace
the provisions of Section 2.02 of the Basic Agreement with respect to the Applicable Trust, and all
provisions of the Basic Agreement
relating to Postponed Notes or Section 2.02 of the Basic Agreement shall not apply to the
Applicable Trust.
(b) The Trustee, upon the execution and delivery of the Assignment and Assumption Agreement,
acknowledges its acceptance of all right, title and interest in and to the Trust Property and
declares that the Trustee holds and will hold such right, title and interest for the benefit of all
then present and future Applicable Certificateholders, upon the trusts herein and
17
in the Basic
Agreement set forth. By the acceptance of each Applicable Certificate issued to it under the
Related Pass Through Trust Agreement and deemed issued under the Agreement, each Holder of any such
Applicable Certificate as grantor of the Applicable Trust thereby joins in the creation and
declaration of the Applicable Trust. The provisions of this Section 5.01(b) supersede and replace
the provisions of Section 2.03 of the Basic Agreement, with respect to the Applicable Trust.
Section 5.02. [Intentionally Omitted]
Section 5.03.
The Trustee
. (a) Subject to Section 5.04 of this Trust
Supplement and Section 7.15 of the Basic Agreement,
the Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Trust Supplement, the Deposit Agreement, the NPA or the Escrow Agreement or the
due execution hereof or thereof by the Company or the other parties thereto (other than the
Trustee), or for or in respect of the recitals and statements contained herein or therein, all of
which recitals and statements are made solely by the Company, except that the Trustee hereby
represents and warrants that each of this Trust Supplement, the Basic Agreement, each Applicable
Certificate, the Intercreditor Agreement, the NPA and the Escrow Agreement has been executed and
delivered by one of its officers who is duly authorized to execute and deliver such document on its
behalf.
(b) Except as herein otherwise provided and except during the continuation of an Event of
Default in respect of the Applicable Trust created hereby, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this
Trust Supplement other than as set forth in the Agreement, and this Trust Supplement is executed
and accepted on behalf of the Trustee, subject to all the terms and conditions set forth in the
Agreement, as fully to all intents as if the same were herein set forth at length.
Section 5.04.
Representations and Warranties of the Trustee
. The Trustee hereby represents
and warrants, on the Transfer Date, that:
(a) the Trustee has full power, authority and legal right to receive the Trust Property
assigned by the Related Trustee, assume the obligations under, and perform, the Assignment
and Assumption Agreement, this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the NPA and the Note Documents to which it is a party and has taken all necessary
action to authorize such receipt, assumption and performance by it of this Trust Supplement,
the Intercreditor Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is a party;
(b) the receipt of the Trust Property under the Assignment and Assumption Agreement and
the performance by the Trustee of the Assignment and Assumption Agreement, this Trust
Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA and the Note
Documents to which it is a party (i) will not violate any provision of any United States
federal law or the law of the state of the United States where it is located governing the
banking and trust powers of the Trustee or any order, writ, judgment, or decree of any
court, arbitrator or governmental authority applicable to the
18
Trustee or any of its assets,
(ii) will not violate any provision of the articles of association or by-laws of the
Trustee, and (iii) will not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of any lien on
any properties included in the Trust Property pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a party, which violation,
default or lien could reasonably be expected to have an adverse effect on the Trustees
performance or ability to perform its duties hereunder or thereunder or on the transactions
contemplated herein or therein;
(c) the receipt of the Trust Property under the Assignment and Assumption Agreement and
the performance by the Trustee of the Assignment and Assumption Agreement, this Trust
Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA and the Note
Documents to which it is a party will not require the authorization, consent, or approval
of, the giving of notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency of the United States or the state
of the United States where it is located regulating the banking and corporate trust
activities of the Trustee; and
(d) the Assignment and Assumption Agreement has been duly executed and delivered by the
Trustee and this Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and the Note Documents to which it is a party have been, or will be, as applicable, duly
executed and delivered by the Trustee and constitute, or will constitute, as applicable, the
legal, valid and binding agreements of the Trustee, enforceable against it in accordance
with their respective terms;
provided
,
however
, that enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles of equity.
Section 5.05.
Trustee Liens
. The Trustee in its individual capacity
agrees, in addition to the agreements contained in
Section 7.17 of the Basic Agreement, that it will at its own cost and expense promptly take any
action as may be necessary to duly discharge and satisfy in full any Trustees Liens on or with
respect to the Trust Property which is attributable to the Trustee in its individual capacity and
which is unrelated to the transactions contemplated by the Intercreditor Agreement or the NPA.
ARTICLE VI
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section 6.01.
Amendment of Section 5.02 of the Basic Agreement
. Section 5.02 of the
Basic Agreement shall be amended, with respect to the Applicable Trust, by
(i) replacing the phrase of the Note Documents and of this Agreement set forth in paragraph (b)
thereof with the phrase of the Note Documents, of the NPA and of this Agreement and (ii)
replacing the phrase of this Agreement and any Note Document set forth in the last paragraph of
Section 5.02 with the phrase of this Agreement, the NPA and any Note Document.
19
Section 6.02.
Supplemental Agreements Without Consent of Applicable
Certificateholders
. Without limitation of Section 9.01 of the
Basic Agreement, under the terms of, and subject to
the limitations contained in, Section 9.01 of the Basic Agreement, the Company may (but will not be
required to), and the Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the
Companys request, at any time and from time to time, (i) enter into one or more agreements
supplemental to the Escrow Agreement, the NPA or the Deposit Agreement, for any of the purposes set
forth in clauses (1) through (14) of such Section 9.01, and (without limitation of the foregoing or
Section 9.01 of the Basic Agreement) references in clauses (4), (6) and (7) of such Section 9.01 to
any Intercreditor Agreement, any Note Purchase Agreement, any Liquidity Facility or any Guarantee
shall also be deemed to refer to the Intercreditor Agreement, the Liquidity Facility, the Escrow
Agreement, the NPA, the Guarantee or the Deposit Agreement, (ii) enter into one or more agreements
supplemental to the Agreement, the Intercreditor Agreement or the NPA to provide for the formation
of a single Additional Trust, the issuance of Additional Certificates, the purchase by the
Additional Trust (if any) of applicable Additional Equipment Notes and other matters incidental
thereto or otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject to the
provisions of Section 4(a)(vi) of the NPA and Section 9.1 of the Intercreditor Agreement, and (iii)
enter into one or more agreements supplemental to the Agreement to provide for the formation of one
or more Refinancing Trusts, the issuance of Refinancing Certificates, the purchase by any
Refinancing Trust of applicable Refinancing Equipment Notes and other matters incidental thereto or
as otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject to the provisions of
Section 4(a)(vi) of the NPA and Section 9.1(c) of the Intercreditor Agreement.
Section 6.03.
Supplemental Agreements with Consent of Applicable Certificateholders
. Without
limitation of Section 9.02 of the Basic Agreement, the provisions of Section 9.02 of the
Basic Agreement shall apply to agreements or amendments for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Escrow Agreement, the Deposit
Agreement, the Liquidity Facility, the Guarantee or the NPA or modifying in any manner the rights
and obligations of the Applicable Certificateholders under the Escrow Agreement, the Deposit
Agreement, the Liquidity Facility, the Guarantee or the NPA; provided that the provisions of
Section 9.02(1) of the Basic Agreement shall be deemed to include reductions in any manner of, or
delay in the timing of, any receipt by the Applicable Certificateholders of payments upon the
Deposits.
Section 6.04.
Consent of Holders of Certificates Issued under Other Trusts
. Notwithstanding
any provision in Section 6.02 or Section 6.03 of this Trust Supplement to the
contrary, no amendment or modification of Section 4.01 of this Trust Supplement shall be effective
unless the trustee for each Class of Certificates affected by such amendment or modification shall
have consented thereto.
ARTICLE VII
TERMINATION OF TRUST
Section 7.01.
Termination of the Applicable Trust
. (a) The
respective obligations and responsibilities of the Company and the Trustee with respect
to the Applicable
20
Trust shall terminate upon the distribution to all Applicable Certificateholders
and the Trustee of all amounts required to be distributed to them pursuant to the Agreement and the
disposition of all property held as part of the Trust Property;
provided
,
however
,
that in no event shall the Applicable Trust continue beyond one hundred ten (110) years following
the date of the execution of this Trust Supplement.
Notice of any termination, specifying the Distribution Date upon which the Applicable
Certificateholders may surrender their Applicable Certificates to the Trustee for payment of the
final distribution and cancellation, shall be mailed promptly by the Trustee to Applicable
Certificateholders not earlier than the 60
th
day and not later than the 15
th
day next preceding such final Distribution Date specifying (A) the Distribution Date upon which the
proposed final payment of the Applicable Certificates will be made upon presentation and surrender
of Applicable Certificates at the office or agency of the Trustee therein specified, (B) the amount
of any such proposed final payment, and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation and surrender of
the Applicable Certificates at the office or agency of the Trustee therein specified. The Trustee
shall give such notice to the Registrar at the time such notice is given to Applicable
Certificateholders. Upon presentation and surrender of the Applicable Certificates in accordance
with such notice, the Trustee shall cause to be distributed to Applicable Certificateholders such
final payments.
In the event that all of the Applicable Certificateholders shall not surrender their
Applicable Certificates for cancellation within six months after the date specified in the
above-mentioned written notice, the Trustee shall give a second written notice to the remaining
Applicable Certificateholders to surrender their Applicable Certificates for cancellation and
receive the final distribution with respect thereto. No additional interest shall accrue on the
Applicable Certificates after the Distribution Date specified in the first written notice. In the
event that any money held by the Trustee for the payment of distributions on the Applicable
Certificates shall remain unclaimed for two years (or such lesser time as the Trustee shall be
satisfied, after sixty days notice from the Company, is one month prior to the escheat period
provided under applicable law) after the final distribution date with respect thereto, the Trustee
shall pay to each Loan Trustee the appropriate amount of money relating to such Loan Trustee and
shall give written notice thereof to the Company.
(b) The provisions of this Section 7.01 supersede and replace the provisions of Section 11.01
of the Basic Agreement in its entirety, with respect to the Applicable Trust.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01.
Basic Agreement Ratified
. Except and so far as
herein expressly provided, all of the provisions, terms and conditions of
the Basic Agreement are in all respects ratified and confirmed; and the Basic Agreement and this
Trust Supplement shall be taken, read and construed as one and the same instrument. All
replacements of provisions of, and other
21
modifications of the Basic Agreement set forth in this
Trust Supplement are solely with respect to the Applicable Trust.
Section 8.02.
GOVERNING LAW
.
THE AGREEMENT AND THE APPLICABLE
CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. THIS SECTION 8.02 SUPERSEDES AND REPLACES SECTION 12.05 OF
THE BASIC AGREEMENT, WITH RESPECT TO THE APPLICABLE TRUST.
Section 8.03.
Execution in Counterparts
. This Trust Supplement may be
executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same instrument.
Section 8.04.
Intention of Parties
. The
parties hereto intend that the Applicable Trust be classified for U.S. federal income tax
purposes as a grantor trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended, and not as a trust or association taxable as a corporation or as a partnership.
Each Applicable Certificateholder and Investor, by its acceptance of its Applicable Certificate or
a beneficial interest therein, agrees to treat the Applicable Trust as a grantor trust for all U.S.
federal, state and local income tax purposes. The powers granted and obligations undertaken
pursuant to the Agreement shall be so construed so as to further such intent.
IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust Supplement to be duly
executed by their respective officers thereto duly authorized, as of the day and year first written
above.
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US AIRWAYS, INC.
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By:
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/s/ Thomas T. Weir
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Name:
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Thomas T. Weir
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Title:
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Vice President and Treasurer
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WILMINGTON TRUST COMPANY,
as Trustee
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By:
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/s/ Robert P. Hines, Jr.
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Name:
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Robert P. Hines, Jr.
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Title:
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Assistant Vice President
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Exhibit 4.6
EXECUTION VERSION
REVOLVING CREDIT AGREEMENT
(2010-1A)
dated as of December 21, 2010
between
WILMINGTON TRUST COMPANY
,
as Subordination Agent,
as Agent and Trustee for the
US Airways Pass Through Trust 2010-1A,
as Borrower
and
MORGAN STANLEY BANK, N.A.
,
as Liquidity Provider
Relating to US Airways
Pass Through Trust 2010-1A 6.25% US Airways
Pass Through Certificates, Series 2010-1A
i
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
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1
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Section 1.01 Certain Defined Terms
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1
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ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT
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8
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Section 2.01 The Advances
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8
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Section 2.02 Making the Advances
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8
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Section 2.03 Fees
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10
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Section 2.04 Reductions or Termination of the Maximum Commitment
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10
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Section 2.05 Repayments of Interest Advances, the Special Termination Advance or
the Final Advance
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10
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Section 2.06 Repayments of Provider Advances
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11
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Section 2.07 Payments to the Liquidity Provider Under the Intercreditor Agreement
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12
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Section 2.08 Book Entries
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12
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Section 2.09 Payments from Available Funds Only
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13
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Section 2.10 Extension of the Expiry Date; Non-Extension Advance
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13
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ARTICLE III OBLIGATIONS OF THE BORROWER
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13
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Section 3.01 Increased Costs
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13
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Section 3.02 Capital Adequacy
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14
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Section 3.03 Payments Free of Deductions
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15
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Section 3.04 Payments
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16
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Section 3.05 Computations
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17
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Section 3.06 Payment on Non-Business Days
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17
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Section 3.07 Interest
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17
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Section 3.08 Replacement of Borrower
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19
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Section 3.09 Funding Loss Indemnification
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19
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Section 3.10 Illegality
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19
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ARTICLE IV CONDITIONS PRECEDENT
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20
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Section 4.01 Conditions Precedent to Effectiveness of Section 2.01
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20
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Section 4.02 Conditions Precedent to Borrowing
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22
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Section 4.03 Representations and Warranties
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22
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ARTICLE V COVENANTS
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22
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Section 5.01 Affirmative Covenants of the Borrower
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22
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Section 5.02 Negative Covenants of the Borrower
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22
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ARTICLE VI LIQUIDITY EVENTS OF DEFAULT AND SPECIAL TERMINATION
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23
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Section 6.01 Liquidity Events of Default
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23
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Section 6.02 Special Termination
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23
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ARTICLE VII MISCELLANEOUS
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23
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Section 7.01 Amendments, Etc
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23
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Section 7.02 Notices, Etc
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23
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TABLE OF CONTENTS
(continued)
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Page
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Section 7.03 No Waiver; Remedies
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24
|
|
Section 7.04 Further Assurances
|
|
|
24
|
|
Section 7.05 Indemnification; Survival of Certain Provisions
|
|
|
24
|
|
Section 7.06 Liability of the Liquidity Provider
|
|
|
25
|
|
Section 7.07 Costs, Expenses and Taxes
|
|
|
25
|
|
Section 7.08 Binding Effect; Participations
|
|
|
26
|
|
Section 7.09 Severability
|
|
|
27
|
|
Section 7.10 GOVERNING LAW
|
|
|
27
|
|
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity
|
|
|
27
|
|
Section 7.12 Execution in Counterparts
|
|
|
28
|
|
Section 7.13 Entirety
|
|
|
28
|
|
Section 7.14 Headings
|
|
|
28
|
|
Section 7.15 Transfer
|
|
|
28
|
|
Section 7.16 LIQUIDITY PROVIDERS OBLIGATION TO MAKE ADVANCES
|
|
|
28
|
|
Section 7.17 Patriot Act
|
|
|
28
|
|
|
|
|
|
|
Schedule A
|
|
-
|
|
Certain Economic Terms
|
Schedule B
|
|
-
|
|
Administration Details
|
Annex I
|
|
-
|
|
Interest Advance Notice of Borrowing
|
Annex II
|
|
-
|
|
Non-Extension Advance Notice of Borrowing
|
Annex III
|
|
-
|
|
Downgrade Advance Notice of Borrowing
|
Annex IV
|
|
-
|
|
Final Advance Notice of Borrowing
|
Annex V
|
|
-
|
|
Notice of Termination
|
Annex VI
|
|
-
|
|
Notice of Replacement Subordination Agent
|
Annex VII
|
|
-
|
|
Special Termination Advance Notice of Borrowing
|
Annex VIII
|
|
-
|
|
Notice of Special Termination
|
ii
REVOLVING CREDIT AGREEMENT (2010-1A)
THIS REVOLVING CREDIT AGREEMENT (2010-1A)
dated as of December 21, 2010 (the
Agreement
), between
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent under the Intercreditor Agreement (each as defined below), as agent and
trustee for the Class A Trust (as defined below) (the
Borrower
), and
MORGAN STANLEY BANK,
N.A.
, a national banking association (the
Liquidity Provider
).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS
, pursuant to the Class A Trust Agreement (such term and all other capitalized terms
used in these recitals having the meanings set forth or referred to in Section 1.01), the Class A
Trust is issuing the Class A Certificates; and
WHEREAS
, the Borrower, in order to support the timely payment of a portion of the interest on
the Class A Certificates in accordance with their terms, has requested the Liquidity Provider to
enter into this Agreement, providing in part for the Borrower to request in specified circumstances
that Advances be made hereunder.
NOW, THEREFORE
, in consideration of the premises, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01
Certain Defined Terms
. (a)
Definitions
. As used in this Agreement and
unless otherwise expressly indicated, or unless the context clearly requires otherwise, the
following capitalized terms shall have the following respective meanings for all purposes of this
Agreement:
Additional Costs
has the meaning assigned to such term in Section 3.01.
Advance
means an Interest Advance, a Final Advance, a Provider Advance, a Special
Termination Advance, an Applied Special Termination Advance, or an Applied Provider Advance, as the
case may be.
Applicable Liquidity Rate
has the meaning assigned to such term in Section 3.07(h).
Applicable Margin
means (x) with respect to any Unpaid Advance (including, without
limitation, any Applied Special Termination Advance but excluding any Unapplied Special Termination
Advance) or Applied Provider Advance, the margin per annum specified in item 1 of Schedule A, or
(y) with respect to any Unapplied Provider Advance or any Unapplied Special Termination Advance,
the margin per annum specified in the Fee Letter.
Applied Downgrade Advance
has the meaning assigned to such term in Section 2.06(a).
[Revolving Credit Agreement (2010-1A)]
Applied Non-Extension Advance
has the meaning assigned to such term in Section
2.06(a).
Applied Provider Advance
has the meaning assigned to such term in Section 2.06(a).
Applied Special Termination Advance
has the meaning assigned to such term in Section
2.05.
Assignment and Assumption Agreement
means the Assignment and Assumption Agreement to
be entered into between the Borrower and the trustee of the Successor Trust, substantially in the
form of Exhibit C to the Trust Supplement No. 2010-1A-O, dated as of the date hereof, relating to
the Class A Trust.
Base Rate
means, for any given day, a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to (a) 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 the Liquidity Provider from three Federal funds brokers of
recognized standing selected by it (the
Federal Funds Rate"
), plus (b) one-quarter of one percent
(
1
/
4
of 1%).
Base Rate Advance
means an Advance that bears interest at a rate based upon the Base
Rate.
Basel III
has the meaning assigned to such term in Section 3.01.
Borrower
has the meaning assigned to such term in the recital of parties to this
Agreement.
Borrowing
means the making of Advances requested by delivery of a Notice of
Borrowing.
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 Phoenix, Arizona, New York, New York or, so
long as any Class A Certificate is outstanding, the city and state in which the Class A Trustee,
the Borrower or any Indenture Trustee maintains its Corporate Trust Office or receives or disburses
funds, and, if the applicable Business Day relates to any Advance or other amount bearing interest
based on the LIBOR Rate, on which dealings in dollars are carried on in the London interbank
market.
Consent Period
has the meaning assigned to such term in Section 2.10.
Deposit Agreement
means the Deposit Agreement dated as of the date hereof between
Wells Fargo Bank Northwest, National Association, as Escrow Agent, and The Bank of New York Mellon,
as Depositary, pertaining to the Class A Certificates, as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
2
[Revolving Credit Agreement (2010-1A)]
Depositary
has the meaning assigned to such term in the Deposit Agreement.
Deposits
has the meaning assigned to such term in the Deposit Agreement.
Downgrade Advance
means an Advance made pursuant to Section 2.02(c).
Effective Date
has the meaning assigned to such term in Section 4.01. The delivery
of the certificate of the Liquidity Provider contemplated by Section 4.01(e) shall be conclusive
evidence that the Effective Date has occurred.
Excluded Taxes
means (i) Taxes imposed on, based on, or measured by the overall net
income, capital, franchises or receipts (other than Taxes which are or are in the nature of sales
or use Taxes or value added Taxes) of the Liquidity Provider or of its Facility Office by the
jurisdiction where such Liquidity Providers principal office or such Facility Office is located or
any other taxing jurisdiction in which such Tax is imposed as a result of the Liquidity Provider
being, or having been, organized in, or conducting, or having conducted, any activities unrelated
to the transactions contemplated by the Operative Agreements in such jurisdiction, and (ii)
Excluded Withholding Taxes.
Excluded Withholding Taxes
means (i) withholding Taxes imposed by the United States
except (but only in the case of a successor Liquidity Provider organized under the laws of a
jurisdiction outside the United States) to the extent that such United States withholding Taxes are
imposed or increased as a result of any change in applicable law (excluding from change in
applicable law for this purpose a change in an applicable treaty or other change in law affecting
the applicability of a treaty) after the date hereof, or in the case of a successor Liquidity
Provider (including a transferee of an Advance), after the date on which such successor Liquidity
Provider obtains its interest and (ii) any withholding Taxes imposed by the United States which are
imposed or increased as a result of the Liquidity Provider failing to deliver to the Borrower any
certificate or document (which certificate or document in the good faith judgment of the Liquidity
Provider it is legally entitled to provide) which is reasonably requested by the Borrower to
establish that payments under this Agreement are exempt from (or entitled to a reduced rate of)
withholding Tax, and (iii) withholding Taxes imposed by the United States on payments to a
recipient in any other jurisdiction to which such Facility Office is moved if, under the laws in
effect at the time of such move, such laws would require greater withholding of Taxes on payments
to such Liquidity Provider acting from an office in such jurisdiction than would be required on
payments to such Liquidity Provider acting from an office in the jurisdiction from which such
Facility Office was moved.
Expenses
means liabilities, obligations, damages, settlements, penalties, claims,
actions, suits, costs, expenses, and disbursements (including, without limitation, reasonable fees
and disbursements of legal counsel and costs of investigation), provided that Expenses shall not
include any Taxes.
Expiry Date
means the anniversary date of the Closing Date immediately following the
date on which the Liquidity Provider has provided written notice to the Borrower pursuant to
Section 2.10 that the Liquidity Providers obligation to make Advances shall not be extended beyond
such anniversary date.
3
[Revolving Credit Agreement (2010-1A)]
Facility Office
means the office of the Liquidity Provider presently located in New
York, New York, or such other office as the Liquidity Provider from time to time shall notify the
Borrower as its Facility Office hereunder; provided that the Liquidity Provider shall not change
its Facility Office to another Facility Office outside the United States of America except in
accordance with Section 3.01, 3.02 or 3.03 hereof.
Federal Funds Rate
has the meaning assigned to such term in the definition of Base
Rate.
Final Advance
means an Advance made pursuant to Section 2.02(d).
GAAP
means generally accepted accounting principles as set forth in the statements
of financial accounting standards issued by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants, as such principles may at any time or from time
to time be varied by any applicable financial accounting rules or regulations issued by the
Securities and Exchange Commission and, with respect to any person, shall mean such principles
applied on a basis consistent with prior periods except as may be disclosed in such persons
financial statements.
Indemnified Tax
has the meaning assigned to such term in Section 3.03.
Intercreditor Agreement
means the Intercreditor Agreement dated as of the date
hereof among the Trustees, the Liquidity Provider, the liquidity provider under the other Liquidity
Facility and the Subordination Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Interest Advance
means an Advance made pursuant to Section 2.02(a).
Interest Period
means, with respect to any LIBOR Advance, each of the following
periods:
(i) the period beginning on the third Business Day following either (x) the date of the
Liquidity Providers receipt of the Notice of Borrowing for such LIBOR Advance or (y) the
date of the withdrawal of funds from the Class A Cash Collateral Account for the purpose of
paying interest on the Class A Certificates as contemplated by Section 2.06(a) hereof and,
in either case, ending on the next Regular Distribution Date (or, if such day is not a
Business Day, the next succeeding Business Day); and
(ii) each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the next Regular Distribution Date (or, if such day is not a
Business Day, the next succeeding Business Day);
provided, however, that if (x) the Final Advance shall have been made, or (y) other outstanding
Advances shall have been converted into the Final Advance, then the Interest Periods shall be
successive periods of one month beginning on the third Business Day following the Liquidity
Providers receipt of the Notice of Borrowing for such Final Advance (in the case of clause (x)
above) or the Regular Distribution Date (or, if such day is not a Business Day, the next succeeding
Business Day) following such conversion (in the case of clause (y) above).
4
[Revolving Credit Agreement (2010-1A)]
LIBOR Advance
means an Advance bearing interest at a rate based upon the LIBOR Rate
or the Market Disruption Base Rate pursuant Section 3.07(g).
LIBOR Rate
means, with respect to any Interest Period,
(i) the rate per annum appearing on Bloomberg L.P. page BBAM (or any successor or
substitute therefor) at approximately 11:00 a.m. (London time) two Business Days before the
first day of such Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period, or
(ii) if the rate calculated pursuant to clause (i) above is not available, the average
(rounded upwards, if necessary, to the next 1/16 of 1%) of the rates per annum at which
deposits in dollars are offered for the relevant Interest Period by three banks of
recognized standing selected by the Liquidity Provider in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the LIBOR
Advance to which such Interest Period is to apply and for a period comparable to such
Interest Period;
provided, that if the LIBOR Rate determined as provided above with respect to any LIBOR Advance for
any Interest Period would be less than 2.00% per annum, then the LIBOR Rate with respect to such
LIBOR Advance for such Interest Period shall be deemed to be 2.00% per annum.
Liquidity Event of Default
means the occurrence of either (a) the Acceleration of
all of the Equipment Notes (provided that, with respect to the period prior to the Delivery Period
Expiry Date, such Equipment Notes have an aggregate outstanding principal balance in excess of the
amount specified in item 3 on Schedule A) or (b) a US Airways Bankruptcy Event.
Liquidity Indemnitee
means (i) the Liquidity Provider, (ii) the directors, officers,
employees and agents of the Liquidity Provider, and (iii) the successors and permitted assigns of
the persons described in clauses (i) and (ii) inclusive.
Liquidity Provider
has the meaning assigned to such term in the recital of parties
to this Agreement.
Market Disruption Base Rate
means, with respect to any Interest Period, a
fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus
1
/
2
of 1.00%, (b)
the rate of interest per annum from time to time published in the Money Rates section of The Wall
Street Journal as being the Prime Lending Rate or, if more than one rate is published as the
Prime Lending Rate, then the highest of such rates (each change in the Prime Lending Rate to be
effective as of the date of publication in The Wall Street Journal of a Prime Lending Rate that
is different from that published on the preceding Business Day), provided that in the event that
The Wall Street Journal shall, for any reason, fail or cease to publish the Prime Lending Rate, the
Liquidity Provider shall choose a reasonably comparable index or source to use as the basis for the
Prime Lending Rate and (c) the LIBOR Rate plus 1.00%. Each change in any interest rate provided
for herein based upon the Market Disruption Base Rate shall take effect at the time of such change
in the Prime Lending Rate.
5
[Revolving Credit Agreement (2010-1A)]
Maximum Available Commitment
means, subject to the proviso contained in the third
sentence of Section 2.02(a), at any time of determination, (a) the Maximum Commitment at such time
less (b) the aggregate amount of each Interest Advance outstanding at such time; provided that
following a Provider Advance, a Special Termination Advance or a Final Advance, the Maximum
Available Commitment shall be zero.
Maximum Commitment
means initially the amount specified in item 4 on Schedule A, as
such amount may be reduced from time to time in accordance with Section 2.04(a).
Non-Extension Advance
means an Advance made pursuant to Section 2.02(b).
Notice Date
has the meaning assigned to such term in Section 2.10.
Notice of Borrowing
has the meaning assigned to such term in Section 2.02(e).
Notice of Replacement Subordination Agent
has the meaning assigned to such term in
Section 3.08.
Performing Note Deficiency
means any time that less than 65% of the then aggregate
outstanding principal amount of all Equipment Notes (other than any Additional Equipment Notes
issued under any Indenture) are Performing Equipment Notes.
Prospectus Supplement
means the final Prospectus Supplement dated the date specified
in item 5 on Schedule A relating to the Certificates, as such Prospectus Supplement may be amended
or supplemented.
Provider Advance
means a Downgrade Advance or a Non-Extension Advance.
Rate Determination Notice
has the meaning assigned to such term in Section 3.07(g).
Regulatory Change
has the meaning assigned to such term in Section 3.01.
Replenishment Amount
has the meaning assigned to such term in Section 2.06(b).
Required Amount
means, for any day, the sum of the aggregate amount of interest,
calculated at the rate per annum equal to the Stated Interest Rate for the Class A Certificates,
that would be payable on the Class A Certificates on each of the three successive semi-annual
Regular Distribution Dates immediately following such day or, if such day is a Regular Distribution
Date, on such day and the succeeding two semi-annual Regular Distribution Dates, in each case
calculated on the basis of the Pool Balance of the Class A Certificates on such day and without
regard to expected future distributions of principal on the Class A Certificates.
Special Termination Advance
means an Advance made pursuant to Section 2.02(g).
Special Termination Notice
means the Notice of Termination substantially in the form
of Annex VIII to this Agreement.
6
[Revolving Credit Agreement (2010-1A)]
Successor Trust
means US Airways Pass Through Trust 2010-1A-S.
Termination Date
means the earliest to occur of the following: (i) the Expiry Date;
(ii) the date on which the Borrower delivers to the Liquidity Provider a certificate, signed by a
Responsible Officer of the Borrower, certifying that all of the Class A Certificates have been paid
in full (or provision has been made for such payment in accordance with the Intercreditor Agreement
and the Class A Trust Agreement) or are otherwise no longer entitled to the benefits of this
Agreement; (iii) the date on which the Borrower delivers to the Liquidity Provider a certificate,
signed by a Responsible Officer of the Borrower, certifying that a Replacement Liquidity Facility
has been substituted for this Agreement in full pursuant to Section 3.5(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the Borrower of a Termination
Notice or Special Termination Notice from the Liquidity Provider pursuant to Section 6.02 hereof;
and (v) the date on which no Advance is or may (including by reason of reinstatement as herein
provided) become available for a Borrowing hereunder.
Termination Notice
means the Notice of Termination substantially in the form of
Annex V to this Agreement.
Transferee
has the meaning assigned to such term in Section 7.08(b).
Unapplied Downgrade Advance
means any Downgrade Advance other than an Applied
Downgrade Advance.
Unapplied Non-Extension Advance
means any Non-Extension Advance other than an
Applied Non-Extension Advance.
Unapplied Provider Advance
means any Provider Advance other than an Applied Provider
Advance.
Unapplied Special Termination Advance
means any Special Termination Advance other
than an Applied Special Termination Advance.
Unpaid Advance
has the meaning assigned to such term in Section 2.05.
(b)
Terms Defined in the Intercreditor Agreement
. For all purposes of this Agreement,
the following terms shall have the respective meanings assigned to such terms in the Intercreditor
Agreement:
Acceleration
,
Additional Certificates
,
Additional Equipment
Notes
,
Certificate
,
Class A Cash Collateral Account
,
Class A
Certificates
,
Class A Trust
,
Class A Trust Agreement
,
Class A
Trustee
,
Class B Certificates
,
Closing Date
,
Corporate Trust
Office
,
Delivery Period Expiry Date
,
Downgraded Facility
,
Downgrade Event
,
Equipment Notes
,
Fee Letter
,
Financing
Agreement
,
Indenture
,
Indenture Trustee
,
Investment
Earnings
,
Liquidity Facility
,
Liquidity Obligations
,
Non-Extended Facility
,
Note Purchase Agreement
,
Operative
Agreements
,
Participation Agreement
,
Performing Equipment Note
,
Person
,
Pool Balance
,
Regular Distribution Date
,
Replacement Liquidity Facility
,
Responsible Officer
,
Scheduled
7
[Revolving Credit Agreement (2010-1A)]
Payment
,
Special Payment
,
Stated Interest Rate
,
Subordination Agent
,
Taxes
,
Transfer
,
Trust
Agreement
,
Trustee
,
Underwriters
,
Underwriting Agreement
,
US Airways
, and
US Airways Bankruptcy Event
.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01
The Advances
. The Liquidity Provider hereby irrevocably agrees, on the terms and
conditions hereinafter set forth, to make Advances to the Borrower from time to time on any
Business Day during the period from the Effective Date until 1:00 p.m. (New York City time) on the
Expiry Date (unless the obligations of the Liquidity Provider shall be earlier terminated in
accordance with the terms of Section 2.04(b)) in an aggregate amount at any time outstanding not to
exceed the Maximum Commitment.
Section 2.02
Making the Advances
. (a) Interest Advances shall be made in one or more
Borrowings by delivery to the Liquidity Provider of one or more written and completed Notices of
Borrowing in substantially the form of Annex I attached hereto, signed by a Responsible Officer of
the Borrower, in an amount not exceeding the Maximum Available Commitment at such time and shall be
used solely for the payment when due of interest on the Class A Certificates at the Stated Interest
Rate therefor in accordance with Section 3.5(a) of the Intercreditor Agreement. Each Interest
Advance made hereunder shall automatically reduce the Maximum Available Commitment and the amount
available to be borrowed hereunder by subsequent Advances by the amount of such Interest Advance
(subject to reinstatement as provided in the next sentence). Upon repayment to the Liquidity
Provider in full or in part of the amount of any Interest Advance made pursuant to this
Section
2.02(a),
together with accrued interest thereon (as provided herein), the Maximum Available
Commitment shall be reinstated by an amount equal to the amount of the Interest Advance so repaid
but not to exceed the Maximum Commitment; provided, however, that the Maximum Available Commitment
shall not be so reinstated (x) at any time if (i) a Liquidity Event of Default shall have occurred
and be continuing and (ii) there is a Performing Note Deficiency or (y) at any time after the
making of a Provider Advance, a Final Advance or a Special Termination Advance or after any
Interest Advance shall have been converted into a Final Advance.
(b) A Non-Extension Advance shall be made in a single Borrowing if this Agreement is not
extended in accordance with Section 3.5(d) of the Intercreditor Agreement (unless a Replacement
Liquidity Facility to replace this Agreement shall have been delivered to the Borrower as
contemplated by said Section 3.5(d) within the time period specified in such Section) by delivery
to the Liquidity Provider of a written and completed Notice of Borrowing in substantially the form
of Annex II attached hereto, signed by a Responsible Officer of the Borrower, in an amount equal to
the Maximum Available Commitment at such time, and shall be used solely to fund the Class A Cash
Collateral Account in accordance with said Section 3.5(d) and Section 3.5(f) of the Intercreditor
Agreement.
(c) A Downgrade Advance shall be made in a single Borrowing upon the occurrence of a Downgrade
Event (as provided for in
Section 3.5(c)
of the Intercreditor Agreement), unless a Replacement
Liquidity Facility to replace this Agreement shall have been previously delivered
8
[Revolving Credit Agreement (2010-1A)]
to the Borrower in accordance with said Section 3.5(c), by delivery to the Liquidity Provider
of a written and completed Notice of Borrowing in substantially the form of Annex III attached
hereto, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used solely to fund the Class A Cash Collateral
Account in accordance with said
Section 3.5(c)
and Section 3.5(f) of the Intercreditor Agreement.
(d) A Final Advance shall be made in a single Borrowing upon the receipt by the Borrower of a
Termination Notice from the Liquidity Provider pursuant to Section 6.01 hereof by delivery to the
Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of
Annex IV attached hereto, signed by a Responsible Officer of the Borrower, in an amount equal to
the Maximum Available Commitment at such time, and shall be used solely to fund the Class A Cash
Collateral Account (in accordance with Sections 3.5(f) and 3.5(i) of the Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a
Notice of Borrowing
) in
substantially the form required by Section 2.02(a), 2.02(b), 2.02(c), 2.02(d) or 2.02(g), as the
case may be, given by the Borrower to the Liquidity Provider. If a Notice of Borrowing is
delivered by the Borrower in respect of any Borrowing no later than 1:00 p.m. (New York City time)
on a Business Day, upon satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available to the Borrower, in
accordance with its payment instructions, the amount of such Borrowing in U.S. dollars and
immediately available funds, before 4:00 p.m. (New York City time) on such Business Day. If a
Notice of Borrowing is delivered by the Borrower in respect of any Borrowing on a day that is not a
Business Day or after 1:00 p.m. (New York City time) on a Business Day, upon satisfaction of the
conditions precedent set forth in Section 4.02 with respect to a requested Borrowing, the Liquidity
Provider shall make available to the Borrower, in accordance with its payment instructions, the
amount of such Borrowing in U.S. dollars and in immediately available funds, before 12:00 Noon (New
York City time) on the first Business Day next following the day of receipt of such Notice of
Borrowing. Payments of proceeds of a Borrowing shall be made by wire transfer of immediately
available funds to the Borrower in accordance with such wire transfer instructions as the Borrower
shall furnish from time to time to the Liquidity Provider for such purpose. Each Notice of
Borrowing shall be irrevocable and binding on the Borrower. Each Notice of Borrowing shall be
effective upon receipt of a copy thereof by the Liquidity Provider at the address specified
pursuant to Section 7.02.
(f) Upon the making of any Advance requested pursuant to a Notice of Borrowing, in accordance
with the Borrowers payment instructions, the Liquidity Provider shall be fully discharged of its
obligation hereunder with respect to such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be obligated to make any further Advances hereunder in respect of such Notice of
Borrowing to the Borrower or to any other Person. If the Liquidity Provider makes an Advance
requested pursuant to a Notice of Borrowing before 12:00 Noon (New York City time) on the second
Business Day after the date of payment specified in Section 2.02(e), the Liquidity Provider shall
have fully discharged its obligations hereunder with respect to such Advance and an event of
default shall not have occurred hereunder. Following the making of any Advance pursuant to Section
2.02(b), (c), (d) or (g) hereof to fund the Class A Cash Collateral Account, the Liquidity Provider
shall have no interest in or rights to the Class A
9
[Revolving Credit Agreement (2010-1A)]
Cash Collateral Account, the funds constituting such Advance or any other amounts from time to
time on deposit in the Class A Cash Collateral Account;
provided
that the foregoing shall
not affect or impair the obligations of the Subordination Agent to make the distributions
contemplated by Section 3.5(e) or (f) of the Intercreditor Agreement, and
provided further
,
that the foregoing shall not affect or impair the rights of the Liquidity Provider to provide
written instructions with respect to the investment and reinvestment of amounts in the Class A Cash
Collateral Account to the extent provided in Section 2.2(b) of the Intercreditor Agreement. By
paying to the Borrower proceeds of Advances requested by the Borrower in accordance with the
provisions of this Agreement, the Liquidity Provider makes no representation as to, and assumes no
responsibility for, the correctness or sufficiency for any purpose of the amount of the Advances so
made and requested.
(g) A Special Termination Advance shall be made in a single Borrowing upon the receipt by the
Borrower of a Special Termination Notice from the Liquidity Provider pursuant to Section 6.02, by
delivery to the Liquidity Provider of a written and completed Notice of Borrowing in substantially
the form of Annex VII, signed by a Responsible Officer of the Borrower, in an amount equal to the
Maximum Available Commitment at such time, and shall be used solely to fund the Class A Cash
Collateral Account (in accordance with Section 3.5(f) and Section 3.5(m) of the Intercreditor
Agreement).
Section 2.03
Fees
. The Borrower agrees to pay to the Liquidity Provider the fees set forth in
the Fee Letter applicable to this Agreement.
Section 2.04
Reductions or Termination of the Maximum Commitment
.
(a)
Automatic Reduction
. Promptly following each date on which the Required Amount is
reduced as a result of a reduction in the Pool Balance of the Class A Certificates or otherwise,
the Maximum Commitment shall automatically be reduced to an amount equal to such reduced Required
Amount (as calculated by the Borrower); provided that on the first Regular Distribution Date, the
Maximum Commitment shall automatically be reduced to the then Required Amount. The Borrower shall
give notice of any such automatic reduction of the Maximum Commitment to the Liquidity Provider
within two Business Days thereof. The failure by the Borrower to furnish any such notice shall not
affect such automatic reduction of the Maximum Commitment.
(b)
Termination
. Upon the making of any Provider Advance or Special Termination
Advance or the making of or conversion to a Final Advance hereunder or the occurrence of the
Termination Date, the obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be entitled to request any
further Borrowing hereunder.
Section 2.05
Repayments of Interest Advances, the Special Termination Advance or the Final
Advance
. Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees, without
notice of an Advance or demand for repayment from the Liquidity Provider (which notice and demand
are hereby waived by the Borrower), to pay, or to cause to be paid, to the Liquidity Provider on
each date on which the Liquidity Provider shall make an Interest Advance, the Special Termination
Advance or the Final Advance, an amount equal to (a) the amount of
10
[Revolving Credit Agreement (2010-1A)]
such Advance (any such Advance, until repaid, is referred to herein as an
Unpaid
Advance
) (if multiple Interest Advances are outstanding any such repayment to be applied in
the order in which such Interest Advances have been made, starting with the earliest), plus (b)
interest on the amount of each such Unpaid Advance as provided in Section 3.07 hereof; provided
that if (i) the Liquidity Provider shall make a Provider Advance at any time after making one or
more Interest Advances which shall not have been repaid in accordance with this Section 2.05 or
(ii) this Liquidity Facility shall become a Downgraded Facility or Non-Extended Facility at any
time when unreimbursed Interest Advances have reduced the Maximum Available Commitment to zero,
then such Interest Advances shall cease to constitute Unpaid Advances and shall be deemed to have
been changed into an Applied Downgrade Advance or an Applied Non-Extension Advance, as the case may
be, for all purposes of this Agreement (including, without limitation, for the purpose of
determining when such Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)); provided, further, that
amounts in respect of a Special Termination Advance withdrawn from the Class A Cash Collateral
Account for the purpose of paying interest on the Class A Certificates in accordance with Section
3.5(f) of the Intercreditor Agreement (the amount of any such withdrawal being an
Applied
Special Termination Advance
) shall thereafter (subject to Section 2.06(b)) be treated as an
Interest Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for
interest payable thereon; and provided, further, that if, following the making of a Special
Termination Advance, the Liquidity Provider delivers a Termination Notice to the Borrower pursuant
to Section 6.01, such Special Termination Advance shall thereafter be converted to and treated as a
Final Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for
interest payable thereon and the obligation for repayment thereof and treated as an Applied Special
Termination Advance for purposes of Section 2.6(c) of the Intercreditor Agreement. The Borrower
and the Liquidity Provider agree that the repayment in full of each Interest Advance, the Special
Termination Advance and Final Advance on the date such Advance is made is intended to be a
contemporaneous exchange for new value given to the Borrower by the Liquidity Provider.
Section 2.06
Repayments of Provider Advances
. (a) Amounts advanced hereunder in respect of a
Provider Advance shall be deposited in the Class A Cash Collateral Account, invested and withdrawn
from the Class A Cash Collateral Account as set forth in Sections 3.5(c), (d), (e) and (f) of the
Intercreditor Agreement. Subject to Sections 2.07 and 2.09, the Borrower agrees to pay to the
Liquidity Provider, on each Regular Distribution Date, commencing on the first Regular Distribution
Date after the making of a Provider Advance, interest on the principal amount of any such Provider
Advance as provided in Section 3.07;
provided, however
, that amounts in respect of a
Provider Advance withdrawn from the Class A Cash Collateral Account for the purpose of paying
interest on the Class A Certificates in accordance with Section 3.5(f) of the Intercreditor
Agreement (the amount of any such withdrawal being (y) in the case of a Downgrade Advance, an
Applied Downgrade Advance
and (z) in the case of a Non-Extension Advance, an
Applied
Non-Extension Advance
and, together with an Applied Downgrade Advance, an
Applied
Provider Advance
) shall thereafter (subject to Section 2.06(b)) be treated as an Interest
Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest
payable thereon and the dates on which such interest is payable; provided further, however, that
if, following the making of a Provider Advance, the Liquidity Provider delivers a Termination
Notice to the Borrower pursuant to Section 6.01 hereof, such Provider Advance shall thereafter be
converted to and treated as a
11
[Revolving Credit Agreement (2010-1A)]
Final Advance
under this Agreement for purposes of determining the Applicable Liquidity Rate for interest
payable thereon and the obligation for repayment thereof and treated as an Applied Downgrade
Advance or Applied Non-Extension Advance, as the case may be, for the purposes of Section 2.6(c) of
the Intercreditor Agreement. Subject to Sections 2.07 and 2.09 hereof, immediately upon the
withdrawal of any amounts from the Class A Cash Collateral Account on account of a reduction in the
Required Amount, the Borrower shall repay to the Liquidity Provider a portion of the Provider
Advances in a principal amount equal to the amount of such reduction, plus interest on the
principal amount prepaid as provided in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance or an Applied Special Termination Advance (or
any portion thereof) is outstanding, upon the deposit in the Class A Cash Collateral Account of any
amount pursuant to clause
fourth
of Section 3.2 of the Intercreditor Agreement (any such
amount being a
Replenishment Amount
) for the purpose of replenishing or increasing the
balance thereof up to the amount of the Required Amount at such time, (i) the aggregate outstanding
principal amount of all Applied Provider Advances or the Applied Special Termination Advance (and
of Provider Advances treated as an Interest Advance for purposes of determining the Applicable
Liquidity Rate for interest payable thereon) shall be automatically reduced by the amount of such
Replenishment Amount (if multiple Applied Provider Advances are outstanding, such Replenishment
Amount to be applied in the order in which such Applied Provider Advances have been made, starting
with the earliest) and (ii) the aggregate outstanding principal amount of all Unapplied Provider
Advances or of the Unapplied Special Termination Advance shall be automatically increased by the
amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in replacement of this Agreement in
accordance with Section 3.5(e) of the Intercreditor Agreement, amounts remaining on deposit in the
Class A Cash Collateral Account after giving effect to any Applied Provider Advance or Applied
Special Termination Advance on the date of such replacement shall be reimbursed to the replaced
Liquidity Provider, but only to the extent such amounts are necessary to repay in full to the
replaced Liquidity Provider all amounts owing to it hereunder.
Section 2.07
Payments to the Liquidity Provider Under the Intercreditor Agreement
. In order
to provide for payment or repayment to the Liquidity Provider of any amounts hereunder, the
Intercreditor Agreement provides that amounts available and referred to in Articles II and III of
the Intercreditor Agreement, to the extent payable to the Liquidity Provider pursuant to the terms
of the Intercreditor Agreement (including, without limitation, Section 3.5(f) of the Intercreditor
Agreement), shall be paid to the Liquidity Provider in accordance with the terms thereof. Amounts
so paid to, and not required to be returned by, the Liquidity Provider shall be applied by the
Liquidity Provider to Liquidity Obligations then due and payable in accordance with the
Intercreditor Agreement and shall discharge in full the corresponding obligations of the Borrower
hereunder (or, if not provided for in the Intercreditor Agreement, then in such manner as the
Liquidity Provider shall deem appropriate).
Section 2.08
Book Entries
. The Liquidity Provider shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower resulting from Advances
made from time to time and the amounts of principal and interest payable hereunder and paid from
time to time in respect thereof; provided, however, that the failure by
12
[Revolving Credit Agreement (2010-1A)]
the Liquidity Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.09
Payments from Available Funds Only
. All payments to be made by the Borrower
under this Agreement, including, without limitation, Sections 7.05 and 7.07, shall be made only
from the amounts that constitute Scheduled Payments, Special Payments or payments under Section 8.1
of the Participation Agreements and payments under the Fee Letter and Section 6 of the Note
Purchase Agreement and only to the extent that the Borrower shall have sufficient income or
proceeds therefrom to enable the Borrower to make payments in accordance with the terms hereof
after giving effect to the priority of payments provisions set forth in the Intercreditor
Agreement. The Liquidity Provider agrees that it will look solely to such amounts in respect of
payments to be made by the Borrower hereunder to the extent available for distribution to it as
provided in the Intercreditor Agreement and this Agreement and that the Borrower, in its individual
capacity, is not personally liable to it for any amounts payable or liability under this Agreement
except as expressly provided in this Agreement, the Intercreditor Agreement or any Participation
Agreement. Amounts on deposit in the Class A Cash Collateral Account shall be available to the
Borrower to make payments under this Agreement only to the extent and for the purposes expressly
contemplated in Section 3.5(f) of the Intercreditor Agreement.
Section 2.10
Extension of the Expiry Date; Non-Extension Advance
. If the Liquidity Provider
advises the Borrower before the 25th day prior to the immediately following anniversary date of the
Closing Date (the
Notice Date
) that its obligation to make Advances hereunder shall not be so
extended beyond such anniversary date (and if the Liquidity Provider shall not have been replaced
in accordance with Section 3.5(e) of the Intercreditor Agreement), the Borrower shall be entitled
on and after the Notice Date (but prior to such anniversary date) to request a Non-Extension
Advance in accordance with Section 2.02(b) hereof and Section 3.5(d) of the Intercreditor
Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01
Increased Costs
. The Borrower shall pay to the Liquidity Provider from time to
time such amounts as may be necessary to compensate the Liquidity Provider for any increased costs
incurred by the Liquidity Provider which are attributable to its making or maintaining any Advances
hereunder or its obligation to make any such Advances hereunder, or any reduction in any amount
receivable by the Liquidity Provider under this Agreement or the Intercreditor Agreement in respect
of any such Advances or such obligation (such increases in costs and reductions in amounts
receivable being herein called
Additional Costs
), resulting from any change after the
date of this Agreement in U.S. federal, state, municipal, or foreign laws or regulations (including
Regulation D of the Board of Governors of the Federal Reserve System), or the adoption or making
after the date of this Agreement of any interpretations, directives, or requirements applying to a
class of banks including the Liquidity Provider under any U.S. federal, state, municipal, or any
foreign laws or regulations (whether or not having the
13
[Revolving Credit Agreement (2010-1A)]
force of law) by any court, central bank or monetary authority charged with the interpretation
or administration thereof (a
Regulatory Change
), which: (1) changes the basis of taxation
of any amounts payable to the Liquidity Provider under this Agreement in respect of any such
Advances or such obligation (other than with respect to Excluded Taxes or Indemnified Taxes); or
(2) imposes or modifies any reserve, special deposit, compulsory loan or similar requirements
relating to any extensions of credit or other assets of, or any deposits with other liabilities of,
the Liquidity Provider (including any such Advances or such obligation or any deposits referred to
in the definition of LIBOR Rate or Market Disruption Base Rate or related definitions). For the
avoidance of doubt, any Regulatory Changes based on the consultative papers of The Basel Committee
on Banking Supervision of December 2009 entitled Strengthening the resilience of the banking
sector and International framework for liquidity risk measurement, standards and monitoring, in
each case together with any amendments thereto (collectively,
Basel III
), will not be
treated, for purposes of determining whether the Liquidity Provider is entitled to compensation
under this Section 3.01, as having been adopted or having come into effect before the date hereof,
and any such Regulatory Changes based on Basel III shall be determined to be adopted only when the
national banking supervisory authorities, or other relevant administrative or legislative bodies
having primary jurisdiction or regulatory authority over the Liquidity Provider, adopt any such
Regulatory Changes based on Basel III in the primary jurisdiction of the Liquidity Provider. The
Liquidity Provider agrees to use reasonable efforts (consistent with its internal policies and
applicable legal and regulatory restrictions) to change the jurisdiction of its Facility Office if
making such change would avoid the need for, or reduce the amount of, any amount payable under this
Section that may thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event occurring after the date of this
Agreement that will entitle the Liquidity Provider to compensation pursuant to this Section 3.01 as
promptly as practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation of the amounts owed
under this Section. Determinations by the Liquidity Provider for purposes of this Section 3.01 of
the effect of any Regulatory Change on its costs of making or maintaining Advances or on amounts
receivable by it in respect of Advances, and of the additional amounts required to compensate the
Liquidity Provider in respect of any Additional Costs, shall be prima facie evidence of the amount
owed under this Section.
Notwithstanding the preceding two paragraphs, the Liquidity Provider and the Subordination
Agent agree that any permitted assignee or participant of the initial Liquidity Provider which is
not a bank shall not be entitled to the benefits of the preceding two paragraphs (but without
limiting the provisions of Section 7.08 hereof).
Section 3.02
Capital Adequacy
. If (1) the adoption, after the date hereof, of any applicable
governmental law, rule or regulation regarding capital adequacy or liquidity coverage, (2) any
change, after the date hereof, in the interpretation or administration of any such law, rule or
regulation by any central bank or other governmental authority charged with the interpretation or
administration thereof or (3) compliance by the Liquidity Provider or any corporation or bank
controlling the Liquidity Provider with any applicable guideline or request of general
applicability, issued after the date hereof, by any central bank or other governmental authority
(whether or not having the force of law) that constitutes a change of the nature described in
14
[Revolving Credit Agreement (2010-1A)]
clause (2), has the effect of (x) requiring an increase in the amount of capital required to
be maintained by the Liquidity Provider or any corporation or bank controlling the Liquidity
Provider, or (y) reducing the rate of return on assets or capital of the Liquidity Provider (or
such corporation or bank) and such adoption, change or compliance, as the case may be, relates to a
category of claims or assets that includes the Liquidity Providers obligations hereunder
(including funded obligations) and other similar obligations, the Borrower shall, subject to the
provisions of the next paragraph, pay to the Liquidity Provider from time to time such additional
amount or amounts as are necessary to compensate the Liquidity Provider for such portion of such
increase or reduction as shall be reasonably allocable to the Liquidity Providers obligations to
the Borrower hereunder. For the avoidance of doubt, the adoption of any law, rule or regulation
described in clause (1) of the first sentence of this Section 3.02, and the taking of any action
described in clauses (2) and (3) of such sentence, that in each case is based on Basel III, will
not be treated, for purposes of determining whether the Liquidity Provider (or any corporation or
bank controlling the Liquidity Provider) is entitled to compensation under this Section 3.02, as
having been adopted, come into effect, been issued or been taken before the date hereof, and any
such law, rule or regulation and any of the actions described in clauses (2) and (3) of such
sentence that is based on Basel III shall be determined to have been adopted, come into effect,
been issued or been taken only when the central bank or other legislative or administrative
governmental authorities in the primary jurisdiction of the Liquidity Provider (or any corporation
or bank controlling the Liquidity Provider) adopt any such law, rule or regulation or take any such
actions. The Liquidity Provider agrees to use reasonable efforts (consistent with applicable legal
and regulatory restrictions) to change the jurisdiction of its Facility Office if making such
change would avoid the need for, or reduce the amount of, any amount payable under this Section
that may thereafter accrue and would not, in the reasonable judgment of the Liquidity Provider, be
otherwise materially disadvantageous to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event occurring after the date of this
Agreement that will entitle the Liquidity Provider to compensation pursuant to this Section 3.02 as
promptly as practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation of the amounts owed
under this Section. Determinations by the Liquidity Provider for purposes of this Section 3.02 of
the effect of any increase in the amount of capital required to be maintained by the Liquidity
Provider and of the amount allocable to the Liquidity Providers obligations to the Borrower
hereunder shall be conclusive evidence of the amounts owed under this Section, absent manifest
error.
Notwithstanding the preceding two paragraphs, the Liquidity Provider and the Subordination
Agent agree that any permitted assignee or participant of the initial Liquidity Provider which is
not a bank shall not be entitled to the benefits of the preceding two paragraphs (but without
limiting the provisions of Section 7.08 hereof).
Section 3.03
Payments Free of Deductions
. (a) Unless required by applicable law, all
payments made by the Borrower under this Agreement shall be made free and clear of, and without
reduction for or on account of, any present or future Taxes of any nature whatsoever now or
hereafter imposed, levied, collected, withheld or assessed. If any Taxes are required to be
withheld from any amounts payable to the Liquidity Provider under this Agreement, (i) the
15
[Revolving Credit Agreement (2010-1A)]
Borrower shall within the time prescribed therefor by applicable law pay to the appropriate
governmental or taxing authority the full amount of any such Taxes (and any additional Taxes in
respect of the additional amounts payable under clause (ii) hereof) and make such reports or
returns in connection therewith at the time or times and in the manner prescribed by applicable
law, and (ii) in the case of Taxes, other than Excluded Taxes (such non-excluded Taxes being
referred to herein, collectively, as
Indemnified Taxes
and each, individually, as a
Indemnified Tax
), the amounts so payable to the Liquidity Provider shall be increased to
the extent necessary to yield to the Liquidity Provider (after payment of all Taxes) interest or
any other such amounts payable under this Agreement at the rates or in the amounts specified in
this Agreement. The Liquidity Provider agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the jurisdiction of its Facility
Office if making such change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider. From time to time upon the
reasonable request of the Borrower, the Liquidity Provider agrees to provide to the Borrower two
original Internal Revenue Service Forms (including W-8BEN, W-8ECI or W-9), as appropriate with
respect to the Liquidity Provider, or any successor or other form prescribed by the Internal
Revenue Service, certifying as to any available exemption from or reduction in the rate of United
States withholding tax on payments pursuant to this Agreement. Within 30 days after the date of
each payment hereunder, the Borrower shall furnish to the Liquidity Provider the original or a
certified copy of (or other documentary evidence of) the payment of the Indemnified Taxes
applicable to such payment.
(b) Unless required by applicable law, all payments (including, without limitation, Advances)
made by the Liquidity Provider under this Agreement shall be made free and clear of, and without
reduction for or on account of, any Taxes. If any Taxes are required to be withheld or deducted
from any amounts payable to the Borrower under this Agreement, the Liquidity Provider shall (i)
within the time prescribed therefor by applicable law pay to the appropriate governmental or taxing
authority the full amount of any such Taxes (and any additional Taxes in respect of the additional
amounts payable under clause (ii) hereof) and make such reports or returns in connection therewith
at the time or times and in the manner prescribed by applicable law, and (ii) pay to the Borrower
an additional amount which (after deduction of all such Taxes) will be sufficient to yield to the
Borrower the full amount which would have been received by it had no such withholding or deduction
been made. Within 30 days after the date of each payment hereunder, the Liquidity Provider shall
furnish to the Borrower the original or a certified copy of (or other documentary evidence of) the
payment of the Taxes applicable to such payment.
(c) If any exemption from, or reduction in the rate of, any Taxes is reasonably available to
the Borrower to establish that payments under this Agreement are exempt from (or entitled to a
reduced rate of) tax, the Borrower shall deliver to the Liquidity Provider such form or forms and
such other evidence of the eligibility of the Borrower for such exemption or reduction as the
Liquidity Provider may reasonably identify to the Borrower as being required as a condition to
exemption from, or reduction in the rate of, any Taxes.
Section 3.04
Payments
. The Borrower shall make or cause to be made each payment to the
Liquidity Provider under this Agreement so as to cause the same to be received by the Liquidity
Provider not later than 1:00 P.M. (New York City time) on the day when due. The
16
[Revolving Credit Agreement (2010-1A)]
Borrower shall make all such payments in lawful money of the United States of America, to the
Liquidity Provider in immediately available funds, by wire transfer to the account specified for
the Liquidity Provider in Schedule B or to such other U.S. bank account as the Liquidity Provider
may from time to time direct the Borrower in writing.
Section 3.05
Computations
. All computations of interest based on the Base Rate shall be made
on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest
based on the LIBOR Rate or the Market Disruption Base Rate shall be made on the basis of a year of
360 days, in each case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest is payable.
Section 3.06
Payment on Non-Business Days
. Whenever any payment to be made hereunder to the
Liquidity Provider shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day without any additional interest (and if so made, shall
be deemed to have been made when due). If any payment in respect of interest on an Advance is so
deferred to the next succeeding Business Day, such deferral shall not delay the commencement of the
next Interest Period for such Advance (if such Advance is a LIBOR Advance) or reduce the number of
days for which interest will be payable on such Advance on the next interest payment date for such
Advance.
Section 3.07
Interest
. (a) Subject to Section 2.09, the Borrower shall pay, or shall cause
to be paid, without duplication, interest on (i) the unpaid principal amount of each Advance from
and including the date of such Advance (or, in the case of an Applied Provider Advance or Applied
Special Termination Advance, from and including the date on which the amount thereof was withdrawn
from the Class A Cash Collateral Account to pay interest on the Class A Certificates) to but
excluding the date such principal amount shall be paid in full (or, in the case of an Applied
Provider Advance or Applied Special Termination Advance, the date on which the Class A Cash
Collateral Account is fully replenished in respect of such Advance) and (ii) any other amount due
hereunder (whether fees, commissions, expenses or other amounts or, to the extent permitted by law,
installments of interest on Advances or any such other amount) which is not paid when due (whether
at stated maturity, by acceleration or otherwise) from and including the due date thereof to but
excluding the date such amount is paid in full, in each such case, at a fluctuating interest rate
per annum for each day equal to the Applicable Liquidity Rate (as defined below) for such Advance
or such other amount, as the case may be, as in effect for such day, but in no event at a rate per
annum greater than the maximum rate permitted by applicable law;
provided
,
however
,
that, if at any time the otherwise applicable interest rate as set forth in this Section 3.07 shall
exceed the maximum rate permitted by applicable law, then any subsequent reduction in such interest
rate will not reduce the rate of interest payable pursuant to this Section 3.07 below the maximum
rate permitted by applicable law until the total amount of interest accrued equals the amount of
interest that would have accrued if such otherwise applicable interest rate as set forth in this
Section 3.07 had at all times been in effect.
(b) Except as provided in clause (e) below, each Advance (other than any Unapplied Provider
Advance or Unapplied Special Termination Advance) will be either a Base Rate Advance or a LIBOR
Advance as provided in this Section. Each such Advance will be a Base Rate Advance for the period
from the date of its borrowing to (but excluding) the third Business
17
[Revolving Credit Agreement (2010-1A)]
Day following the Liquidity Providers receipt of the Notice of Borrowing for such Advance.
Thereafter, such Advance shall be a LIBOR Advance.
(c) Each LIBOR Advance shall bear interest during each Interest Period at a rate per annum
equal to the LIBOR Rate for such Interest Period plus the Applicable Margin for such LIBOR Advance,
payable in arrears on the last day of such Interest Period and, in the event of the payment of
principal of such LIBOR Advance on a day other than such last day, on the date of such payment (to
the extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per annum equal to the Base Rate plus
the Applicable Margin for such Base Rate Advance, payable in arrears on each Regular Distribution
Date and, in the event of the payment of principal of such Base Rate Advance on a day other than a
Regular Distribution Date, on the date of such payment (to the extent of interest accrued on the
amount of principal repaid).
(e) Each outstanding Unapplied Non-Extension Advance, Unapplied Downgrade Advance and
Unapplied Special Termination Advance shall bear interest in an amount equal to the Investment
Earnings on amounts on deposit in the Class A Cash Collateral Account plus the Applicable Margin
for such Unapplied Non-Extension Advance, Unapplied Downgrade Advance or Unapplied Special
Termination Advance, as applicable, on the amount of such Unapplied Non-Extension Advance,
Unapplied Downgrade Advance or Unapplied Special Termination Advance from time to time, payable in
arrears on each Regular Distribution Date.
(f) Each amount not paid when due hereunder (whether fees, commissions, expenses or other
amounts or, to the extent permitted by applicable law, installments of interest on Advances but
excluding Advances) shall bear interest at a rate per annum equal to the Base Rate plus 2.00% per
annum until paid.
(g) If at any time, the Liquidity Provider shall have determined (which determination shall be
conclusive and binding upon the Borrower, absent manifest error) that, by reason of circumstances
affecting the relevant interbank lending market generally, the LIBOR Rate determined or to be
determined for the current or the immediately succeeding Interest Period will not adequately and
fairly reflect the cost to the Liquidity Provider (as conclusively certified by the Liquidity
Provider, absent manifest error) of making or maintaining LIBOR Advances, the Liquidity Provider
shall give facsimile or telephonic notice thereof (a
Rate Determination Notice
) to the
Borrower (any such telephonic notice to be promptly confirmed in writing and transmitted by
telecopier to the Borrower in accordance with Section 7.02). Following the receipt of a Rate
Determination Notice by the Borrower, the LIBOR Rate shall be the Market Disruption Base Rate until
the Interest Period that immediately follows the withdrawal of such Rate Determination Notice. The
Liquidity Provider shall withdraw a Rate Determination Notice given hereunder when the Liquidity
Provider determines that the circumstances giving rise to such Rate Determination Notice no longer
apply to the Liquidity Provider.
(h) Each change in the Base Rate shall become effective immediately. The rates of interest
specified in this Section 3.07 with respect to any Advance or other amount shall be referred to as
the
Applicable Liquidity Rate
.
18
[Revolving Credit Agreement (2010-1A)]
Section 3.08
Replacement of Borrower
. From time to time and subject to the successor
Borrowers meeting the eligibility requirements set forth in Section 6.9 of the Intercreditor
Agreement applicable to the Subordination Agent, upon the effective date and time specified in a
written and completed Notice of Replacement Subordination Agent in substantially the form of Annex
VI attached hereto (a
Notice of Replacement Subordination Agent
) delivered to the
Liquidity Provider by the then Borrower, the successor Borrower designated therein shall be
substituted for the Borrower for all purposes hereunder.
Section 3.09
Funding Loss Indemnification
. The Borrower shall pay to the Liquidity Provider,
upon the request of the Liquidity Provider, such amount or amounts as shall be sufficient (in the
reasonable opinion of the Liquidity Provider) to compensate it for any loss, cost, or expense
incurred by reason of the liquidation or redeployment of deposits or other funds acquired by the
Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of anticipated
profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than the last day of the Interest
Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on the date for borrowing
specified in the relevant notice under Section 2.02.
Calculation of all amounts payable to the Liquidity Provider under this Section 3.09 shall be
made as though the Liquidity Provider had actually funded the related LIBOR Advance through the
purchase of a LIBOR deposit bearing interest at the LIBOR Rate in an amount equal to its LIBOR
Advance and having a maturity comparable to the relevant Interest Period; provided however, that
the Liquidity Provider may fund any LIBOR Advance in any manner it sees fit and the foregoing
assumptions shall be utilized only for the purposes of calculating amounts payable under this
Section 3.09.
Section 3.10
Illegality
. Notwithstanding any other provision in this Agreement, if any change
in any applicable law, rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Liquidity Provider (or its Facility
Office) with any request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or impossible for the Liquidity
Provider (or its Facility Office) to maintain or fund its LIBOR Advances, then upon notice to the
Borrower by the Liquidity Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity Provider, if such
change or compliance with such request, in the judgment of the Liquidity Provider, requires
immediate repayment; or (b) at the expiration of the last Interest Period to expire before the
effective date of any such change or request. The Liquidity Provider agrees to use reasonable
efforts (consistent with its internal policies and applicable legal and regulatory restrictions) to
change the jurisdiction of its Facility Office if making such change would avoid or cure the
aforesaid illegality and would not, in the reasonable judgment of the Liquidity Provider, be
otherwise disadvantageous to the Liquidity Provider.
19
[Revolving Credit Agreement (2010-1A)]
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01
Conditions Precedent to Effectiveness of Section 2.01
. Section 2.01 of this
Agreement shall become effective on and as of the first date (the
Effective Date
) on
which the following conditions precedent have been satisfied or waived:
(a) The Liquidity Provider shall have received each of the following, and in the case of each
document delivered pursuant to paragraphs (i), (ii) and (iii), each in form and substance
satisfactory to the Liquidity Provider:
(i) This Agreement duly executed on behalf of the Borrower and the Fee Letter applicable to
this Agreement duly executed on behalf of the Borrower and US Airways;
(ii) The Intercreditor Agreement duly executed on behalf of each of the parties thereto (other
than the Liquidity Provider);
(iii) Fully executed copies of each of the Operative Agreements executed and delivered on or
before the Closing Date (other than this Agreement, the Fee Letter and the Intercreditor
Agreement);
(iv) A copy of the Prospectus Supplement and specimen copies of the Class A Certificates;
(v) An executed copy of each document, instrument, certificate and opinion delivered on or
before the Closing Date pursuant to the Class A Trust Agreement, the Note Purchase Agreement, the
Intercreditor Agreement and the other Operative Agreements (in the case of each such opinion, other
than the opinion of counsel for the Underwriters, either addressed to the Liquidity Provider or
accompanied by a letter from the counsel rendering such opinion to the effect that the Liquidity
Provider is entitled to rely on such opinion as of its date as if it were addressed to the
Liquidity Provider);
(vi) Evidence that there shall have been made and shall be in full force and effect, all
filings, recordings and/or registrations, and there shall have been given or taken any notice or
other similar action as may be reasonably necessary or, to the extent reasonably requested by the
Liquidity Provider, reasonably advisable, in order to establish, perfect, protect and preserve the
right, title and interest, remedies, powers, privileges, liens and security interests of, or for
the benefit of, the Trustees, the Borrower and the Liquidity Provider created by the Operative
Agreements executed and delivered on or before the Closing Date;
(vii) An agreement from US Airways, pursuant to which (i) US Airways agrees to provide to the
Liquidity Provider (A) within 90 days after the end of each of the first three fiscal quarters in
each fiscal year of US Airways, a consolidated balance sheet of US Airways as of the end of such
quarter and related statements of income and cash flows for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding period in the preceding fiscal
year, prepared in accordance with GAAP; provided, that so long as
20
[Revolving Credit Agreement (2010-1A)]
US Airways is subject to the reporting requirements of the Securities Exchange Act of 1934, as
amended, a copy of US Airwayss report on Form 10-Q for such fiscal quarter (excluding exhibits) or
a written notice of US Airways that such report has been filed with the Securities and Exchange
Commission, providing a website address at which such report may be accessed and confirming that
the report accessible at such website address conforms to the original report filed with the
Securities and Exchange Commission will satisfy this subclause (A), and (B) within 120 days after
the end of each fiscal year of US Airways, a consolidated balance sheet of US Airways as of the end
of such fiscal year and related statements of income and cash flows of US Airways for such fiscal
year, in comparative form with the preceding fiscal year, prepared in accordance with GAAP,
together with a report of US Airwayss independent certified public accountants with respect to
their audit of such financial statements; provided, that so long as US Airways is subject to the
reporting requirements of the Securities Exchange Act of 1934, as amended, a copy of US Airwayss
report on Form 10-K for such fiscal year (excluding exhibits) or a written notice of US Airways
that such report has been filed with the Securities and Exchange Commission, providing a website
address at which such report may be accessed and confirming that the report accessible at such
website address conforms to the original report filed with the Securities and Exchange Commission
will satisfy this subclause (B), and (ii) US Airways agrees to allow the Liquidity Provider to
inspect US Airwayss books and records regarding such transactions, and to discuss such
transactions with officers and employees of US Airways;
(viii) Legal opinions from (a) Morris James LLP, special counsel to the Borrower, and (b)
Latham & Watkins LLP, special counsel to US Airways, each in form and substance reasonably
satisfactory to the Liquidity Provider; and
(ix) Such other documents, instruments, opinions and approvals pertaining to the transactions
contemplated hereby or by the other Operative Agreements as the Liquidity Provider shall have
reasonably requested, including, without limitation, such documentation as the Liquidity Provider
may require to satisfy its know your customer policies.
(b) The following statement shall be true on and as of the Effective Date: no event has
occurred and is continuing, or would result from the entering into of this Agreement or the making
of any Advance, which constitutes a Liquidity Event of Default.
(c) The Liquidity Provider shall have received payment in full of all fees and other sums
required to be paid to or for the account of the Liquidity Provider on or prior to the Effective
Date.
(d) All conditions precedent to the issuance of the Certificates under the Trust Agreements
shall have been satisfied or waived, all conditions precedent to the effectiveness of the other
Liquidity Facility shall have been concurrently satisfied or waived, and all conditions precedent
to the purchase of the Class A Certificates and the Class B Certificates by the Underwriters under
the Underwriting Agreement shall have been satisfied or waived.
(e) The Borrower shall have received a certificate, dated the date hereof, signed by a duly
authorized representative of the Liquidity Provider, certifying that all conditions precedent to
the effectiveness of Section 2.01 have been satisfied or waived.
21
[Revolving Credit Agreement (2010-1A)]
Section 4.02
Conditions Precedent to Borrowing
. The obligation of the Liquidity Provider to
make an Advance on the occasion of each Borrowing shall be subject to the conditions precedent that
the Effective Date shall have occurred and, on or prior to the date of such Borrowing, the Borrower
shall have delivered a Notice of Borrowing which conforms to the terms and conditions of this
Agreement and has been completed as may be required by the relevant form of the Notice of Borrowing
for the type of Advance requested.
Section 4.03
Representations and Warranties
. The representations and warranties of the
Borrower as Subordination Agent in Section 5.2 of the Participation Agreements shall be deemed to
be incorporated into this Agreement as if set out in full herein and as if such representations and
warranties were made by the Borrower to the Liquidity Provider as of the date hereof.
ARTICLE V
COVENANTS
Section 5.01
Affirmative Covenants of the Borrower
. So long as any Advance shall remain
unpaid or the Liquidity Provider shall have any Maximum Commitment hereunder or the Borrower shall
have any obligation to pay any amount to the Liquidity Provider hereunder, the Borrower will,
unless the Liquidity Provider shall otherwise consent in writing:
(a)
Performance of this and Other Agreements
. Punctually pay or cause to be paid all
amounts payable by it under this Agreement and the other Operative Agreements and observe and
perform in all material respects the conditions, covenants and requirements applicable to it
contained in this Agreement and the other Operative Agreements.
(b)
Reporting Requirements
. Furnish to the Liquidity Provider with reasonable
promptness, such information and data with respect to the transactions contemplated by the
Operative Agreements as from time to time may be reasonably requested by the Liquidity Provider;
and permit the Liquidity Provider, upon reasonable notice, to inspect the Borrowers books and
records with respect to such transactions and to meet with officers and employees of the Borrower
to discuss such transactions.
(c)
Certain Operative Agreements
. Furnish to the Liquidity Provider with reasonable
promptness, such Operative Agreements entered into after the date hereof as from time to time may
be reasonably requested by the Liquidity Provider.
Section 5.02
Negative Covenants of the Borrower
. So long as any Advance shall remain unpaid
or the Liquidity Provider shall have any Maximum Commitment hereunder or the Borrower shall have
any obligation to pay any amount to the Liquidity Provider hereunder, the Borrower will not appoint
or permit or suffer to be appointed any successor Borrower without the prior written consent of the
Liquidity Provider, which consent shall not be unreasonably withheld or delayed.
22
[Revolving Credit Agreement (2010-1A)]
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT AND SPECIAL TERMINATION
Section 6.01
Liquidity Events of Default
. If (a) any Liquidity Event of Default has occurred
and is continuing and (b) there is a Performing Note Deficiency, the Liquidity Provider may, in its
discretion, deliver to the Borrower a Termination Notice, the effect of which shall be to cause (i)
the obligation of the Liquidity Provider to make Advances hereunder to expire on the fifth Business
Day after the date on which such Termination Notice is received by the Borrower, (ii) the Borrower
to promptly request, and the Liquidity Provider to promptly make, a Final Advance in accordance
with Section 2.02(d) hereof and Section 3.5(i) of the Intercreditor Agreement, (iii) all other
outstanding Advances to be automatically converted into Final Advances for purposes of determining
the Applicable Liquidity Rate for interest payable thereon, and (iv) subject to Sections 2.07 and
2.09 hereof, all Advances (including, without limitation, any Provider Advance and Applied Provider
Advance), any accrued interest thereon and any other amounts outstanding hereunder to become
immediately due and payable to the Liquidity Provider.
Section 6.02
Special Termination
. If the aggregate Pool Balance of the Class A Certificates
is greater than the aggregate outstanding principal amount of the Series A Equipment Notes (other
than any Series A Equipment Notes previously sold or with respect to which the collateral securing
such Series A Equipment Notes has been disposed of) at any time during the 18 month period prior to
April 22, 2023 the Liquidity Provider may, in its discretion, deliver to the Borrower a Special
Termination Notice, the effect of which shall be to cause (i) the obligation of the Liquidity
Provider to make Advances hereunder to expire on the fifth Business Day after the date on which
such Special Termination Notice is received by the Borrower, (ii) the Borrower to promptly request,
and the Liquidity Provider to promptly make, a Special Termination Advance in accordance with
Section 2.02(g) and Section 3.5(m) of the Intercreditor Agreement, and (iii) subject to Sections
2.07 and 2.09, all Advances (including, without limitation, any Provider Advance and Applied
Provider Advance), any accrued interest thereon and any other amounts outstanding hereunder to
become immediately due and payable to the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01
Amendments, Etc
. No amendment or waiver of any provision of this Agreement, nor
consent to any departure by the Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Liquidity Provider, and, in the case of an amendment or of a
waiver by the Borrower, the Borrower, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Section 7.02
Notices, Etc
. Except as otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including telecopier and mailed or
delivered or sent by telecopier) addressed to the applicable party at its address
23
[Revolving Credit Agreement (2010-1A)]
specified on Schedule B or to such other address as shall be designated by such Person in a
written notice to the others. The Borrower shall give all Notices of Borrowing via telecopier;
provided
, that, in the event of a transmission failure, the Borrower shall use reasonable
efforts to deliver the applicable Notice of Borrowing to the Liquidity Provider on the same
Business Day using such other means as may be reasonably deemed necessary by the Borrower. All
such notices and communications shall be effective (i) if given by telecopier, when transmitted to
the telecopier number specified above, (ii) if given by mail, five Business Days after being
deposited in the mails addressed as specified above, and (iii) if given by other means, when
delivered at the address specified above, except that written notices to the Liquidity Provider
pursuant to the provisions of Article II and Article III hereof shall not be effective until
received by the Liquidity Provider. A copy of all notices delivered hereunder to either party
shall in addition be delivered to each of the parties to the Participation Agreements at their
respective addresses set forth therein.
Section 7.03
No Waiver; Remedies
. No failure on the part of the Liquidity Provider to
exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise of any right under this Agreement preclude any
other or further exercise thereof or the exercise of any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
Section 7.04
Further Assurances
. The Borrower agrees to do such further acts and things and
to execute and deliver to the Liquidity Provider such additional assignments, agreements, powers
and instruments as the Liquidity Provider may reasonably require or deem advisable to carry into
effect the purposes of this Agreement and the other Operative Agreements or to better assure and
confirm unto the Liquidity Provider its rights, powers and remedies hereunder and under the other
Operative Agreements.
Section 7.05
Indemnification; Survival of Certain Provisions
. The Liquidity Provider shall be
indemnified hereunder to the extent and in the manner described in Section 8.1 of the Participation
Agreements. In addition, the Borrower agrees to indemnify, protect, defend and hold harmless the
Liquidity Provider from, against and in respect of, and shall pay on demand, all Expenses of any
kind or nature whatsoever (other than any Expenses of the nature described in Section 3.01, 3.02 or
7.07 hereof or in the Fee Letter applicable to this Agreement (regardless of whether indemnified
against pursuant to said Sections or in such Fee Letter)), that may be imposed, incurred by or
asserted against any Liquidity Indemnitee, in any way relating to, resulting from, or arising out
of or in connection with any action, suit or proceeding by any third party against such Liquidity
Indemnitee and relating to this Agreement, the Fee Letter, the Intercreditor Agreement or any
Financing Agreement;
provided
,
however
, that the Borrower shall not be required to
indemnify, protect, defend and hold harmless any Liquidity Indemnitee in respect of any Expense of
such Liquidity Indemnitee to the extent such Expense is (i) attributable to the gross negligence or
willful misconduct of such Liquidity Indemnitee or any other Liquidity Indemnitee, (ii) ordinary
and usual operating overhead expense, or (iii) attributable to the failure by such Liquidity
Indemnitee or any other Liquidity Indemnitee to perform or observe any agreement, covenant or
condition on its part to be performed or observed in this Agreement, the Intercreditor Agreement,
the Fee Letter applicable to this Agreement or any other Operative Agreement to which it is a
party. The indemnities contained in Section 8.1
24
[Revolving Credit Agreement (2010-1A)]
of the Participation Agreements, and the provisions of Sections 3.01, 3.02, 3.03, 3.09, 7.05
and 7.07 hereof, shall survive the termination of this Agreement.
Section 7.06
Liability of the Liquidity Provider
. (a) Neither the Liquidity Provider nor any
of its officers, employees, directors or Affiliates shall be liable or responsible for: (i) the
use which may be made of the Advances or any acts or omissions of the Borrower or any beneficiary
or transferee in connection therewith; (ii) the validity, sufficiency or genuineness of documents,
or of any endorsement thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; or (iii) the making of Advances by the Liquidity
Provider against delivery of a Notice of Borrowing and other documents which do not comply with the
terms hereof;
provided
,
however
, that the Borrower shall have a claim against the
Liquidity Provider, and the Liquidity Provider shall be liable to the Borrower, to the extent of
any damages suffered by the Borrower which were the result of (A) the Liquidity Providers willful
misconduct or negligence in determining whether documents presented hereunder comply with the terms
hereof, or (B) any breach by the Liquidity Provider of any of the terms of this Agreement or the
Intercreditor Agreement, including, but not limited to, the Liquidity Providers failure to make
lawful payment hereunder after the delivery to it by the Borrower of a Notice of Borrowing strictly
complying with the terms and conditions hereof. In no event, however, shall the Liquidity Provider
be liable on any theory of liability for any special, indirect, consequential or punitive damages
(including, without limitation, any loss of profits, business or anticipated savings).
(b) Neither the Liquidity Provider nor any of its officers, employees, directors or Affiliates
shall be liable or responsible in any respect for (i) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however transmitted, in connection
with this Agreement or any Notice of Borrowing delivered hereunder, or (ii) any action, inaction or
omission which may be taken by it in good faith, absent willful misconduct or gross negligence (in
which event the extent of the Liquidity Providers potential liability to the Borrower shall be
limited as set forth in the immediately preceding paragraph), in connection with this Agreement or
any Notice of Borrowing.
Section 7.07
Costs, Expenses and Taxes
. The Borrower agrees to pay, or cause to be paid (A)
on the Effective Date and on such later date or dates on which the Liquidity Provider shall make
demand, all reasonable out-of-pocket costs and expenses (including, without limitation, the
reasonable fees and expenses of outside counsel for the Liquidity Provider) of the Liquidity
Provider in connection with the preparation, negotiation, execution, delivery, filing and recording
of this Agreement, any other Operative Agreement and any other documents which may be delivered in
connection with this Agreement and (B) on demand, all reasonable costs and expenses (including
reasonable counsel fees and expenses) of the Liquidity Provider in connection with (i) the
enforcement of this Agreement or any other Operative Agreement, (ii) the modification or amendment
of, or supplement to, this Agreement or any other Operative Agreement or such other documents which
may be delivered in connection herewith or therewith (whether or not the same shall become
effective) or any waiver or consent thereunder (whether or not the same shall be effective), (iii)
the replacement of this Agreement by a Replacement Liquidity Facility pursuant to Section 3.5(e)(i)
of the Intercreditor Agreement or (iv) any action or proceeding relating to any order, injunction,
or other process or decree restraining or seeking to restrain the Liquidity Provider from paying
any amount under this Agreement, the
25
[Revolving Credit Agreement (2010-1A)]
Intercreditor Agreement or any other Operative Agreement or otherwise affecting the
application of funds in the Class A Cash Collateral Account. In addition, the Borrower shall pay
any and all recording, stamp and other similar taxes and fees payable or determined to be payable
in connection with the execution, delivery, filing and recording of this Agreement, any other
Operative Agreement and such other documents, and agrees to hold the Liquidity Provider harmless
from and against any and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes or fees.
Section 7.08
Binding Effect; Participations
. (a) This Agreement shall be binding upon and
inure to the benefit of the Borrower and the Liquidity Provider and their respective successors and
assigns, except that neither the Liquidity Provider (except as otherwise provided in this Section
7.08 and in Section 3.5(l) of the Intercreditor Agreement) nor (except as contemplated by Section
3.08) the Borrower shall have the right to assign its rights or obligations hereunder or any
interest herein without the prior written consent of the other party, subject to the requirements
of Section 7.08(b). The Liquidity Provider may grant participations herein or in any of its rights
hereunder (including, without limitation, funded participations and participations in rights to
receive interest payments hereunder) and under the other Operative Agreements to such Persons
(other than US Airways and its Affiliates) as the Liquidity Provider may in its sole discretion
select, subject to the requirements of Section 7.08(b). No such granting of participations by the
Liquidity Provider, however, will relieve the Liquidity Provider of its obligations hereunder. In
connection with any participation or any proposed participation, the Liquidity Provider may
disclose to the participant or the proposed participant any information that the Borrower is
required to deliver or to disclose to the Liquidity Provider pursuant to this Agreement. The
Borrower acknowledges and agrees that the Liquidity Providers source of funds may derive in part
from its participants. Accordingly, references in this Agreement and the other Operative
Agreements to determinations, reserve, capital adequacy and liquidity coverage requirements,
increased costs, reduced receipts, additional amounts due pursuant to Section 3.03 and the like as
they pertain to the Liquidity Provider shall be deemed also to include those of each of its
participants that are banks (subject, in each case, to the maximum amount that would have been
incurred by or attributable to the Liquidity Provider directly if the Liquidity Provider, rather
than the participant, had held the interest participated).
(b) If, pursuant to subsection (a) above, the Liquidity Provider sells any participation in
this Agreement to any bank or other entity (each, a
Transferee
), the Transferee shall not
be entitled to receive any greater payment under Section 3.01, 3.02 or 3.03 than the Liquidity
Provider would have been entitled to receive with respect to the participation sold to such
Transferee. A Transferee shall not be entitled to the benefits of Section 3.03 unless the Borrower
and US Airways is notified of the participation sold to such Transferee and such Transferee agrees,
for the benefit of the Borrower, to comply with the certification requirements of Section 3.03 as
though it were the Liquidity Provider. Unless the Borrower has received forms or other documents
reasonably satisfactory to it (and required by applicable law) indicating that payments hereunder
are not subject to United States federal withholding tax, the Borrower will withhold taxes as
required by law from such payments at the applicable statutory rate.
(c) Notwithstanding the other provisions of this Section 7.08, the Liquidity Provider may
assign and pledge all or any portion of the Advances owing to it to any Federal Reserve Bank or the
United States Treasury as collateral security pursuant to Regulation A of the Board
26
[Revolving Credit Agreement (2010-1A)]
of Governors of the Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank, provided that any payment in respect of such assigned Advances made by the Borrower
to the Liquidity Provider in accordance with the terms of this Agreement shall satisfy the
Borrowers obligations hereunder in respect of such assigned Advance to the extent of such payment.
No such assignment shall release the Liquidity Provider from its obligations hereunder.
Section 7.09
Severability
. Any provision of this Agreement which is prohibited, unenforceable
or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition, unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such provision in any
other jurisdiction.
Section 7.10
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.11
Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity
. (a) Each
of the parties hereto hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or proceeding relating to this
Agreement or any other Operative Agreement, or for recognition and enforcement of any judgment in
respect hereof or thereof, to the nonexclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District of New York, and the
appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in such courts, and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of mail),
postage prepaid, to each party hereto at its address set forth in Section 7.02 hereof, or at such
other address of which the Liquidity Provider shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort claims, breach of duty
claims and all other common law and statutory claims. The Borrower and the Liquidity Provider each
warrant and represent that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its
27
[Revolving Credit Agreement (2010-1A)]
jury trial rights following consultation with such legal counsel. THIS WAIVER IS IRREVOCABLE,
AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 7.12
Execution in Counterparts
. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13
Entirety
. This Agreement, the Intercreditor Agreement and the other Operative
Agreements to which the Liquidity Provider is a party constitute the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all prior understandings
and agreements of such parties.
Section 7.14
Headings
. Section headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any other purpose.
Section 7.15
Transfer
. The Liquidity Provider hereby acknowledges and consents to the
Transfer contemplated by the Assignment and Assumption Agreement.
Section 7.16
LIQUIDITY PROVIDERS OBLIGATION TO MAKE ADVANCES
. EXCEPT AS EXPRESSLY SET FORTH
IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE
BORROWERS RIGHTS TO DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER,
SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE STRICTLY IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
Section 7.17
Patriot Act
. The Liquidity Provider hereby notifies the Borrower that pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107 56 (signed into law October
26, 2001) (the Act), the Liquidity Provider is required to obtain, verify and record, and the
Borrower shall provide to the Liquidity Provider upon request, information that identifies the
Borrower, which information includes the name and address of the Borrower and other information
that will allow the Liquidity Provider to identify the Borrower in accordance with the Act and such
other information as the Liquidity Provider may reasonably request to satisfy its know your
customer policies.
28
[Revolving Credit Agreement (2010-1A)]
IN WITNESS WHEREOF
, the parties have caused this Agreement to be duly executed and delivered
by their respective officers thereunto duly authorized as of the date first set forth above.
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WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as agent and trustee for the Class A Trust,
as Borrower
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By:
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/s/ Adam Vogelsong
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Name: Adam Vogelsong
Title: Senior Financial Services Officer
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MORGAN STANLEY BANK, N.A.
,
as Liquidity Provider
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By:
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/s/ Ryan Vetsch
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Name: Ryan Vetsch
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Title: Authorized Signatory
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[Revolving Credit Agreement (2010-1A)]
SCHEDULE A
TO
REVOLVING CREDIT AGREEMENT
CERTAIN ECONOMIC TERMS
1. Applicable Margin: with respect to any Unpaid Advance (including, without limitation, any
Applied Special Termination Advance but excluding any Unapplied Special Termination Advance) or
Applied Provider Advance: 4.00% per annum.
2. Initial Expiry Date: December 21, 2011.
3. Liquidity Event of Default Delivery Period threshold: $145,000,000.
4. Initial Maximum Commitment: $24,642,844.
5. Prospectus Supplement date: December 15, 2010.
SCHEDULE A
Page 1
[Revolving Credit Agreement (2010-1A)]
SCHEDULE B
TO
REVOLVING CREDIT AGREEMENT
ADMINISTRATION DETAILS
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Borrower
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WILMINGTON TRUST COMPANY
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Address:
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1100 North Market Square
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Wilmington, DE 19890-1605
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Attention: Corporate Capital Market Services
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Telephone: (302) 636-6296
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Telecopy: (302) 636-4140
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Liquidity Provider
:
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MORGAN STANLEY BANK, N.A.,
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Address:
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1 Pierrepont Plaza, 7
th
Floor
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Brooklyn, NY 11201
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Attention: Sean Marshall
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Telephone: (718) 754-2095
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Telecopy: (212) 507-6680
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Account Details:
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Citibank, N.A., New York, NY 10043
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ABA No. 021 000 089
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Account Name: Morgan Stanley Bank, NA
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Account #: 3044-0947
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Reference to: US Airways 2010-1A EETC
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Attn: Morgan Stanley Loan Servicing
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SCHEDULE B
Page 1
[Revolving Credit Agreement (2010-1A)]
ANNEX I
TO
REVOLVING CREDIT AGREEMENT
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower (the
Borrower
), hereby certifies to Morgan Stanley, N.A. (the
Liquidity Provider
),
with reference to the Revolving Credit Agreement (2010-1A) dated as of December 21, 2010, between
the Borrower and the Liquidity Provider (the
Liquidity Agreement
; the terms defined
therein and not otherwise defined herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the making of an Interest
Advance by the Liquidity Provider to be used, subject to clause (3)(v) below, for the
payment of interest on the Class A Certificates which was payable on ____________, ____
(the
Distribution Date
) in accordance with the terms and provisions of the Class A
Trust Agreement and the Class A Certificates, which Advance is requested to be made on
[____________, ____]
1
. The Interest Advance should be transferred to [name of
bank/wire instructions/ABA number] in favor of account number [ ], reference [ ].
(3) The amount of the Interest Advance requested hereby (i) is $[_____________], to be
applied in respect of the payment of the interest which was due and payable on the Class A
Certificates on the Distribution Date, (ii) does not include any amount with respect to the
payment of principal of, or premium on, the Class A Certificates, or principal of, or
interest or premium on, the Class B Certificates or any Additional Certificates, (iii) was
computed in accordance with the provisions of the Class A Certificates, the Liquidity
Agreement, the Class A Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), (iv) does not exceed the Maximum Available
Commitment on the date hereof, (v) does not include any amount of interest which was due and
payable on the Class A Certificates on such Distribution Date but which remains unpaid due
to the failure of the Depositary to pay any amount of accrued interest on the Deposits on
such Distribution Date and (vi) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
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1
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If a Notice of Borrowing will be delivered
prior to 1:00 p.m. (New York City time) on a Business Day, insert the date of
the Notice of Borrowing. If a Notice of Borrowing will be delivered after 1:00
p.m. (New York City time) on a Business Day or on a day that is not a Business
Day, insert the first Business Day after the date of the Notice of Borrowing.
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ANNEX I
Page 1
[Revolving Credit Agreement (2010-1A)]
(4) Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the Borrower will apply the same in accordance with the terms of Section
3.5(b) of the Intercreditor Agreement, (b) no portion of such amount shall be applied
by the Borrower for any other purpose and (c) no portion of such amount until so applied
shall be commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, the making of the
Interest Advance as requested by this Notice of Borrowing shall automatically reduce, subject to
reinstatement in accordance with the terms of the Liquidity Agreement, the Maximum Available
Commitment by an amount equal to the amount of the Interest Advance requested to be made hereby as
set forth in clause (i) of paragraph (3) of this Notice of Borrowing and such reduction shall
automatically result in corresponding reductions in the amounts available to be borrowed pursuant
to a subsequent Advance.
ANNEX I
Page 2
[Revolving Credit Agreement (2010-1A)]
IN WITNESS WHEREOF
, the Borrower has executed and delivered this Notice of Borrowing as of the
____ day of _________, ___.
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WILMINGTON TRUST
COMPANY,
not
in its individual capacity but solely as
Subordination Agent, as Borrower
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By:
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Name:
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Title:
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ANNEX I
Page 3
[Revolving Credit Agreement (2010-1A)]
SCHEDULE I
TO
INTEREST ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Interest Advance Notice of Borrowing]
ANNEX I
Page 4
[Revolving Credit Agreement (2010-1A)]
ANNEX II
TO
REVOLVING CREDIT AGREEMENT
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower (the
Borrower
), hereby certifies to Morgan Stanley Bank, N.A. (the
Liquidity
Provider
), with reference to the Revolving Credit Agreement (2010-1A) dated as of December 21,
2010, between the Borrower and the Liquidity Provider (the
Liquidity Agreement
; the terms
defined therein and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the making of the
Non-Extension Advance by the Liquidity Provider to be used for the funding of the Class A
Cash Collateral Account in accordance with Section 3.5(d) of the Intercreditor Agreement,
which Advance is requested to be made on [__________, ____]
2
. The Non-Extension
Advance should be transferred to [name of bank/wire instructions/ABA number] in favor of
account number [ ], reference [ ].
(3) The amount of the Non-Extension Advance requested hereby (i) is $______________.__,
which equals the Maximum Available Commitment on the date hereof and is to be applied in
respect of the funding of the Class A Cash Collateral Account in accordance with Section
3.5(d) of the Intercreditor Agreement, (ii) does not include any amount with respect to the
payment of the principal of, or premium on, the Class A Certificates, or principal of, or
interest or premium on, the Class B Certificates or any Additional Certificates, (iii) was
computed in accordance with the provisions of the Class A Certificates, the Liquidity
Agreement, the Class A Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not been and is not the subject
of a prior or contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the Borrower will deposit such amount in the Class A Cash Collateral Account and apply the
same in accordance with the terms of Section 3.5(d) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other funds held by the
Borrower.
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2
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If a Notice of Borrowing will be delivered
prior to 1:00 p.m. (New York City time) on a Business Day, insert the date of
the Notice of Borrowing. If a Notice of Borrowing will be delivered after 1:00
p.m. (New York City time) on a Business Day or on a day that is not a Business
Day, insert the first Business Day after the date of the Notice of Borrowing.
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ANNEX II
Page 1
[Revolving Credit Agreement (2010-1A)]
The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of
the Non-Extension Advance as requested by this Notice of Borrowing shall automatically and
irrevocably terminate the obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider of the Non-Extension
Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to request any
further Advances under the Liquidity Agreement.
ANNEX II
Page 2
[Revolving Credit Agreement (2010-1A)]
IN WITNESS WHEREOF
, the Borrower has executed and delivered this Notice of Borrowing as of the
____ day of _________, ___.
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WILMINGTON TRUST COMPANY,
not
in its individual capacity but solely as
Subordination Agent, as Borrower
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By:
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Name:
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Title:
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ANNEX II
Page 3
[Revolving Credit Agreement (2010-1A)]
SCHEDULE I
TO
NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Non-Extension Advance Notice of Borrowing]
ANNEX II
Page 4
[Revolving Credit Agreement (2010-1A)]
ANNEX III
TO
REVOLVING CREDIT AGREEMENT
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower (the
Borrower
), hereby certifies to Morgan Stanley Bank, N.A. (the
Liquidity
Provider
), with reference to the Revolving Credit Agreement (2010-1A) dated as of December 21,
2010, between the Borrower and the Liquidity Provider (the
Liquidity Agreement
; the terms
defined therein and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the making of the Downgrade
Advance by the Liquidity Provider to be used for the funding of the Class A Cash Collateral
Account in accordance with Section 3.5(c) of the Intercreditor Agreement by reason of the
occurrence of a Downgrade Event, which Advance is requested to be made on [__________,
____]
3
. The Downgrade Advance should be transferred to [name of bank/wire
instructions/ABA number] in favor of account number [ ], reference [ ].
(3) The amount of the Downgrade Advance requested hereby (i) is $______________.__,
which equals the Maximum Available Commitment on the date hereof and is to be applied in
respect of the funding of the Class A Cash Collateral Account in accordance with Section
3.5(c) of the Intercreditor Agreement, (ii) does not include any amount with respect to the
payment of the principal of, or premium on, the Class A Certificates, or principal of, or
interest or premium on, the Class B Certificates or any Additional Certificates, (iii) was
computed in accordance with the provisions of the Class A Certificates, the Liquidity
Agreement, the Class A Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not been and is not the subject
of a prior or contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the Borrower will deposit such amount in the Class A Cash Collateral Account and apply the
same in accordance with the terms of Section 3.5(c) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower
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3
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If a Notice of Borrowing will be delivered
prior to 1:00 p.m. (New York City time) on a Business Day, insert the date of
the Notice of Borrowing. If a Notice of Borrowing will be delivered after 1:00
p.m. (New York City time) on a Business Day or on a day that is not a Business
Day, insert the first Business Day after the date of the Notice of Borrowing.
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ANNEX III
Page 1
[Revolving Credit Agreement (2010-1A)]
for any other purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of
the Downgrade Advance as requested by this Notice of Borrowing shall automatically and irrevocably
terminate the obligation of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity Provider of the Downgrade Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to request any further
Advances under the Liquidity Agreement.
ANNEX III
Page 2
[Revolving Credit Agreement (2010-1A)]
IN WITNESS WHEREOF
, the Borrower has executed and delivered this Notice of Borrowing as of the
____ day of _________, ___.
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WILMINGTON TRUST COMPANY,
not
in its individual capacity but solely as
Subordination Agent, as Borrower
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By:
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Name:
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Title:
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ANNEX III
Page 3
[Revolving Credit Agreement (2010-1A)]
SCHEDULE I
TO
DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Downgrade Advance Notice of Borrowing]
ANNEX III
Page 4
[Revolving Credit Agreement (2010-1A)]
ANNEX IV
TO
REVOLVING CREDIT AGREEMENT
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower (the
Borrower
), hereby certifies to Morgan Stanley Bank, N.A. (the
Liquidity
Provider
), with reference to the Revolving Credit Agreement (2010-1A) dated as of December 21,
2010, between the Borrower and the Liquidity Provider (the
Liquidity Agreement
; the terms
defined therein and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the making of the Final
Advance by the Liquidity Provider to be used for the funding of the Class A Cash Collateral
Account in accordance with Section 3.5(i) of the Intercreditor Agreement by reason of the
receipt by the Borrower of a Termination Notice from the Liquidity Provider with respect to
the Liquidity Agreement, which Advance is requested to be made on [____________,
____]
4
. The Final Advance should be transferred to [name of bank/wire
instructions/ABA number] in favor of account number [ ], reference [ ].
(3) The amount of the Final Advance requested hereby (i) is $________________.__, which
equals the Maximum Available Commitment on the date hereof and is to be applied in respect
of the funding of the Class A Cash Collateral Account in accordance with Section 3.5(i) of
the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of
principal of, or premium on, the Class A Certificates, or principal of, or interest or
premium on, the Class B Certificates or any Additional Certificates, (iii) was computed in
accordance with the provisions of the Class A Certificates, the Liquidity Agreement, the
Class A Trust Agreement and the Intercreditor Agreement (a copy of which computation is
attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the Borrower will deposit such amount in the Class A Cash Collateral Account and apply the
same in accordance with the terms of Section 3.5(i) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower
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4
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If a Notice of Borrowing will be delivered
prior to 1:00 p.m. (New York City time) on a Business Day, insert the date of
the Notice of Borrowing. If a Notice of Borrowing will be delivered after 1:00
p.m. (New York City time) on a Business Day or on a day that is not a Business
Day, insert the first Business Day after the date of the Notice of Borrowing.
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ANNEX IV
Page 1
[Revolving Credit Agreement (2010-1A)]
for any other purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested hereby be a Base Rate
Advance [and that such Base Rate Advance be converted into a LIBOR Advance on the third
Business Day following your receipt of this notice.]
The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of
the Final Advance as requested by this Notice of Borrowing shall automatically and irrevocably
terminate the obligation of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity Provider of the Final Advance requested by
this Notice of Borrowing, the Borrower shall not be entitled to request any further Advances under
the Liquidity Agreement.
ANNEX IV
Page 2
[Revolving Credit Agreement (2010-1A)]
IN WITNESS WHEREOF
, the Borrower has executed and delivered this Notice of Borrowing as of the
____ day of _________, ___.
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WILMINGTON TRUST COMPANY,
not
in its individual capacity but solely as
Subordination Agent, as Borrower
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By:
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Name:
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Title:
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ANNEX IV
Page 3
[Revolving Credit Agreement (2010-1A)]
SCHEDULE I
TO
FINAL ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Final Advance Notice of Borrowing]
ANNEX IV
Page 4
[Revolving Credit Agreement (2010-1A)]
ANNEX V
TO
REVOLVING CREDIT AGREEMENT
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
1100 North Market Square
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of December 21, 2010 between Wilmington Trust Company,
as Subordination Agent, as agent and trustee for the US Airways Pass Through Trust,
2010-1A-[O/S], as Borrower, and Morgan Stanley Bank, N.A. (the
Liquidity
Agreement
)
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the Liquidity Agreement, by reason of
the occurrence of a Liquidity Event of Default and the existence of a Performing Note Deficiency,
we are giving this notice to you in order to cause (i) our obligations to make Advances under such
Liquidity Agreement to terminate on the fifth Business Day after the date on which you receive this
notice and (ii) you to request a Final Advance under the Liquidity Agreement pursuant to Section
3.5(i) of the Intercreditor Agreement as a consequence of your receipt of this notice and (iii) any
Interest Advance, Provider Advance or Special Termination Advance to be converted to and treated as
a Final Advance.
Terms used but not defined herein shall have the respective meanings ascribed thereto in or
pursuant to the Liquidity Agreement.
ANNEX V
Page 1
[Revolving Credit Agreement (2010-1A)]
THIS NOTICE IS THE NOTICE OF TERMINATION PROVIDED FOR UNDER THE LIQUIDITY AGREEMENT. OUR
OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY
AFTER THE DATE ON WHICH YOU RECEIVE THIS NOTICE.
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Very truly yours,
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MORGAN STANLEY BANK, N.A.,
as
Liquidity
Provider
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By:
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Name:
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Title:
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cc:
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Wilmington Trust Company,
as Class A Trustee
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ANNEX V
Page 2
[Revolving Credit Agreement (2010-1A)]
ANNEX VI
TO
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of December 21, 2010, between Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the US Airways Pass
Through Trust, 2010-1A-[O/S], as Borrower, and Morgan Stanley Bank, N.A. (the
Liquidity Agreement
)
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably transfers to:
____________________
[Name of Transferee]
____________________
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity Agreement referred to
above. The transferee has succeeded the undersigned as Subordination Agent under the Intercreditor
Agreement referred to in the first paragraph of the Liquidity Agreement, pursuant to the terms of
Section 8.1 of the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower under the Liquidity Agreement are
transferred to the transferee and the transferee shall hereafter have the sole rights and
obligations as Borrower thereunder. The undersigned shall pay any costs and expenses of such
transfer, including, but not limited to, transfer taxes or governmental charges.
We ask that this transfer be effective as of _______________, ___.
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WILMINGTON TRUST COMPANY,
not
in its individual capacity but solely as
Subordination Agent, as Borrower
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By:
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Name:
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Title:
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ANNEX VI
Page 1
[Revolving Credit Agreement (2010-1A)]
ANNEX VII
TO
REVOLVING CREDIT AGREEMENT
SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower (the
Borrower
), hereby certifies to Morgan Stanley Bank, N.A. (the
Liquidity
Provider
), with reference to the Revolving Credit Agreement (2010-1A) dated as of December 21,
2010, between the Borrower and the Liquidity Provider (the
Liquidity Agreement
; the terms
defined therein and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the making of the Special
Termination Advance by the Liquidity Provider to be used for the funding of the Class A Cash
Collateral Account in accordance with Section 3.5(m) of the Intercreditor Agreement by
reason of the receipt by the Borrower of a Special Termination Notice from the Liquidity
Provider with respect to the Liquidity Agreement, which Advance is requested to be made on
[____________, ____]
5
. The Special Termination Advance should be transferred to
[name of bank/wire instructions/ABA number] in favor of account number [ ], reference [
].
(3) The amount of the Special Termination Advance requested hereby (i) is
$________________.__, which equals the Maximum Available Commitment on the date hereof and
is to be applied in respect of the funding of the Class A Cash Collateral Account in
accordance with Section 3.5(m) of the Intercreditor Agreement, (ii) does not include any
amount with respect to the payment of principal of, or premium on, the Class A Certificates,
or principal of, or interest or premium on, the Class B Certificates or any Additional
Certificates, (iii) was computed in accordance with the provisions of the Class A
Certificates, the Liquidity Agreement, the Class A Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not
been and is not the subject of a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the Borrower will deposit such amount in the Class A Cash Collateral Account and apply the
same in accordance with the terms of Section 3.5(m) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower
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5
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If a Notice of Borrowing will be delivered
prior to 1:00 p.m. (New York City time) on a Business Day, insert the date of
the Notice of Borrowing. If a Notice of Borrowing will be delivered after 1:00
p.m. (New York City time) on a Business Day or on a day that is not a Business
Day, insert the first Business Day after the date of the Notice of Borrowing.
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ANNEX VII
Page 1
[Revolving Credit Agreement (2010-1A)]
for any other purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of
the Special Termination Advance as requested by this Notice of Borrowing shall automatically and
irrevocably terminate the obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider of the Special
Termination Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
ANNEX VII
Page 2
[Revolving Credit Agreement (2010-1A)]
IN WITNESS WHEREOF
, the Borrower has executed and delivered this Notice of Borrowing as of the
____ day of _________, ___.
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WILMINGTON TRUST COMPANY,
not
in its individual capacity but solely as
Subordination Agent, as Borrower
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By:
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Name:
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Title:
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ANNEX VII
Page 3
[Revolving Credit Agreement (2010-1A)]
SCHEDULE I
TO
SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Special Termination Advance Notice of Borrowing]
ANNEX VII
Page 4
[Revolving Credit Agreement (2010-1A)]
ANNEX VIII
TO
REVOLVING CREDIT AGREEMENT
NOTICE OF SPECIAL TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
1100 North Market Square
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of December 21, 2010 between Wilmington Trust Company,
as Subordination Agent, as agent and trustee for the US Airways Pass Through Trust,
2010-1A-[O/S], as Borrower, and Morgan Stanley Bank, N.A. (the
Liquidity
Agreement
)
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.02 of the Liquidity Agreement, by reason of
the aggregate Pool Balance of the Class A Certificates exceeding the aggregate outstanding
principal amount of the Series A Equipment Notes (other than any Series A Equipment Notes
previously sold or with respect to which the collateral securing such Series A Equipment Notes has
been disposed of) during the 18 month period prior to April 22, 2023, we are giving this notice to
you in order to cause (i) our obligations to make Advances under the Liquidity Agreement to
terminate on the fifth Business Day after the date on which you receive this notice and (ii) you to
request a Special Termination Advance under the Liquidity Agreement pursuant to Section 3.5(m) of
the Intercreditor Agreement as a consequence of your receipt of this notice. Terms used but not
defined herein shall have the respective meanings ascribed thereto in or pursuant to the Liquidity
Agreement.
ANNEX VIII
Page 1
[Revolving Credit Agreement (2010-1A)]
THIS NOTICE IS THE NOTICE OF SPECIAL TERMINATION PROVIDED FOR UNDER THE LIQUIDITY AGREEMENT.
OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY AGREEMENT WILL TERMINATE ON THE FIFTH
BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS NOTICE.
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Very truly yours,
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MORGAN STANLEY BANK, N.A.
, as
Liquidity
Provider
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By:
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Name:
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Title:
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cc:
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Wilmington Trust Company,
as Class A Trustee
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ANNEX VIII
Page 2
Exhibit 4.7
EXECUTION VERSION
REVOLVING CREDIT AGREEMENT
(2010-1B)
dated as of December 21, 2010
between
WILMINGTON TRUST COMPANY
,
as Subordination Agent,
as Agent and Trustee for the
US Airways Pass Through Trust 2010-1B,
as Borrower
and
MORGAN STANLEY BANK, N.A.
,
as Liquidity Provider
Relating to US Airways
Pass Through Trust 2010-1B 8.50% US Airways
Pass Through Certificates, Series 2010-1B
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
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1
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Section 1.01 Certain Defined Terms
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1
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ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT
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8
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Section 2.01 The Advances
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8
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Section 2.02 Making the Advances
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8
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Section 2.03 Fees
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10
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Section 2.04 Reductions or Termination of the Maximum Commitment
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10
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Section 2.05 Repayments of Interest Advances, the Special Termination Advance or the Final Advance
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10
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Section 2.06 Repayments of Provider Advances
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11
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Section 2.07 Payments to the Liquidity Provider Under the Intercreditor Agreement
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12
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Section 2.08 Book Entries
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12
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Section 2.09 Payments from Available Funds Only
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13
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Section 2.10 Extension of the Expiry Date; Non-Extension Advance
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13
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ARTICLE III OBLIGATIONS OF THE BORROWER
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13
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Section 3.01 Increased Costs
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13
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Section 3.02 Capital Adequacy
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14
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Section 3.03 Payments Free of Deductions
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15
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Section 3.04 Payments
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16
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Section 3.05 Computations
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17
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Section 3.06 Payment on Non-Business Days
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17
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Section 3.07 Interest
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17
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Section 3.08 Replacement of Borrower
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19
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Section 3.09 Funding Loss Indemnification
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19
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Section 3.10 Illegality
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19
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ARTICLE IV CONDITIONS PRECEDENT
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20
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Section 4.01 Conditions Precedent to Effectiveness of Section 2.01
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20
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Section 4.02 Conditions Precedent to Borrowing
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22
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Section 4.03 Representations and Warranties
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22
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ARTICLE V COVENANTS
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22
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Section 5.01 Affirmative Covenants of the Borrower
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22
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Section 5.02 Negative Covenants of the Borrower
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22
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ARTICLE VI LIQUIDITY EVENTS OF DEFAULT AND SPECIAL TERMINATION
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23
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Section 6.01 Liquidity Events of Default
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23
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Section 6.02 Special Termination
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23
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ARTICLE VII MISCELLANEOUS
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23
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Section 7.01 Amendments, Etc
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23
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Section 7.02 Notices, Etc
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23
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TABLE OF CONTENTS
(continued)
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Page
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Section 7.03 No Waiver; Remedies
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24
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Section 7.04 Further Assurances
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24
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Section 7.05 Indemnification; Survival of Certain Provisions
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24
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Section 7.06 Liability of the Liquidity Provider
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25
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Section 7.07 Costs, Expenses and Taxes
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25
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Section 7.08 Binding Effect; Participations
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26
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Section 7.09 Severability
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27
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Section 7.10 GOVERNING LAW
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27
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Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity
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27
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Section 7.12 Execution in Counterparts
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28
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Section 7.13 Entirety
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28
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Section 7.14 Headings
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28
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Section 7.15 Transfer
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28
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Section 7.16 LIQUIDITY PROVIDERS OBLIGATION TO MAKE ADVANCES
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28
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Section 7.17 Patriot Act
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28
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Schedule A
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-
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Certain Economic Terms
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Schedule B
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-
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Administration Details
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Annex I
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-
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Interest Advance Notice of Borrowing
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Annex II
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-
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Non-Extension Advance Notice of Borrowing
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Annex III
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-
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Downgrade Advance Notice of Borrowing
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Annex IV
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-
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Final Advance Notice of Borrowing
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Annex V
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-
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Notice of Termination
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Annex VI
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-
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Notice of Replacement Subordination Agent
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Annex VII
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-
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Special Termination Advance Notice of Borrowing
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Annex VIII
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-
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Notice of Special Termination
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ii
REVOLVING CREDIT AGREEMENT (2010-1B)
THIS REVOLVING CREDIT AGREEMENT (2010-1B)
dated as of December 21, 2010 (the
Agreement
), between
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent under the Intercreditor Agreement (each as defined below), as agent and
trustee for the Class B Trust (as defined below) (the
Borrower
), and
MORGAN STANLEY BANK,
N.A.
, a national banking association (the
Liquidity Provider
).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS
, pursuant to the Class B Trust Agreement (such term and all other capitalized terms
used in these recitals having the meanings set forth or referred to in Section 1.01), the Class B
Trust is issuing the Class B Certificates; and
WHEREAS
, the Borrower, in order to support the timely payment of a portion of the interest on
the Class B Certificates in accordance with their terms, has requested the Liquidity Provider to
enter into this Agreement, providing in part for the Borrower to request in specified circumstances
that Advances be made hereunder.
NOW, THEREFORE
, in consideration of the premises, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01
Certain Defined Terms
. (a)
Definitions
. As used in this Agreement and
unless otherwise expressly indicated, or unless the context clearly requires otherwise, the
following capitalized terms shall have the following respective meanings for all purposes of this
Agreement:
Additional Costs
has the meaning assigned to such term in Section 3.01.
Advance
means an Interest Advance, a Final Advance, a Provider Advance, a Special
Termination Advance, an Applied Special Termination Advance, or an Applied Provider Advance, as the
case may be.
Applicable Liquidity Rate
has the meaning assigned to such term in Section 3.07(h).
Applicable Margin
means (x) with respect to any Unpaid Advance (including, without
limitation, any Applied Special Termination Advance but excluding any Unapplied Special Termination
Advance) or Applied Provider Advance, the margin per annum specified in item 1 of Schedule A, or
(y) with respect to any Unapplied Provider Advance or any Unapplied Special Termination Advance,
the margin per annum specified in the Fee Letter.
Applied Downgrade Advance
has the meaning assigned to such term in Section 2.06(a).
[Revolving Credit Agreement (2010-1B)]
Applied Non-Extension Advance
has the meaning assigned to such term in Section
2.06(a).
Applied Provider Advance
has the meaning assigned to such term in Section 2.06(a).
Applied Special Termination Advance
has the meaning assigned to such term in Section
2.05.
Assignment and Assumption Agreement
means the Assignment and Assumption Agreement to
be entered into between the Borrower and the trustee of the Successor Trust, substantially in the
form of Exhibit C to the Trust Supplement No. 2010-1B-O, dated as of the date hereof, relating to
the Class B Trust.
Base Rate
means, for any given day, a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to (a) 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 the Liquidity Provider from three Federal funds brokers of
recognized standing selected by it (the
Federal Funds Rate
), plus (b) one-quarter of one percent
(
1
/
4
of 1%).
Base Rate Advance
means an Advance that bears interest at a rate based upon the Base
Rate.
Basel III
has the meaning assigned to such term in Section 3.01.
Borrower
has the meaning assigned to such term in the recital of parties to this
Agreement.
Borrowing
means the making of Advances requested by delivery of a Notice of
Borrowing.
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 Phoenix, Arizona, New York, New York or, so
long as any Class B Certificate is outstanding, the city and state in which the Class B Trustee,
the Borrower or any Indenture Trustee maintains its Corporate Trust Office or receives or disburses
funds, and, if the applicable Business Day relates to any Advance or other amount bearing interest
based on the LIBOR Rate, on which dealings in dollars are carried on in the London interbank
market.
Consent Period
has the meaning assigned to such term in Section 2.10.
Deposit Agreement
means the Deposit Agreement dated as of the date hereof between
Wells Fargo Bank Northwest, National Association, as Escrow Agent, and The Bank of New York Mellon,
as Depositary, pertaining to the Class B Certificates, as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
2
[Revolving Credit Agreement (2010-1B)]
Depositary
has the meaning assigned to such term in the Deposit Agreement.
Deposits
has the meaning assigned to such term in the Deposit Agreement.
Downgrade Advance
means an Advance made pursuant to Section 2.02(c).
Effective Date
has the meaning assigned to such term in Section 4.01. The delivery
of the certificate of the Liquidity Provider contemplated by Section 4.01(e) shall be conclusive
evidence that the Effective Date has occurred.
Excluded Taxes
means (i) Taxes imposed on, based on, or measured by the overall net
income, capital, franchises or receipts (other than Taxes which are or are in the nature of sales
or use Taxes or value added Taxes) of the Liquidity Provider or of its Facility Office by the
jurisdiction where such Liquidity Providers principal office or such Facility Office is located or
any other taxing jurisdiction in which such Tax is imposed as a result of the Liquidity Provider
being, or having been, organized in, or conducting, or having conducted, any activities unrelated
to the transactions contemplated by the Operative Agreements in such jurisdiction, and (ii)
Excluded Withholding Taxes.
Excluded Withholding Taxes
means (i) withholding Taxes imposed by the United States
except (but only in the case of a successor Liquidity Provider organized under the laws of a
jurisdiction outside the United States) to the extent that such United States withholding Taxes are
imposed or increased as a result of any change in applicable law (excluding from change in
applicable law for this purpose a change in an applicable treaty or other change in law affecting
the applicability of a treaty) after the date hereof, or in the case of a successor Liquidity
Provider (including a transferee of an Advance), after the date on which such successor Liquidity
Provider obtains its interest and (ii) any withholding Taxes imposed by the United States which are
imposed or increased as a result of the Liquidity Provider failing to deliver to the Borrower any
certificate or document (which certificate or document in the good faith judgment of the Liquidity
Provider it is legally entitled to provide) which is reasonably requested by the Borrower to
establish that payments under this Agreement are exempt from (or entitled to a reduced rate of)
withholding Tax, and (iii) withholding Taxes imposed by the United States on payments to a
recipient in any other jurisdiction to which such Facility Office is moved if, under the laws in
effect at the time of such move, such laws would require greater withholding of Taxes on payments
to such Liquidity Provider acting from an office in such jurisdiction than would be required on
payments to such Liquidity Provider acting from an office in the jurisdiction from which such
Facility Office was moved.
Expenses
means liabilities, obligations, damages, settlements, penalties, claims,
actions, suits, costs, expenses, and disbursements (including, without limitation, reasonable fees
and disbursements of legal counsel and costs of investigation), provided that Expenses shall not
include any Taxes.
Expiry Date
means the anniversary date of the Closing Date immediately following the
date on which the Liquidity Provider has provided written notice to the Borrower pursuant to
Section 2.10 that the Liquidity Providers obligation to make Advances shall not be extended beyond
such anniversary date.
3
[Revolving Credit Agreement (2010-1B)]
Facility Office
means the office of the Liquidity Provider presently located in New
York, New York, or such other office as the Liquidity Provider from time to time shall notify the
Borrower as its Facility Office hereunder; provided that the Liquidity Provider shall not change
its Facility Office to another Facility Office outside the United States of America except in
accordance with Section 3.01, 3.02 or 3.03 hereof.
Federal Funds Rate
has the meaning assigned to such term in the definition of Base
Rate.
Final Advance
means an Advance made pursuant to Section 2.02(d).
GAAP
means generally accepted accounting principles as set forth in the statements
of financial accounting standards issued by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants, as such principles may at any time or from time
to time be varied by any applicable financial accounting rules or regulations issued by the
Securities and Exchange Commission and, with respect to any person, shall mean such principles
applied on a basis consistent with prior periods except as may be disclosed in such persons
financial statements.
Indemnified Tax
has the meaning assigned to such term in Section 3.03.
Intercreditor Agreement
means the Intercreditor Agreement dated as of the date
hereof among the Trustees, the Liquidity Provider, the liquidity provider under the other Liquidity
Facility and the Subordination Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Interest Advance
means an Advance made pursuant to Section 2.02(a).
Interest Period
means, with respect to any LIBOR Advance, each of the following
periods:
(i) the period beginning on the third Business Day following either (x) the date of the
Liquidity Providers receipt of the Notice of Borrowing for such LIBOR Advance or (y) the
date of the withdrawal of funds from the Class B Cash Collateral Account for the purpose of
paying interest on the Class B Certificates as contemplated by Section 2.06(a) hereof and,
in either case, ending on the next Regular Distribution Date (or, if such day is not a
Business Day, the next succeeding Business Day); and
(ii) each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the next Regular Distribution Date (or, if such day is not a
Business Day, the next succeeding Business Day);
provided, however, that if (x) the Final Advance shall have been made, or (y) other outstanding
Advances shall have been converted into the Final Advance, then the Interest Periods shall be
successive periods of one month beginning on the third Business Day following the Liquidity
Providers receipt of the Notice of Borrowing for such Final Advance (in the case of clause (x)
above) or the Regular Distribution Date (or, if such day is not a Business Day, the next succeeding
Business Day) following such conversion (in the case of clause (y) above).
4
[Revolving Credit Agreement (2010-1B)]
LIBOR Advance
means an Advance bearing interest at a rate based upon the LIBOR Rate
or the Market Disruption Base Rate pursuant Section 3.07(g).
LIBOR Rate
means, with respect to any Interest Period,
(i) the rate per annum appearing on Bloomberg L.P. page BBAM (or any successor or
substitute therefor) at approximately 11:00 a.m. (London time) two Business Days before the
first day of such Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period, or
(ii) if the rate calculated pursuant to clause (i) above is not available, the average
(rounded upwards, if necessary, to the next 1/16 of 1%) of the rates per annum at which
deposits in dollars are offered for the relevant Interest Period by three banks of
recognized standing selected by the Liquidity Provider in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the LIBOR
Advance to which such Interest Period is to apply and for a period comparable to such
Interest Period;
provided, that if the LIBOR Rate determined as provided above with respect to any LIBOR Advance for
any Interest Period would be less than 2.00% per annum, then the LIBOR Rate with respect to such
LIBOR Advance for such Interest Period shall be deemed to be 2.00% per annum.
Liquidity Event of Default
means the occurrence of either (a) the Acceleration of
all of the Equipment Notes (provided that, with respect to the period prior to the Delivery Period
Expiry Date, such Equipment Notes have an aggregate outstanding principal balance in excess of the
amount specified in item 3 on Schedule A) or (b) a US Airways Bankruptcy Event.
Liquidity Indemnitee
means (i) the Liquidity Provider, (ii) the directors, officers,
employees and agents of the Liquidity Provider, and (iii) the successors and permitted assigns of
the persons described in clauses (i) and (ii) inclusive.
Liquidity Provider
has the meaning assigned to such term in the recital of parties
to this Agreement.
Market Disruption Base Rate
means, with respect to any Interest Period, a
fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus
1
/
2
of 1.00%, (b)
the rate of interest per annum from time to time published in the Money Rates section of The Wall
Street Journal as being the Prime Lending Rate or, if more than one rate is published as the
Prime Lending Rate, then the highest of such rates (each change in the Prime Lending Rate to be
effective as of the date of publication in The Wall Street Journal of a Prime Lending Rate that
is different from that published on the preceding Business Day), provided that in the event that
The Wall Street Journal shall, for any reason, fail or cease to publish the Prime Lending Rate, the
Liquidity Provider shall choose a reasonably comparable index or source to use as the basis for the
Prime Lending Rate and (c) the LIBOR Rate plus 1.00%. Each change in any interest rate provided
for herein based upon the Market Disruption Base Rate shall take effect at the time of such change
in the Prime Lending Rate.
5
[Revolving Credit Agreement (2010-1B)]
Maximum Available Commitment
means, subject to the proviso contained in the third
sentence of Section 2.02(a), at any time of determination, (a) the Maximum Commitment at such time
less (b) the aggregate amount of each Interest Advance outstanding at such time; provided that
following a Provider Advance, a Special Termination Advance or a Final Advance, the Maximum
Available Commitment shall be zero.
Maximum Commitment
means initially the amount specified in item 4 on Schedule A, as
such amount may be reduced from time to time in accordance with Section 2.04(a).
Non-Extension Advance
means an Advance made pursuant to Section 2.02(b).
Notice Date
has the meaning assigned to such term in Section 2.10.
Notice of Borrowing
has the meaning assigned to such term in Section 2.02(e).
Notice of Replacement Subordination Agent
has the meaning assigned to such term in
Section 3.08.
Performing Note Deficiency
means any time that less than 65% of the then aggregate
outstanding principal amount of all Equipment Notes (other than any Additional Equipment Notes
issued under any Indenture) are Performing Equipment Notes.
Prospectus Supplement
means the final Prospectus Supplement dated the date specified
in item 5 on Schedule A relating to the Certificates, as such Prospectus Supplement may be amended
or supplemented.
Provider Advance
means a Downgrade Advance or a Non-Extension Advance.
Rate Determination Notice
has the meaning assigned to such term in Section 3.07(g).
Regulatory Change
has the meaning assigned to such term in Section 3.01.
Replenishment Amount
has the meaning assigned to such term in Section 2.06(b).
Required Amount
means, for any day, the sum of the aggregate amount of interest,
calculated at the rate per annum equal to the Stated Interest Rate for the Class B Certificates,
that would be payable on the Class B Certificates on each of the three successive semi-annual
Regular Distribution Dates immediately following such day or, if such day is a Regular Distribution
Date, on such day and the succeeding two semi-annual Regular Distribution Dates, in each case
calculated on the basis of the Pool Balance of the Class B Certificates on such day and without
regard to expected future distributions of principal on the Class B Certificates.
Special Termination Advance
means an Advance made pursuant to Section 2.02(g).
Special Termination Notice
means the Notice of Termination substantially in the form
of Annex VIII to this Agreement.
6
[Revolving Credit Agreement (2010-1B)]
Successor Trust
means US Airways Pass Through Trust 2010-1B-S.
Termination Date
means the earliest to occur of the following: (i) the Expiry Date;
(ii) the date on which the Borrower delivers to the Liquidity Provider a certificate, signed by a
Responsible Officer of the Borrower, certifying that all of the Class B Certificates have been paid
in full (or provision has been made for such payment in accordance with the Intercreditor Agreement
and the Class B Trust Agreement) or are otherwise no longer entitled to the benefits of this
Agreement; (iii) the date on which the Borrower delivers to the Liquidity Provider a certificate,
signed by a Responsible Officer of the Borrower, certifying that a Replacement Liquidity Facility
has been substituted for this Agreement in full pursuant to Section 3.5(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the Borrower of a Termination
Notice or Special Termination Notice from the Liquidity Provider pursuant to Section 6.02 hereof;
and (v) the date on which no Advance is or may (including by reason of reinstatement as herein
provided) become available for a Borrowing hereunder.
Termination Notice
means the Notice of Termination substantially in the form of
Annex V to this Agreement.
Transferee
has the meaning assigned to such term in Section 7.08(b).
Unapplied Downgrade Advance
means any Downgrade Advance other than an Applied
Downgrade Advance.
Unapplied Non-Extension Advance
means any Non-Extension Advance other than an
Applied Non-Extension Advance.
Unapplied Provider Advance
means any Provider Advance other than an Applied Provider
Advance.
Unapplied Special Termination Advance
means any Special Termination Advance other
than an Applied Special Termination Advance.
Unpaid Advance
has the meaning assigned to such term in Section 2.05.
(b)
Terms Defined in the Intercreditor Agreement
. For all purposes of this Agreement,
the following terms shall have the respective meanings assigned to such terms in the Intercreditor
Agreement:
Acceleration
,
Additional Certificates
,
Additional Equipment
Notes
,
Certificate
,
Class A Certificates
,
Class B Cash
Collateral Account
,
Class B Certificates
,
Class B Trust
,
Class
B Trust Agreement
,
Class B Trustee
,
Closing Date
,
Corporate
Trust Office
,
Delivery Period Expiry Date
,
Downgraded Facility
,
Downgrade Event
,
Equipment Notes
,
Fee Letter
,
Financing
Agreement
,
Indenture
,
Indenture Trustee
,
Investment
Earnings
,
Liquidity Facility
,
Liquidity Obligations
,
Non-Extended Facility
,
Note Purchase Agreement
,
Operative
Agreements
,
Participation Agreement
,
Performing Equipment Note
,
Person
,
Pool Balance
,
Regular Distribution Date
,
Replacement Liquidity Facility
,
Responsible Officer
,
Scheduled
7
[Revolving Credit Agreement (2010-1B)]
Payment
,
Special Payment
,
Stated Interest Rate
,
Subordination Agent
,
Taxes
,
Transfer
,
Trust
Agreement
,
Trustee
,
Underwriters
,
Underwriting Agreement
,
US Airways
, and
US Airways Bankruptcy Event
.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01
The Advances
. The Liquidity Provider hereby irrevocably agrees, on the terms and
conditions hereinafter set forth, to make Advances to the Borrower from time to time on any
Business Day during the period from the Effective Date until 1:00 p.m. (New York City time) on the
Expiry Date (unless the obligations of the Liquidity Provider shall be earlier terminated in
accordance with the terms of Section 2.04(b)) in an aggregate amount at any time outstanding not to
exceed the Maximum Commitment.
Section 2.02
Making the Advances
. (a) Interest Advances shall be made in one or more
Borrowings by delivery to the Liquidity Provider of one or more written and completed Notices of
Borrowing in substantially the form of Annex I attached hereto, signed by a Responsible Officer of
the Borrower, in an amount not exceeding the Maximum Available Commitment at such time and shall be
used solely for the payment when due of interest on the Class B Certificates at the Stated Interest
Rate therefor in accordance with Section 3.5(a) of the Intercreditor Agreement. Each Interest
Advance made hereunder shall automatically reduce the Maximum Available Commitment and the amount
available to be borrowed hereunder by subsequent Advances by the amount of such Interest Advance
(subject to reinstatement as provided in the next sentence). Upon repayment to the Liquidity
Provider in full or in part of the amount of any Interest Advance made pursuant to this Section
2.02(a), together with accrued interest thereon (as provided herein), the Maximum Available
Commitment shall be reinstated by an amount equal to the amount of the Interest Advance so repaid
but not to exceed the Maximum Commitment; provided, however, that the Maximum Available Commitment
shall not be so reinstated (x) at any time if (i) a Liquidity Event of Default shall have occurred
and be continuing and (ii) there is a Performing Note Deficiency or (y) at any time after the
making of a Provider Advance, a Final Advance or a Special Termination Advance or after any
Interest Advance shall have been converted into a Final Advance.
(b) A Non-Extension Advance shall be made in a single Borrowing if this Agreement is not
extended in accordance with Section 3.5(d) of the Intercreditor Agreement (unless a Replacement
Liquidity Facility to replace this Agreement shall have been delivered to the Borrower as
contemplated by said Section 3.5(d) within the time period specified in such Section) by delivery
to the Liquidity Provider of a written and completed Notice of Borrowing in substantially the form
of Annex II attached hereto, signed by a Responsible Officer of the Borrower, in an amount equal to
the Maximum Available Commitment at such time, and shall be used solely to fund the Class B Cash
Collateral Account in accordance with said Section 3.5(d) and Section 3.5(f) of the Intercreditor
Agreement.
(c) A Downgrade Advance shall be made in a single Borrowing upon the occurrence of a Downgrade
Event (as provided for in Section 3.5(c) of the Intercreditor Agreement), unless a Replacement
Liquidity Facility to replace this Agreement shall have been previously delivered
8
[Revolving Credit Agreement (2010-1B)]
to the Borrower in accordance with said Section 3.5(c), by delivery to the Liquidity Provider
of a written and completed Notice of Borrowing in substantially the form of Annex III attached
hereto, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used solely to fund the Class B Cash Collateral
Account in accordance with said Section 3.5(c) and Section 3.5(f) of the Intercreditor Agreement.
(d) A Final Advance shall be made in a single Borrowing upon the receipt by the Borrower of a
Termination Notice from the Liquidity Provider pursuant to Section 6.01 hereof by delivery to the
Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of
Annex IV attached hereto, signed by a Responsible Officer of the Borrower, in an amount equal to
the Maximum Available Commitment at such time, and shall be used solely to fund the Class B Cash
Collateral Account (in accordance with Sections 3.5(f) and 3.5(i) of the Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a
Notice of Borrowing
) in
substantially the form required by Section 2.02(a), 2.02(b), 2.02(c), 2.02(d) or 2.02(g), as the
case may be, given by the Borrower to the Liquidity Provider. If a Notice of Borrowing is
delivered by the Borrower in respect of any Borrowing no later than 1:00 p.m. (New York City time)
on a Business Day, upon satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available to the Borrower, in
accordance with its payment instructions, the amount of such Borrowing in U.S. dollars and
immediately available funds, before 4:00 p.m. (New York City time) on such Business Day. If a
Notice of Borrowing is delivered by the Borrower in respect of any Borrowing on a day that is not a
Business Day or after 1:00 p.m. (New York City time) on a Business Day, upon satisfaction of the
conditions precedent set forth in Section 4.02 with respect to a requested Borrowing, the Liquidity
Provider shall make available to the Borrower, in accordance with its payment instructions, the
amount of such Borrowing in U.S. dollars and in immediately available funds, before 12:00 Noon (New
York City time) on the first Business Day next following the day of receipt of such Notice of
Borrowing. Payments of proceeds of a Borrowing shall be made by wire transfer of immediately
available funds to the Borrower in accordance with such wire transfer instructions as the Borrower
shall furnish from time to time to the Liquidity Provider for such purpose. Each Notice of
Borrowing shall be irrevocable and binding on the Borrower. Each Notice of Borrowing shall be
effective upon receipt of a copy thereof by the Liquidity Provider at the address specified
pursuant to Section 7.02.
(f) Upon the making of any Advance requested pursuant to a Notice of Borrowing, in accordance
with the Borrowers payment instructions, the Liquidity Provider shall be fully discharged of its
obligation hereunder with respect to such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be obligated to make any further Advances hereunder in respect of such Notice of
Borrowing to the Borrower or to any other Person. If the Liquidity Provider makes an Advance
requested pursuant to a Notice of Borrowing before 12:00 Noon (New York City time) on the second
Business Day after the date of payment specified in Section 2.02(e), the Liquidity Provider shall
have fully discharged its obligations hereunder with respect to such Advance and an event of
default shall not have occurred hereunder. Following the making of any Advance pursuant to Section
2.02(b), (c), (d) or (g) hereof to fund the Class B Cash Collateral Account, the Liquidity Provider
shall have no interest in or rights to the Class B
9
[Revolving Credit Agreement (2010-1B)]
Cash Collateral Account, the funds constituting such Advance or any other amounts from time to
time on deposit in the Class B Cash Collateral Account;
provided
that the foregoing shall
not affect or impair the obligations of the Subordination Agent to make the distributions
contemplated by Section 3.5(e) or (f) of the Intercreditor Agreement, and
provided further
,
that the foregoing shall not affect or impair the rights of the Liquidity Provider to provide
written instructions with respect to the investment and reinvestment of amounts in the Class B Cash
Collateral Account to the extent provided in Section 2.2(b) of the Intercreditor Agreement. By
paying to the Borrower proceeds of Advances requested by the Borrower in accordance with the
provisions of this Agreement, the Liquidity Provider makes no representation as to, and assumes no
responsibility for, the correctness or sufficiency for any purpose of the amount of the Advances so
made and requested.
(g) A Special Termination Advance shall be made in a single Borrowing upon the receipt by the
Borrower of a Special Termination Notice from the Liquidity Provider pursuant to Section 6.02, by
delivery to the Liquidity Provider of a written and completed Notice of Borrowing in substantially
the form of Annex VII, signed by a Responsible Officer of the Borrower, in an amount equal to the
Maximum Available Commitment at such time, and shall be used solely to fund the Class B Cash
Collateral Account (in accordance with Section 3.5(f) and Section 3.5(m) of the Intercreditor
Agreement).
Section 2.03
Fees
. The Borrower agrees to pay to the Liquidity Provider the fees set forth in
the Fee Letter applicable to this Agreement.
Section 2.04
Reductions or Termination of the Maximum Commitment
.
(a)
Automatic Reduction
. Promptly following each date on which the Required Amount is
reduced as a result of a reduction in the Pool Balance of the Class B Certificates or otherwise,
the Maximum Commitment shall automatically be reduced to an amount equal to such reduced Required
Amount (as calculated by the Borrower); provided that on the first Regular Distribution Date, the
Maximum Commitment shall automatically be reduced to the then Required Amount. The Borrower shall
give notice of any such automatic reduction of the Maximum Commitment to the Liquidity Provider
within two Business Days thereof. The failure by the Borrower to furnish any such notice shall not
affect such automatic reduction of the Maximum Commitment.
(b)
Termination
. Upon the making of any Provider Advance or Special Termination
Advance or the making of or conversion to a Final Advance hereunder or the occurrence of the
Termination Date, the obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be entitled to request any
further Borrowing hereunder.
Section 2.05
Repayments of Interest Advances, the Special Termination Advance or the Final
Advance
. Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees, without
notice of an Advance or demand for repayment from the Liquidity Provider (which notice and demand
are hereby waived by the Borrower), to pay, or to cause to be paid, to the Liquidity Provider on
each date on which the Liquidity Provider shall make an Interest Advance, the Special Termination
Advance or the Final Advance, an amount equal to (a) the amount of
10
[Revolving Credit Agreement (2010-1B)]
such Advance (any such Advance, until repaid, is referred to herein as an
Unpaid
Advance
) (if multiple Interest Advances are outstanding any such repayment to be applied in
the order in which such Interest Advances have been made, starting with the earliest), plus (b)
interest on the amount of each such Unpaid Advance as provided in Section 3.07 hereof; provided
that if (i) the Liquidity Provider shall make a Provider Advance at any time after making one or
more Interest Advances which shall not have been repaid in accordance with this Section 2.05 or
(ii) this Liquidity Facility shall become a Downgraded Facility or Non-Extended Facility at any
time when unreimbursed Interest Advances have reduced the Maximum Available Commitment to zero,
then such Interest Advances shall cease to constitute Unpaid Advances and shall be deemed to have
been changed into an Applied Downgrade Advance or an Applied Non-Extension Advance, as the case may
be, for all purposes of this Agreement (including, without limitation, for the purpose of
determining when such Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)); provided, further, that
amounts in respect of a Special Termination Advance withdrawn from the Class B Cash Collateral
Account for the purpose of paying interest on the Class B Certificates in accordance with Section
3.5(f) of the Intercreditor Agreement (the amount of any such withdrawal being an
Applied
Special Termination Advance
) shall thereafter (subject to Section 2.06(b)) be treated as an
Interest Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for
interest payable thereon; and provided, further, that if, following the making of a Special
Termination Advance, the Liquidity Provider delivers a Termination Notice to the Borrower pursuant
to Section 6.01, such Special Termination Advance shall thereafter be converted to and treated as a
Final Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for
interest payable thereon and the obligation for repayment thereof and treated as an Applied Special
Termination Advance for purposes of Section 2.6(c) of the Intercreditor Agreement. The Borrower
and the Liquidity Provider agree that the repayment in full of each Interest Advance, the Special
Termination Advance and Final Advance on the date such Advance is made is intended to be a
contemporaneous exchange for new value given to the Borrower by the Liquidity Provider.
Section 2.06
Repayments of Provider Advances
. (a) Amounts advanced hereunder in respect of a
Provider Advance shall be deposited in the Class B Cash Collateral Account, invested and withdrawn
from the Class B Cash Collateral Account as set forth in Sections 3.5(c), (d), (e) and (f) of the
Intercreditor Agreement. Subject to Sections 2.07 and 2.09, the Borrower agrees to pay to the
Liquidity Provider, on each Regular Distribution Date, commencing on the first Regular Distribution
Date after the making of a Provider Advance, interest on the principal amount of any such Provider
Advance as provided in Section 3.07;
provided, however
, that amounts in respect of a
Provider Advance withdrawn from the Class B Cash Collateral Account for the purpose of paying
interest on the Class B Certificates in accordance with Section 3.5(f) of the Intercreditor
Agreement (the amount of any such withdrawal being (y) in the case of a Downgrade Advance, an
Applied Downgrade Advance
and (z) in the case of a Non-Extension Advance, an
Applied
Non-Extension Advance
and, together with an Applied Downgrade Advance, an
Applied
Provider Advance
) shall thereafter (subject to Section 2.06(b)) be treated as an Interest
Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest
payable thereon and the dates on which such interest is payable; provided further, however, that
if, following the making of a Provider Advance, the Liquidity Provider delivers a Termination
Notice to the Borrower pursuant to Section 6.01 hereof, such Provider Advance shall thereafter be
converted to and treated as a
11
[Revolving Credit Agreement (2010-1B)]
Final Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest
payable thereon and the obligation for repayment thereof and treated as an Applied Downgrade
Advance or Applied Non-Extension Advance, as the case may be, for the purposes of Section 2.6(c) of
the Intercreditor Agreement. Subject to Sections 2.07 and 2.09 hereof, immediately upon the
withdrawal of any amounts from the Class B Cash Collateral Account on account of a reduction in the
Required Amount, the Borrower shall repay to the Liquidity Provider a portion of the Provider
Advances in a principal amount equal to the amount of such reduction, plus interest on the
principal amount prepaid as provided in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance or an Applied Special Termination Advance (or
any portion thereof) is outstanding, upon the deposit in the Class B Cash Collateral Account of any
amount pursuant to clause
fourth
of Section 3.2 of the Intercreditor Agreement (any such
amount being a
Replenishment Amount
) for the purpose of replenishing or increasing the
balance thereof up to the amount of the Required Amount at such time, (i) the aggregate outstanding
principal amount of all Applied Provider Advances or the Applied Special Termination Advance (and
of Provider Advances treated as an Interest Advance for purposes of determining the Applicable
Liquidity Rate for interest payable thereon) shall be automatically reduced by the amount of such
Replenishment Amount (if multiple Applied Provider Advances are outstanding, such Replenishment
Amount to be applied in the order in which such Applied Provider Advances have been made, starting
with the earliest) and (ii) the aggregate outstanding principal amount of all Unapplied Provider
Advances or of the Unapplied Special Termination Advance shall be automatically increased by the
amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in replacement of this Agreement in
accordance with Section 3.5(e) of the Intercreditor Agreement, amounts remaining on deposit in the
Class B Cash Collateral Account after giving effect to any Applied Provider Advance or Applied
Special Termination Advance on the date of such replacement shall be reimbursed to the replaced
Liquidity Provider, but only to the extent such amounts are necessary to repay in full to the
replaced Liquidity Provider all amounts owing to it hereunder.
Section 2.07
Payments to the Liquidity Provider Under the Intercreditor Agreement
. In order
to provide for payment or repayment to the Liquidity Provider of any amounts hereunder, the
Intercreditor Agreement provides that amounts available and referred to in Articles II and III of
the Intercreditor Agreement, to the extent payable to the Liquidity Provider pursuant to the terms
of the Intercreditor Agreement (including, without limitation, Section 3.5(f) of the Intercreditor
Agreement), shall be paid to the Liquidity Provider in accordance with the terms thereof. Amounts
so paid to, and not required to be returned by, the Liquidity Provider shall be applied by the
Liquidity Provider to Liquidity Obligations then due and payable in accordance with the
Intercreditor Agreement and shall discharge in full the corresponding obligations of the Borrower
hereunder (or, if not provided for in the Intercreditor Agreement, then in such manner as the
Liquidity Provider shall deem appropriate).
Section 2.08
Book Entries
. The Liquidity Provider shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower resulting from Advances
made from time to time and the amounts of principal and interest payable hereunder and paid from
time to time in respect thereof; provided, however, that the failure by
12
[Revolving Credit Agreement (2010-1B)]
the Liquidity Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.09
Payments from Available Funds Only
. All payments to be made by the Borrower
under this Agreement, including, without limitation, Sections 7.05 and 7.07, shall be made only
from the amounts that constitute Scheduled Payments, Special Payments or payments under Section 8.1
of the Participation Agreements and payments under the Fee Letter and Section 6 of the Note
Purchase Agreement and only to the extent that the Borrower shall have sufficient income or
proceeds therefrom to enable the Borrower to make payments in accordance with the terms hereof
after giving effect to the priority of payments provisions set forth in the Intercreditor
Agreement. The Liquidity Provider agrees that it will look solely to such amounts in respect of
payments to be made by the Borrower hereunder to the extent available for distribution to it as
provided in the Intercreditor Agreement and this Agreement and that the Borrower, in its individual
capacity, is not personally liable to it for any amounts payable or liability under this Agreement
except as expressly provided in this Agreement, the Intercreditor Agreement or any Participation
Agreement. Amounts on deposit in the Class B Cash Collateral Account shall be available to the
Borrower to make payments under this Agreement only to the extent and for the purposes expressly
contemplated in Section 3.5(f) of the Intercreditor Agreement.
Section 2.10
Extension of the Expiry Date; Non-Extension Advance
. If the Liquidity Provider
advises the Borrower before the 25th day prior to the immediately following anniversary date of the
Closing Date (the
Notice Date
) that its obligation to make Advances hereunder shall not be so
extended beyond such anniversary date (and if the Liquidity Provider shall not have been replaced
in accordance with Section 3.5(e) of the Intercreditor Agreement), the Borrower shall be entitled
on and after the Notice Date (but prior to such anniversary date) to request a Non-Extension
Advance in accordance with Section 2.02(b) hereof and Section 3.5(d) of the Intercreditor
Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01
Increased Costs
. The Borrower shall pay to the Liquidity Provider from time to
time such amounts as may be necessary to compensate the Liquidity Provider for any increased costs
incurred by the Liquidity Provider which are attributable to its making or maintaining any Advances
hereunder or its obligation to make any such Advances hereunder, or any reduction in any amount
receivable by the Liquidity Provider under this Agreement or the Intercreditor Agreement in respect
of any such Advances or such obligation (such increases in costs and reductions in amounts
receivable being herein called
Additional Costs
), resulting from any change after the
date of this Agreement in U.S. federal, state, municipal, or foreign laws or regulations (including
Regulation D of the Board of Governors of the Federal Reserve System), or the adoption or making
after the date of this Agreement of any interpretations, directives, or requirements applying to a
class of banks including the Liquidity Provider under any U.S. federal, state, municipal, or any
foreign laws or regulations (whether or not having the
13
[Revolving Credit Agreement (2010-1B)]
force of law) by any court, central bank or monetary authority charged with the interpretation
or administration thereof (a
Regulatory Change
), which: (1) changes the basis of taxation
of any amounts payable to the Liquidity Provider under this Agreement in respect of any such
Advances or such obligation (other than with respect to Excluded Taxes or Indemnified Taxes); or
(2) imposes or modifies any reserve, special deposit, compulsory loan or similar requirements
relating to any extensions of credit or other assets of, or any deposits with other liabilities of,
the Liquidity Provider (including any such Advances or such obligation or any deposits referred to
in the definition of LIBOR Rate or Market Disruption Base Rate or related definitions). For the
avoidance of doubt, any Regulatory Changes based on the consultative papers of The Basel Committee
on Banking Supervision of December 2009 entitled Strengthening the resilience of the banking
sector and International framework for liquidity risk measurement, standards and monitoring, in
each case together with any amendments thereto (collectively,
Basel III
), will not be
treated, for purposes of determining whether the Liquidity Provider is entitled to compensation
under this Section 3.01, as having been adopted or having come into effect before the date hereof,
and any such Regulatory Changes based on Basel III shall be determined to be adopted only when the
national banking supervisory authorities, or other relevant administrative or legislative bodies
having primary jurisdiction or regulatory authority over the Liquidity Provider, adopt any such
Regulatory Changes based on Basel III in the primary jurisdiction of the Liquidity Provider. The
Liquidity Provider agrees to use reasonable efforts (consistent with its internal policies and
applicable legal and regulatory restrictions) to change the jurisdiction of its Facility Office if
making such change would avoid the need for, or reduce the amount of, any amount payable under this
Section that may thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event occurring after the date of this
Agreement that will entitle the Liquidity Provider to compensation pursuant to this Section 3.01 as
promptly as practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation of the amounts owed
under this Section. Determinations by the Liquidity Provider for purposes of this Section 3.01 of
the effect of any Regulatory Change on its costs of making or maintaining Advances or on amounts
receivable by it in respect of Advances, and of the additional amounts required to compensate the
Liquidity Provider in respect of any Additional Costs, shall be prima facie evidence of the amount
owed under this Section.
Notwithstanding the preceding two paragraphs, the Liquidity Provider and the Subordination
Agent agree that any permitted assignee or participant of the initial Liquidity Provider which is
not a bank shall not be entitled to the benefits of the preceding two paragraphs (but without
limiting the provisions of Section 7.08 hereof).
Section 3.02
Capital Adequacy
. If (1) the adoption, after the date hereof, of any applicable
governmental law, rule or regulation regarding capital adequacy or liquidity coverage, (2) any
change, after the date hereof, in the interpretation or administration of any such law, rule or
regulation by any central bank or other governmental authority charged with the interpretation or
administration thereof or (3) compliance by the Liquidity Provider or any corporation or bank
controlling the Liquidity Provider with any applicable guideline or request of general
applicability, issued after the date hereof, by any central bank or other governmental authority
(whether or not having the force of law) that constitutes a change of the nature described in
14
[Revolving Credit Agreement (2010-1B)]
clause (2), has the effect of (x) requiring an increase in the amount of capital required to
be maintained by the Liquidity Provider or any corporation or bank controlling the Liquidity
Provider, or (y) reducing the rate of return on assets or capital of the Liquidity Provider (or
such corporation or bank) and such adoption, change or compliance, as the case may be, relates to a
category of claims or assets that includes the Liquidity Providers obligations hereunder
(including funded obligations) and other similar obligations, the Borrower shall, subject to the
provisions of the next paragraph, pay to the Liquidity Provider from time to time such additional
amount or amounts as are necessary to compensate the Liquidity Provider for such portion of such
increase or reduction as shall be reasonably allocable to the Liquidity Providers obligations to
the Borrower hereunder. For the avoidance of doubt, the adoption of any law, rule or regulation
described in clause (1) of the first sentence of this Section 3.02, and the taking of any action
described in clauses (2) and (3) of such sentence, that in each case is based on Basel III, will
not be treated, for purposes of determining whether the Liquidity Provider (or any corporation or
bank controlling the Liquidity Provider) is entitled to compensation under this Section 3.02, as
having been adopted, come into effect, been issued or been taken before the date hereof, and any
such law, rule or regulation and any of the actions described in clauses (2) and (3) of such
sentence that is based on Basel III shall be determined to have been adopted, come into effect,
been issued or been taken only when the central bank or other legislative or administrative
governmental authorities in the primary jurisdiction of the Liquidity Provider (or any corporation
or bank controlling the Liquidity Provider) adopt any such law, rule or regulation or take any such
actions. The Liquidity Provider agrees to use reasonable efforts (consistent with applicable legal
and regulatory restrictions) to change the jurisdiction of its Facility Office if making such
change would avoid the need for, or reduce the amount of, any amount payable under this Section
that may thereafter accrue and would not, in the reasonable judgment of the Liquidity Provider, be
otherwise materially disadvantageous to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event occurring after the date of this
Agreement that will entitle the Liquidity Provider to compensation pursuant to this Section 3.02 as
promptly as practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation of the amounts owed
under this Section. Determinations by the Liquidity Provider for purposes of this Section 3.02 of
the effect of any increase in the amount of capital required to be maintained by the Liquidity
Provider and of the amount allocable to the Liquidity Providers obligations to the Borrower
hereunder shall be conclusive evidence of the amounts owed under this Section, absent manifest
error.
Notwithstanding the preceding two paragraphs, the Liquidity Provider and the Subordination
Agent agree that any permitted assignee or participant of the initial Liquidity Provider which is
not a bank shall not be entitled to the benefits of the preceding two paragraphs (but without
limiting the provisions of Section 7.08 hereof).
Section 3.03
Payments Free of Deductions
. (a) Unless required by applicable law, all
payments made by the Borrower under this Agreement shall be made free and clear of, and without
reduction for or on account of, any present or future Taxes of any nature whatsoever now or
hereafter imposed, levied, collected, withheld or assessed. If any Taxes are required to be
withheld from any amounts payable to the Liquidity Provider under this Agreement, (i) the
15
[Revolving Credit Agreement (2010-1B)]
Borrower shall within the time prescribed therefor by applicable law pay to the appropriate
governmental or taxing authority the full amount of any such Taxes (and any additional Taxes in
respect of the additional amounts payable under clause (ii) hereof) and make such reports or
returns in connection therewith at the time or times and in the manner prescribed by applicable
law, and (ii) in the case of Taxes, other than Excluded Taxes (such non-excluded Taxes being
referred to herein, collectively, as
Indemnified Taxes
and each, individually, as a
Indemnified Tax
), the amounts so payable to the Liquidity Provider shall be increased to
the extent necessary to yield to the Liquidity Provider (after payment of all Taxes) interest or
any other such amounts payable under this Agreement at the rates or in the amounts specified in
this Agreement. The Liquidity Provider agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the jurisdiction of its Facility
Office if making such change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider. From time to time upon the
reasonable request of the Borrower, the Liquidity Provider agrees to provide to the Borrower two
original Internal Revenue Service Forms (including W-8BEN, W-8ECI or W-9), as appropriate with
respect to the Liquidity Provider, or any successor or other form prescribed by the Internal
Revenue Service, certifying as to any available exemption from or reduction in the rate of United
States withholding tax on payments pursuant to this Agreement. Within 30 days after the date of
each payment hereunder, the Borrower shall furnish to the Liquidity Provider the original or a
certified copy of (or other documentary evidence of) the payment of the Indemnified Taxes
applicable to such payment.
(b) Unless required by applicable law, all payments (including, without limitation, Advances)
made by the Liquidity Provider under this Agreement shall be made free and clear of, and without
reduction for or on account of, any Taxes. If any Taxes are required to be withheld or deducted
from any amounts payable to the Borrower under this Agreement, the Liquidity Provider shall (i)
within the time prescribed therefor by applicable law pay to the appropriate governmental or taxing
authority the full amount of any such Taxes (and any additional Taxes in respect of the additional
amounts payable under clause (ii) hereof) and make such reports or returns in connection therewith
at the time or times and in the manner prescribed by applicable law, and (ii) pay to the Borrower
an additional amount which (after deduction of all such Taxes) will be sufficient to yield to the
Borrower the full amount which would have been received by it had no such withholding or deduction
been made. Within 30 days after the date of each payment hereunder, the Liquidity Provider shall
furnish to the Borrower the original or a certified copy of (or other documentary evidence of) the
payment of the Taxes applicable to such payment.
(c) If any exemption from, or reduction in the rate of, any Taxes is reasonably available to
the Borrower to establish that payments under this Agreement are exempt from (or entitled to a
reduced rate of) tax, the Borrower shall deliver to the Liquidity Provider such form or forms and
such other evidence of the eligibility of the Borrower for such exemption or reduction as the
Liquidity Provider may reasonably identify to the Borrower as being required as a condition to
exemption from, or reduction in the rate of, any Taxes.
Section 3.04
Payments
. The Borrower shall make or cause to be made each payment to the
Liquidity Provider under this Agreement so as to cause the same to be received by the Liquidity
Provider not later than 1:00 P.M. (New York City time) on the day when due. The
16
[Revolving Credit Agreement (2010-1B)]
Borrower shall make all such payments in lawful money of the United States of America, to the
Liquidity Provider in immediately available funds, by wire transfer to the account specified for
the Liquidity Provider in Schedule B or to such other U.S. bank account as the Liquidity Provider
may from time to time direct the Borrower in writing.
Section 3.05
Computations
. All computations of interest based on the Base Rate shall be made
on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest
based on the LIBOR Rate or the Market Disruption Base Rate shall be made on the basis of a year of
360 days, in each case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest is payable.
Section 3.06
Payment on Non-Business Days
. Whenever any payment to be made hereunder to the
Liquidity Provider shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day without any additional interest (and if so made, shall
be deemed to have been made when due). If any payment in respect of interest on an Advance is so
deferred to the next succeeding Business Day, such deferral shall not delay the commencement of the
next Interest Period for such Advance (if such Advance is a LIBOR Advance) or reduce the number of
days for which interest will be payable on such Advance on the next interest payment date for such
Advance.
Section 3.07
Interest
. (a) Subject to Section 2.09, the Borrower shall pay, or shall cause
to be paid, without duplication, interest on (i) the unpaid principal amount of each Advance from
and including the date of such Advance (or, in the case of an Applied Provider Advance or Applied
Special Termination Advance, from and including the date on which the amount thereof was withdrawn
from the Class B Cash Collateral Account to pay interest on the Class B Certificates) to but
excluding the date such principal amount shall be paid in full (or, in the case of an Applied
Provider Advance or Applied Special Termination Advance, the date on which the Class B Cash
Collateral Account is fully replenished in respect of such Advance) and (ii) any other amount due
hereunder (whether fees, commissions, expenses or other amounts or, to the extent permitted by law,
installments of interest on Advances or any such other amount) which is not paid when due (whether
at stated maturity, by acceleration or otherwise) from and including the due date thereof to but
excluding the date such amount is paid in full, in each such case, at a fluctuating interest rate
per annum for each day equal to the Applicable Liquidity Rate (as defined below) for such Advance
or such other amount, as the case may be, as in effect for such day, but in no event at a rate per
annum greater than the maximum rate permitted by applicable law;
provided
,
however
,
that, if at any time the otherwise applicable interest rate as set forth in this Section 3.07 shall
exceed the maximum rate permitted by applicable law, then any subsequent reduction in such interest
rate will not reduce the rate of interest payable pursuant to this Section 3.07 below the maximum
rate permitted by applicable law until the total amount of interest accrued equals the amount of
interest that would have accrued if such otherwise applicable interest rate as set forth in this
Section 3.07 had at all times been in effect.
(b) Except as provided in clause (e) below, each Advance (other than any Unapplied Provider
Advance or Unapplied Special Termination Advance) will be either a Base Rate Advance or a LIBOR
Advance as provided in this Section. Each such Advance will be a Base Rate Advance for the period
from the date of its borrowing to (but excluding) the third Business
17
[Revolving Credit Agreement (2010-1B)]
Day following the Liquidity Providers receipt of the Notice of Borrowing for such Advance.
Thereafter, such Advance shall be a LIBOR Advance.
(c) Each LIBOR Advance shall bear interest during each Interest Period at a rate per annum
equal to the LIBOR Rate for such Interest Period plus the Applicable Margin for such LIBOR Advance,
payable in arrears on the last day of such Interest Period and, in the event of the payment of
principal of such LIBOR Advance on a day other than such last day, on the date of such payment (to
the extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per annum equal to the Base Rate plus
the Applicable Margin for such Base Rate Advance, payable in arrears on each Regular Distribution
Date and, in the event of the payment of principal of such Base Rate Advance on a day other than a
Regular Distribution Date, on the date of such payment (to the extent of interest accrued on the
amount of principal repaid).
(e) Each outstanding Unapplied Non-Extension Advance, Unapplied Downgrade Advance and
Unapplied Special Termination Advance shall bear interest in an amount equal to the Investment
Earnings on amounts on deposit in the Class B Cash Collateral Account plus the Applicable Margin
for such Unapplied Non-Extension Advance, Unapplied Downgrade Advance or Unapplied Special
Termination Advance, as applicable, on the amount of such Unapplied Non-Extension Advance,
Unapplied Downgrade Advance or Unapplied Special Termination Advance from time to time, payable in
arrears on each Regular Distribution Date.
(f) Each amount not paid when due hereunder (whether fees, commissions, expenses or other
amounts or, to the extent permitted by applicable law, installments of interest on Advances but
excluding Advances) shall bear interest at a rate per annum equal to the Base Rate plus 2.00% per
annum until paid.
(g) If at any time, the Liquidity Provider shall have determined (which determination shall be
conclusive and binding upon the Borrower, absent manifest error) that, by reason of circumstances
affecting the relevant interbank lending market generally, the LIBOR Rate determined or to be
determined for the current or the immediately succeeding Interest Period will not adequately and
fairly reflect the cost to the Liquidity Provider (as conclusively certified by the Liquidity
Provider, absent manifest error) of making or maintaining LIBOR Advances, the Liquidity Provider
shall give facsimile or telephonic notice thereof (a
Rate Determination Notice
) to the
Borrower (any such telephonic notice to be promptly confirmed in writing and transmitted by
telecopier to the Borrower in accordance with Section 7.02). Following the receipt of a Rate
Determination Notice by the Borrower, the LIBOR Rate shall be the Market Disruption Base Rate until
the Interest Period that immediately follows the withdrawal of such Rate Determination Notice. The
Liquidity Provider shall withdraw a Rate Determination Notice given hereunder when the Liquidity
Provider determines that the circumstances giving rise to such Rate Determination Notice no longer
apply to the Liquidity Provider.
(h) Each change in the Base Rate shall become effective immediately. The rates of interest
specified in this Section 3.07 with respect to any Advance or other amount shall be referred to as
the
Applicable Liquidity Rate
.
18
[Revolving Credit Agreement (2010-1B)]
Section 3.08
Replacement of Borrower
. From time to time and subject to the successor
Borrowers meeting the eligibility requirements set forth in Section 6.9 of the Intercreditor
Agreement applicable to the Subordination Agent, upon the effective date and time specified in a
written and completed Notice of Replacement Subordination Agent in substantially the form of Annex
VI attached hereto (a
Notice of Replacement Subordination Agent
) delivered to the
Liquidity Provider by the then Borrower, the successor Borrower designated therein shall be
substituted for the Borrower for all purposes hereunder.
Section 3.09
Funding Loss Indemnification
. The Borrower shall pay to the Liquidity Provider,
upon the request of the Liquidity Provider, such amount or amounts as shall be sufficient (in the
reasonable opinion of the Liquidity Provider) to compensate it for any loss, cost, or expense
incurred by reason of the liquidation or redeployment of deposits or other funds acquired by the
Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of anticipated
profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than the last day of the Interest
Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on the date for borrowing
specified in the relevant notice under Section 2.02.
Calculation of all amounts payable to the Liquidity Provider under this Section 3.09 shall be
made as though the Liquidity Provider had actually funded the related LIBOR Advance through the
purchase of a LIBOR deposit bearing interest at the LIBOR Rate in an amount equal to its LIBOR
Advance and having a maturity comparable to the relevant Interest Period; provided however, that
the Liquidity Provider may fund any LIBOR Advance in any manner it sees fit and the foregoing
assumptions shall be utilized only for the purposes of calculating amounts payable under this
Section 3.09.
Section 3.10
Illegality
. Notwithstanding any other provision in this Agreement, if any change
in any applicable law, rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Liquidity Provider (or its Facility
Office) with any request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or impossible for the Liquidity
Provider (or its Facility Office) to maintain or fund its LIBOR Advances, then upon notice to the
Borrower by the Liquidity Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity Provider, if such
change or compliance with such request, in the judgment of the Liquidity Provider, requires
immediate repayment; or (b) at the expiration of the last Interest Period to expire before the
effective date of any such change or request. The Liquidity Provider agrees to use reasonable
efforts (consistent with its internal policies and applicable legal and regulatory restrictions) to
change the jurisdiction of its Facility Office if making such change would avoid or cure the
aforesaid illegality and would not, in the reasonable judgment of the Liquidity Provider, be
otherwise disadvantageous to the Liquidity Provider.
19
[Revolving Credit Agreement (2010-1B)]
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01
Conditions Precedent to Effectiveness of Section 2.01
. Section 2.01 of this
Agreement shall become effective on and as of the first date (the
Effective Date
) on
which the following conditions precedent have been satisfied or waived:
(a) The Liquidity Provider shall have received each of the following, and in the case of each
document delivered pursuant to paragraphs (i), (ii) and (iii), each in form and substance
satisfactory to the Liquidity Provider:
(i) This Agreement duly executed on behalf of the Borrower and the Fee Letter applicable to
this Agreement duly executed on behalf of the Borrower and US Airways;
(ii) The Intercreditor Agreement duly executed on behalf of each of the parties thereto (other
than the Liquidity Provider);
(iii) Fully executed copies of each of the Operative Agreements executed and delivered on or
before the Closing Date (other than this Agreement, the Fee Letter and the Intercreditor
Agreement);
(iv) A copy of the Prospectus Supplement and specimen copies of the Class B Certificates;
(v) An executed copy of each document, instrument, certificate and opinion delivered on or
before the Closing Date pursuant to the Class B Trust Agreement, the Note Purchase Agreement, the
Intercreditor Agreement and the other Operative Agreements (in the case of each such opinion, other
than the opinion of counsel for the Underwriters, either addressed to the Liquidity Provider or
accompanied by a letter from the counsel rendering such opinion to the effect that the Liquidity
Provider is entitled to rely on such opinion as of its date as if it were addressed to the
Liquidity Provider);
(vi) Evidence that there shall have been made and shall be in full force and effect, all
filings, recordings and/or registrations, and there shall have been given or taken any notice or
other similar action as may be reasonably necessary or, to the extent reasonably requested by the
Liquidity Provider, reasonably advisable, in order to establish, perfect, protect and preserve the
right, title and interest, remedies, powers, privileges, liens and security interests of, or for
the benefit of, the Trustees, the Borrower and the Liquidity Provider created by the Operative
Agreements executed and delivered on or before the Closing Date;
(vii) An agreement from US Airways, pursuant to which (i) US Airways agrees to provide to the
Liquidity Provider (A) within 90 days after the end of each of the first three fiscal quarters in
each fiscal year of US Airways, a consolidated balance sheet of US Airways as of the end of such
quarter and related statements of income and cash flows for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding period in the preceding fiscal
year, prepared in accordance with GAAP; provided, that so long as
20
[Revolving Credit Agreement (2010-1B)]
US Airways is subject to the reporting requirements of the Securities Exchange Act of 1934, as
amended, a copy of US Airwayss report on Form 10-Q for such fiscal quarter (excluding exhibits) or
a written notice of US Airways that such report has been filed with the Securities and Exchange
Commission, providing a website address at which such report may be accessed and confirming that
the report accessible at such website address conforms to the original report filed with the
Securities and Exchange Commission will satisfy this subclause (A), and (B) within 120 days after
the end of each fiscal year of US Airways, a consolidated balance sheet of US Airways as of the end
of such fiscal year and related statements of income and cash flows of US Airways for such fiscal
year, in comparative form with the preceding fiscal year, prepared in accordance with GAAP,
together with a report of US Airwayss independent certified public accountants with respect to
their audit of such financial statements; provided, that so long as US Airways is subject to the
reporting requirements of the Securities Exchange Act of 1934, as amended, a copy of US Airwayss
report on Form 10-K for such fiscal year (excluding exhibits) or a written notice of US Airways
that such report has been filed with the Securities and Exchange Commission, providing a website
address at which such report may be accessed and confirming that the report accessible at such
website address conforms to the original report filed with the Securities and Exchange Commission
will satisfy this subclause (B), and (ii) US Airways agrees to allow the Liquidity Provider to
inspect US Airwayss books and records regarding such transactions, and to discuss such
transactions with officers and employees of US Airways;
(viii) Legal opinions from (a) Morris James LLP, special counsel to the Borrower, and (b)
Latham & Watkins LLP, special counsel to US Airways, each in form and substance reasonably
satisfactory to the Liquidity Provider; and
(ix) Such other documents, instruments, opinions and approvals pertaining to the transactions
contemplated hereby or by the other Operative Agreements as the Liquidity Provider shall have
reasonably requested, including, without limitation, such documentation as the Liquidity Provider
may require to satisfy its know your customer policies.
(b) The following statement shall be true on and as of the Effective Date: no event has
occurred and is continuing, or would result from the entering into of this Agreement or the making
of any Advance, which constitutes a Liquidity Event of Default.
(c) The Liquidity Provider shall have received payment in full of all fees and other sums
required to be paid to or for the account of the Liquidity Provider on or prior to the Effective
Date.
(d) All conditions precedent to the issuance of the Certificates under the Trust Agreements
shall have been satisfied or waived, all conditions precedent to the effectiveness of the other
Liquidity Facility shall have been concurrently satisfied or waived, and all conditions precedent
to the purchase of the Class A Certificates and the Class B Certificates by the Underwriters under
the Underwriting Agreement shall have been satisfied or waived.
(e) The Borrower shall have received a certificate, dated the date hereof, signed by a duly
authorized representative of the Liquidity Provider, certifying that all conditions precedent to
the effectiveness of Section 2.01 have been satisfied or waived.
21
[Revolving Credit Agreement (2010-1B)]
Section 4.02
Conditions Precedent to Borrowing
. The obligation of the Liquidity Provider to
make an Advance on the occasion of each Borrowing shall be subject to the conditions precedent that
the Effective Date shall have occurred and, on or prior to the date of such Borrowing, the Borrower
shall have delivered a Notice of Borrowing which conforms to the terms and conditions of this
Agreement and has been completed as may be required by the relevant form of the Notice of Borrowing
for the type of Advance requested.
Section 4.03
Representations and Warranties
. The representations and warranties of the
Borrower as Subordination Agent in Section 5.2 of the Participation Agreements shall be deemed to
be incorporated into this Agreement as if set out in full herein and as if such representations and
warranties were made by the Borrower to the Liquidity Provider as of the date hereof.
ARTICLE V
COVENANTS
Section 5.01
Affirmative Covenants of the Borrower
. So long as any Advance shall remain
unpaid or the Liquidity Provider shall have any Maximum Commitment hereunder or the Borrower shall
have any obligation to pay any amount to the Liquidity Provider hereunder, the Borrower will,
unless the Liquidity Provider shall otherwise consent in writing:
(a)
Performance of this and Other Agreements
. Punctually pay or cause to be paid all
amounts payable by it under this Agreement and the other Operative Agreements and observe and
perform in all material respects the conditions, covenants and requirements applicable to it
contained in this Agreement and the other Operative Agreements.
(b)
Reporting Requirements
. Furnish to the Liquidity Provider with reasonable
promptness, such information and data with respect to the transactions contemplated by the
Operative Agreements as from time to time may be reasonably requested by the Liquidity Provider;
and permit the Liquidity Provider, upon reasonable notice, to inspect the Borrowers books and
records with respect to such transactions and to meet with officers and employees of the Borrower
to discuss such transactions.
(c)
Certain Operative Agreements
. Furnish to the Liquidity Provider with reasonable
promptness, such Operative Agreements entered into after the date hereof as from time to time may
be reasonably requested by the Liquidity Provider.
Section 5.02
Negative Covenants of the Borrower
. So long as any Advance shall remain unpaid
or the Liquidity Provider shall have any Maximum Commitment hereunder or the Borrower shall have
any obligation to pay any amount to the Liquidity Provider hereunder, the Borrower will not appoint
or permit or suffer to be appointed any successor Borrower without the prior written consent of the
Liquidity Provider, which consent shall not be unreasonably withheld or delayed.
22
[Revolving Credit Agreement (2010-1B)]
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT AND SPECIAL TERMINATION
Section 6.01
Liquidity Events of Default
. If (a) any Liquidity Event of Default has occurred
and is continuing and (b) there is a Performing Note Deficiency, the Liquidity Provider may, in its
discretion, deliver to the Borrower a Termination Notice, the effect of which shall be to cause (i)
the obligation of the Liquidity Provider to make Advances hereunder to expire on the fifth Business
Day after the date on which such Termination Notice is received by the Borrower, (ii) the Borrower
to promptly request, and the Liquidity Provider to promptly make, a Final Advance in accordance
with Section 2.02(d) hereof and Section 3.5(i) of the Intercreditor Agreement, (iii) all other
outstanding Advances to be automatically converted into Final Advances for purposes of determining
the Applicable Liquidity Rate for interest payable thereon, and (iv) subject to Sections 2.07 and
2.09 hereof, all Advances (including, without limitation, any Provider Advance and Applied Provider
Advance), any accrued interest thereon and any other amounts outstanding hereunder to become
immediately due and payable to the Liquidity Provider.
Section 6.02
Special Termination
. If the aggregate Pool Balance of the Class B Certificates
is greater than the aggregate outstanding principal amount of the Series B Equipment Notes (other
than any Series A Equipment Notes previously sold or with respect to which the collateral securing
such Series A Equipment Notes has been disposed of) at any time during the 18 month period prior to
April 22, 2017 the Liquidity Provider may, in its discretion, deliver to the Borrower a Special
Termination Notice, the effect of which shall be to cause (i) the obligation of the Liquidity
Provider to make Advances hereunder to expire on the fifth Business Day after the date on which
such Special Termination Notice is received by the Borrower, (ii) the Borrower to promptly request,
and the Liquidity Provider to promptly make, a Special Termination Advance in accordance with
Section 2.02(g) and Section 3.5(m) of the Intercreditor Agreement, and (iii) subject to Sections
2.07 and 2.09, all Advances (including, without limitation, any Provider Advance and Applied
Provider Advance), any accrued interest thereon and any other amounts outstanding hereunder to
become immediately due and payable to the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01
Amendments, Etc
. No amendment or waiver of any provision of this Agreement, nor
consent to any departure by the Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Liquidity Provider, and, in the case of an amendment or of a
waiver by the Borrower, the Borrower, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Section 7.02
Notices, Etc
. Except as otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including telecopier and mailed or
delivered or sent by telecopier) addressed to the applicable party at its address
23
[Revolving Credit Agreement (2010-1B)]
specified on Schedule B or to such other address as shall be designated by such Person in a
written notice to the others. The Borrower shall give all Notices of Borrowing via telecopier;
provided
, that, in the event of a transmission failure, the Borrower shall use reasonable
efforts to deliver the applicable Notice of Borrowing to the Liquidity Provider on the same
Business Day using such other means as may be reasonably deemed necessary by the Borrower. All
such notices and communications shall be effective (i) if given by telecopier, when transmitted to
the telecopier number specified above, (ii) if given by mail, five Business Days after being
deposited in the mails addressed as specified above, and (iii) if given by other means, when
delivered at the address specified above, except that written notices to the Liquidity Provider
pursuant to the provisions of Article II and Article III hereof shall not be effective until
received by the Liquidity Provider. A copy of all notices delivered hereunder to either party
shall in addition be delivered to each of the parties to the Participation Agreements at their
respective addresses set forth therein.
Section 7.03
No Waiver; Remedies
. No failure on the part of the Liquidity Provider to
exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise of any right under this Agreement preclude any
other or further exercise thereof or the exercise of any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
Section 7.04
Further Assurances
. The Borrower agrees to do such further acts and things and
to execute and deliver to the Liquidity Provider such additional assignments, agreements, powers
and instruments as the Liquidity Provider may reasonably require or deem advisable to carry into
effect the purposes of this Agreement and the other Operative Agreements or to better assure and
confirm unto the Liquidity Provider its rights, powers and remedies hereunder and under the other
Operative Agreements.
Section 7.05
Indemnification; Survival of Certain Provisions
. The Liquidity Provider shall be
indemnified hereunder to the extent and in the manner described in Section 8.1 of the Participation
Agreements. In addition, the Borrower agrees to indemnify, protect, defend and hold harmless the
Liquidity Provider from, against and in respect of, and shall pay on demand, all Expenses of any
kind or nature whatsoever (other than any Expenses of the nature described in Section 3.01, 3.02 or
7.07 hereof or in the Fee Letter applicable to this Agreement (regardless of whether indemnified
against pursuant to said Sections or in such Fee Letter)), that may be imposed, incurred by or
asserted against any Liquidity Indemnitee, in any way relating to, resulting from, or arising out
of or in connection with any action, suit or proceeding by any third party against such Liquidity
Indemnitee and relating to this Agreement, the Fee Letter, the Intercreditor Agreement or any
Financing Agreement;
provided
,
however
, that the Borrower shall not be required to
indemnify, protect, defend and hold harmless any Liquidity Indemnitee in respect of any Expense of
such Liquidity Indemnitee to the extent such Expense is (i) attributable to the gross negligence or
willful misconduct of such Liquidity Indemnitee or any other Liquidity Indemnitee, (ii) ordinary
and usual operating overhead expense, or (iii) attributable to the failure by such Liquidity
Indemnitee or any other Liquidity Indemnitee to perform or observe any agreement, covenant or
condition on its part to be performed or observed in this Agreement, the Intercreditor Agreement,
the Fee Letter applicable to this Agreement or any other Operative Agreement to which it is a
party. The indemnities contained in Section 8.1
24
[Revolving Credit Agreement (2010-1B)]
of the Participation Agreements, and the provisions of Sections 3.01, 3.02, 3.03, 3.09, 7.05
and 7.07 hereof, shall survive the termination of this Agreement.
Section 7.06
Liability of the Liquidity Provider
. (a) Neither the Liquidity Provider nor any
of its officers, employees, directors or Affiliates shall be liable or responsible for: (i) the
use which may be made of the Advances or any acts or omissions of the Borrower or any beneficiary
or transferee in connection therewith; (ii) the validity, sufficiency or genuineness of documents,
or of any endorsement thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; or (iii) the making of Advances by the Liquidity
Provider against delivery of a Notice of Borrowing and other documents which do not comply with the
terms hereof;
provided
,
however
, that the Borrower shall have a claim against the
Liquidity Provider, and the Liquidity Provider shall be liable to the Borrower, to the extent of
any damages suffered by the Borrower which were the result of (A) the Liquidity Providers willful
misconduct or negligence in determining whether documents presented hereunder comply with the terms
hereof, or (B) any breach by the Liquidity Provider of any of the terms of this Agreement or the
Intercreditor Agreement, including, but not limited to, the Liquidity Providers failure to make
lawful payment hereunder after the delivery to it by the Borrower of a Notice of Borrowing strictly
complying with the terms and conditions hereof. In no event, however, shall the Liquidity Provider
be liable on any theory of liability for any special, indirect, consequential or punitive damages
(including, without limitation, any loss of profits, business or anticipated savings).
(b) Neither the Liquidity Provider nor any of its officers, employees, directors or Affiliates
shall be liable or responsible in any respect for (i) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however transmitted, in connection
with this Agreement or any Notice of Borrowing delivered hereunder, or (ii) any action, inaction or
omission which may be taken by it in good faith, absent willful misconduct or gross negligence (in
which event the extent of the Liquidity Providers potential liability to the Borrower shall be
limited as set forth in the immediately preceding paragraph), in connection with this Agreement or
any Notice of Borrowing.
Section 7.07
Costs, Expenses and Taxes
. The Borrower agrees to pay, or cause to be paid (A)
on the Effective Date and on such later date or dates on which the Liquidity Provider shall make
demand, all reasonable out-of-pocket costs and expenses (including, without limitation, the
reasonable fees and expenses of outside counsel for the Liquidity Provider) of the Liquidity
Provider in connection with the preparation, negotiation, execution, delivery, filing and recording
of this Agreement, any other Operative Agreement and any other documents which may be delivered in
connection with this Agreement and (B) on demand, all reasonable costs and expenses (including
reasonable counsel fees and expenses) of the Liquidity Provider in connection with (i) the
enforcement of this Agreement or any other Operative Agreement, (ii) the modification or amendment
of, or supplement to, this Agreement or any other Operative Agreement or such other documents which
may be delivered in connection herewith or therewith (whether or not the same shall become
effective) or any waiver or consent thereunder (whether or not the same shall be effective), (iii)
the replacement of this Agreement by a Replacement Liquidity Facility pursuant to Section 3.5(e)(i)
of the Intercreditor Agreement or (iv) any action or proceeding relating to any order, injunction,
or other process or decree restraining or seeking to restrain the Liquidity Provider from paying
any amount under this Agreement, the
25
[Revolving Credit Agreement (2010-1B)]
Intercreditor Agreement or any other Operative Agreement or otherwise affecting the
application of funds in the Class B Cash Collateral Account. In addition, the Borrower shall pay
any and all recording, stamp and other similar taxes and fees payable or determined to be payable
in connection with the execution, delivery, filing and recording of this Agreement, any other
Operative Agreement and such other documents, and agrees to hold the Liquidity Provider harmless
from and against any and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes or fees.
Section 7.08
Binding Effect; Participations
. (a) This Agreement shall be binding upon and
inure to the benefit of the Borrower and the Liquidity Provider and their respective successors and
assigns, except that neither the Liquidity Provider (except as otherwise provided in this Section
7.08 and in Section 3.5(l) of the Intercreditor Agreement) nor (except as contemplated by Section
3.08) the Borrower shall have the right to assign its rights or obligations hereunder or any
interest herein without the prior written consent of the other party, subject to the requirements
of Section 7.08(b). The Liquidity Provider may grant participations herein or in any of its rights
hereunder (including, without limitation, funded participations and participations in rights to
receive interest payments hereunder) and under the other Operative Agreements to such Persons
(other than US Airways and its Affiliates) as the Liquidity Provider may in its sole discretion
select, subject to the requirements of Section 7.08(b). No such granting of participations by the
Liquidity Provider, however, will relieve the Liquidity Provider of its obligations hereunder. In
connection with any participation or any proposed participation, the Liquidity Provider may
disclose to the participant or the proposed participant any information that the Borrower is
required to deliver or to disclose to the Liquidity Provider pursuant to this Agreement. The
Borrower acknowledges and agrees that the Liquidity Providers source of funds may derive in part
from its participants. Accordingly, references in this Agreement and the other Operative
Agreements to determinations, reserve, capital adequacy and liquidity coverage requirements,
increased costs, reduced receipts, additional amounts due pursuant to Section 3.03 and the like as
they pertain to the Liquidity Provider shall be deemed also to include those of each of its
participants that are banks (subject, in each case, to the maximum amount that would have been
incurred by or attributable to the Liquidity Provider directly if the Liquidity Provider, rather
than the participant, had held the interest participated).
(b) If, pursuant to subsection (a) above, the Liquidity Provider sells any participation in
this Agreement to any bank or other entity (each, a
Transferee
), the Transferee shall not
be entitled to receive any greater payment under Section 3.01, 3.02 or 3.03 than the Liquidity
Provider would have been entitled to receive with respect to the participation sold to such
Transferee. A Transferee shall not be entitled to the benefits of Section 3.03 unless the Borrower
and US Airways is notified of the participation sold to such Transferee and such Transferee agrees,
for the benefit of the Borrower, to comply with the certification requirements of Section 3.03 as
though it were the Liquidity Provider. Unless the Borrower has received forms or other documents
reasonably satisfactory to it (and required by applicable law) indicating that payments hereunder
are not subject to United States federal withholding tax, the Borrower will withhold taxes as
required by law from such payments at the applicable statutory rate.
(c) Notwithstanding the other provisions of this Section 7.08, the Liquidity Provider may
assign and pledge all or any portion of the Advances owing to it to any Federal Reserve Bank or the
United States Treasury as collateral security pursuant to Regulation A of the Board
26
[Revolving Credit Agreement (2010-1B)]
of Governors of the Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank, provided that any payment in respect of such assigned Advances made by the Borrower
to the Liquidity Provider in accordance with the terms of this Agreement shall satisfy the
Borrowers obligations hereunder in respect of such assigned Advance to the extent of such payment.
No such assignment shall release the Liquidity Provider from its obligations hereunder.
Section 7.09
Severability
. Any provision of this Agreement which is prohibited, unenforceable
or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition, unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such provision in any
other jurisdiction.
Section 7.10
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.11
Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity
. (a) Each
of the parties hereto hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or proceeding relating to this
Agreement or any other Operative Agreement, or for recognition and enforcement of any judgment in
respect hereof or thereof, to the nonexclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District of New York, and the
appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in such courts, and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of mail),
postage prepaid, to each party hereto at its address set forth in Section 7.02 hereof, or at such
other address of which the Liquidity Provider shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort claims, breach of duty
claims and all other common law and statutory claims. The Borrower and the Liquidity Provider each
warrant and represent that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its
27
[Revolving Credit Agreement (2010-1B)]
jury trial rights following consultation with such legal counsel. THIS WAIVER IS IRREVOCABLE,
AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 7.12
Execution in Counterparts
. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13
Entirety
. This Agreement, the Intercreditor Agreement and the other Operative
Agreements to which the Liquidity Provider is a party constitute the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all prior understandings
and agreements of such parties.
Section 7.14
Headings
. Section headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any other purpose.
Section 7.15
Transfer
. The Liquidity Provider hereby acknowledges and consents to the
Transfer contemplated by the Assignment and Assumption Agreement.
Section 7.16
LIQUIDITY PROVIDERS OBLIGATION TO MAKE ADVANCES
. EXCEPT AS EXPRESSLY SET FORTH
IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE
BORROWERS RIGHTS TO DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER,
SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE STRICTLY IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
Section 7.17
Patriot Act
. The Liquidity Provider hereby notifies the Borrower that pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107 56 (signed into law October
26, 2001) (the Act), the Liquidity Provider is required to obtain, verify and record, and the
Borrower shall provide to the Liquidity Provider upon request, information that identifies the
Borrower, which information includes the name and address of the Borrower and other information
that will allow the Liquidity Provider to identify the Borrower in accordance with the Act and such
other information as the Liquidity Provider may reasonably request to satisfy its know your
customer policies.
28
[Revolving Credit Agreement (2010-1B)]
IN WITNESS WHEREOF
, the parties have caused this Agreement to be duly executed and delivered
by their respective officers thereunto duly authorized as of the date first set forth above.
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WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as agent and trustee for the
Class B Trust, as Borrower
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By:
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/s/ Adam Vogelsong
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Name:
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Adam Vogelsong
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Title:
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Senior Financial Services Officer
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MORGAN STANLEY BANK, N.A.
,
as Liquidity Provider
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By:
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/s/ Ryan Vetsch
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Name:
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Ryan Vetsch
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Title:
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Authorized Signatory
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[Revolving Credit Agreement (2010-1B)]
SCHEDULE A
TO
REVOLVING CREDIT AGREEMENT
CERTAIN ECONOMIC TERMS
1. Applicable Margin: with respect to any Unpaid Advance (including, without limitation, any
Applied Special Termination Advance but excluding any Unapplied Special Termination Advance) or
Applied Provider Advance: 4.00% per annum.
2. Initial Expiry Date: December 21, 2011.
3. Liquidity Event of Default Delivery Period threshold: $145,000,000.
4. Initial Maximum Commitment: $9,868,245.
5. Prospectus Supplement date: December 15, 2010.
SCHEDULE A
Page 1
[Revolving Credit Agreement (2010-1B)]
SCHEDULE B
TO
REVOLVING CREDIT AGREEMENT
ADMINISTRATION DETAILS
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Borrower
:
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WILMINGTON TRUST COMPANY
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Address:
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1100 North Market Square
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Wilmington, DE 19890-1605
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Attention: Corporate Capital Market Services
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Telephone: (302) 636-6296
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Telecopy: (302) 636-4140
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Liquidity Provider
:
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MORGAN STANLEY BANK, N.A.,
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Address:
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1 Pierrepont Plaza, 7
th
Floor
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Brooklyn, NY 11201
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Attention: Sean Marshall
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Telephone: (718) 754-2095
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Telecopy: (212) 507-6680
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Account Details:
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Citibank, N.A., New York, NY 10043
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ABA No. 021 000 089
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Account Name: Morgan Stanley Bank, NA
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Account #: 3044-0947
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Reference to: US Airways 2010-1B EETC
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Attn: Morgan Stanley Loan Servicing
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SCHEDULE B
Page 1
[Revolving Credit Agreement (2010-1B)]
ANNEX I
TO
REVOLVING CREDIT AGREEMENT
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower (the
Borrower
), hereby certifies to Morgan Stanley, N.A. (the
Liquidity Provider
),
with reference to the Revolving Credit Agreement (2010-1B) dated as of December 21, 2010, between
the Borrower and the Liquidity Provider (the
Liquidity Agreement
; the terms defined
therein and not otherwise defined herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the making of an Interest
Advance by the Liquidity Provider to be used, subject to clause (3)(v) below, for the
payment of interest on the Class B Certificates which was payable on ____________, ____
(the
Distribution Date
) in accordance with the terms and provisions of the Class B
Trust Agreement and the Class B Certificates, which Advance is requested to be made on
[____________, ____]
1
. The Interest Advance should be transferred to [name of
bank/wire instructions/ABA number] in favor of account number [ ], reference [ ].
(3) The amount of the Interest Advance requested hereby (i) is $[_____________], to be
applied in respect of the payment of the interest which was due and payable on the Class B
Certificates on the Distribution Date, (ii) does not include any amount with respect to the
payment of principal of, or premium on, the Class B Certificates, or principal of, or
interest or premium on, the Class A Certificates or any Additional Certificates, (iii) was
computed in accordance with the provisions of the Class B Certificates, the Liquidity
Agreement, the Class B Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), (iv) does not exceed the Maximum Available
Commitment on the date hereof, (v) does not include any amount of interest which was due and
payable on the Class B Certificates on such Distribution Date but which remains unpaid due
to the failure of the Depositary to pay any amount of accrued interest on the Deposits on
such Distribution Date and (vi) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the Borrower will apply the same in accordance with the terms of
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1
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If a Notice of Borrowing will be delivered
prior to 1:00 p.m. (New York City time) on a Business Day, insert the date of
the Notice of Borrowing. If a Notice of Borrowing will be delivered after 1:00
p.m. (New York City time) on a Business Day or on a day that is not a Business
Day, insert the first Business Day after the date of the Notice of Borrowing.
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ANNEX I
Page 1
[Revolving Credit Agreement (2010-1B)]
Section 3.5(b) of the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the Borrower for any other purpose and (c) no portion of such amount until so applied
shall be commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, the making of the
Interest Advance as requested by this Notice of Borrowing shall automatically reduce, subject to
reinstatement in accordance with the terms of the Liquidity Agreement, the Maximum Available
Commitment by an amount equal to the amount of the Interest Advance requested to be made hereby as
set forth in clause (i) of paragraph (3) of this Notice of Borrowing and such reduction shall
automatically result in corresponding reductions in the amounts available to be borrowed pursuant
to a subsequent Advance.
ANNEX I
Page 2
[Revolving Credit Agreement (2010-1B)]
IN WITNESS WHEREOF
, the Borrower has executed and delivered this Notice of Borrowing as of the
____ day of _________, ___.
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WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
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By:
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Name:
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Title:
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ANNEX I
Page 3
[Revolving Credit Agreement (2010-1B)]
SCHEDULE I
TO
INTEREST ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Interest Advance Notice of Borrowing]
ANNEX I
Page 4
[Revolving Credit Agreement (2010-1B)]
ANNEX II
TO
REVOLVING CREDIT AGREEMENT
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower (the
Borrower
), hereby certifies to Morgan Stanley Bank, N.A. (the
Liquidity
Provider
), with reference to the Revolving Credit Agreement (2010-1B) dated as of December 21,
2010, between the Borrower and the Liquidity Provider (the
Liquidity Agreement
; the terms
defined therein and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the making of the
Non-Extension Advance by the Liquidity Provider to be used for the funding of the Class B
Cash Collateral Account in accordance with Section 3.5(d) of the Intercreditor Agreement,
which Advance is requested to be made on [__________, ____]
2
. The Non-Extension
Advance should be transferred to [name of bank/wire instructions/ABA number] in favor of
account number [ ], reference [ ].
(3) The amount of the Non-Extension Advance requested hereby (i) is $______________.__,
which equals the Maximum Available Commitment on the date hereof and is to be applied in
respect of the funding of the Class B Cash Collateral Account in accordance with Section
3.5(d) of the Intercreditor Agreement, (ii) does not include any amount with respect to the
payment of the principal of, or premium on, the Class B Certificates, or principal of, or
interest or premium on, the Class A Certificates or any Additional Certificates, (iii) was
computed in accordance with the provisions of the Class B Certificates, the Liquidity
Agreement, the Class B Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not been and is not the subject
of a prior or contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the Borrower will deposit such amount in the Class B Cash Collateral Account and apply the
same in accordance with the terms of Section 3.5(d) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other funds held by the
Borrower.
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2
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If a Notice of Borrowing will be delivered
prior to 1:00 p.m. (New York City time) on a Business Day, insert the date of
the Notice of Borrowing. If a Notice of Borrowing will be delivered after 1:00
p.m. (New York City time) on a Business Day or on a day that is not a Business
Day, insert the first Business Day after the date of the Notice of Borrowing.
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ANNEX II
Page 1
[Revolving Credit Agreement (2010-1B)]
The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of
the Non-Extension Advance as requested by this Notice of Borrowing shall automatically and
irrevocably terminate the obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider of the Non-Extension
Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to request any
further Advances under the Liquidity Agreement.
ANNEX II
Page 2
[Revolving Credit Agreement (2010-1B)]
IN WITNESS WHEREOF
, the Borrower has executed and delivered this Notice of Borrowing as of the
____ day of _________, ___.
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WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
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By:
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Name:
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Title:
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ANNEX II
Page 3
[Revolving Credit Agreement (2010-1B)]
SCHEDULE I
TO
NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Non-Extension Advance Notice of Borrowing]
ANNEX II
Page 4
[Revolving Credit Agreement (2010-1B)]
ANNEX III
TO
REVOLVING CREDIT AGREEMENT
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower (the
Borrower
), hereby certifies to Morgan Stanley Bank, N.A. (the
Liquidity
Provider
), with reference to the Revolving Credit Agreement (2010-1B) dated as of December 21,
2010, between the Borrower and the Liquidity Provider (the
Liquidity Agreement
; the terms
defined therein and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the making of the Downgrade
Advance by the Liquidity Provider to be used for the funding of the Class B Cash Collateral
Account in accordance with Section 3.5(c) of the Intercreditor Agreement by reason of the
occurrence of a Downgrade Event, which Advance is requested to be made on [__________,
____]
3
. The Downgrade Advance should be transferred to [name of bank/wire
instructions/ABA number] in favor of account number [ ], reference [ ].
(3) The amount of the Downgrade Advance requested hereby (i) is $______________.__,
which equals the Maximum Available Commitment on the date hereof and is to be applied in
respect of the funding of the Class B Cash Collateral Account in accordance with Section
3.5(c) of the Intercreditor Agreement, (ii) does not include any amount with respect to the
payment of the principal of, or premium on, the Class B Certificates, or principal of, or
interest or premium on, the Class A Certificates or any Additional Certificates, (iii) was
computed in accordance with the provisions of the Class B Certificates, the Liquidity
Agreement, the Class B Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not been and is not the subject
of a prior or contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the Borrower will deposit such amount in the Class B Cash Collateral Account and apply the
same in accordance with the terms of Section 3.5(c) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower
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3
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If a Notice of Borrowing will be delivered
prior to 1:00 p.m. (New York City time) on a Business Day, insert the date of
the Notice of Borrowing. If a Notice of Borrowing will be delivered after 1:00
p.m. (New York City time) on a Business Day or on a day that is not a Business
Day, insert the first Business Day after the date of the Notice of Borrowing.
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ANNEX III
Page 1
[Revolving Credit Agreement (2010-1B)]
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for any other purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
|
The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of
the Downgrade Advance as requested by this Notice of Borrowing shall automatically and irrevocably
terminate the obligation of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity Provider of the Downgrade Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to request any further
Advances under the Liquidity Agreement.
ANNEX III
Page 2
[Revolving Credit Agreement (2010-1B)]
IN WITNESS WHEREOF
, the Borrower has executed and delivered this Notice of Borrowing as of the
____ day of _________, ___.
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WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
|
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By:
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Name:
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Title:
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ANNEX III
Page 3
[Revolving Credit Agreement (2010-1B)]
SCHEDULE I
TO
DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Downgrade Advance Notice of Borrowing]
ANNEX III
Page 4
[Revolving Credit Agreement (2010-1B)]
ANNEX IV
TO
REVOLVING CREDIT AGREEMENT
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower (the
Borrower
), hereby certifies to Morgan Stanley Bank, N.A. (the
Liquidity
Provider
), with reference to the Revolving Credit Agreement (2010-1B) dated as of December 21,
2010, between the Borrower and the Liquidity Provider (the
Liquidity Agreement
; the terms
defined therein and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the making of the Final
Advance by the Liquidity Provider to be used for the funding of the Class B Cash Collateral
Account in accordance with Section 3.5(i) of the Intercreditor Agreement by reason of the
receipt by the Borrower of a Termination Notice from the Liquidity Provider with respect to
the Liquidity Agreement, which Advance is requested to be made on [____________,
____]
4
. The Final Advance should be transferred to [name of bank/wire
instructions/ABA number] in favor of account number [ ], reference [ ].
(3) The amount of the Final Advance requested hereby (i) is $________________.__, which
equals the Maximum Available Commitment on the date hereof and is to be applied in respect
of the funding of the Class B Cash Collateral Account in accordance with Section 3.5(i) of
the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of
principal of, or premium on, the Class B Certificates, or principal of, or interest or
premium on, the Class A Certificates or any Additional Certificates, (iii) was computed in
accordance with the provisions of the Class B Certificates, the Liquidity Agreement, the
Class B Trust Agreement and the Intercreditor Agreement (a copy of which computation is
attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the Borrower will deposit such amount in the Class B Cash Collateral Account and apply the
same in accordance with the terms of Section 3.5(i) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower
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4
|
|
If a Notice of Borrowing will be delivered
prior to 1:00 p.m. (New York City time) on a Business Day, insert the date of
the Notice of Borrowing. If a Notice of Borrowing will be delivered after 1:00
p.m. (New York City time) on a Business Day or on a day that is not a Business
Day, insert the first Business Day after the date of the Notice of Borrowing.
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ANNEX IV
Page 1
[Revolving Credit Agreement (2010-1B)]
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for any other purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
|
(5) The Borrower hereby requests that the Advance requested hereby be a Base Rate
Advance [and that such Base Rate Advance be converted into a LIBOR Advance on the third
Business Day following your receipt of this notice.]
The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of
the Final Advance as requested by this Notice of Borrowing shall automatically and irrevocably
terminate the obligation of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity Provider of the Final Advance requested by
this Notice of Borrowing, the Borrower shall not be entitled to request any further Advances under
the Liquidity Agreement.
ANNEX IV
Page 2
[Revolving Credit Agreement (2010-1B)]
IN WITNESS WHEREOF
, the Borrower has executed and delivered this Notice of Borrowing as of the
____ day of _________, ___.
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WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
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By:
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Name:
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Title:
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ANNEX IV
Page 3
[Revolving Credit Agreement (2010-1B)]
SCHEDULE I
TO
FINAL ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Final Advance Notice of Borrowing]
ANNEX IV
Page 4
[Revolving Credit Agreement (2010-1B)]
ANNEX V
TO
REVOLVING CREDIT AGREEMENT
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
1100 North Market Square
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
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Revolving Credit Agreement dated as of December 21, 2010 between Wilmington Trust Company,
as Subordination Agent, as agent and trustee for the US Airways Pass Through Trust,
2010-1B-[O/S], as Borrower, and Morgan Stanley Bank, N.A. (the
Liquidity
Agreement
)
|
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the Liquidity Agreement, by reason of
the occurrence of a Liquidity Event of Default and the existence of a Performing Note Deficiency,
we are giving this notice to you in order to cause (i) our obligations to make Advances under such
Liquidity Agreement to terminate on the fifth Business Day after the date on which you receive this
notice and (ii) you to request a Final Advance under the Liquidity Agreement pursuant to Section
3.5(i) of the Intercreditor Agreement as a consequence of your receipt of this notice and (iii) any
Interest Advance, Provider Advance or Special Termination Advance to be converted to and treated as
a Final Advance.
Terms used but not defined herein shall have the respective meanings ascribed thereto in or
pursuant to the Liquidity Agreement.
ANNEX V
Page 1
[Revolving Credit Agreement (2010-1B)]
THIS NOTICE IS THE NOTICE OF TERMINATION PROVIDED FOR UNDER THE LIQUIDITY AGREEMENT. OUR
OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY
AFTER THE DATE ON WHICH YOU RECEIVE THIS NOTICE.
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Very truly yours,
MORGAN STANLEY BANK, N.A.,
as Liquidity
Provider
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By:
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Name:
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Title:
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cc:
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Wilmington Trust Company,
as Class B Trustee
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ANNEX V
Page 2
[Revolving Credit Agreement (2010-1B)]
ANNEX VI
TO
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
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Revolving Credit Agreement dated as of December 21, 2010, between Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the US Airways Pass
Through Trust, 2010-1B-[O/S], as Borrower, and Morgan Stanley Bank, N.A. (the
Liquidity Agreement
)
|
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably transfers to:
____________________
[Name of Transferee]
____________________
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity Agreement referred to
above. The transferee has succeeded the undersigned as Subordination Agent under the Intercreditor
Agreement referred to in the first paragraph of the Liquidity Agreement, pursuant to the terms of
Section 8.1 of the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower under the Liquidity Agreement are
transferred to the transferee and the transferee shall hereafter have the sole rights and
obligations as Borrower thereunder. The undersigned shall pay any costs and expenses of such
transfer, including, but not limited to, transfer taxes or governmental charges.
We ask that this transfer be effective as of _______________, ___.
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WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
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By:
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Name:
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Title:
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ANNEX VI
Page 1
[Revolving Credit Agreement (2010-1B)]
ANNEX VII
TO
REVOLVING CREDIT AGREEMENT
SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower (the
Borrower
), hereby certifies to Morgan Stanley Bank, N.A. (the
Liquidity
Provider
), with reference to the Revolving Credit Agreement (2010-1B) dated as of December 21,
2010, between the Borrower and the Liquidity Provider (the
Liquidity Agreement
; the terms
defined therein and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the making of the Special
Termination Advance by the Liquidity Provider to be used for the funding of the Class B Cash
Collateral Account in accordance with Section 3.5(m) of the Intercreditor Agreement by
reason of the receipt by the Borrower of a Special Termination Notice from the Liquidity
Provider with respect to the Liquidity Agreement, which Advance is requested to be made on
[____________, ____]
5
. The Special Termination Advance should be transferred to
[name of bank/wire instructions/ABA number] in favor of account number [ ], reference [ ].
(3) The amount of the Special Termination Advance requested hereby (i) is
$________________.__, which equals the Maximum Available Commitment on the date hereof and
is to be applied in respect of the funding of the Class B Cash Collateral Account in
accordance with Section 3.5(m) of the Intercreditor Agreement, (ii) does not include any
amount with respect to the payment of principal of, or premium on, the Class B Certificates,
or principal of, or interest or premium on, the Class A Certificates or any Additional
Certificates, (iii) was computed in accordance with the provisions of the Class B
Certificates, the Liquidity Agreement, the Class B Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not
been and is not the subject of a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the Borrower will deposit such amount in the Class B Cash Collateral Account and apply the
same in accordance with the terms of Section 3.5(m) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower
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5
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If a Notice of Borrowing will be delivered
prior to 1:00 p.m. (New York City time) on a Business Day, insert the date of
the Notice of Borrowing. If a Notice of Borrowing will be delivered after 1:00
p.m. (New York City time) on a Business Day or on a day that is not a Business
Day, insert the first Business Day after the date of the Notice of Borrowing.
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ANNEX VII
Page 1
[Revolving Credit Agreement (2010-1B)]
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for any other purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
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The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of
the Special Termination Advance as requested by this Notice of Borrowing shall automatically and
irrevocably terminate the obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider of the Special
Termination Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
ANNEX VII
Page 2
[Revolving Credit Agreement (2010-1B)]
IN WITNESS WHEREOF
, the Borrower has executed and delivered this Notice of Borrowing as of the
____ day of _________, ___.
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WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
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By:
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Name:
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Title:
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ANNEX VII
Page 3
[Revolving Credit Agreement (2010-1B)]
SCHEDULE I
TO
SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Special Termination Advance Notice of Borrowing]
ANNEX VII
Page 4
[Revolving Credit Agreement (2010-1B)]
ANNEX VIII
TO
REVOLVING CREDIT AGREEMENT
NOTICE OF SPECIAL TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
1100 North Market Square
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
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Revolving Credit Agreement dated as of December 21, 2010 between Wilmington Trust Company,
as Subordination Agent, as agent and trustee for the US Airways Pass Through Trust,
2010-1B-[O/S], as Borrower, and Morgan Stanley Bank, N.A. (the
Liquidity
Agreement
)
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Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.02 of the Liquidity Agreement, by reason of
the aggregate Pool Balance of the Class B Certificates exceeding the aggregate outstanding
principal amount of the Series B Equipment Notes (other than any Series B Equipment Notes
previously sold or with respect to which the collateral securing such Series B Equipment Notes has
been disposed of) during the 18 month period prior to April 22, 2017, we are giving this notice to
you in order to cause (i) our obligations to make Advances under the Liquidity Agreement to
terminate on the fifth Business Day after the date on which you receive this notice and (ii) you to
request a Special Termination Advance under the Liquidity Agreement pursuant to Section 3.5(m) of
the Intercreditor Agreement as a consequence of your receipt of this notice. Terms used but not
defined herein shall have the respective meanings ascribed thereto in or pursuant to the Liquidity
Agreement.
ANNEX VIII
Page 1
[Revolving Credit Agreement (2010-1B)]
THIS NOTICE IS THE NOTICE OF SPECIAL TERMINATION PROVIDED FOR UNDER THE LIQUIDITY AGREEMENT.
OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY AGREEMENT WILL TERMINATE ON THE FIFTH
BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS NOTICE.
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Very truly yours,
MORGAN STANLEY BANK, N.A.
, as Liquidity
Provider
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By:
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Name:
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Title:
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cc:
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Wilmington Trust Company,
as Class B Trustee
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ANNEX VIII
Page 2
Exhibit 4.8
EXECUTION VERSION
INTERCREDITOR AGREEMENT
(2010-1)
Dated as of
December 21, 2010
AMONG
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee under the
US Airways Pass Through Trust 2010-1A
and
US Airways Pass Through Trust 2010-1B
MORGAN STANLEY BANK, N.A.,
as Class A Liquidity Provider
and
as Class B Liquidity Provider
AND
WILMINGTON TRUST COMPANY,
not in its individual capacity except
as expressly set forth herein but
solely as Subordination Agent and Trustee
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
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2
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SECTION 1.1. Definitions
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2
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ARTICLE II TRUST ACCOUNTS; CONTROLLING PARTY
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19
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SECTION 2.1. Agreement to Terms of Subordination; Payments from Monies Received Only
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19
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SECTION 2.2. Trust Accounts
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20
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SECTION 2.3. Deposits to the Collection Account and Special Payments Account
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21
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SECTION 2.4. Distributions of Special Payments
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21
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SECTION 2.5. Designated Representatives
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23
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SECTION 2.6. Controlling Party
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24
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ARTICLE III RECEIPT, DISTRIBUTION AND APPLICATION OF AMOUNTS RECEIVED
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25
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SECTION 3.1. Written Notice of Distribution
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25
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SECTION 3.2. Distribution of Amounts on Deposit in the Collection Account
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27
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SECTION 3.3. Other Payments
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29
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SECTION 3.4. Payments to the Trustees and the Liquidity Providers
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30
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SECTION 3.5. Liquidity Facilities
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30
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ARTICLE IV EXERCISE OF REMEDIES
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36
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SECTION 4.1. Directions from the Controlling Party
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36
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SECTION 4.2. Remedies Cumulative
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38
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SECTION 4.3. Discontinuance of Proceedings
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38
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SECTION 4.4. Right of Certificateholders and the Liquidity Providers to Receive Payments Not to Be Impaired
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39
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SECTION 4.5. Undertaking for Costs
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39
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ARTICLE V DUTIES OF THE SUBORDINATION AGENT; AGREEMENTS OF TRUSTEES, ETC.
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39
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SECTION 5.1. Notice of Indenture Default or Triggering Event
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39
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SECTION 5.2. Indemnification
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41
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SECTION 5.3. No Duties Except as Specified in this Intercreditor Agreement
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41
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SECTION 5.4. Notice from the Liquidity Providers and Trustees
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41
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ARTICLE VI THE SUBORDINATION AGENT
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41
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SECTION 6.1. Authorization; Acceptance of Trusts and Duties
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41
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SECTION 6.2. Absence of Duties
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42
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SECTION 6.3. No Representations or Warranties as to Documents
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42
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SECTION 6.4. No Segregation of Monies; No Interest
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42
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i
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Page
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SECTION 6.5. Reliance; Agents; Advice of Counsel
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42
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SECTION 6.6. Capacity in Which Acting
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43
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SECTION 6.7. Compensation
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43
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SECTION 6.8. May Become Certificateholder
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43
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SECTION 6.9. Subordination Agent Required; Eligibility
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43
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SECTION 6.10. Money to Be Held in Trust
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44
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ARTICLE VII INDEMNIFICATION OF SUBORDINATION AGENT
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44
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SECTION 7.1. Scope of Indemnification
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44
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ARTICLE VIII SUCCESSOR SUBORDINATION AGENT
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44
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SECTION 8.1. Replacement of Subordination Agent; Appointment of Successor
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44
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ARTICLE IX SUPPLEMENTS AND AMENDMENTS
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45
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SECTION 9.1. Amendments, Waivers, Possible Future Issuance of an Additional Class of Certificates, etc.
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45
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SECTION 9.2. Subordination Agent Protected
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48
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SECTION 9.3. Effect of Supplemental Agreements
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49
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SECTION 9.4. Notice to Rating Agencies
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49
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ARTICLE X MISCELLANEOUS
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49
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SECTION 10.1. Termination of Intercreditor Agreement
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49
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SECTION 10.2. Intercreditor Agreement for Benefit of Trustees, Liquidity Providers and Subordination Agent
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49
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SECTION 10.3. Notices
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49
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SECTION 10.4. Severability
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50
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SECTION 10.5. No Oral Modifications or Continuing Waivers
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50
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SECTION 10.6. Successors and Assigns
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50
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SECTION 10.7. Headings
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51
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SECTION 10.8. Counterpart Form
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51
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SECTION 10.9. Subordination
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51
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SECTION 10.10. Governing Law
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52
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SECTION 10.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity
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52
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ii
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT (this
Agreement
) dated as of December 21, 2010, among
WILMINGTON TRUST COMPANY, a Delaware banking corporation (
WTC
), not in its individual
capacity but solely as Trustee of each Trust (each as defined below); MORGAN STANLEY BANK, N.A., a
national banking association, as Class A Liquidity Provider and Class B Liquidity Provider; and
WILMINGTON TRUST COMPANY, not in its individual capacity except as expressly set forth herein, but
solely as Subordination Agent and trustee hereunder (in such capacity, together with any successor
appointed pursuant to Article VIII hereof, the
Subordination Agent
).
WHEREAS, all capitalized terms used herein shall have the respective meanings referred to in
Article I hereof;
WHEREAS, pursuant to each Trust Indenture, US Airways will issue on a recourse basis up to
(and including) two series of Equipment Notes to finance or refinance, as the case may be, the
related Aircraft;
WHEREAS, pursuant to the Financing Agreements, each Trust will acquire Equipment Notes having
an interest rate equal to the Stated Interest Rate applicable to the Certificates to be issued by
such Trust;
WHEREAS, pursuant to each Trust Agreement, the Trust created thereby proposes to issue a
single class of Certificates (a
Class
) having the interest rate and the final
distribution date described in such Trust Agreement on the terms and subject to the conditions set
forth therein;
WHEREAS, pursuant to the Underwriting Agreement, the Underwriters propose to purchase the
Class A Certificates issued by the Class A Trust and the Class B Certificates issued by the Class B
Trust in the aggregate face amount set forth opposite the name of such Trust on Schedule I thereto
on the terms and subject to the conditions set forth therein;
WHEREAS, the Class A Liquidity Provider proposes to enter into a revolving credit agreement
relating to the Class A Certificates and the Class B Liquidity Provider proposes to enter into a
revolving credit agreement relating to the Class B Certificates, in each case with the
Subordination Agent, as agent for the Trustee of the applicable Trust, respectively, for the
benefit of the Certificateholders of such Trust; and
WHEREAS, it is a condition precedent to the obligations of the Underwriters under the
Underwriting Agreement that the Subordination Agent, the Trustees and the Liquidity Providers agree
to the terms of subordination set forth in this Agreement in respect of each Class of Certificates,
and the Subordination Agent, the Trustees and the Liquidity Providers, by entering into this
Agreement, hereby acknowledge and agree to such terms of subordination and the other provisions of
this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and for other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1.
Definitions
. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms used herein that are defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(2) all references in this Agreement to designated Articles, Sections and other
subdivisions are to the designated Articles, Sections and other subdivisions of this
Agreement;
(3) the words herein, hereof and hereunder and other words of similar import
refer to this Agreement as a whole and not to any particular Article, Section or other
subdivision; and
(4) the term including means including without limitation.
Acceleration
means, with respect to the amounts payable in respect of the Equipment
Notes issued under any Trust Indenture, such amounts becoming immediately due and payable by
declaration or otherwise.
Accelerate
,
Accelerated
and
Accelerating
have meanings correlative to the foregoing.
Actual Disposition Event
means, in respect of any Equipment Note: (i) the
disposition of the Aircraft securing such Equipment Note, (ii) the occurrence of the mandatory
redemption date for such Equipment Note following an Event of Loss (as defined in such Trust
Indenture) with respect to the Aircraft which secured such Equipment Note or (iii) the sale of such
Equipment Note.
Additional Certificateholders
has the meaning specified in Section 9.1(d).
Additional Certificates
has the meaning specified in Section 9.1(d).
Additional Equipment Notes
has the meaning specified in Section 9.1(d).
Additional Trust
has the meaning specified in Section 9.1(d).
Additional Trust Agreement
has the meaning specified in Section 9.1(d).
Additional Trustee
has the meaning specified in Section 9.1(d).
Administration Expenses
has the meaning specified in clause first of Section 3.2.
Advance
, with respect to any Liquidity Facility, means any Advance as defined in
such Liquidity Facility.
2
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 means 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; and the terms controlling and controlled have meanings correlative to
the foregoing.
Aircraft
means, with respect to each Trust Indenture, the Aircraft referred to
therein.
Appraisal
has the meaning specified in Section 4.1(a)(iv).
Appraised Current Market Value
of any Aircraft means the lower of the average and
the median of the three most recent Post-Default Appraisals of such Aircraft.
Appraisers
means Aircraft Information Services, Inc., BK Associates, Inc. and Morten
Beyer and Agnew, Inc. or, so long as the Person entitled or required hereunder to select such
Appraiser acts reasonably, any other nationally recognized appraiser reasonably satisfactory to the
Subordination Agent and the Controlling Party.
Assignment and Assumption Agreements
means each of the Assignment and Assumption
Agreements to be executed between a Trustee and trustee of the relevant Successor Trust in
accordance with the relevant Trust Agreement, as the same may be amended, modified or supplemented
from time to time.
Available Amount
means, with respect to any Liquidity Facility on any date, the
Maximum Available Commitment (as defined therein) on such date.
Bankruptcy Code
means the United States Bankruptcy Code, 11 U.S.C. Sections 101
et
seq
.
Basic Agreement
means the Pass Through Trust Agreement dated as of December 21, 2010
between US Airways and WTC, not in its individual capacity, except as otherwise expressly provided
therein, but solely as trustee.
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 Phoenix, Arizona, New York, New York or, so
long as any Certificate is outstanding, the city and state in which any Trustee, the Subordination
Agent or any Indenture Trustee maintains its Corporate Trust Office and that, solely with respect
to the making and repayment of Advances under any Liquidity Facility, also is a Business Day as
defined in such Liquidity Facility.
Cash Collateral Account
means the Class A Cash Collateral Account or the Class B
Cash Collateral Account, as applicable.
Certificate
means a Class A Certificate or a Class B Certificate, as applicable.
Certificateholder
means any holder of one or more Certificates.
3
Class
has the meaning assigned to such term in the preliminary statements to this
Agreement.
Class A Cash Collateral Account
means an Eligible Deposit Account in the name of the
Subordination Agent maintained at an Eligible Institution, which shall be the Subordination Agent
if it shall so qualify, into which all amounts drawn under the Class A Liquidity Facility pursuant
to Section 3.5(c), 3.5(d), 3.5(i) or 3.5(m) shall be deposited.
Class A Certificateholder
means, at any time, any holder of one or more Class A
Certificates.
Class A Certificates
means the certificates issued by the Class A Trust,
substantially in the form of Exhibit A to the Class A Trust Agreement, and authenticated by the
Class A Trustee, representing fractional undivided interests in the Class A Trust, and any
certificates issued in exchange therefor or replacement thereof pursuant to the terms of the Class
A Trust Agreement.
Class A Liquidity Facility
means, initially, the Revolving Credit Agreement dated as
of the date hereof, between the Subordination Agent, as agent and trustee for the Class A Trust,
and the initial Class A Liquidity Provider, and from and after the replacement of such Revolving
Credit Agreement pursuant hereto, the Replacement Liquidity Facility therefor, if any, in each case
as amended, supplemented or otherwise modified from time to time in accordance with its terms.
Class A Liquidity Provider
means Morgan Stanley Bank, N.A. or, if applicable, any
Replacement Liquidity Provider which has issued a Replacement Liquidity Facility to replace any
Class A Liquidity Facility pursuant to Section 3.5(e).
Class A Trust
means (i) prior to the Transfer, the US Airways Pass Through Trust
2010-1A-O created and administered pursuant to the Class A Trust Agreement and (ii) after the
Transfer, the US Airways Pass Through Trust 2010-1A-S created and administered pursuant to the
Class A Trust Agreement.
Class A Trust Agreement
means (i) prior to the Transfer, the Basic Agreement, as
supplemented by the Supplement No. 2010-1A-O thereto dated as of the date hereof, governing the
creation and administration of the US Airways Pass Through Trust 2010-1A-O (the
Original Class
A Trust
) and the issuance of the Class A Certificates, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its terms, and (ii) after
the Transfer, the Basic Agreement, as supplemented by the Supplement No. 2010-1A-S thereto,
governing the creation and administration of the US Airways Pass Through Trust 2010-1A-S (the
Successor Class A Trust
) and the issuance of the Class A Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with its terms.
Class A Trustee
means WTC, not in its individual capacity except as expressly set
forth in the Class A Trust Agreement, but solely as trustee under the Class A Trust Agreement,
together with any successor trustee appointed pursuant thereto.
4
Class B Adjusted Interest
means, as of any Current Distribution Date: (I) any
interest described in clause (II) of this definition accruing prior to the immediately preceding
Distribution Date which remains unpaid and (II) interest at the Stated Interest Rate for the Class
B Certificates (A) for the number of days during the period commencing on, and including, the
immediately preceding Distribution Date (or, if the Current Distribution Date is the first
Distribution Date, the Closing Date) and ending on, but excluding the Current Distribution Date, on
the Preferred B Pool Balance on such Current Distribution Date and (B) on the principal amount
calculated pursuant to clauses (B)(i), (ii), (iii) and (iv) of the definition of Preferred B Pool
Balance for each Series B Equipment Note with respect to which a disposition, distribution, sale or
Deemed Disposition Event has occurred since the immediately preceding Distribution Date (but only
if no such event has previously occurred with respect to such Series B Equipment Note), for each
day during the period, for each such Series B Equipment Note, commencing on, and including, the
immediately preceding Distribution Date (or, if the Current Distribution Date is the first
Distribution Date, the Closing Date) and ending on, but excluding the date of disposition,
distribution, sale or Deemed Disposition Event with respect to such Series B Equipment Note,
Aircraft or Collateral, as the case may be.
Class B Cash Collateral Account
means an Eligible Deposit Account in the name of the
Subordination Agent maintained at an Eligible Institution, which shall be the Subordination Agent
if it shall so qualify, into which all amounts drawn under the Class B Liquidity Facility pursuant
to Section 3.5(c), 3.5(d), 3.5(i) or 3.5(m) shall be deposited.
Class B Certificateholder
means, at any time, any holder of one or more Class B
Certificates.
Class B Certificates
means the certificates issued by the Class B Trust,
substantially in the form of Exhibit A to the Class B Trust Agreement, and authenticated by the
Class B Trustee, representing fractional undivided interests in the Class B Trust, and any
certificates issued in exchange therefor or replacement thereof pursuant to the terms of the Class
B Trust Agreement.
Class B Liquidity Facility
means, initially, the Revolving Credit Agreement dated as
of the date hereof, between the Subordination Agent, as agent and trustee for the Class B Trust,
and the initial Class B Liquidity Provider, and from and after the replacement of such Revolving
Credit Agreement pursuant hereto, the Replacement Liquidity Facility therefor, if any, in each case
as amended, supplemented or otherwise modified from time to time in accordance with its terms.
Class B Liquidity Provider
means Morgan Stanley Bank, N.A. or, if applicable, any
Replacement Liquidity Provider which has issued a Replacement Liquidity Facility to replace any
Class B Liquidity Facility pursuant to Section 3.5(e).
Class B Trust
means (i) prior to the Transfer, the US Airways Pass Through Trust
2010-1B-O created and administered pursuant to the Class B Trust Agreement and (ii) after the
Transfer, the US Airways Pass Through Trust 2010-1B-S created and administered pursuant to the
Class B Trust Agreement.
5
Class B Trust Agreement
means (i) prior to the Transfer, the Basic Agreement, as
supplemented by the Supplement No. 2010-1B-O thereto dated as of the date hereof, governing the
creation and administration of the US Airways Pass Through Trust 2010-1B-O (the
Original Class
B Trust
) and the issuance of the Class B Certificates, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its terms, and (ii) after
the Transfer, the Basic Agreement, as supplemented by the Supplement No. 2010-1B-S thereto,
governing the creation and administration of the US Airways Pass Through Trust 2010-1B-S (the
Successor Class B Trust
) and the issuance of the Class B Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with its terms.
Class B Trustee
means WTC, not in its individual capacity except as expressly set
forth in the Class B Trust Agreement, but solely as trustee under the Class B Trust Agreement,
together with any successor trustee appointed pursuant thereto.
Closing Date
means December 21, 2010.
Code
means the Internal Revenue Code of 1986, as amended from time to time, and the
Treasury Regulations promulgated thereunder.
Collateral
has the meaning specified in the Trust Indentures.
Collection Account
means the Eligible Deposit Account established by the
Subordination Agent pursuant to Section 2.2(a)(i) which the Subordination Agent shall make deposits
in and withdrawals from in accordance with this Agreement.
Consent Period
has the meaning specified in Section 3.5(d).
Controlling Party
means the Person entitled to act as such pursuant to the terms of
Section 2.6.
Corporate Trust Office
means, with respect to any Trustee, the Subordination Agent
or any Indenture Trustee, the office of such Person in the city at which, at any particular time,
its corporate trust business shall be principally administered.
Current Distribution Date
means a Distribution Date specified as a reference date
for calculating the Expected Distributions with respect to the Certificates of any Trust as of such
Distribution Date.
Deemed Disposition Event
means, in respect of any Equipment Note, the continuation
of an Indenture Default in respect of such Equipment Note without an Actual Disposition Event
occurring in respect of such Equipment Note for a period of five years from the date of the
occurrence of such Indenture Default.
Delivery Period Expiry Date
means the earlier of (a) January 21, 2010, and (b) the
date on which the Equipment Notes with respect to all Aircraft (as defined in the Note Purchase
Agreement) (including any Substitute Aircraft in lieu of the New Aircraft (as defined in
6
the Note Purchase Agreement)) have been purchased by the Trusts in accordance with the Note
Purchase Agreement.
Deposit Agreement
means, with respect to any Class of Certificates, the Deposit
Agreement pertaining to such Class, dated as of the date hereof, between the Escrow Agent and the
Depositary, as the same may be amended, modified or supplemented from time to time in accordance
with the terms thereof.
Depositary
means The Bank of New York Mellon, as depositary under each Deposit
Agreement.
Deposits
, with respect to any Class of Certificates, has the meaning set forth in
the Deposit Agreement pertaining to such Class.
Designated Representatives
means the Subordination Agent Representatives, the
Trustee Representatives and the Provider Representatives identified under Section 2.5.
Distribution Date
means a Regular Distribution Date or a Special Distribution Date.
Dollars
or
$
means United States dollars.
Downgrade Drawing
has the meaning specified in Section 3.5(c).
Downgrade Event
means, with respect to any Liquidity Facility, a downgrading of such
Liquidity Providers short-term unsecured debt rating or short-term issuer credit rating, as the
case may be, of the Liquidity Provider thereunder then issued by either Rating Agency below the
applicable Threshold Rating, unless each Rating Agency shall have confirmed in writing on or prior
to the date of any downgrading of the Liquidity Provider thereunder that such downgrading will not
result in the downgrading, withdrawal or suspension of the ratings of the related Class of
Certificates, in which case such downgrading of such short-term unsecured debt rating or short-term
issuer credit rating, as the case may be, shall not constitute a Downgrade Event.
Downgraded Facility
has the meaning specified in Section 3.5(c).
Drawing
means an Interest Drawing, a Final Drawing, a Special Termination Drawing, a
Non-Extension Drawing or a Downgrade Drawing, as the case may be.
Eligible Deposit Account
means either (a) a segregated account with an Eligible
Institution or (b) a segregated trust account with the corporate trust department of a depository
institution organized under the laws of the United States of America or any one of the states
thereof or the District of Columbia (or any U.S. branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as any of the securities
of such depository institution has a long-term unsecured debt rating of at least A3 from Moodys
and a long-term issuer credit rating of at least A- from Standard & Poors. An Eligible Deposit
Account may be maintained with a Liquidity Provider so long as such Liquidity Provider is an
7
Eligible Institution;
provided
that such Liquidity Provider shall have waived all
rights of set-off and counterclaim with respect to such account.
Eligible Institution
means (a) the corporate trust department of the Subordination
Agent or any Trustee, as applicable, or (b) a depository institution organized under the laws of
the United States of America or any one of the states thereof or the District of Columbia (or any
U.S. branch of a foreign bank), which has a long-term unsecured debt rating or issuer credit
rating, as the case may be, from each Rating Agency of at least A-3 or its equivalent.
Eligible Investments
means (a) investments in obligations of, or guaranteed by, the
United States government having maturities no later than 90 days following the date of such
investment, (b) investments in open market commercial paper of any corporation incorporated under
the laws of the United States of America or any state thereof with a short-term unsecured debt
rating issued by Moodys of at least P-1 and a short-term issuer credit rating issued by Standard &
Poors of at least A-1 having maturities no later than 90 days following the date of such
investment or (c) investments in negotiable certificates of deposit, time deposits, bankers
acceptances, commercial paper or other direct obligations of, or obligations guaranteed by,
commercial banks organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with a short-term unsecured debt rating by Moodys
of at least P-1 and a short-term issuer credit rating by Standard & Poors of at least A-1, having
maturities no later than 90 days following the date of such investment;
provided
,
however
, that (x) all Eligible Investments that are bank obligations shall be denominated
in Dollars; and (y) the aggregate amount of Eligible Investments at any one time that are bank
obligations issued by any one bank shall not be in excess of 5% of such banks capital surplus;
provided
further
that any investment of the types described in clauses (a), (b) and
(c) above may be made through a repurchase agreement in commercially reasonable form with a bank or
other financial institution qualifying as an Eligible Institution so long as such investment is
held by a third party custodian also qualifying as an Eligible Institution;
provided
further
,
however
, that in the case of any Eligible Investment issued by a domestic
branch of a foreign bank, the income from such investment shall be from sources within the United
States for purposes of the Code. Notwithstanding the foregoing, no investment of the types
described in clause (b) above which is issued or guaranteed by US Airways or any of its Affiliates,
and no investment in the obligations of any one bank in excess of $10,000,000, shall be an Eligible
Investment unless a Ratings Confirmation shall have been received with respect to the making of
such investment.
Equipment Note Special Payment
means a Special Payment on account of the redemption,
purchase or prepayment of all of the Equipment Notes issued pursuant to a Trust Indenture.
Equipment Notes
means, at any time, the Series A Equipment Notes and the Series B
Equipment Notes, collectively, and in each case, any Equipment Notes issued in exchange therefor or
replacement thereof pursuant to the terms of the Trust Indentures.
Escrow Agent
means Wells Fargo Bank Northwest, National Association, as escrow agent
under each Escrow and Paying Agent Agreement, together with its successors in such capacity.
8
Escrow and Paying Agent Agreement
means, with respect to either Class of
Certificates, the Escrow and Paying Agent Agreement pertaining to such Class dated as of the date
hereof between the Escrow Agent, the Underwriters, the Trustee for such Class and the Paying Agent,
as the same may be amended, modified or supplemented from time to time in accordance with the terms
thereof.
Expected Distributions
means, with respect to the Certificates of any Trust on any
Current Distribution Date, the difference between (A) the Pool Balance of such Certificates as of
the immediately preceding Distribution Date (or, if the Current Distribution Date is the first
Distribution Date, the original aggregate face amount of the Certificates of such Trust) and (B)
the Pool Balance of such Certificates as of the Current Distribution Date calculated on the basis
that (i) the principal of the Non-Performing Equipment Notes held in such Trust has been paid in
full and such payments have been distributed to the holders of such Certificates, (ii) the
principal of the Performing Equipment Notes held in such Trust has been paid when due (without
giving effect to any Acceleration of Performing Equipment Notes) and such payments have been
distributed to the holders of such Certificates and (iii) the principal of any Equipment Notes
formerly held in such Trust that have been sold pursuant to the terms hereof has been paid in full
and such payments have been distributed to the holders of such Certificates, but without giving
effect to any reduction in the Pool Balance as a result of any distribution attributable to
Deposits occurring after the immediately preceding Distribution Date (or, if the Current
Distribution Date is the first Distribution Date, occurring after the initial issuance of the
Certificates of such Trust). For purposes of calculating Expected Distributions with respect to
the Certificates of any Trust, any Premium paid on the Equipment Notes held in such Trust which has
not been distributed to the Certificateholders of such Trust (other than such Premium or a portion
thereof applied to the payment of interest on the Certificates of such Trust or the reduction of
the Pool Balance of such Trust) shall be added to the amount of such Expected Distributions.
Expiry Date
, with respect to any Liquidity Facility, has the meaning set forth in
such Liquidity Facility.
Facility Office
means, with respect to any Liquidity Facility, the office of the
Liquidity Provider thereunder, presently located in New York, New York, or such other office as
such Liquidity Provider from time to time shall notify the applicable Trustee as its Facility
Office under any such Liquidity Facility;
provided
that such Liquidity Provider shall not
change its Facility Office to another Facility Office outside the United States of America except
in accordance with Section 3.01, 3.02 or 3.03 of any such Liquidity Facility.
Fee Letters
means, collectively, (i) the Fee Letter dated as of the date hereof
among Morgan Stanley Bank, N.A., the Subordination Agent and US Airways with respect to the initial
Liquidity Facilities and (ii) any fee letter entered into among the Subordination Agent, any
Replacement Liquidity Provider and US Airways in respect of either or both of such Liquidity
Facilities.
Final Distributions
means, with respect to the Certificates of any Trust on any
Distribution Date, the sum of (x) the aggregate amount of all accrued and unpaid interest on such
Certificates (excluding interest, if any, payable with respect to the Deposits relating to such
9
Trust) and (y) the Pool Balance of such Certificates as of the
immediately preceding Distribution Date (less the amount of the Deposits for such Class of Certificates as of such preceding
Distribution Date other than any portion of such Deposits thereafter used to acquire Equipment
Notes pursuant to the Note Purchase Agreement). For purposes of calculating Final Distributions
with respect to the Certificates of any Trust, any Premium paid on the Equipment Notes held in such
Trust which has not been distributed to the Certificateholders of such Trust (other than such
Premium or a portion thereof applied to the payment of interest on the Certificates of such Trust
or the reduction of the Pool Balance of such Trust) shall be added to the amount of such Final
Distributions.
Final Drawing
has the meaning specified in Section 3.5(i).
Final Legal Distribution Date
means (i) with respect to the Class A Certificates,
October 22, 2024, and (ii) with respect to the Class B Certificates, October 22, 2018.
Financing Agreement
means each of the Participation Agreements, the Trust Indentures
and the Note Purchase Agreement.
Indenture Default
means, with respect to any Trust Indenture, any Event of Default
(as such term is defined in such Trust Indenture) thereunder.
Indenture Trustee
means, with respect to any Trust Indenture, the indenture trustee
thereunder.
Interest Drawing
has the meaning specified in Section 3.5(a).
Interest Payment Date
means, with respect to any Liquidity Facility, each date on
which interest is due and payable under such Liquidity Facility on a Downgrade Drawing,
Non-Extension Drawing, a Special Termination Drawing or Final Drawing thereunder, other than any
such date on which interest is due and payable under such Liquidity Facility only on an Applied
Provider Advance or Applied Special Termination Advance (as such terms are defined in such
Liquidity Facility).
Interest Period
has the meaning specified in the Trust Indentures.
Investment Earnings
means investment earnings on funds on deposit in the Trust
Accounts net of losses and investment expenses of the Subordination Agent in making such
investments.
Lien
means any mortgage, pledge, lien, charge, claim, disposition of title,
encumbrance, lease, sublease, sub-sublease or security interest of any kind, including, without
limitation, any thereof arising under any conditional sales or other title retention agreement.
Liquidity Event of Default
, with respect to any Liquidity Facility, has the meaning
assigned to such term in such Liquidity Facility.
10
Liquidity Expenses
means all Liquidity Obligations other than (i) the principal
amount of any Drawings under the Liquidity Facilities and (ii) any interest accrued on any
Liquidity Obligations.
Liquidity Facility
means, at any time, the Class A Liquidity Facility or the Class B
Liquidity Facility, as applicable.
Liquidity Obligations
means all principal, interest, fees and other amounts owing to
the Liquidity Providers under the Liquidity Facilities, Section 8.1 of the Participation Agreements
or the Fee Letters.
Liquidity Provider
means, at any time, the Class A Liquidity Provider or the Class B
Liquidity Provider, as applicable.
Minimum Sale Price
means, with respect to any Aircraft or the Equipment Notes issued
in respect of such Aircraft, at any time, in the case of the sale of an Aircraft, 75%, or in the
case of the sale of related Equipment Notes, 85%, of the Appraised Current Market Value of such
Aircraft.
Moodys
means Moodys Investors Service, Inc.
Non-Controlling Party
means, at any time, any Trustee, Liquidity Provider or other
Person which is not the Controlling Party at such time.
Non-Extended Facility
has the meaning specified in Section 3.5(d).
Non-Extension Drawing
has the meaning specified in Section 3.5(d).
Non-Performing Equipment Note
means an Equipment Note issued pursuant to a Trust
Indenture that is not a Performing Equipment Note.
Note Purchase Agreement
means the Note Purchase Agreement, dated as of the date
hereof, among US Airways, each Trustee, the Escrow Agent, the Subordination Agent and the Paying
Agent, as amended, supplemented or otherwise modified from time to time in accordance with its
terms.
Operative Agreements
means this Agreement, the Liquidity Facilities, the Trust
Agreements, the Underwriting Agreement, the Financing Agreements, the Fee Letters, the Equipment
Notes and the Certificates, together with all exhibits and schedules included with any of the
foregoing.
Original Class A Trust
has the meaning assigned to such term in the definition of
Class A Trust Agreement.
Original Class B Trust
has the meaning assigned to such term in the definition of
Class B Trust Agreement.
11
Outstanding
means, when used with respect to each Class of Certificates, as of the
date of determination, all Certificates of such Class theretofore authenticated and delivered under
the related Trust Agreement, except:
(i) Certificates of such Class theretofore canceled by the Registrar (as defined in
such Trust Agreement) or delivered to the Trustee thereunder or such Registrar for
cancellation;
(ii) Certificates of such Class for which money in the full amount required to make the
Final Distribution with respect to such Certificates pursuant to Section 11.01 of such Trust
Agreement has been theretofore deposited with the related Trustee in trust for the holders
of such Certificates as provided in Section 4.01 of such Trust Agreement pending
distribution of such money to such Certificateholders pursuant to such Final Distribution
payment; and
(iii) Certificates of such Class in exchange for or in lieu of which other Certificates
have been authenticated and delivered pursuant to such Trust Agreement;
provided
,
however
, that in determining whether the holders of the requisite
Outstanding amount of such Certificates have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, any Certificates owned by US Airways or any of its Affiliates
shall be disregarded and deemed not to be Outstanding, except that, in determining whether such
Trustee shall be protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Certificates that such Trustee knows to be so owned shall be so
disregarded. Certificates so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the applicable Trustee the pledgees
right so to act with respect to such Certificates and that the pledgee is not US Airways or any of
its Affiliates.
Overdue Scheduled Payment
means any Scheduled Payment which is not in fact received
by the Subordination Agent within five days after the Scheduled Payment Date relating thereto.
Participation Agreement
means, with respect to each Trust Indenture, the
Participation Agreement referred to therein.
Payee
has the meaning specified in Section 2.4(c).
Paying Agent
means WTC, as paying agent under each Escrow and Paying Agent
Agreement, together with its successors in such capacity.
Paying Agent Account
has the meaning assigned to such term in the Escrow and Paying
Agent Agreements.
Performing Equipment Note
means an Equipment Note with respect to which no payment
default has occurred and is continuing (without giving effect to any Acceleration);
provided
that in the event of a bankruptcy proceeding under the Bankruptcy Code in which US
Airways is a debtor any payment default existing during the 60-Day Period (or such longer
12
period as
may apply under Section 1110(b) of the Bankruptcy Code or as may apply for the cure of such payment
default under Section 1110(a)(2)(B) of the Bankruptcy Code) shall not be taken into consideration
until the expiration of the applicable period.
Performing Note Deficiency
means any time that less than 65% of the then aggregate
outstanding principal amount of all Equipment Notes (other than any Additional Equipment Notes
issued under any Trust Indenture) are Performing Equipment Notes.
Person
means any individual, corporation, partnership, joint venture, association,
limited liability company, joint-stock company, trust, trustee, unincorporated organization or
government or any agency or political subdivision thereof.
Pool Balance
means, with respect to each Trust or the Certificates issued by any
Trust, as of any date, (i) the original aggregate face amount of the Certificates of such Trust
less
(ii) the aggregate amount of all payments made as of such date in respect of the
Certificates of such Trust or in respect of Deposits relating to such Trust other than payments
made in respect of interest or Premium thereon or reimbursement of any costs and expenses in
connection therewith. The Pool Balance for each Trust or for the Certificates issued by any Trust
as of any date shall be computed after giving effect to any special distribution with respect to
unused Deposits, if any, payment of principal of the Equipment Notes or payment with respect to
other Trust Property held in such Trust and the distribution thereof to be made on that date.
Post-Default Appraisals
has the meaning specified in Section 4.1(a)(iv).
Preferred B Pool Balance
means, as of any date, the excess of (A) the Pool Balance
of the Class B Certificates as of the immediately preceding Distribution Date (or, if such date is
on or before the first Distribution Date, the original aggregate face amount of the Class B
Certificates) (after giving effect to distributions made on such date) over (B) the sum of (i) the
outstanding principal amount of each Series B Equipment Note that remains unpaid as of such date
subsequent to the disposition of the Collateral under the Trust Indenture pursuant to which such
Series B Equipment Note was issued and after giving effect to any distributions of the proceeds of
such disposition applied under such Trust Indenture to the payment of each such Series B Equipment
Note, (ii) the outstanding principal amount of each Series B Equipment Note that remains unpaid as
of such date subsequent to the scheduled date of mandatory redemption of such Series B Equipment
Note following an Event of Loss (as defined in such Trust Indenture) with respect to the Aircraft
which secured such Series B Equipment Note and after giving effect to the distributions of any
proceeds in respect of such Event of Loss applied under such Trust Indenture to the payment of each
such Series B Equipment Note, (iii) the excess, if any, of (x) the outstanding amount of principal
and interest as of the date of sale of each Series B Equipment Note previously sold over (y) the
purchase price received with respect to the sale of such Series B Equipment Note (net of any
applicable costs and expenses of sale) and (iv) the outstanding principal amount of any Series B
Equipment Note with respect to which a Deemed Disposition Event has occurred;
provided
,
however
, that if more than one of the clauses (i), (ii), (iii) and (iv) is applicable to
any one Series B Equipment Note, only the amount determined pursuant to the clause that first
became applicable shall be counted with respect to such Series B Equipment Note.
13
Premium
means any Make-Whole Amount as such term is defined in any Trust
Indenture.
Proceeding
means any suit in equity, action at law or other judicial or
administrative proceeding.
Provider Incumbency Certificate
has the meaning specified in Section 2.5(c).
Provider Representatives
has the meaning specified in Section 2.5(c).
PTC Event of Default
means, with respect to each Trust Agreement, the failure to pay
within 10 Business Days of the due date thereof: (i) the outstanding Pool Balance of the
applicable Class of Certificates on the Final Legal Distribution Date for such Class or (ii)
interest due on such Certificates on any Distribution Date (unless the Subordination Agent shall
have made an Interest Drawing or a withdrawal from the Cash Collateral Account relating to a
Liquidity Facility for such Class, with respect thereto in an aggregate amount sufficient to pay
such interest and shall have distributed such amount to the Trustee entitled thereto).
Rating Agencies
means, collectively, at any time, each nationally recognized rating
agency which shall have been requested to rate the Certificates and which shall then be rating the
Certificates. The initial Rating Agencies will be Moodys and Standard & Poors.
Ratings Confirmation
means, with respect to any action proposed to be taken, a
written confirmation from each of the Rating Agencies that such action would not result in (i) a
reduction of the rating for any Class of Certificates below the then current rating for such Class
of Certificates or (ii) a withdrawal or suspension of the rating of any Class of Certificates.
Refinancing Certificateholders
has the meaning specified in Section 9.1(c).
Refinancing Certificates
has the meaning specified in Section 9.1(c).
Refinancing Equipment Notes
has the meaning specified in Section 9.1(c).
Refinancing Trust Agreement
has the meaning specified in Section 9.1(c).
Refinancing Trust
has the meaning specified in Section 9.1(c).
Refinancing Trustee
has the meaning specified in Section 9.1(c).
Regular Distribution Dates
means each April 22 and October 22, commencing on April
22, 2011;
provided
,
however
, that, if any such day shall not be a Business Day, the
related distribution shall be made on the next succeeding Business Day without distribution of
interest for such additional period.
Replacement Liquidity Facility
means, for any Liquidity Facility, an irrevocable
revolving credit agreement (or agreements) in substantially the form of the replaced Liquidity
Facility, including reinstatement provisions, or in such other form (which may include a letter of
credit) as shall permit the Rating Agencies to confirm in writing their respective
14
ratings then in
effect for the related Certificates (before downgrading of such ratings, if any, as a result of the
downgrading of the applicable Liquidity Provider), in a face amount (or in an aggregate face
amount) equal to the then Required Amount and issued by a Person (or Persons)
having unsecured short-term debt rating or issuer credit rating, as the case may be, issued by
both Rating Agencies which are equal to or higher than the Threshold Rating. Without limitation of
the form that a Replacement Liquidity Facility otherwise may have pursuant to the preceding
sentence, a Replacement Liquidity Facility for any Class of Certificates may have a stated
expiration date earlier than 15 days after the Final Legal Distribution Date of such Class of
Certificates so long as such Replacement Liquidity Facility provides for a Non-Extension Drawing as
contemplated by Section 3.5(d) hereof.
Replacement Liquidity Provider
means a Person (or Persons) who issues a Replacement
Liquidity Facility.
Required Amount
means with respect to each Liquidity Facility or Cash Collateral
Account, for any day, the sum of the aggregate amount of interest, calculated at the rate per annum
equal to the Stated Interest Rate for the related Class of Certificates, that would be payable on
such Class of Certificates on each of the three successive Regular Distribution Dates immediately
following such day or, if such day is a Regular Distribution Date, on such day and the succeeding
two Regular Distribution Dates, in each case calculated on the basis of the Pool Balance of such
Class of Certificates on such day and without regard to expected future distributions of principal
on such Class of Certificates.
Responsible Officer
means (i) with respect to the Subordination Agent and each of
the Trustees, any officer in the corporate trust administration department of the Subordination
Agent or such Trustee or any other officer customarily performing functions similar to those
performed by the Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity with a particular
subject and (ii) with respect to each Liquidity Provider, any authorized officer of such Liquidity
Provider.
Scheduled Payment
means, with respect to any Equipment Note, (i) any payment of
principal or interest on such Equipment Note (other than an Overdue Scheduled Payment) due from the
obligor thereon, which payment represents the installment of principal at the stated maturity of
such installment of principal on such Equipment Note, the payment of regularly scheduled interest
accrued on the unpaid principal amount of such Equipment Note, or both or (ii) any payment of
interest on the corresponding Class of Certificates with funds drawn under any Liquidity Facility
or withdrawn from any Cash Collateral Account, which payment represents the payment of regularly
scheduled interest accrued on the unpaid principal amount of the related Equipment Note;
provided
that any payment of principal of, Premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a Scheduled Payment.
Scheduled Payment Date
means, with respect to any Scheduled Payment, the date on
which such Scheduled Payment is scheduled to be made.
15
Section 2.4 Fraction
means, with respect to any Special Distribution Date, a
fraction, the numerator of which shall be the amount of principal of the applicable Series A
Equipment Notes and Series B Equipment Notes being redeemed, purchased or prepaid on such Special
Distribution Date, and the denominator of which shall be the aggregate unpaid principal
amount of all Series A Equipment Notes and Series B Equipment Notes outstanding as of such
Special Distribution Date.
Series A Equipment Notes
means the Series A Equipment Notes issued pursuant to any
Trust Indenture by US Airways and authenticated by the Indenture Trustee thereunder, and any such
Equipment Notes issued in exchange therefor or replacement thereof pursuant to the terms of such
Trust Indenture.
Series B Equipment Notes
means the Series B Equipment Notes issued pursuant to any
Trust Indenture by US Airways and authenticated by the Indenture Trustee thereunder, and any such
Equipment Notes issued in exchange therefor or replacement thereof pursuant to the terms of such
Trust Indenture.
60-Day Period
means 60-day period specified in Section 1110(a)(2)(A) of the
Bankruptcy Code.
Special Distribution Date
means, with respect to any Special Payment, the date
chosen by the Subordination Agent pursuant to Section 2.4(a) for the distribution of such Special
Payment in accordance with this Agreement, whether distributed pursuant to Section 2.4 or Section
3.2 hereof.
Special Payment
means any payment (other than a Scheduled Payment) in respect of, or
any proceeds of, any Equipment Note or Collateral.
Special Payments Account
means the Eligible Deposit Account created pursuant to
Section 2.2(a)(ii) as a sub-account to the Collection Account.
Special Termination Drawing
has the meaning specified in Section 3.5(m).
Special Termination Notice
, with respect to any Liquidity Facility, has the meaning
specified in such Liquidity Facility.
Standard & Poors
means Standard & Poors Ratings Services, a Standard & Poors
Financial Services LLC business.
Stated Amount
, with respect to any Liquidity Facility, means the Maximum Commitment
(as defined in such Liquidity Facility) of the applicable Liquidity Provider.
Stated Expiration Date
has the meaning specified in Section 3.5(d).
Stated Interest Rate
means (i) with respect to the Class A Certificates, 6.25% per
annum and (ii) with respect to the Class B Certificates, 8.50% per annum.
16
Subordination Agent
has the meaning specified in the recital of parties to this
Agreement.
Subordination Agent Incumbency Certificate
has the meaning specified in Section
2.5(a).
Subordination Agent Representatives
has the meaning specified in Section 2.5(a).
Substitute Aircraft
has the meaning set forth in the Note Purchase Agreement.
Successor Class A Trust
has the meaning assigned to such term in the definition of
Class A Trust Agreement.
Successor Class B Trust
has the meaning assigned to such term in the definition of
Class B Trust Agreement.
Tax
and
Taxes
mean any and all taxes, fees, levies, duties, tariffs,
imposts, and other charges of any kind (together with any and all interest, penalties, loss,
damage, liability, expense, additions to tax and additional amounts or costs incurred or imposed
with respect thereto) imposed or otherwise assessed by the United States of America or by any
state, local or foreign government (or any subdivision or agency thereof) or other taxing
authority, including, without limitation: taxes or other charges on or with respect to income,
franchises, windfall or other profits, gross receipts, property, sales, use, capital stock,
payroll, employment, social security, workers compensation, unemployment compensation, or net
worth and similar charges; taxes or other charges in the nature of excise, withholding, ad valorem,
stamp, transfer, value added, taxes on goods and services, gains taxes, license, registration and
documentation fees, customs duties, tariffs, and similar charges.
Termination Notice
, with respect to any Liquidity Facility, has the meaning assigned
to such term in such Liquidity Facility.
Threshold Rating
means the short-term unsecured debt rating of P-1 by Moodys and
the short-term issuer credit rating of A-1 by Standard & Poors.
Transfer
means, with respect to any particular Trust, the transfers contemplated by
the Assignment and Assumption Agreement with respect to such Trust.
Treasury Regulations
means regulations, including proposed or temporary regulations,
promulgated under the Code. References herein to specific provisions of proposed or temporary
regulations shall include analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
Triggering Event
means (x) the occurrence of an Indenture Default under all of the
Trust Indentures resulting in a PTC Event of Default with respect to the most senior Class of
Certificates then Outstanding, (y) the Acceleration of all of the outstanding Equipment Notes
(
provided
that, with respect to the period prior to the Delivery Period Expiry Date, the
aggregate
17
principal balance of such Equipment Notes is in excess of $145,000,000) or (z) the
occurrence of a US Airways Bankruptcy Event.
Trust
means either of the Class A Trust or the Class B Trust.
Trust Accounts
has the meaning specified in Section 2.2(a).
Trust Agreement
means either of the Class A Trust Agreement or the Class B Trust
Agreement.
Trust Indenture
means each of the Trust Indentures and Security Agreements entered
into by the Indenture Trustee and US Airways, pursuant to the Note Purchase Agreement, in each case
as the same may be amended, supplemented or otherwise modified from time to time in accordance with
its terms.
Trust Property
with respect to any Trust, has the meaning set forth in the Trust
Agreement for such Trust.
Trustee
means either of the Class A Trustee or the Class B Trustee.
Trustee Incumbency Certificate
has the meaning specified in Section 2.5(b).
Trustee Representatives
has the meaning specified in Section 2.5(b).
Unapplied Provider Advance
, with respect to any Liquidity Facility, has the meaning
specified in such Liquidity Facility.
Underwriters
means Morgan Stanley & Co. Incorporated, Citigroup Global Markets Inc.,
Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated.
Underwriting Agreement
means the Underwriting Agreement dated December 15, 2011
among the Underwriters, the Depositary, US Airways and US Airways Group, Inc., relating to the
purchase of the Certificates by the Underwriters, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
US Airways
means US Airways, Inc., a Delaware corporation, and its successors and
assigns.
US Airways Bankruptcy Event
means the occurrence and continuation of any of the
following:
(a) US Airways shall consent to the appointment of or the taking of possession by a
receiver, trustee or liquidator of itself or of a substantial part of its property, or US
Airways shall admit in writing its inability to pay its debts generally as they come due, or
does not pay its debts generally as they become due or shall make a general assignment for
the benefit of creditors, or US Airways shall file a voluntary petition in bankruptcy or a
voluntary petition or an answer seeking reorganization,
18
liquidation or other relief in a
case under any bankruptcy laws or other insolvency laws (as in effect at such time) or an
answer admitting the material allegations of a petition filed against US Airways in any such
case, or US Airways shall seek relief by voluntary petition, answer or consent, under the
provisions of any other bankruptcy or other similar law providing for the reorganization or
winding-up of corporations (as in effect at such time) or US Airways shall seek an
agreement, composition, extension or adjustment with
its creditors under such laws, or US Airwayss board of directors shall adopt a
resolution authorizing corporate action in furtherance of any of the foregoing; or
(b) an order, judgment or decree shall be entered by any court of competent
jurisdiction appointing, without the consent of US Airways, a receiver, trustee or
liquidator of US Airways or of any substantial part of its property, or any substantial part
of the property of US Airways shall be sequestered, or granting any other relief in respect
of US Airways as a debtor under any bankruptcy laws or other insolvency laws (as in effect
at such time), and any such order, judgment or decree of appointment or sequestration shall
remain in force undismissed, unstayed and unvacated for a period of 60 days after the date
of entry thereof; or
(c) a petition against US Airways in a case under any bankruptcy laws or other
insolvency laws (as in effect at such time) is filed and not withdrawn or dismissed within
60 days thereafter, or if, under the provisions of any law providing for reorganization or
winding-up of corporations which may apply to US Airways, any court of competent
jurisdiction assumes jurisdiction, custody or control of US Airways or of any substantial
part of its property and such jurisdiction, custody or control remains in force
unrelinquished, unstayed and unterminated for a period of 60 days.
US Airways Provisions
has the meaning specified in Section 9.1(a).
Written Notice
means, from the Subordination Agent, any Trustee or the Liquidity
Provider, a written instrument executed by the Designated Representative of such Person. An
invoice delivered by a Liquidity Provider pursuant to Section 3.1 in accordance with its normal
invoicing procedures shall constitute Written Notice under such Section.
WTC
has the meaning specified in the recital of parties to this Agreement.
ARTICLE II
TRUST ACCOUNTS; CONTROLLING PARTY
SECTION 2.1.
Agreement to Terms of Subordination; Payments from Monies Received Only
.
(a) Each Trustee hereby acknowledges and agrees to the terms of subordination and distribution
set forth in this Agreement in respect of each Class of Certificates and agrees to enforce such
provisions and cause all payments in respect of the Equipment Notes held by the Subordination Agent
and the Liquidity Facilities to be applied in accordance with the terms of this Agreement. In
addition, each Trustee hereby agrees to cause the Equipment Notes purchased by the related Trust to
be registered in the name of the Subordination Agent or its nominee, as agent and trustee for such
Trustee, to be held in trust by the Subordination Agent
19
solely for the purpose of facilitating the
enforcement of the subordination and other provisions of this Agreement.
(b) Except as otherwise expressly provided in the next succeeding sentence of this Section
2.1, all payments to be made by the Subordination Agent hereunder shall be made only from amounts
received by it that constitute Scheduled Payments, Special Payments,
payments under Section 8.1 of the Participation Agreements or payments under Section 6 of the
Note Purchase Agreement, and only to the extent that the Subordination Agent shall have received
sufficient income or proceeds therefrom to enable it to make such payments in accordance with the
terms hereof. Each of the Trustees and the Subordination Agent hereby agrees and, as provided in
each Trust Agreement, each Certificateholder, by its acceptance of a Certificate and each Liquidity
Provider, by entering into the Liquidity Facility to which it is a party, has agreed to look solely
to such amounts to the extent available for distribution to it as provided in this Agreement and to
the relevant Deposits and that none of the Trustees, Indenture Trustees nor the Subordination Agent
is personally liable to any of them for any amounts payable or any liability under this Agreement,
any Trust Agreement, any Liquidity Facility or such Certificate, except (in the case of the
Subordination Agent) as expressly provided herein or (in the case of the Trustees) as expressly
provided in each Trust Agreement or (in the case of the Indenture Trustees) as expressly provided
in any Operative Agreement.
SECTION 2.2.
Trust Accounts
. (a) Upon the execution of this Agreement, the
Subordination Agent shall establish and maintain in its name (i) the Collection Account as an
Eligible Deposit Account, bearing a designation clearly indicating that the funds deposited therein
are held in trust for the benefit of the Trustees, the Certificateholders and the Liquidity
Providers and (ii) as a sub-account in the Collection Account, the Special Payments Account as an
Eligible Deposit Account, bearing a designation clearly indicating that the funds deposited therein
are held in trust for the benefit of the Trustees, the Certificateholders and the Liquidity
Providers. The Subordination Agent shall establish and maintain the Cash Collateral Accounts
pursuant to and under the circumstances set forth in Section 3.5(f) hereof. Upon such
establishment and maintenance under Section 3.5(f) hereof, the Cash Collateral Accounts shall,
together with the Special Payments Account and the Collection Account, constitute the
Trust
Accounts
hereunder. Without limiting the foregoing, all monies credited to the Trust Accounts
shall be, and shall remain, the property of the relevant Trust(s).
(b) Funds on deposit in the Trust Accounts shall be invested and reinvested by the
Subordination Agent in Eligible Investments selected by the Subordination Agent if such investments
are reasonably available and have maturities no later than the earlier of (i) 90 days following the
date of such investment and (ii) the Business Day immediately preceding the Regular Distribution
Date or the date of the related distribution pursuant to Section 2.4 hereof, as the case may be,
next following the date of such investment;
provided
,
however
, that following the
making of a Downgrade Drawing, a Non-Extension Drawing or a Special Termination Drawing under any
Liquidity Facility, the
20
Subordination Agent shall invest and reinvest such funds in Eligible
Investments at the direction of US Airways (or, if and to the extent so specified to the
Subordination Agent by US Airways with respect to any Liquidity Facility, the Liquidity Provider
with respect to such Liquidity Facility);
provided
further
,
however
, that,
notwithstanding the foregoing proviso, following the making of a Downgrade Drawing, a Non-Extension
Drawing or a Special Termination Drawing under any Liquidity Facility, the Subordination Agent
shall invest and reinvest the amounts in the Cash Collateral Account with respect to such Liquidity
Facility in Eligible Investments pursuant to the written instructions of the Liquidity Provider
funding such Drawing;
provided
further
,
however
, that upon the occurrence
and during the continuation of a Triggering Event, the Subordination Agent shall invest and
reinvest such amounts in Eligible Investments in accordance with the written instructions of the
Controlling Party. Unless otherwise expressly provided in this Agreement
(including, without limitation, with respect to Investment Earnings on amounts on deposit in
the Cash Collateral Accounts pursuant to Section 3.5(f) hereof), any Investment Earnings shall be
deposited in the Collection Account when received by the Subordination Agent and shall be applied
by the Subordination Agent in the same manner as the other amounts on deposit in the Collection
Account are to be applied and any losses shall be charged against the principal amount invested, in
each case net of the Subordination Agents reasonable fees and expenses in making such investments.
The Subordination Agent shall not be liable for any loss resulting from any investment,
reinvestment or liquidation required to be made under this Agreement other than by reason of its
willful misconduct or gross negligence (or, with respect to the handling or transfer of funds, its
own negligence). Eligible Investments and any other investment required to be made hereunder shall
be held to their maturities except that any such investment may be sold (without regard to its
maturity) by the Subordination Agent without instructions whenever such sale is necessary to make a
distribution required under this Agreement. Uninvested funds held hereunder shall not earn or
accrue interest.
(c) The Subordination Agent shall possess all right, title and interest in all funds on
deposit from time to time in the Trust Accounts and in all proceeds thereof (including all income
thereon, except as otherwise expressly provided in Section 3.3(b) with respect to Investment
Earnings). The Trust Accounts shall be held in trust by the Subordination Agent under the sole
dominion and control of the Subordination Agent for the benefit of the Trustees, the
Certificateholders and the Liquidity Providers, as the case may be. If, at any time, any of the
Trust Accounts ceases to be an Eligible Deposit Account, the Subordination Agent shall within 10
Business Days (or such longer period, not to exceed 30 calendar days, for which a Ratings
Confirmation for each Class of Certificates shall have been obtained) establish a new Collection
Account, Special Payments Account or Cash Collateral Account, as the case may be, as an Eligible
Deposit Account and shall transfer any cash and/or any investments to such new Collection Account,
Special Payments Account or Cash Collateral Account, as the case may be. So long as WTC is an
Eligible Institution, the Trust Accounts shall be maintained with it as Eligible Deposit Accounts.
SECTION 2.3.
Deposits to the Collection Account and Special Payments Account
. (a)
The Subordination Agent shall, upon receipt thereof, deposit in the Collection Account all
Scheduled Payments received by it (other than any Scheduled Payment which by the express terms
hereof is to be deposited to a Cash Collateral Account).
(b) The Subordination Agent shall, on each date when one or more Special Payments are made to
the Subordination Agent as holder of the Equipment Notes, deposit in the Special Payments Account
the aggregate amount of such Special Payments.
SECTION 2.4.
Distributions of Special Payments
. (a)
Notice of Special Payment
.
Except as provided in Section 2.4(c) below, upon receipt by the Subordination Agent,
21
as registered
holder of the Equipment Notes, of any notice of a Special Payment (or, in the absence of any such
notice, upon receipt by the Subordination Agent of a Special Payment), the Subordination Agent
shall promptly give notice thereof to each Trustee and the Liquidity Providers. The Subordination
Agent shall promptly calculate the amount of the redemption or purchase of Equipment Notes, the
amount of any Overdue Scheduled Payment
or the proceeds of Equipment Notes or Collateral, as the case may be, comprising such Special
Payment under the applicable Trust Indenture or Trust Indentures and shall promptly send to each
Trustee and each Liquidity Provider a Written Notice of such amount and the amount allocable to
each Trust. Such Written Notice shall also set the distribution date for such Special Payment (a
Special Distribution Date
), which shall be the Business Day which immediately follows the
later to occur of (x) the 15th day after the date of such Written Notice and (y) the date the
Subordination Agent has received or expects to receive such Special Payment. Amounts on deposit in
the Special Payments Account shall be distributed in accordance with Sections 2.4(b) and 2.4(c) and
Article III hereof, as applicable.
For the purposes of the application of any Equipment Note Special Payment distributed on a
Special Distribution Date in accordance with Section 3.2 hereof, so long as no Indenture Default
shall have occurred and be continuing under any Trust Indenture:
(i) the amount of accrued and unpaid Liquidity Expenses that are not yet due that are payable
pursuant to clause second thereof shall be multiplied by the Section 2.4 Fraction;
(ii) clause third thereof shall be deemed to read as follows:
third
, such (x)
amount as shall be required to pay accrued and unpaid interest then in arrears on all Liquidity
Obligations (at the rate, or in the amount, provided in the applicable Liquidity Facility) plus an
amount equal to the amount of accrued and unpaid interest on the Liquidity Obligations not in
arrears multiplied by the Section 2.4 Fraction, and (y) if a Special Termination Drawing has been
made under any Liquidity Facility and has not been converted into a Final Drawing, the outstanding
amount of such Special Termination Drawing shall be distributed to the Liquidity Providers, pro
rata on the basis of the amounts owed to each Liquidity Provider;
(iii) clause seventh thereof shall be deemed to read as follows:
seventh
, such
amount as shall be required to pay accrued, due and unpaid interest at the Stated Interest Rate on
the outstanding Pool Balance of the Class A Certificates together with (without duplication)
accrued and unpaid interest at the Stated Interest Rate on the outstanding principal amount of the
Series A Equipment Notes held in the Class A Trust being redeemed, purchased or prepaid, in each
case excluding interest, if any, payable with respect to the Deposits relating to the Class A
Trust;
(iv) clause eighth thereof shall be deemed to read as follows:
eighth
, such amount
as shall be required to pay any accrued, due and unpaid Class B Adjusted Interest shall be
distributed to the holders of the Class B Certificates (excluding interest, if any, payable with
respect to the Deposits relating to the Class B Trust); and
(v) clause tenth thereof shall be deemed to read as follows:
tenth
, such amount as
shall be required to pay in full accrued, due and unpaid interest at the Stated Interest
22
Rate on
the outstanding Pool Balance of the Class B Certificates which was not previously paid pursuant to
clause eighth above to the holders of the Class B Certificates, together with (without
duplication) accrued and unpaid interest at the Stated Interest Rate on the outstanding principal
amount of the Series B Equipment Notes held in the Class B Trust and being redeemed,
purchased or prepaid, in each case excluding interest, if any, payable with respect to the
Deposits relating to the Class B Trust;.
(b)
Investment of Amounts in Special Payments Account
. Any amounts on deposit in the
Special Payments Account prior to the distribution thereof pursuant to Section 2.4 or 3.2 shall be
invested in accordance with Section 2.2(b). Investment Earnings on such investments shall be
distributed in accordance with Article III hereof.
(c)
Certain Payments
. Except for amounts constituting Liquidity Obligations which
shall be distributed as provided in Section 3.2, the Subordination Agent will distribute promptly
upon receipt thereof (i) any indemnity payment or expense reimbursement received by it from US
Airways in respect of any Trustee, any Liquidity Provider, any Paying Agent, any Depositary or any
Escrow Agent (collectively, the
Payees
) and (ii) any compensation received by it from US
Airways under any Operative Agreement in respect of any Payee, directly to the Payee entitled
thereto.
SECTION 2.5.
Designated Representatives
. (a) With the delivery of this Agreement,
the Subordination Agent shall furnish to each Liquidity Provider and each Trustee, and from time to
time thereafter may furnish to each Liquidity Provider and each Trustee, at the Subordination
Agents discretion, or upon any Liquidity Providers or any Trustees request (which request shall
not be made more than one time in any 12-month period), a certificate (a
Subordination Agent
Incumbency Certificate
) of a Responsible Officer of the Subordination Agent certifying as to
the incumbency and specimen signatures of the officers of the Subordination Agent and the
attorney-in-fact and agents of the Subordination Agent (the
Subordination Agent
Representatives
) authorized to give Written Notices on behalf of the Subordination Agent
hereunder. Until each Liquidity Provider and each Trustee receives a subsequent Subordination
Agent Incumbency Certificate, it shall be entitled to rely on the last Subordination Agent
Incumbency Certificate delivered to it hereunder.
(b) With the delivery of this Agreement, each Trustee shall furnish to the Subordination
Agent, and from time to time thereafter may furnish to the Subordination Agent, at such Trustees
discretion, or upon the Subordination Agents request (which request shall not be made more than
one time in any 12-month period), a certificate (a
Trustee Incumbency Certificate
) of a
Responsible Officer of such Trustee certifying as to the incumbency and specimen signatures of the
officers of such Trustee and the attorney-in-fact and agents of such Trustee (the
Trustee
Representatives
) authorized to give Written Notices on behalf of such Trustee hereunder.
Until the Subordination Agent receives a subsequent Trustee Incumbency Certificate, it shall be
entitled to rely on the last Trustee Incumbency Certificate delivered to it hereunder.
(c) With the delivery of this Agreement, each Liquidity Provider shall furnish to the
Subordination Agent, and from time to time thereafter may furnish to the Subordination Agent, at
such Liquidity Providers discretion, or upon the Subordination Agents request (which
23
request
shall not be made more than one time in any 12-month period), a certificate (each, a
Provider
Incumbency Certificate
) of any Responsible Officer of such Liquidity Provider certifying as to
the incumbency and specimen signatures of any officer, attorney-in-fact, agent or other designated
representative of such Liquidity Provider (in each case, the
Provider
Representatives
and, together with the Subordination Agent Representatives and the
Trustee Representatives, the
Designated Representatives
) authorized to give Written
Notices on behalf of such Liquidity Provider hereunder. Until the Subordination Agent receives a
subsequent Provider Incumbency Certificate, it shall be entitled to rely on the last Provider
Incumbency Certificate delivered to it hereunder by the relevant Liquidity Provider.
SECTION 2.6.
Controlling Party
. (a) The Trustees and the Liquidity Providers hereby
agree that, with respect to any Trust Indenture at any given time, the Indenture Trustee thereunder
will be directed in taking, or refraining from taking, any action under such Trust Indenture or
with respect to the Equipment Notes issued thereunder (i) so long as no Indenture Default has
occurred and is continuing thereunder, by the holders of at least a majority of the outstanding
principal amount of such Equipment Notes (provided that, for so long as the Subordination Agent is
the registered holder of the Equipment Notes, the Subordination Agent shall act with respect to
this clause (i) in accordance with the directions of the Trustees (in the case of each such
Trustee, with respect to the Equipment Notes issued under such Trust Indenture and held as Trust
Property of such Trust) constituting, in the aggregate, directions with respect to at least a
majority of outstanding principal amount of Equipment Notes except as provided in Section 9.1(b)),
and (ii) after the occurrence and during the continuance of an Indenture Default thereunder, in
taking, or refraining from taking, any action under such Trust Indenture or with respect to such
Equipment Notes, including exercising remedies thereunder (including Accelerating the Equipment
Notes issued thereunder or foreclosing the Lien on the Aircraft securing such Equipment Notes), by
the Controlling Party.
(b) The Controlling Party shall be (x) the Class A Trustee and (y) upon payment of Final
Distributions to the holders of Class A Certificates, the Class B Trustee. For purposes of giving
effect to the provisions of Section 2.6(a) and this Section 2.6(b), the Trustees (other than the
Controlling Party) irrevocably agree (and the Certificateholders (other than the Certificateholders
represented by the Controlling Party) shall be deemed to agree by virtue of their purchase of
Certificates) that the Subordination Agent, as record holder of the Equipment Notes, shall exercise
its voting rights in respect of the Equipment Notes so held by the Subordination Agent as directed
by the Controlling Party and any vote so exercised shall be binding upon the Trustees and all
Certificateholders.
The Subordination Agent shall give Written Notice to all of the other parties to this
Agreement promptly upon a change in the identity of the Controlling Party. Each of the parties
hereto agrees that it shall not exercise any of the rights of the Controlling Party at such time as
it is not the Controlling Party hereunder;
provided
,
however
, that nothing herein
contained shall prevent or prohibit any Non-Controlling Party from exercising such rights as shall
be specifically granted to such Non-Controlling Party hereunder and under the other Operative
Agreements.
(c) Notwithstanding the foregoing provisions of clauses (a) and (b) above, at any time after
18 months from the earliest to occur of (i) the date on which the entire Required
24
Amount as of such
date under any Liquidity Facility shall have been drawn (excluding a Downgrade Drawing, a
Non-Extension Drawing or a Special Termination Drawing but including a Final Drawing or a Downgrade
Drawing, a Non-Extension Drawing or a Special Termination Drawing that has been converted to a
Final Drawing under such Liquidity Facility) and shall
remain unreimbursed, (ii) the date on which the portion of any Downgrade Drawing,
Non-Extension Drawing or Special Termination Drawing equal to the Required Amount as of such date
under any Liquidity Facility shall have become and remain Applied Downgrade Advances, Applied
Non-Extension Advances or Applied Special Termination Advances, as the case may be, under and as
defined in such Liquidity Facility and (iii) the date on which all Equipment Notes under all Trust
Indentures shall have been Accelerated (
provided
that (x) with respect to the period prior
to the Delivery Period Expiry Date, such Equipment Notes have an aggregate outstanding principal
balance of in excess of $145,000,000, and (y) in the event of a bankruptcy proceeding under the
Bankruptcy Code in which US Airways is a debtor, any amounts payable in respect of Equipment Notes
which have become immediately due and payable by declaration or otherwise shall not be considered
Accelerated for purposes of this sub-clause (iii) until the expiration of the 60-day period under
Section 1110(a)(2)(A) of the Bankruptcy Code or such longer period as may apply under Section
1110(a)(2)(B) or Section 1110(b) of the Bankruptcy Code), the Liquidity Provider with the highest
outstanding aggregate amount of Liquidity Obligations owed to it (so long as such Liquidity
Provider has not defaulted in its obligation to make any Drawing under any Liquidity Facility)
shall have the right to elect, by Written Notice to the Subordination Agent and each of the
Trustees, to become the Controlling Party hereunder at any time from and including the last day of
such 18-month period.
(d) The exercise of remedies by the Controlling Party under this Agreement shall be expressly
limited by Sections 4.1(a)(ii) and 4.1(a)(iii) hereof.
(e) The Controlling Party shall not be entitled to require or obligate any Non-Controlling
Party to provide funds necessary to exercise any right or remedy hereunder.
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION
OF AMOUNTS RECEIVED
SECTION 3.1.
Written Notice of Distribution
. (a) No later than 3:00 P.M. (New York
City time) on the Business Day immediately preceding each Distribution Date, each of the following
Persons shall deliver to the Subordination Agent a Written Notice setting forth the following
information as at the close of business on such Business Day:
(i) with respect to the Class A Certificates, the Class A Trustee shall separately set
forth the amounts to be paid in accordance with clause first of Section 3.2 hereof (to
reimburse payments made by such Trustee or the Class A Certificateholders, as the case may
be, pursuant to subclause (ii) or (iv) of clause first), subclauses (ii) and (iii) of
clause sixth of Section 3.2 hereof and clauses seventh and ninth of Section 3.2
hereof;
25
(ii) with respect to the Class B Certificates, the Class B Trustee shall separately set
forth the amounts to be paid in accordance with clause first of Section 3.2 hereof (to
reimburse payments made by such Trustee or the Class B Certificateholders, as the case may
be, pursuant to subclause (ii) or (iv) of clause first),
subclauses (ii) and (iii) of clause sixth of Section 3.2 hereof and clauses eighth,
tenth and eleventh of Section 3.2 hereof;
(iii) with respect to each Liquidity Facility, the Liquidity Provider thereunder shall
separately set forth the amounts to be paid to it in accordance with subclauses (iii) and
(iv) of clause first of Section 3.2 hereof, clause second of Section 3.2 hereof, clause
third of Section 3.2 hereof, clause fourth of Section 3.2 hereof and clause fifth of
Section 3.2 hereof; and
(iii) each Trustee shall set forth the amounts to be paid in accordance with clause
sixth of Section 3.2 hereof.
(b) At such time as a Trustee or a Liquidity Provider shall have received all amounts owing to
it (and, in the case of a Trustee, the Certificateholders for which it is acting) pursuant to
Section 3.2 hereof, as applicable, and, in the case of a Liquidity Provider, its commitment or
obligations under the related Liquidity Facility shall have terminated or expired, such Person
shall, by a Written Notice, so inform the Subordination Agent and each other party to this
Agreement.
(c) As provided in Section 6.5 hereof, the Subordination Agent shall be fully protected in
relying on any of the information set forth in a Written Notice provided by any Trustee or any
Liquidity Provider pursuant to paragraphs (a) and (b) above and shall have no independent
obligation to verify, calculate or recalculate any amount set forth in any Written Notice delivered
in accordance with such paragraphs.
(d) Any Written Notice delivered by a Trustee, a Liquidity Provider or the Subordination
Agent, as applicable, pursuant to Section 3.1(a) hereof, if made prior to 10:00 A.M. (New York City
time) on any Business Day, shall be effective on the date delivered (or if delivered later on a
Business Day or if delivered on a day which is not a Business Day shall be effective as of the next
Business Day). Subject to the terms of this Agreement, the Subordination Agent shall as promptly
as practicable comply with any such instructions;
provided
,
however
, that any
transfer of funds pursuant to any instruction received after 10:00 A.M. (New York City time) on any
Business Day may be made on the next succeeding Business Day.
(e) In the event the Subordination Agent shall not receive from any Person any information set
forth in paragraph (a) above which is required to enable the Subordination Agent to make a
distribution to such Person pursuant to Section 3.2 hereof, the Subordination Agent shall request
such information and, failing to receive any such information, the Subordination Agent shall not
make such distribution(s) to such Person. In such event, the Subordination Agent shall make
distributions pursuant to clauses first through eleventh of Section 3.2 to the extent it shall
have sufficient information to enable it to make such distributions,
and shall continue to hold any
funds remaining, after making such distributions,
26
until the Subordination Agent shall receive all
necessary information to enable it to distribute any funds so withheld.
(f) On such dates (but not more frequently than monthly) as any Liquidity Provider or any
Trustee shall request, but in any event automatically at the end of each calendar
quarter, the Subordination Agent shall send to such party a written statement reflecting all
amounts on deposit with the Subordination Agent pursuant to Section 3.1(e) hereof.
The notices required under this Section 3.1(a) may be in the form of a schedule or similar
document provided to the Subordination Agent by the parties referenced therein or by any one of
them, which schedule or similar document may state that, unless there has been a prepayment of the
Certificates, such schedule or similar document is to remain in effect until any substitute notice
or amendment shall be given to the Subordination Agent by the party providing such notice.
SECTION 3.2.
Distribution of Amounts on Deposit in the Collection Account
. Except as
otherwise provided in Sections 2.4, 3.1(e), 3.3, 3.5(b), 3.5(k) and 3.5(m), amounts on deposit in
the Collection Account (including amounts on deposit in the Special Payments Account) shall be
promptly distributed on each Regular Distribution Date (or, in the case of any amount described in
Section 2.4(a), on the Special Distribution Date thereof) in the following order of priority and in
accordance with the information provided to the Subordination Agent pursuant to Section 3.1(a)
hereof:
first
, such amount as shall be required to reimburse (i) the Subordination
Agent for any reasonable out-of-pocket costs and expenses actually incurred by it (to the
extent not previously reimbursed) or reasonably expected to be incurred by it for the period
ending on the next succeeding Regular Distribution Date (which shall not exceed $150,000
unless approved in writing by the Controlling Party) in the protection of, or the
realization of the value of, the Equipment Notes or any Collateral, shall be applied by the
Subordination Agent in reimbursement of such costs and expenses, (ii) any Trustee for any
amounts of the nature described in clause (i) above actually incurred by it under the
applicable Trust Agreement (to the extent not previously reimbursed), shall be distributed
to such Trustee, (iii) any Liquidity Provider for any amounts of the nature described in
clause (i) above actually incurred by it (to the extent not previously reimbursed), shall be
distributed to such Liquidity Provider, and (iv) any Liquidity Provider or any
Certificateholder for payments, if any, made by it to the Subordination Agent or any Trustee
in respect of amounts described in clause (i) above actually incurred by it (to the extent
not previously reimbursed) (collectively, the
Administration Expenses
), shall be
distributed to such Liquidity Provider or the applicable Trustee for the account of such
Certificateholder, in each such case, pro rata on the basis of all amounts described in
clauses (i) through (iv) above;
second
, such amount as shall be required to pay all accrued and unpaid
Liquidity Expenses owed to each Liquidity Provider shall be distributed to the Liquidity
Providers pro rata on the basis of the amount of Liquidity Expenses owed to each Liquidity
Provider;
27
third
, (i) such amount as shall be required to pay the aggregate amount of
accrued and unpaid interest on all Liquidity Obligations (at the rate, or in the amount,
provided in the applicable Liquidity Facility) shall be distributed to the Liquidity
Providers pro rata on the basis of the amounts owed to each Liquidity Provider and (ii) if a
Special
Termination Drawing has been made under any Liquidity Facility and has not been
converted into a Final Drawing, the outstanding amount of such Special Termination Drawing
shall be distributed to the Liquidity Providers pro rata on the basis of the amounts owed to
each Liquidity Provider;
fourth
, such amount as shall be required (A) if any Cash Collateral Account had
been previously funded as provided in Section 3.5(f), unless (i) a Performing Note
Deficiency exists and a Liquidity Event of Default shall have occurred and be continuing
with respect to the relevant Liquidity Facility or (ii) a Final Drawing shall have occurred
with respect to such Liquidity Facility, to fund such Cash Collateral Account up to its
Required Amount shall be deposited in such Cash Collateral Account, (B) if any Liquidity
Facility shall become a Downgraded Facility or a Non-Extended Facility at a time when
unreimbursed Interest Drawings under such Liquidity Facility have reduced the Available
Amount thereunder to zero, unless (i) a Performing Note Deficiency exists and a Liquidity
Event of Default shall have occurred and be continuing with respect to the relevant
Liquidity Facility or (ii) a Final Drawing shall have occurred with respect to such
Liquidity Facility, to deposit into the related Cash Collateral Account an amount equal to
such Cash Collateral Accounts Required Amount shall be deposited in such Cash Collateral
Account, and (C) if, with respect to any particular Liquidity Facility, neither subclause
(A) nor subclause (B) of this clause fourth is applicable, to pay or reimburse the
Liquidity Provider in respect of such Liquidity Facility in an amount equal to the amount of
all Liquidity Obligations then due under such Liquidity Facility (other than amounts payable
pursuant to clause second or third of this Section 3.2), pro rata on the basis of
amounts of all such deficiencies and/or unreimbursed Liquidity Obligations payable to each
Liquidity Provider;
fifth
, if, with respect to any particular Liquidity Facility, any amounts are
to be distributed pursuant to either subclause (A) or (B) of clause fourth above, then the
Liquidity Provider with respect to such Liquidity Facility shall be paid the excess of (x)
the aggregate outstanding amount of unreimbursed Advances (whether or not then due) under
such Liquidity Facility over (y) the Required Amount for the relevant Class, pro rata on the
basis of such amounts in respect of each Liquidity Provider;
sixth
, such amount as shall be required to reimburse or pay (i) the
Subordination Agent for any Tax (other than Taxes imposed on compensation paid hereunder),
expense, fee, charge or other loss incurred by or any other amount payable to the
Subordination Agent in connection with the transactions contemplated hereby (to the extent
not previously reimbursed), shall be applied by the Subordination Agent in reimbursement of
such amount, (ii) each Trustee for any Tax (other than Taxes imposed on compensation paid
under the applicable Trust Agreement), expense, fee, charge, loss or any other amount
payable to such Trustee under the applicable Trust Agreement (to the extent not previously
reimbursed), shall be distributed to such Trustee, and (iii) each Certificateholder for
payments, if any, made by it pursuant to Section 5.2 hereof in
28
respect of amounts described
in clause (i) above, shall be distributed to the applicable Trustee for the account of such
Certificateholder, in each case, pro rata on the basis of all amounts described in clauses
(i) through (iii) above;
seventh
, such amount as shall be required to pay in full accrued and unpaid
interest at the Stated Interest Rate on the Pool Balance of the Class A Certificates
(excluding interest, if any, payable with respect to the Deposits relating to the Class A
Trust) shall be distributed to the Class A Trustee;
eighth
, such amount as shall be required to pay unpaid Class B Adjusted
Interest shall be distributed to the holders of the Class B Certificates (excluding
interest, if any, payable with respect to the Deposits relating to the Class B Trust);
ninth
, such amount as shall be required to pay in full Expected Distributions
to the holders of the Class A Certificates on such Distribution Date shall be distributed to
the Class A Trustee;
tenth
, such amount as shall be required to pay in full accrued and unpaid
interest at the Stated Interest Rate on the Pool Balance of the Class B Certificates which
was not previously paid pursuant to clause eighth above to the holders of the Class B
Certificates (excluding interest, if any, payable with respect to the Deposits related to
the Class B Trust);
eleventh
, such amount as shall be required to pay in full Expected
Distributions to the holders of the Class B Certificates on such Distribution Date shall be
distributed to the Class B Trustee; and
twelfth
, the balance, if any, of any such amount remaining thereafter shall be
held in the Collection Account for later distribution in accordance with this Article III.
With respect to clauses first and sixth above, no amounts shall be reimbursable to the
Subordination Agent, any Trustee, any Liquidity Provider or any Certificateholder for any payments
made by any such Person in connection with any Equipment Note that is no longer held by the
Subordination Agent (to the extent that such payments relate to periods after such Equipment Note
ceases to be held by the Subordination Agent).
SECTION 3.3.
Other Payments
. (a) Any payments received by the Subordination Agent
for which no provision as to the application thereof is made in this Agreement shall be distributed
by the Subordination Agent (i) in the order of priority specified in Section 3.2 hereof and (ii) to
the extent received or realized at any time after the Final Distributions for each Class of
Certificates have been made, in the manner provided in clause first of Section 3.2 hereof.
(b) Notwithstanding the priority of payments specified in Section 3.2, in the event any
Investment Earnings on amounts on deposit in any Cash Collateral Account resulting from an
Unapplied Provider Advance are deposited in the Collection Account or the Special Payments Account,
such Investment Earnings shall be used to pay interest payable in respect of such Unapplied
Provider Advance to the extent of such Investment Earnings.
29
(c) If the Subordination Agent receives any Scheduled Payment after the Scheduled Payment Date
relating thereto, but prior to such payment becoming an Overdue Scheduled Payment, then the
Subordination Agent shall deposit such Scheduled Payment in the
Collection Account and promptly distribute such Scheduled Payment in accordance with the
priority of distributions set forth in Section 3.2 hereof;
provided
that, for the purposes
of this Section 3.3(c) only, each reference in clause ninth or eleventh of Section 3.2 to
Distribution Date shall be deemed to refer to such Scheduled Payment Date.
SECTION 3.4.
Payments to the Trustees and the Liquidity Providers
. Any amounts
distributed hereunder to any Liquidity Provider shall be paid to such Liquidity Provider by wire
transfer of funds to the account that such Liquidity Provider shall provide to the Subordination
Agent. The Subordination Agent shall provide a Written Notice of any such transfer to the
applicable Liquidity Provider at the time of such transfer. Any amounts distributed hereunder by
the Subordination Agent to any Trustee which shall not be the same institution as the Subordination
Agent shall be paid to such Trustee by wire transfer to the account such Trustee shall provide to
the Subordination Agent.
SECTION 3.5.
Liquidity Facilities
. (a)
Interest Drawings
. If on any
Distribution Date, after giving effect to the subordination provisions of this Agreement, the
Subordination Agent shall not have sufficient funds for the payment of any amounts due and owing in
respect of accrued interest on the Class A Certificates or the Class B Certificates (at the Stated
Interest Rate for such Class of Certificates) (other than any amount of interest which was due and
payable on the Class A Certificates or the Class B Certificates on such Distribution Date but which
remains unpaid due to the failure of the Depositary to pay any amount of accrued interest on the
Deposits on such Distribution Date), then, prior to 12:30 p.m. (New York City time) on such
Distribution Date, (i) the Subordination Agent shall request a drawing (each such drawing, an
Interest Drawing
) under the Liquidity Facility with respect to such Class of Certificates
in an amount equal to the lesser of (x) an amount sufficient to pay the amount of such accrued
interest (at the applicable Stated Interest Rate for such Class of Certificates) and (y) the
Available Amount under such Liquidity Facility, and shall pay such amount to the Trustee with
respect to such Class of Certificates in payment of such accrued interest.
(b)
Application of Interest Drawings
. Notwithstanding anything to the contrary
contained in this Agreement, (i) all payments received by the Subordination Agent in respect of an
Interest Drawing under the Class A Liquidity Facility and all amounts withdrawn by the
Subordination Agent from the Class A Cash Collateral Account, and payable in each case to the Class
A Certificateholders or the Class A Trustee, shall be promptly distributed to the Class A Trustee
and (ii) all payments received by the Subordination Agent in respect of an Interest Drawing under
the Class B Liquidity Facility and all amounts withdrawn by the Subordination Agent from the Class
B Cash Collateral Account, and payable in each case to the Class B Certificateholders or the Class
B Trustee, shall be promptly distributed to the Class B Trustee.
(c)
Downgrade Drawings
. (i) With respect to each Liquidity Facility, a Downgrade
Drawing shall be requested by the Subordination Agent thereunder as provided in Section
3.5(c)(iii), if at any time a Downgrade Event shall have occurred with respect to such Liquidity
Facility (such Liquidity Facility following a Downgrade Event being referred to as a
30
Downgraded Facility
), unless an event described in Section 3.5(c)(ii) occurs with respect
to such Liquidity Facility.
(ii) If at any time any Liquidity Facility becomes a Downgraded Facility, the Subordination
Agent shall request a Downgrade Drawing thereunder in accordance with Section 3.5(c)(iii), unless
the Liquidity Provider under such Downgraded Facility or US Airways arranges for a Replacement
Liquidity Provider to issue and deliver a Replacement Liquidity Facility to the Subordination Agent
within 10 days after a Downgrade Event (but not later than the expiration date of such Downgraded
Facility).
(iii) Upon the occurrence of any Downgrade Event with respect to any Liquidity Facility,
unless a Replacement Liquidity Facility is arranged as provided in Section 3.5(c)(ii), the
Subordination Agent shall, on the 10th day referred to in Section 3.5(c)(ii) (or if such 10th day
is not a Business Day, on the next succeeding Business Day) (or, if earlier, the expiration date of
such Downgraded Facility), request a drawing in accordance with and to the extent permitted by such
Downgraded Facility (such drawing, a
Downgrade Drawing
) of the Available Amount
thereunder. Amounts drawn pursuant to a Downgrade Drawing shall be maintained and invested as
provided in Section 3.5(f) hereof. The applicable Liquidity Provider may also arrange for a
Replacement Liquidity Provider to issue and deliver a Replacement Liquidity Facility at any time
after such Downgrade Drawing so long as such Downgrade Drawing has not been reimbursed in full to
such Liquidity Provider.
(d)
Non-Extension Drawings
. Except if the Liquidity Facility with respect to any
Class of Certificates is scheduled to expire on a date (the
Stated Expiration Date
) no
earlier than 15 days after the Final Legal Distribution Date for such Class of Certificates, if
before the 25
th
day prior to any anniversary date of the Closing Date (such
25
th
day, the
Notice Date
) the relevant Liquidity Provider shall have advised
the Subordination Agent that the applicable Liquidity Facility shall not be extended beyond such
anniversary date and on or before the Notice Date such Liquidity Facility shall not have been
replaced in accordance with Section 3.5(e), the Subordination Agent shall, on the date on the
Notice Date (or as soon as possible thereafter), in accordance with the terms of the expiring
Liquidity Facility (a
Non-Extended Facility
), request a drawing under such expiring
Liquidity Facility (such drawing, a
Non-Extension Drawing
) of the Available Amount
thereunder. Amounts drawn pursuant to a Non-Extension Drawing shall be maintained and invested in
accordance with Section 3.5(f) hereof.
(e)
Issuance of Replacement Liquidity Facility
. (i) At any time, US Airways may, at
its option, with cause or without cause, arrange for a Replacement Liquidity Facility to replace
any Liquidity Facility for any Class of Certificates (including any Replacement Liquidity Facility
provided pursuant to Section 3.5(e)(ii) hereof);
provided
,
however
, that the
Liquidity Provider for any Liquidity Facility shall not be replaced by US Airways as a Liquidity
Provider with respect to such Liquidity Facility prior to the first anniversary of the Closing Date
unless (A) there shall have become due to such Liquidity Provider, or such Liquidity Provider shall
have demanded, amounts pursuant to Section 3.01, 3.02 or 3.03 of any applicable Liquidity Facility
and the replacement of such initial Liquidity Provider would reduce or eliminate the obligation to
pay such amounts or US Airways determines in good faith that there is a substantial likelihood that
such Liquidity Provider will have the right to claim any such amounts (unless
31
such Liquidity
Provider waives, in writing, any right it may have to claim such amounts), which determination
shall be set forth in a certificate delivered by US Airways to such Liquidity Provider setting
forth the basis for such determination and accompanied by an opinion of outside
counsel selected by US Airways and reasonably acceptable to such Liquidity Provider verifying
the legal conclusions, if any, of such certificate relating to such basis,
provided
that,
in the case of any likely claim for such amounts based upon any proposed, or proposed change in,
law, rule, regulation, interpretation, directive, requirement, request or administrative practice,
such opinion may assume the adoption or promulgation of such proposed matter, (B) it shall become
unlawful or impossible for such Liquidity Provider (or its Facility Office) to maintain or fund its
LIBOR Advances as described in Section 3.10 of any Liquidity Facility, (C) any Liquidity Facility
of such Liquidity Provider shall become a Downgraded Facility or a Non-Extended Facility or a
Downgrade Drawing or a Non-Extension Drawing shall have occurred under any Liquidity Facility of
such Liquidity Provider or (D) such Liquidity Provider shall have breached any of its payment
(including, without limitation, funding) obligations under any Liquidity Facility in respect of
which it is the Liquidity Provider. If such Replacement Liquidity Facility is provided at any time
after a Downgrade Drawing, a Non-Extension Drawing or a Special Termination Drawing has been made,
all funds on deposit in the relevant Cash Collateral Account will be returned to the Liquidity
Provider being replaced.
(ii) If any Liquidity Provider shall determine not to extend any of its Liquidity Facilities
in accordance with Section 3.5(d), then such Liquidity Provider may, at its option, arrange for a
Replacement Liquidity Facility to replace such Liquidity Facility during the period no earlier than
40 days and no later than 25 days prior to the then effective Expiry Date of such Liquidity
Facility. At any time after a Non-Extension Drawing has been made under any Liquidity Facility,
the Liquidity Provider thereunder may, at its option, arrange for a Replacement Liquidity Facility
to replace the Liquidity Facility under which such Non-Extension Drawing has been made.
(iii) No Replacement Liquidity Facility arranged by US Airways or a Liquidity Provider in
accordance with clause (i) or (ii) above or pursuant to Section 3.5(c), respectively, shall become
effective and no such Replacement Liquidity Facility shall be deemed a Liquidity Facility under
the Operative Agreements, unless and until (A) each of the conditions referred to in sub-clauses
(iv)(x) and (z) below shall have been satisfied, (B) if such Replacement Liquidity Facility shall
materially adversely affect the rights, remedies, interests or obligations of the Class A
Certificateholders or the Class B Certificateholders under any of the Operative Agreements, the
applicable Trustee shall have consented, in writing, to the execution and issuance of such
Replacement Liquidity Facility and (C) in the case of a Replacement Liquidity Facility arranged by
a Liquidity Provider under Section 3.5(e)(ii) or pursuant to Section 3.5(c), such Replacement
Liquidity Facility is acceptable to US Airways.
(iv) In connection with the issuance of each Replacement Liquidity Facility, the Subordination
Agent shall (x) prior to the issuance of such Replacement Liquidity Facility, obtain written
confirmation from each Rating Agency that such Replacement Liquidity Facility will not cause a
reduction of any rating then in effect for any Class of Certificates by such Rating Agency (without
regard to any downgrading of any rating of any Liquidity Provider being replaced pursuant to
Section 3.5(c) hereof), (y) pay all Liquidity Obligations then owing to the replaced Liquidity
Provider (which payment shall be made first from available funds in the
32
applicable Cash Collateral
Account as described in clause (v) of Section 3.5(f) hereof, and thereafter from any other
available source, including, without limitation, a drawing under the Replacement Liquidity
Facility) and (z) cause the issuer of the Replacement Liquidity Facility to
deliver the Replacement Liquidity Facility to the Subordination Agent, together with a legal
opinion opining that such Replacement Liquidity Facility is an enforceable obligation of such
Replacement Liquidity Provider.
(v) Upon satisfaction of the conditions set forth in clauses (iii) and (iv) of this Section
3.5(e) with respect to a Replacement Liquidity Facility, (w) the replaced Liquidity Facility shall
terminate, (x) the Subordination Agent shall, if and to the extent so requested by US Airways or
the Liquidity Provider being replaced, execute and deliver any certificate or other instrument
required in order to terminate the replaced Liquidity Facility, shall surrender the replaced
Liquidity Facility to the Liquidity Provider being replaced and shall execute and deliver the
Replacement Liquidity Facility and any associated Fee Letters, (y) each of the parties hereto shall
enter into any amendments to this Agreement necessary to give effect to (1) the replacement of the
applicable Liquidity Provider with the applicable Replacement Liquidity Provider and (2) the
replacement of the applicable Liquidity Facility with the applicable Replacement Liquidity Facility
and (z) the applicable Replacement Liquidity Provider shall be deemed to be a Liquidity Provider
with the rights and obligations of a Liquidity Provider hereunder and under the other Operative
Agreements and such Replacement Liquidity Facility shall be deemed to be a Liquidity Facility
hereunder and under the other Operative Agreements.
(f)
Cash Collateral Accounts; Withdrawals; Investments
. In the event the
Subordination Agent shall draw all available amounts under the Class A Liquidity Facility or the
Class B Liquidity Facility pursuant to Section 3.5(c), 3.5(d), 3.5(i) or 3.5(m) hereof, or in the
event amounts are to be deposited in the Class A Cash Collateral Account or the Class B Cash
Collateral Account pursuant to subclause (A) or (B) of clause fourth of Section 3.2, amounts so
drawn or to be deposited, as the case may be, shall be deposited by the Subordination Agent in the
Class A Cash Collateral Account or the Class B Cash Collateral Account, as applicable. All amounts
on deposit in each Cash Collateral Account shall be invested and reinvested in Eligible Investments
in accordance with Section 2.2(b) hereof.
On each Interest Payment Date (or, in the case of any Special Distribution Date with respect
to the distribution of a Special Payment, on such Special Distribution Date), Investment Earnings
on amounts on deposit in each Cash Collateral Account with respect to any Liquidity Facility (or,
in the case of any Special Distribution Date with respect to the distribution of a Special Payment,
so long as no Indenture Default shall have occurred and be continuing under any Trust Indenture, a
fraction of such Investment Earnings equal to the Section 2.4 Fraction) shall be deposited in the
Collection Account (or, in the case of any Special Distribution Date with respect to the
distribution of a Special Payment, the Special Payments Account) and applied on such Interest
Payment Date (or Special Distribution Date, as the case may be) in accordance with Section 3.2 or
3.3 (as applicable). The Subordination Agent shall deliver a written statement to US Airways and
each Liquidity Provider one day prior to each Interest Payment Date and Special Distribution Date
setting forth the aggregate amount of Investment Earnings held in the Cash Collateral Accounts as
of such date. In addition, from and after the date funds are so deposited, the Subordination Agent
shall make withdrawals from such accounts as follows:
33
(i) on each Distribution Date, the Subordination Agent shall, to the extent it shall
not have received funds to pay accrued and unpaid interest due and owing on the
Class A Certificates (at the Stated Interest Rate for the Class A Certificates) after
giving effect to the subordination provisions of this Agreement, withdraw from the Class A
Cash Collateral Account, and pay to the Class A Trustee, an amount equal to the lesser of
(x) an amount necessary to pay accrued and unpaid interest (at the Stated Interest Rate for
the Class A Certificates) on the Class A Certificates (excluding interest, if any, payable
with respect to the Deposits relating to the Class A Trust) and (y) the amount on deposit in
the Class A Cash Collateral Account;
(ii) on each Distribution Date, the Subordination Agent shall, to the extent it shall
not have received funds to pay accrued and unpaid interest due and owing on the Class B
Certificates (at the Stated Interest Rate for the Class B Certificates) after giving effect
to the subordination provisions of this Agreement, withdraw from the Class B Cash Collateral
Account, and pay to the Class B Trustee, an amount equal to the lesser of (x) an amount
necessary to pay accrued and unpaid interest (at the Stated Interest Rate for the Class B
Certificates) on the Class B Certificates (excluding interest, if any, payable with respect
to the Deposits relating to the Class B Trust) and (y) the amount on deposit in the Class B
Cash Collateral Account;
(iii) on each date on which the Pool Balance of the Class A Trust shall have been
reduced by payments made to the Class A Certificateholders pursuant to Section 3.2 hereof or
pursuant to Section 2.03 of the Escrow and Paying Agent Agreement for such Class, the
Subordination Agent shall withdraw from the Class A Cash Collateral Account such amount as
is necessary so that, after giving effect to the reduction of the Pool Balance on such date
(and any reduction in the amounts on deposit in the Class A Cash Collateral Account
resulting from a prior withdrawal of amounts on deposit in the Class A Cash Collateral
Account on such date) and any transfer of Investment Earnings from such Cash Collateral
Account to the Collection Account or the Special Payments Account on such date, an amount
equal to the sum of the Required Amount (with respect to the Class A Liquidity Facility)
plus (if on a Distribution Date not coinciding with an Interest Payment Date) Investment
Earnings on deposit in such Cash Collateral Account (after giving effect to any such
transfer of Investment Earnings) will be on deposit in the Class A Cash Collateral Account
and shall first, pay such withdrawn amount to the Class A Liquidity Provider until the
Liquidity Obligations (with respect to the Class A Certificates) owing to such Liquidity
Provider shall have been paid in full, and second, deposit any remaining withdrawn amount in
the Collection Account;
(iv) on each date on which the Pool Balance of the Class B Trust shall have been
reduced by payments made to the Class B Certificateholders pursuant to Section 3.2 hereof or
pursuant to Section 2.03 of the Escrow and Paying Agent Agreement for such Class, the
Subordination Agent shall withdraw from the Class B Cash Collateral Account such amount as
is necessary so that, after giving effect to the reduction of the Pool Balance on such date
(and any reduction in the amounts on deposit in the Class B Cash Collateral Account
resulting from a prior withdrawal of amounts on deposit in the Class B Cash Collateral
Account on such date) and any transfer of Investment Earnings from such Cash Collateral
Account to the Collection Account or the Special Payments Account
34
on such date, an amount
equal to the sum of the Required Amount (with respect to the Class B Liquidity Facility)
plus (if on a Distribution Date not coinciding with an Interest
Payment Date) Investment Earnings on deposit in such Cash Collateral Account (after
giving effect to any such transfer of Investment Earnings) will be on deposit in the Class B
Cash Collateral Account and shall first, pay such withdrawn amount to the Class B Liquidity
Provider until the Liquidity Obligations (with respect to the Class B Certificates) owing to
such Liquidity Provider shall have been paid in full, and second, deposit any remaining
withdrawn amount in the Collection Account;
(v) if a Replacement Liquidity Facility for any Class of Certificates shall be
delivered to the Subordination Agent following the date on which funds have been deposited
into the Cash Collateral Account related to the Liquidity Facility for such Class of
Certificates, the Subordination Agent shall withdraw all amounts on deposit in such Cash
Collateral Account and shall pay such amounts to the replaced Liquidity Provider until all
Liquidity Obligations owed to such Person shall have been paid in full, and shall deposit
any remaining amount in the Collection Account; and
(vi) following the payment of Final Distributions with respect to any Class of
Certificates, on the date on which the Subordination Agent shall have been notified by the
Liquidity Provider for such Class of Certificates that the Liquidity Obligations owed to
such Liquidity Provider have been paid in full, the Subordination Agent shall withdraw all
amounts on deposit in the Cash Collateral Account related to the Liquidity Facility in
respect of such Class of Certificates and shall deposit such amount in the Collection
Account.
(g)
Reinstatement
. With respect to any Interest Drawing under the Liquidity Facility
for any Trust, upon the reimbursement of the applicable Liquidity Provider for all or any part of
the amount of such Interest Drawing, together with any accrued interest thereon, the Available
Amount of such Liquidity Facility shall be reinstated by an amount equal to the amount of such
Interest Drawing so reimbursed to the applicable Liquidity Provider but not to exceed the Stated
Amount for such Liquidity Facility;
provided
,
however
, that such Liquidity Facility
shall not be so reinstated in part or in full at any time if (x) both a Performing Note Deficiency
exists and a Liquidity Event of Default shall have occurred and be continuing with respect to the
relevant Liquidity Facility or (y) a Final Drawing, a Non-Extension Drawing, a Downgrade Drawing or
a Special Termination Drawing shall have occurred with respect to such Liquidity Facility or an
Interest Drawing for such Liquidity Facility shall have been converted into a Final Drawing. In
the event that, with respect to any Liquidity Facility, (i) funds are withdrawn from the related
Cash Collateral Account pursuant to clause (i) or (ii) of Section 3.5(f) hereof or (ii) such
Liquidity Facility shall become a Downgraded Facility or a Non-Extended Facility at a time when
unreimbursed Interest Drawings under such Liquidity Facility have reduced the Available Amount
thereunder to zero, then funds received by the Subordination Agent at any time other than (x) any
time when a Liquidity Event of Default shall have occurred and be continuing with respect to such
Liquidity Facility and a Performing Note Deficiency exists or (y) any time after a Final Drawing
shall have occurred with respect to such Liquidity Facility or an Interest Drawing for such
Liquidity Facility shall have been converted into a Final Drawing, shall be deposited in such Cash
Collateral Account as and to the extent provided in clause fourth of Section 3.2 and applied in
accordance with Section 3.5(f) hereof.
35
(h)
Reimbursement
. The amount of each drawing under the Liquidity Facilities shall be
due and payable, together with interest thereon, on the dates and at the rates, respectively,
provided in the Liquidity Facilities.
(i)
Final Drawing
. Upon receipt from a Liquidity Provider of a Termination Notice
with respect to any Liquidity Facility, the Subordination Agent shall, not later than the date
specified in such Termination Notice, in accordance with the terms of such Liquidity Facility,
request a drawing under such Liquidity Facility of all available and undrawn amounts thereunder (a
Final Drawing
). Amounts drawn pursuant to a Final Drawing shall be maintained and
invested in accordance with Section 3.5(f) hereof.
(j)
Adjustments of Stated Amount
. Promptly following each date on which the Required
Amount of the Liquidity Facility for a Class of Certificates is reduced as a result of a reduction
in the Pool Balance with respect to such Certificates or otherwise, the Stated Amount of such
Liquidity Facility shall automatically be adjusted to an amount equal to the Required Amount with
respect to such Liquidity Facility (as calculated by the Subordination Agent after giving effect to
such payment).
(k)
Relation to Subordination Provisions
. Interest Drawings under the Liquidity
Facilities and withdrawals from the Cash Collateral Accounts relating to such Liquidity Facilities,
in each case, in respect of interest on the Certificates of any Class, will be distributed to the
Trustee for such Class of Certificates, notwithstanding Section 3.2 hereof.
(l)
Assignment of Liquidity Facility
. The Subordination Agent agrees not to consent
to the assignment by any Liquidity Provider of any of its rights or obligations under any Liquidity
Facility or any interest therein, unless (i) US Airways shall have consented to such assignment and
(ii) each Rating Agency shall have provided a Ratings Confirmation in respect of such assignment;
provided
, that the Subordination Agent shall consent to such assignment if the conditions
in the foregoing clauses (i) and (ii) are satisfied, and the foregoing is not intended to and shall
not be construed to limit the rights of the initial Liquidity Provider under Section 3.5(e)(ii).
(m)
Special Termination Drawing
. Upon receipt of a Special Termination Notice with
respect to any Liquidity Facility, the Subordination Agent shall, not later than the date specified
in such Special Termination Notice, in accordance with the terms of such Liquidity Facility,
request a drawing under such Liquidity Facility of all available and undrawn amounts thereunder (a
Special Termination Drawing
). Amounts drawn pursuant to a Special Termination Drawing
shall be maintained and invested in accordance with Section 3.5(f) hereof.
ARTICLE IV
EXERCISE OF REMEDIES
SECTION 4.1.
Directions from the Controlling Party
. (a) (i) Following the
occurrence and during the continuation of an Indenture Default under any Trust Indenture, the
Controlling Party shall direct the Subordination Agent, as the holder of Equipment Notes issued
under such Trust Indenture, which in turn shall direct the Indenture Trustee under such Trust
36
Indenture, in the exercise of remedies available to the holder of such Equipment Notes,
including, without limitation, the ability to vote all such Equipment Notes held by the
Subordination Agent in favor of Accelerating such Equipment Notes in accordance with the provisions
of such Trust Indenture. If the Equipment Notes issued pursuant to any Trust Indenture and held by
the Subordination Agent have been Accelerated following an Indenture Default with respect thereto,
the Controlling Party may direct the Subordination Agent to sell, assign, contract to sell or
otherwise dispose of and deliver all (but not less than all) of such Equipment Notes to any Person
at public or private sale, at any location at the option of the Controlling Party, all upon such
terms and conditions as it may reasonably deem advisable in accordance with applicable law.
(ii) Following the occurrence and during the continuation of an Indenture Default under any
Trust Indenture, in the exercise of remedies pursuant to such Trust Indenture, the Indenture
Trustee under such Trust Indenture may be directed to lease the related Aircraft to any Person
(including US Airways) so long as the Indenture Trustee in doing so acts in a commercially
reasonable manner within the meaning of Article 9 of the Uniform Commercial Code as in effect in
any applicable jurisdiction (including Sections 9-610 and 9-627 thereof).
(iii) Notwithstanding the foregoing, so long as any Certificates remain Outstanding, during
the period ending on the date which is nine months after the earlier of (x) the Acceleration of the
Equipment Notes issued pursuant to any Trust Indenture and (y) the occurrence of a US Airways
Bankruptcy Event, without the consent of each Trustee, no Aircraft subject to the Lien of such
Trust Indenture or such Equipment Notes may be sold if the net proceeds from such sale would be
less than the Minimum Sale Price for such Aircraft or such Equipment Notes.
(iv) Upon the occurrence and continuation of an Indenture Default under any Trust Indenture,
the Subordination Agent will obtain three desktop appraisals from the Appraisers selected by the
Controlling Party setting forth the current market value, current lease rate and distressed value
(in each case, as defined by the International Society of Transport Aircraft Trading or any
successor organization) of the Aircraft subject to such Trust Indenture (each such appraisal, an
Appraisal
and the current market value appraisals being referred to herein as the
Post-Default Appraisals
). For so long as any Indenture Default shall be continuing under
any Trust Indenture, and without limiting the right of the Controlling Party to request more
frequent Appraisals, the Subordination Agent will obtain updated Appraisals on the date that is 364
days from the date of the most recent Appraisal (or if a US Airways Bankruptcy Event shall have
occurred and is continuing, on the date that is 180 days from the date of the most recent
Appraisal).
(b) Following the occurrence and during the continuance of an Indenture Default under any
Trust Indenture, the Controlling Party shall take such actions as it may reasonably deem most
effectual to complete the sale or other disposition of the relevant Aircraft or Equipment Notes.
In addition, in lieu of any sale, assignment, contract to sell or other disposition, the
Controlling Party may maintain or cause the Subordination Agent to maintain possession of such
Equipment Notes and continue to apply monies received in respect of such Equipment Notes in
accordance with Article III hereof. In addition, in lieu of such sale, assignment, contract to
sell or other disposition, or in lieu of such maintenance of possession, the
37
Controlling Party may, subject to the terms and conditions of the related Trust Indenture,
instruct the Indenture Trustee under such Trust Indenture to foreclose on the Lien on the related
Aircraft or to take any other remedial action permitted under such Trust Indenture or under any
applicable law.
(c) If following a US Airways Bankruptcy Event and during the pendency thereof, the
Controlling Party receives a proposal from or on behalf of US Airways to restructure the financing
of any one or more of the Aircraft, the Controlling Party shall promptly thereafter give the
Subordination Agent and each Trustee notice of the material economic terms and conditions of such
restructuring proposal whereupon the Subordination Agent acting on behalf of each Trustee shall
endeavor using reasonable commercial efforts to make such terms and conditions of such
restructuring proposal available to all Certificateholders (whether by posting on DTCs Internet
board or otherwise). Thereafter, neither the Subordination Agent nor any Trustee, whether acting
on instructions of the Controlling Party or otherwise, may, without the consent of each Trustee,
enter into any term sheet, stipulation or other agreement (whether in the form of an adequate
protection stipulation, an extension under Section 1110(b) of the Bankruptcy Code or otherwise) to
effect any such restructuring proposal with or on behalf of US Airways unless and until the
material economic terms and conditions of such restructuring shall have been made available to all
Certificateholders for a period of not less than 15 calendar days (except that such requirement
shall not apply to any such term sheet, stipulation or other agreement that is entered into on or
prior to the expiry of the 60-Day Period and that is effective for a period not longer than three
months from the expiry of the 60-Day Period). In the event that any Class B Certificateholder or
Additional Certificateholder gives irrevocable notice of the exercise of its right to purchase all
(but not less than all) of the Class of Certificates represented by the then Controlling Party
pursuant to the applicable Trust Agreement prior to the expiry of the 15-day notice period
specified above, such Controlling Party may not direct the Subordination Agent or any Trustee to
enter into any such restructuring proposal with respect to any of the Aircraft unless and until
such Certificateholder shall fail to purchase such Class of Certificates on the date that it is
required to make such purchase.
SECTION 4.2.
Remedies Cumulative
. Each and every right, power and remedy given to
the Trustees, the Liquidity Providers, the Controlling Party or the Subordination Agent
specifically or otherwise in this Agreement shall be cumulative and shall be in addition to every
other right, power and remedy herein specifically given or now or hereafter existing at law, in
equity or by statute, and each and every right, power and remedy whether specifically herein given
or otherwise existing may, subject always to the terms and conditions hereof, be exercised from
time to time and as often and in such order as may be deemed expedient by any Trustee, any
Liquidity Provider, the Controlling Party or the Subordination Agent, as appropriate, and the
exercise or the beginning of the exercise of any power or remedy shall not be construed to be a
waiver of the right to exercise at the same time or thereafter any other right, power or remedy.
No delay or omission by any Trustee, any Liquidity Provider, the Controlling Party or the
Subordination Agent in the exercise of any right, remedy or power or in the pursuit of any remedy
shall impair any such right, power or remedy or be construed to be a waiver of any default or to be
an acquiescence therein.
SECTION 4.3.
Discontinuance of Proceedings
. In case any party to this Agreement
(including the Controlling Party in such capacity) shall have instituted any
38
Proceeding to enforce any right, power or remedy under this Agreement by foreclosure, entry or
otherwise, and such Proceeding shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Person instituting such Proceeding, then and in every such
case each such party shall, subject to any determination in such Proceeding, be restored to its
former position and rights hereunder, and all rights, remedies and powers of such party shall
continue as if no such Proceeding had been instituted.
SECTION 4.4.
Right of Certificateholders and the Liquidity Providers to Receive Payments
Not to Be Impaired
. Anything in this Agreement to the contrary notwithstanding but subject to
each Trust Agreement, the right of any Certificateholder or any Liquidity Provider, respectively,
to receive payments hereunder (including without limitation pursuant to Section 3.2 hereof) when
due, or to institute suit for the enforcement of any such payment on or after the applicable
Distribution Date, shall not be impaired or affected without the consent of such Certificateholder
or such Liquidity Provider, respectively.
SECTION 4.5.
Undertaking for Costs
. In any Proceeding for the enforcement of any
right or remedy under this Agreement or in any Proceeding against any Controlling Party or the
Subordination Agent for any action taken or omitted by it as Controlling Party or Subordination
Agent, as the case may be, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the claims or defenses made
by the party litigant. The provisions of this Section do not apply to a suit instituted by the
Subordination Agent, a Liquidity Provider or a Trustee or a suit by Certificateholders holding more
than 10% of the original principal amount of any Class of Certificates.
ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF TRUSTEES, ETC.
SECTION 5.1.
Notice of Indenture Default or Triggering Event
. (a) In the event the
Subordination Agent shall have actual knowledge of the occurrence of an Indenture Default or a
Triggering Event, as promptly as practicable, and in any event within 10 days after obtaining
knowledge thereof, the Subordination Agent shall transmit by mail or courier to the Rating
Agencies, the Liquidity Providers and the Trustees notice of such Indenture Default or Triggering
Event, unless such Indenture Default or Triggering Event shall have been cured or waived. For all
purposes of this Agreement, in the absence of actual knowledge on the part of a Responsible
Officer, the Subordination Agent shall not be deemed to have knowledge of any Indenture Default or
Triggering Event unless notified in writing by one or more Trustees, one or more of the Liquidity
Providers or one or more Certificateholders.
(b)
Other Notices
. The Subordination Agent will furnish to each Liquidity Provider
and each Trustee, promptly upon receipt thereof, duplicates or copies of all reports, notices,
requests, demands, certificates, financial statements and other instruments furnished to
39
the Subordination Agent as registered holder of the Equipment Notes or otherwise in its
capacity as Subordination Agent to the extent the same shall not have been otherwise directly
distributed to such Liquidity Provider or Trustee, as applicable, pursuant to the express provision
of any other Operative Agreement.
(c)
Securities Position
. Upon the occurrence of an Indenture Default, the
Subordination Agent shall instruct the Trustees to, and the Trustees shall, request that DTC post
on its Internet bulletin board a securities position listing setting forth the names of all the
parties reflected on DTCs books as holding interests in the Certificates.
(d)
Reports
. Promptly after the occurrence of a Triggering Event or an Indenture
Default resulting from the failure of US Airways to make payments on any Equipment Note and on
every Regular Distribution Date while the Triggering Event or such Indenture Default shall be
continuing, the Subordination Agent will provide to the Trustee, the Liquidity Providers, the
Rating Agencies and US Airways a statement setting forth the following information:
(i) after a US Airways Bankruptcy Event, with respect to each Aircraft, whether such Aircraft
is (A) subject to the 60-day period of Section 1110(a)(2)(A) of the Bankruptcy Code, (B) subject to
an election by US Airways under Section 1110(a) of the Bankruptcy Code, (C) covered by an agreement
contemplated by Section 1110(b) of the Bankruptcy Code or (D) not subject to any of (A), (B) or
(C);
(ii) to the best of the Subordination Agents knowledge, after requesting such information
from US Airways, (A) whether the Aircraft are currently in service or parked in storage, (B) the
maintenance status of the Aircraft and (C) the location of the Engines (as defined in the Trust
Indentures);
(iii) the current Pool Balance of the Certificates, the Preferred B Pool Balance and the
outstanding principal amount of all Equipment Notes;
(iv) the expected amount of interest which will have accrued on the Equipment Notes and on the
Certificates as of the next Regular Distribution Date;
(v) the amounts paid to each Person on such Distribution Date pursuant to this Agreement;
(vi) details of the amounts paid on such Distribution Date identified by reference to the
relevant provision of this Agreement and the source of payment (by Aircraft and party);
(vii) if the Subordination Agent has made a Final Drawing under any Liquidity Facility;
(viii) the amounts currently owed to each Liquidity Provider;
(ix) the amounts drawn under each Liquidity Facility; and
40
(x) after a US Airways Bankruptcy Event, any operational reports filed by US Airways with the
bankruptcy court which are available to the Subordination Agent on a non-confidential basis.
SECTION 5.2.
Indemnification
. The Subordination Agent shall not be required to take
any action or refrain from taking any action under Section 5.1 (other than the first sentence
thereof) or Article IV hereof unless the Subordination Agent shall have been indemnified (to the
extent and in the manner reasonably satisfactory to the Subordination Agent) against any liability,
cost or expense (including counsel fees and expenses) which may be incurred in connection
therewith. The Subordination Agent shall not be under any obligation to take any action under this
Agreement and nothing contained in this Agreement shall require the Subordination Agent to expend
or risk its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. The Subordination Agent shall not be required to take
any action under Section 5.1 (other than the first sentence thereof) or Article IV hereof, nor
shall any other provision of this Agreement be deemed to impose a duty on the Subordination Agent
to take any action, if the Subordination Agent shall have been advised by counsel that such action
is contrary to the terms hereof or is otherwise contrary to law.
SECTION 5.3.
No Duties Except as Specified in this Intercreditor Agreement
. The
Subordination Agent shall not have any duty or obligation to take or refrain from taking any action
under, or in connection with, this Agreement, except as expressly provided by the terms of this
Agreement; and no implied duties or obligations shall be read into this Agreement against the
Subordination Agent. The Subordination Agent agrees that it will, in its individual capacity and
at its own cost and expense (but without any right of indemnity in respect of any such cost or
expense under Section 5.2 or 7.1 hereof) promptly take such action as may be necessary to duly
discharge all Liens on any of the Trust Accounts or any monies deposited therein which result from
claims against it in its individual capacity not related to its activities hereunder or any other
Operative Agreement.
SECTION 5.4.
Notice from the Liquidity Providers and Trustees
. If any Liquidity
Provider or Trustee has notice of an Indenture Default or a Triggering Event, such Person shall
promptly give notice thereof to each other party hereto,
provided
,
however
, that no
such Person shall have any liability hereunder as a result of its failure to deliver any such
notice.
ARTICLE VI
THE SUBORDINATION AGENT
SECTION 6.1.
Authorization; Acceptance of Trusts and Duties
. Each of the Class A
Trustee and the Class B Trustee hereby designates and appoints the Subordination Agent as the agent
and trustee of such Trustee under the applicable Liquidity Facility and authorizes the
Subordination Agent to enter into the applicable Liquidity Facility as agent and trustee for such
Trustee. Each of the Liquidity Providers and the Trustees hereby designates and appoints the
41
Subordination Agent as the Subordination Agent under this Agreement. WTC hereby accepts the
duties hereby created and applicable to it as the Subordination Agent and agrees to perform the
same but only upon the terms of this Agreement and agrees to receive and disburse all monies
received by it in accordance with the terms hereof. The Subordination Agent shall not be
answerable or accountable under any circumstances, except (a) for its own willful misconduct or
gross negligence (or ordinary negligence in the handling of funds), (b) as provided in Sections 2.2
or 5.3 hereof and (c) for liabilities that may result from the material inaccuracy of any
representation or warranty of the Subordination Agent made in its individual capacity in any
Operative Agreement. The Subordination Agent shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Subordination Agent, unless it is proved that the
Subordination Agent was negligent in ascertaining the pertinent facts.
SECTION 6.2.
Absence of Duties
. The Subordination Agent shall have no duty to see to
any recording or filing of this Agreement or any other document, or to see to the maintenance of
any such recording or filing.
SECTION 6.3.
No Representations or Warranties as to Documents
. The Subordination
Agent in its individual capacity does not make nor shall be deemed to have made any representation
or warranty as to the validity, legality or enforceability of this Agreement or any other Operative
Agreement or as to the correctness of any statement contained in any thereof, except for the
representations and warranties of the Subordination Agent, made in its individual capacity, under
any Operative Agreement to which it is a party. The Certificateholders, the Trustees and the
Liquidity Providers make no representation or warranty hereunder whatsoever.
SECTION 6.4.
No Segregation of Monies; No Interest
. Any monies paid to or retained
by the Subordination Agent pursuant to any provision hereof and not then required to be distributed
to any Trustee or any Liquidity Provider as provided in Articles II and III hereof or deposited
into one or more Trust Accounts need not be segregated in any manner except to the extent required
by such Articles II and III and by law, and the Subordination Agent shall not (except as otherwise
provided in Section 2.2 hereof) be liable for any interest thereon;
provided
,
however
, that any payments received or applied hereunder by the Subordination Agent shall
be accounted for by the Subordination Agent so that any portion thereof paid or applied pursuant
hereto shall be identifiable as to the source thereof.
SECTION 6.5.
Reliance; Agents; Advice of Counsel
. The Subordination Agent shall not
incur liability to anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper believed by it to be
genuine and believed by it to be signed by the proper party or parties. As to the Pool Balance of
any Trust as of any date, the Subordination Agent may for all purposes hereof rely on a certificate
signed by any Responsible Officer of the applicable Trustee, and such certificate shall constitute
full protection to the Subordination Agent for any action taken or omitted to be taken by it in
good faith in reliance thereon. As to any fact or matter relating to the Liquidity Providers or
the Trustees the manner of ascertainment of which is not specifically described herein, the
Subordination Agent may for all purposes hereof rely on a certificate, signed by any Responsible
Officer of the applicable Liquidity Provider or Trustee, as the case may be, as to such fact or
matter, and such certificate shall constitute full protection to the Subordination
42
Agent for any action taken or omitted to be taken by it in good faith in reliance thereon.
The Subordination Agent shall assume, and shall be fully protected in assuming, that each of the
Liquidity Providers and each of the Trustees are authorized to enter into this Agreement and to
take all action to be taken by them pursuant to the provisions hereof, and shall not inquire into
the authorization of the Liquidity Providers and the Trustees with respect thereto. In the
administration of the trusts hereunder, the Subordination Agent may execute any of the trusts or
powers hereof and perform its powers and duties hereunder directly or through agents or attorneys
and may consult with counsel, accountants and other skilled persons to be selected and retained by
it, and the Subordination Agent shall not be liable for the acts or omissions of any agent
appointed with due care or for anything done, suffered or omitted in good faith by it in accordance
with the advice or written opinion of any such counsel, accountants or other skilled persons.
SECTION 6.6.
Capacity in Which Acting
. The Subordination Agent acts hereunder solely
as agent and trustee herein and not in its individual capacity, except as otherwise expressly
provided in the Operative Agreements.
SECTION 6.7.
Compensation
. The Subordination Agent shall be entitled to reasonable
compensation, including expenses and disbursements, for all services rendered hereunder and shall
have a priority claim to the extent set forth in Article III hereof on all monies collected
hereunder for the payment of such compensation, to the extent that such compensation shall not be
paid by others. The Subordination Agent agrees that it shall have no right against any Trustee or
Liquidity Provider for any fee as compensation for its services as agent under this Agreement. The
provisions of this Section 6.7 shall survive the termination of this Agreement.
SECTION 6.8.
May Become Certificateholder
. The institution acting as Subordination
Agent hereunder may become a Certificateholder and have all rights and benefits of a
Certificateholder to the same extent as if it were not the institution acting as the Subordination
Agent.
SECTION 6.9.
Subordination Agent Required; Eligibility
. There shall at all times be
a Subordination Agent hereunder which shall be a corporation organized and doing business under the
laws of the United States of America or of any State or the District of Columbia having a combined
capital and surplus of at least $100,000,000 (or the obligations of which, whether now in existence
or hereafter incurred, are fully and unconditionally guaranteed by a corporation organized and
doing business under the laws of the United States of America, any State thereof or of the District
of Columbia and having a combined capital and surplus of at least $100,000,000), if there is such
an institution willing and able to perform the duties of the Subordination Agent hereunder upon
reasonable or customary terms. Such corporation shall be a citizen of the United States and shall
be authorized under the laws of the United States or any State thereof or of the District of
Columbia to exercise corporate trust powers and shall be subject to supervision or examination by
federal, state or District of Columbia authorities. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of any of the aforesaid
supervising or examining authorities, then, for the purposes of this Section 6.9, the combined
capital and surplus of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
43
In case at any time the Subordination Agent shall cease to be eligible in accordance with the
provisions of this Section, the Subordination Agent shall resign immediately in the manner and with
the effect specified in Section 8.1.
SECTION 6.10.
Money to Be Held in Trust
. All Equipment Notes, monies and other
property deposited with or held by the Subordination Agent pursuant to this Agreement shall be held
in trust for the benefit of the parties entitled to such Equipment Notes, monies and other
property. All such Equipment Notes, monies or other property shall be held in the Trust Department
of the institution acting as Subordination Agent hereunder.
ARTICLE VII
INDEMNIFICATION OF SUBORDINATION AGENT
SECTION 7.1.
Scope of Indemnification
. The Subordination Agent shall be indemnified
hereunder to the extent and in the manner described in Section 8.1 of the Participation Agreements
and Section 6 of the Note Purchase Agreement. The indemnities contained in such Sections of such
agreements shall survive the termination of this Agreement.
ARTICLE VIII
SUCCESSOR SUBORDINATION AGENT
SECTION 8.1.
Replacement of Subordination Agent; Appointment of Successor
. The
Subordination Agent may resign at any time by so notifying each other party hereto. The
Controlling Party may remove the Subordination Agent for cause by so notifying the Subordination
Agent and may appoint a successor Subordination Agent. The Controlling Party shall remove the
Subordination Agent if:
(1) the Subordination Agent fails to comply with Section 6.9 hereof;
(2) the Subordination Agent is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Subordination Agent or its
property; or
(4) the Subordination Agent otherwise becomes incapable of acting.
If the Subordination Agent resigns or is removed or if a vacancy exists in the office of
Subordination Agent for any reason (the Subordination Agent in such event being referred to herein
as the retiring Subordination Agent), the Controlling Party shall promptly appoint a successor
Subordination Agent.
A successor Subordination Agent shall deliver (x) a written acceptance of its appointment as
Subordination Agent hereunder to the retiring Subordination Agent and (y) a written assumption of
its obligations hereunder and under each Liquidity Facility to each party
44
hereto, upon which the resignation or removal of the retiring Subordination Agent shall become
effective, and the successor Subordination Agent shall have all the rights, powers and duties of
the Subordination Agent under this Agreement. The successor Subordination Agent shall mail a
notice of its succession to each other party hereto. The retiring Subordination Agent shall
promptly transfer its rights under each of the Liquidity Facilities and all of the property held by
it as Subordination Agent to the successor Subordination Agent.
If a successor Subordination Agent does not take office within 60 days after the retiring
Subordination Agent resigns or is removed, the retiring Subordination Agent or one of more of the
Trustees may petition any court of competent jurisdiction for the appointment of a successor
Subordination Agent.
If the Subordination Agent fails to comply with Section 6.9 hereof (to the extent applicable),
one or more of the Trustees or one or more of the Liquidity Providers may petition any court of
competent jurisdiction for the removal of the Subordination Agent and the appointment of a
successor Subordination Agent.
Notwithstanding the foregoing, no resignation or removal of the Subordination Agent shall be
effective unless and until a successor has been appointed. No appointment of a successor
Subordination Agent shall be effective unless and until the Rating Agencies shall have delivered a
Ratings Confirmation.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
SECTION 9.1.
Amendments, Waivers, Possible Future Issuance of an Additional Class of
Certificates, etc
. (a) This Agreement may not be supplemented, amended or modified without
the consent of each Trustee (acting, except in the case of any amendment pursuant to Section
3.5(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment
contemplated by the last sentence of this Section 9.1(a), with the consent of holders of
Certificates of the related Class evidencing interests in the related Trust aggregating not less
than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust
Agreement), the Subordination Agent and each Liquidity Provider;
provided
,
however
,
that this Agreement may be supplemented, amended or modified without the consent of any Trustee if
such supplement, amendment or modification (i) is in accordance with Section 9.1(c) or Section
9.1(d) hereof or (ii) cures an ambiguity or inconsistency or does not materially adversely affect
such Trustee or the holders of the related Class of Certificates;
provided
further
,
however
, that, if such supplement, amendment or modification (A) would (x) directly or
indirectly modify or supersede, or otherwise conflict with, Section 2.2(b), Section 3.5(e), Section
3.5(f)(other than the last sentence thereof), Section 3.5(l), the last sentence of this Section
9.1(a), Section 9.1(c), Section 9.1(d), the second sentence of Section 10.6 or this proviso
(collectively, the
US Airways Provisions
) or (y) otherwise adversely affect the interests
of a potential Replacement Liquidity Provider or of US Airways with respect to its ability to
replace any Liquidity Facility or with respect to its payment obligations under any Operative
Agreement or (B) is made pursuant to the last sentence of this Section 9.1(a) or pursuant to
Section 9.1(c) or Section 9.1(d),
45
then such supplement, amendment or modification shall not be effective without the additional
written consent of US Airways. Notwithstanding the foregoing, without the consent of each
Certificateholder and each Liquidity Provider, no supplement, amendment or modification of this
Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates
issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to
waive compliance therewith, (ii) to the extent such Section relates to the rights or obligations of
any Liquidity Provider, Section 2.6(c) or (iii) except as provided in this Section 9.1(a), Section
9.1(c) or Section 9.1(d), modify Section 2.4 or 3.2 hereof, relating to the distribution of monies
received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity
Facilities. Nothing contained in this Section shall require the consent of a Trustee at any time
following the payment of Final Distributions with respect to the related Class of Certificates. If
the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.5(e)
hereof is to be comprised of more than one instrument as contemplated by the definition of the term
Replacement Liquidity Facility, then each of the parties hereto agrees to amend this Agreement to
incorporate appropriate mechanics for multiple Liquidity Facilities for an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment
Notes, receives a request for the giving of any notice or for its consent to any amendment,
supplement, modification, consent or waiver under such Equipment Notes, the Trust Indenture
pursuant to which such Equipment Notes were issued, or the related Participation Agreement or other
related document, (i) if no Indenture Default shall have occurred and be continuing with respect to
such Trust Indenture, the Subordination Agent shall request directions with respect to each Series
of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall
vote or consent in accordance with the directions of such Trustee, and (ii) if any Indenture
Default shall have occurred and be continuing with respect to such Trust Indenture, the
Subordination Agent will exercise its voting rights with respect to such Equipment Notes as
directed by the Controlling Party (subject to Sections 4.1 and 4.4 hereof);
provided
that
no such amendment, modification or waiver shall, without the consent of each affected
Certificateholder and each Liquidity Provider, reduce the amount of principal or interest payable
by US Airways under any Equipment Note or change the time of payments or method of calculation of
any amount under any Equipment Note.
(c) If Series B Equipment Notes issued with respect to all of the Aircraft are redeemed and
re-issued in accordance with the terms of Section 2.10(b) of each Trust Indenture and Section
4(a)(v) of the Note Purchase Agreement, such series of re-issued Equipment Notes (the
Refinancing Equipment Notes
) shall be issued to a new pass through trust (a
Refinancing Trust
) that issues a class of pass through certificates (the
Refinancing
Certificates
) to certificateholders (the
Refinancing Certificateholders
) pursuant to
a pass through trust agreement (a
Refinancing Trust Agreement
) with a trustee (a
Refinancing Trustee
). A Refinancing Trust, a Refinancing Trustee and the Refinancing
Certificates shall be subject to all of the provisions of this Agreement in the same manner as the
Class B Trust, the Class B Trustee and the Class B Certificates, including the subordination of the
Refinancing Certificates to the Administration Expenses, the Liquidity Obligations and the Class A
Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the
amendment of this Agreement as provided below shall require Ratings Confirmation and shall not
materially adversely affect any of the Trustees. This Agreement shall be amended by written
agreement of
46
US Airways and the Subordination Agent to give effect to the issuance of the Refinancing
Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of Certificate, Class, Class B Certificates, Final Legal
Distribution Date, Trust, Trust Agreement and Controlling Party (and such other
applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the
subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to
the Class B Liquidity Facility, and claims for fees, interest, expenses, reimbursement of
advances and other obligations arising from such credit support may rank pari passu with
similar claims in respect of the Class A Liquidity Facility so long as a Ratings
Confirmation and the prior written consent of the Class A Liquidity Provider shall have been
obtained;
(iv) the Refinancing Certificates cannot be issued to US Airways but may be issued to
any of US Airwayss Affiliates so long as such Affiliate shall have bankruptcy remote and
special purpose provisions in its certificate of incorporation or other organizational
documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of US
Airways shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be on the
Regular Distribution Dates.
The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of
this Section 9.1(c) shall not require the consent of any of the Trustees or the holders of any
Class of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be
deemed to consent to any issuance and amendment in accordance with this Section 9.1(c) (subject to
the Class A Liquidity Providers consent right in Section 9.1(c)(iii)) and any such issuance and
amendment shall not affect any of its respective obligations under the Liquidity Facilities.
(d) Pursuant to the terms of Section 2.02 of each Trust Indenture and Section 4(a)(vi) of the
Note Purchase Agreement, a single additional series of Equipment Notes (the
Additional
Equipment Notes
), which shall be subordinated in right of payment to the Series A Equipment
Notes and the Series B Equipment Notes under such Trust Indenture, may be issued at any time after
the Delivery Period Expiry Date. If Additional Equipment Notes are issued under one or more of the
Trust Indentures, such Additional Equipment Notes shall be issued to a new pass through trust (an
Additional Trust
) that issues a class of pass through certificates (the
Additional
Certificates
) to certificateholders (the
Additional Certificateholders
) pursuant to
a pass through trust agreement (an
Additional Trust Agreement
) with a trustee (an
Additional Trustee
). In such case, this Agreement shall be amended by written agreement
of US Airways and the Subordination Agent to provide for the subordination of the Additional
Certificates to the Administration Expenses, the Liquidity Obligations, the Class A Certificates
and the Class B Certificates (subject to clause (iii) below). Such issuance and the amendment of
this Agreement
47
as provided below shall require Ratings Confirmation and shall not materially adversely affect
any of the Trustees. This Agreement shall be amended by written agreement of US Airways and the
Subordination Agent to give effect to the issuance of any Additional Certificates subject to the
following terms and conditions:
(i) the Additional Trustee shall be added as a party to this Agreement;
(ii) the definitions of Certificate, Class, Equipment Notes, Final Legal Distribution
Date, Trust, Trust Agreement and Controlling Party (and such other applicable definitions)
shall be revised, as appropriate, to reflect the issuance of the Additional Certificates (and the
subordination thereof);
(iii) Section 3.2 may be revised to provide for the distribution of Adjusted Interest for
the Additional Certificates (calculated in a manner substantially similar to the calculation of
Class B Adjusted Interest) after the Class B Adjusted Interest but before Expected Distributions on
the Class A Certificates;
(iv) the Additional Certificates shall not have the benefit of any credit support similar to
the Liquidity Facilities;
(v) the Additional Certificates cannot be issued to US Airways but may be issued to any of US
Airwayss Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose
provisions in its certificate of incorporation or other organizational documents and any subsequent
transfer of the Additional Certificates to any Affiliate of US Airways shall be similarly
restricted;
(vi) the provisions of this Agreement governing payments with respect to Certificates and
related notices, including Sections 2.4, 3.1 and 3.2, shall be revised to provide for distributions
on the Additional Certificates after payment of Administration Expenses, the Liquidity Obligations,
the Class A Certificates and the Class B Certificates, subject to clause (iii) above; and
(vii) the scheduled payment dates on such series of Additional Equipment Notes shall be on the
Regular Distribution Dates.
The issuance of the Additional Certificates in compliance with all of the foregoing terms of
this Section 9.1(d) shall not require the consent of any of the Trustees or the holders of any
Class of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be
deemed to consent to any issuance and amendment in accordance with this Section 9.1(d) and any such
issuance and amendment shall not affect any of its respective obligations under the Liquidity
Facilities.
SECTION 9.2.
Subordination Agent Protected
. If, in the reasonable opinion of the
institution acting as the Subordination Agent hereunder, any document required to be executed
pursuant to the terms of Section 9.1 affects any right, duty, immunity or indemnity with respect to
it under this Agreement or any Liquidity Facility, the Subordination Agent may in its discretion
decline to execute such document.
48
SECTION 9.3.
Effect of Supplemental Agreements
. Upon the execution of any amendment,
consent or supplement hereto pursuant to the provisions hereof, this Agreement shall be and be
deemed to be and shall be modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Agreement of the parties
hereto and beneficiaries hereof shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms and conditions of
any such supplemental agreement shall be and be deemed to be and shall be part of the terms and
conditions of this Agreement for any and all purposes. In executing or accepting any supplemental
agreement permitted by this Article IX, the Subordination Agent shall be entitled to receive, and
shall be fully protected in relying upon, an opinion of counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement.
SECTION 9.4.
Notice to Rating Agencies
. Promptly upon receipt of any amendment,
consent, modification, supplement or waiver contemplated by this Article IX and prior to taking any
action required to be taken thereunder, the Subordination Agent shall send a copy thereof to each
Rating Agency.
ARTICLE X
MISCELLANEOUS
SECTION 10.1.
Termination of Intercreditor Agreement
. Following payment of Final
Distributions with respect to each Class of Certificates and the payment in full of all Liquidity
Obligations to the Liquidity Providers and
provided
that there shall then be no other
amounts due to the Certificateholders, the Trustees, the Liquidity Providers and the Subordination
Agent hereunder or under the Trust Agreements, and that the commitment of the Liquidity Providers
under the Liquidity Facilities shall have expired or been terminated, this Agreement and the trusts
created hereby shall terminate and this Agreement shall be of no further force or effect. Except
as aforesaid or otherwise provided, this Agreement and the trusts created hereby shall continue in
full force and effect in accordance with the terms hereof.
SECTION 10.2.
Intercreditor Agreement for Benefit of Trustees, Liquidity Providers and
Subordination Agent
. Subject to the second sentence of Section 10.6 and the provisions of
Sections 4.4 and 9.1, nothing in this Agreement, whether express or implied, shall be construed to
give to any Person other than the Trustees, the Liquidity Providers and the Subordination Agent any
legal or equitable right, remedy or claim under or in respect of this Agreement.
SECTION 10.3.
Notices
. Unless otherwise expressly specified or permitted by the
terms hereof, all notices, requests, demands, authorizations, directions, consents, waivers or
documents provided or permitted by this Agreement to be made, given, furnished or filed shall be in
writing, mailed by certified mail, postage prepaid, or by confirmed telecopy and
49
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(i)
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if to the Subordination Agent, addressed to at its office at:
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WILMINGTON TRUST COMPANY
1100 N. Market Street
Wilmington, DE 19890-1605
Attention: Corporate Capital Market Services
Telecopy: (302) 636-4140
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(ii)
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if to any Trustee, addressed to it at its office at:
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WILMINGTON TRUST COMPANY
1100 N. Market Street
Wilmington, DE 19890-1605
Attention: Corporate Capital Market Services
Telecopy: (302) 636-4140
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(iii)
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if to the Liquidity Provider, addressed to it at its office at:
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MORGAN STANLEY BANK, N.A.
1 Pierrepont Plaza, 7
th
Floor
Brooklyn, NY 11201
Attention: Sean Marshall
Telephone: (718) 754-2095
Telecopy: (212) 507-6680
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Whenever any notice in writing is required to be given by any Trustee, any Liquidity Provider or
the Subordination Agent to any of the other of them, such notice shall be deemed given and such
requirement satisfied when such notice is received. Any party hereto may change the address to
which notices to such party will be sent by giving notice of such change to the other parties to
this Agreement.
SECTION 10.4.
Severability
. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.5.
No Oral Modifications or Continuing Waivers
. No terms or provisions of
this Agreement may be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party or other Person against whom enforcement of the change, waiver,
discharge or termination is sought and any other party or other Person whose consent is required
pursuant to this Agreement and any waiver of the terms hereof shall be effective only in the
specific instance and for the specific purpose given.
SECTION 10.6.
Successors and Assigns
. All covenants and agreements contained herein
shall be binding upon, and inure to the benefit of, each of the parties hereto and the successors
and assigns of each, all as herein provided. In addition, the US Airways Provisions shall inure to
the benefit of US Airways and its successors and assigns, and (without
50
limitation of the foregoing) US Airways is hereby constituted, and agreed to be, an express
third party beneficiary of the US Airways Provisions. Upon the occurrence of the Transfers
contemplated by the Assignment and Assumption Agreements, (i) the Trustee of the Original Class A
Trust shall (without any further act) be deemed to have transferred all of its rights, title and
interest in and to this Agreement to the trustee of the Successor Class A Trust and, thereafter,
the trustee of the Successor Class A Trust shall be deemed to be the Trustee of the Successor
Class A Trust with the rights and obligations of the Trustee hereunder and under the other
Operative Agreements and each reference to the Class A Trust herein shall be deemed a reference to
the Successor Class A Trust and (ii) the Trustee of the Original Class B Trust shall (without any
further act) be deemed to have transferred all of its rights, title and interest in and to this
Agreement to the trustee of the Successor Class B Trust and, thereafter, the trustee of the
Successor Class B Trust shall be deemed to be the Trustee of the Successor Class B Trust with the
rights and obligations of the Trustee hereunder and under the other Operative Agreements and each
reference to the Class B Trust herein shall be deemed a reference to the Successor Class B Trust.
SECTION 10.7.
Headings
. The headings of the various Articles and Sections herein and
in the table of contents hereto are for convenience of reference only and shall not define or limit
any of the terms or provisions hereof.
SECTION 10.8.
Counterpart Form
. 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 agreement.
SECTION 10.9.
Subordination
. (a) As between the Liquidity Providers (and any
additional liquidity provider in respect of any Refinancing Certificates), on the one hand, and the
Trustees (and any Refinancing Trustees or Additional Trustee) and the Certificateholders (and any
Refinancing Certificateholders or Additional Certificateholders), on the other hand, and as among
the Trustees (and any Refinancing Trustees or Additional Trustee) and the related
Certificateholders (and any Refinancing Certificateholders or Additional Certificateholders), this
Agreement shall be a subordination agreement for purposes of Section 510 of the United States
Bankruptcy Code, as amended from time to time.
(b) Notwithstanding the provisions of this Agreement, if prior to the payment in full to the
Liquidity Providers of all Liquidity Obligations then due and payable, any party hereto shall have
received any payment or distribution in respect of Equipment Notes or any other amount under the
Trust Indentures or other Operative Agreements which, had the subordination provisions of this
Agreement been properly applied to such payment, distribution or other amount, would not have been
distributed to such Person, then such payment, distribution or other amount shall be received and
held in trust by such Person and paid over or delivered to the Subordination Agent for application
as provided herein.
(c) If any Trustee, any Liquidity Provider or the Subordination Agent receives any payment in
respect of any obligations owing hereunder (or, in the case of the Liquidity Providers, in respect
of the Liquidity Obligations), which is subsequently invalidated, declared preferential, set aside
and/or required to be repaid to a trustee, receiver or other party, then, to the extent of such
payment, such obligations (or, in the case of the Liquidity Providers, such
51
Liquidity Obligations) intended to be satisfied shall be revived and continue in full force
and effect as if such payment had not been received.
(d) The Trustees (on behalf of themselves and the holders of the Certificates), the Liquidity
Providers and the Subordination Agent confirm that the payment priorities specified in Section 3.2
shall apply in all circumstances, notwithstanding the fact that the obligations owed to the
Trustees and the holders of Certificates are secured by certain assets and the Liquidity
Obligations may not be so secured. The Trustees expressly agree (on behalf of themselves and the
holders of the Certificates) not to assert priority over the holders of Liquidity Obligations
(except as specifically set forth in Section 3.2) due to their status as secured creditors in any
bankruptcy, insolvency or other legal proceeding.
(e) The Trustees (on behalf of themselves and the holders of the Certificates), the Liquidity
Providers and the Subordination Agent may take any of the following actions without impairing its
rights under this Agreement:
(i) obtain a Lien on any property to secure any amounts owing to it hereunder,
including, in the case of the Liquidity Providers, the Liquidity Obligations,
(ii) obtain the primary or secondary obligation of any other obligor with respect to
any amounts owing to it hereunder, including, in the case of the Liquidity Providers, any of
the Liquidity Obligations,
(iii) renew, extend, increase, alter or exchange any amounts owing to it hereunder,
including, in the case of the Liquidity Providers, any of the Liquidity Obligations, or
release or compromise any obligation of any obligor with respect thereto,
(iv) refrain from exercising any right or remedy, or delay in exercising such right or
remedy, which it may have, or
(v) take any other action which might discharge a subordinated party or a surety under
applicable law;
provided
,
however
, that the taking of any such actions by any of the Trustees, the
Liquidity Providers or the Subordination Agent shall not prejudice the rights or adversely affect
the obligations of any other party under this Agreement.
SECTION 10.10.
Governing Law
. THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
SECTION 10.11.
Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity
.
(a) Each of the parties hereto hereby irrevocably and unconditionally:
52
(i) submits for itself and its property in any legal action or proceeding relating to
this Agreement or any other Operative Agreement, or for recognition and enforcement of any
judgment in respect hereof or thereof, to the nonexclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for the Southern
District of New York, and the appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in such courts, and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or proceeding may be effected
by mailing a copy thereof by registered or certified mail (or any substantially similar form
of mail), postage prepaid, to each party hereto at its address set forth in Section 10.3
hereof, or at such other address of which the other parties shall have been notified
pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction.
(b) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING
ESTABLISHED, including, without limitation, contract claims, tort claims, breach of duty claims and
all other common law and statutory claims. Each of the parties warrants and represents that it has
reviewed this waiver with its legal counsel, and that it knowingly and voluntarily waives its jury
trial rights following consultation with such legal counsel. THIS WAIVER IS IRREVOCABLE, AND
CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
53
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, and
acknowledge that this Agreement has been made and delivered in the City of New York, and this
Agreement has become effective only upon such execution and delivery.
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WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Trustee for each of the
Trusts
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By
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/s/ Jose L. Paredes
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Name:
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Jose L. Paredes
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Title:
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Assistant Vice President
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MORGAN STANLEY BANK, N.A., as Class A Liquidity
Provider and Class B Liquidity Provider
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By
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/s/ Ryan Vetsch
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Name:
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Ryan Vetsch
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Title:
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Authorized Signatory
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WILMINGTON TRUST COMPANY, not in its individual
capacity except as expressly set forth herein as
Subordination Agent and trustee
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By
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/s/ Jose L. Paredes
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Name:
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Jose L. Paredes
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Title:
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Assistant Vice President
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Intercreditor Agreement
Exhibit 4.13
EXECUTION VERSION
NOTE PURCHASE AGREEMENT
Dated as of December 21, 2010
Among
US AIRWAYS, INC.,
WILMINGTON TRUST COMPANY,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
WILMINGTON TRUST COMPANY,
as Subordination Agent
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent
and
WILMINGTON TRUST COMPANY,
as Paying Agent
INDEX TO NOTE PURCHASE AGREEMENT
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Page
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SECTION 1. Financing of Aircraft
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2
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SECTION 2. Conditions Precedent
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4
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SECTION 3. Representations and Warranties
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5
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SECTION 4. Covenants
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8
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SECTION 5. Notices
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11
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SECTION 6. Expenses
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11
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SECTION 7. Further Assurances
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12
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SECTION 8. Miscellaneous
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12
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SECTION 9. Governing Law
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13
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Schedules
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Schedule I Aircraft
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Schedule II Trust Supplements
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Schedule III Required Terms
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Annex
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Annex A Definitions
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Exhibits
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Exhibit A Form of Closing Notice
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Exhibit B Form of Participation Agreement
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Exhibit C Form of Trust Indenture
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NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of December 21, 2010, among (i)US AIRWAYS, INC., a
Delaware corporation (the
Company
), (ii) WILMINGTON TRUST COMPANY (
WTC
), a
Delaware banking corporation, not in its individual capacity except as otherwise expressly provided
herein, but solely as trustee (in such capacity together with its successors in such capacity, the
Pass Through Trustee
) under each of the two separate Pass Through Trust Agreements (as
defined below), (iii) WILMINGTON TRUST COMPANY, a Delaware banking corporation, as subordination
agent and trustee (in such capacity together with its successors in such capacity, the
Subordination Agent
) under the Intercreditor Agreement (as defined below), (iv) WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking association, as Escrow Agent (in
such capacity together with its successors in such capacity, the
Escrow Agent
), under
each of the Escrow and Paying Agent Agreements (as defined below) and (v) WILMINGTON TRUST COMPANY,
a Delaware banking corporation, as Paying Agent (in such capacity together with its successors in
such capacity, the
Paying Agent
) under each of the Escrow and Paying Agent Agreements.
W I T N E S S E T H:
WHEREAS, capitalized terms used but not defined herein shall have the meanings ascribed to
such terms in Annex A hereto;
WHEREAS, the Company is currently the owner of eight (8) aircraft listed in Schedule I hereto
(the
Aircraft
), certain of which are subject to an existing security interest);
WHEREAS, pursuant to this Agreement the Company wishes to finance each Aircraft after any
existing security interest on such Aircraft has been discharged;
WHEREAS, pursuant to the Basic Pass Through Trust Agreement and each of the Trust Supplements
set forth in Schedule II hereto, and concurrently with the execution and delivery of this
Agreement, separate grantor trusts (collectively, the
Pass Through Trusts
and,
individually, a
Pass Through Trust
) have been created to facilitate certain of the
transactions contemplated hereby, including, without limitation, the issuance and sale of pass
through certificates pursuant thereto (collectively, the
Certificates
) to provide for a
portion of the financing of the Aircraft contemplated hereby;
WHEREAS, the Company has entered into the Underwriting Agreement, dated as of December 15,
2010 (the
Underwriting Agreement
) with the Underwriters named therein (the
Underwriters
), which provides that the Company will cause the Pass Through Trustee under
the Class A Pass Through Trust (the
Class A Pass Through Trustee
) and the Pass Through
Trustee under the Class B Pass Through Trust (the
Class B Pass Through Trustee
) to issue
and sell the Class A Certificates and the Class B Certificates, respectively, to the Underwriters
on the Issuance Date;
WHEREAS, concurrently with the execution and delivery of this Agreement, (i) the Escrow Agent
and the Depositary have entered into two Deposit Agreements, dated as of the Issuance Date, one
each relating to the Class A and Class B Pass Through Trust (together, the
Deposit
Agreements
) whereby the Escrow Agent agreed to direct the Underwriters to make
certain deposits referred to therein on the Issuance Date (the
Initial Deposits
) and
to permit the applicable Pass Through Trustees to make additional deposits from time to time
thereafter (the Initial Deposits together with such additional deposits are collectively referred
to as the
Deposits
) and (ii) the applicable Pass Through Trustees, Underwriters, Paying
Agents and Escrow Agents have entered into two Escrow and Paying Agent Agreements, dated as of the
Issuance Date, one each relating to the Class A and Class B Pass Through Trust (together, the
Escrow and Paying Agent Agreements
), whereby, among other things, (a) the Underwriters
agreed to deliver an amount equal to the amount of the Initial Deposits to the Depositary on behalf
of the applicable Escrow Agent and (b) the applicable Escrow Agent, upon the Depositary receiving
such amount, agreed to deliver escrow receipts to be affixed to each Certificate;
WHEREAS, upon receipt of a Closing Notice with respect to an Aircraft, subject to the terms
and conditions of this Agreement, the applicable Pass Through Trustees will enter into the
applicable Financing Agreements relating to such Aircraft;
WHEREAS, upon the financing of each Aircraft, the Class A and Class B Pass Through Trustees
each will fund its purchase of Equipment Notes with the proceeds of one or more Deposits withdrawn
by the applicable Escrow Agent under the related Deposit Agreement bearing the same interest rate
as the Certificates issued by the applicable Pass Through Trust (or, if financed on the Issuance
Date, with a portion of the proceeds from the offering of the Certificates);
WHEREAS, US Airways Group, Inc., a Delaware corporation, will guarantee the payment
obligations of the Company under the Trust Indentures, the Participation Agreements and the
Equipment Notes pursuant to a guarantee dated as of the date hereof; and
WHEREAS, concurrently with the execution and delivery of this Agreement, (i) Morgan Stanley
Bank, N.A. (the
Liquidity Provider
), has entered into two revolving credit agreements,
one each for the benefit of the Certificateholders of the Class A and Class B Pass Through Trusts,
in each case, with the Subordination Agent, as agent for the Pass Through Trustee on behalf of each
such Pass Through Trust (each such revolving credit agreement with the Liquidity Provider, a
Liquidity Facility
) and (ii) the Pass Through Trustees, the Liquidity Provider and the
Subordination Agent have entered into the Intercreditor Agreement, dated as of the date hereof (the
Intercreditor Agreement
).
NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements herein
contained and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.
Financing of Aircraft
. (a) The Company confirms that it currently owns
the Aircraft. The Company agrees to finance the Aircraft in the manner provided herein, all on and
subject to the terms and conditions hereof and of the relevant Financing Agreements.
(b) In furtherance of the foregoing, the Company agrees to give the parties hereto, the
Depositary and each of the Rating Agencies not less than two Business Days prior notice
substantially in the form of Exhibit A hereto (a
Closing Notice
) of the scheduled closing
date (the
Scheduled Closing Date
) (or, in the case of a substitute Closing Notice
under Section
2
1(e) hereof, one Business Days prior notice) in respect of the financing of each
Aircraft under this Agreement, which notice shall:
(i) specify the Scheduled Closing Date of such Aircraft (which shall be a Business Day before
the Cut-off Date and the date (the
Funding Date
) on which the financing therefor in the
manner provided herein shall be consummated);
(ii) instruct each Pass Through Trustee being requested to purchase Equipment Notes pursuant
to such Closing Notice (the
Applicable Pass Through Trustees
)to enter into the
Participation Agreement included in the Financing Agreements with respect to such Aircraft in such
form and at such a time on or before the Funding Date specified in such Closing Notice and to
perform its obligations thereunder;
(iii) instruct each of the Class A and Class B Pass Through Trustees to instruct the relevant
Escrow Agent to provide a Notice of Purchase Withdrawal to the Depositary with respect to the
Equipment Notes to be issued to such Pass Through Trustee in connection with the financing of such
Aircraft (except in the case of any such financing on the Issuance Date); and
(iv) specify the aggregate principal amount of each series of Equipment Notes, if any, to be
issued, and purchased by the Applicable Pass Through Trustees, in connection with the financing of
such Aircraft scheduled on such Funding Date (which shall in all respects comply with the Required
Terms).
Notwithstanding the foregoing, in the case of any Aircraft to be financed hereunder on the Issuance
Date, the Closing Notice therefor may be delivered to the parties hereto on the Issuance Date.
(c) Upon receipt of a Closing Notice, the Applicable Pass Through Trustees shall, and shall
cause the Subordination Agent to, enter into and perform their respective obligations under the
Participation Agreement specified in such Closing Notice,
provided
that such Participation
Agreement and the Trust Indenture to be entered into pursuant to such Participation Agreement shall
be in the forms thereof annexed hereto in all material respects and, if modified in any material
respect, as to which Rating Agency Confirmation shall have been obtained from each Rating Agency by
the Company (to be delivered by the Company to the Applicable Pass Through Trustees on or before
the relevant Funding Date, it being understood that if Rating Agency Confirmation shall have been
received with respect to any Financing Agreements and such Financing Agreements are utilized for
subsequent Aircraft without material modifications, no additional Rating Agency Confirmation shall
be required);
provided
,
however
, that the relevant Financing Agreements as executed
and delivered shall not vary the Required Terms. Notwithstanding the foregoing, a Trust Indenture
may be modified to the extent required for the issuance of Equipment Notes pursuant to Section
4(a)(v) of this Agreement, subject to the terms of such Section and Section 9.1(c) or 9.1(d) of the
Intercreditor Agreement, whichever may be applicable. The Company shall pay the reasonable costs
and expenses of the Rating Agencies in connection with obtaining any such Rating Agency
Confirmation. With respect to each Aircraft, the Company shall cause WTC (or such other person
that meets the eligibility requirements to act as indenture trustee under the Trust
Indenture) to execute as Indenture Trustee the Financing Agreements relating to such Aircraft
to
3
which such Indenture Trustee is intended to be a party, and shall concurrently therewith execute
such Financing Agreements to which the Company is intended to be a party and perform its respective
obligations thereunder. Upon the request of either Rating Agency, the Company shall deliver or
cause to be delivered to such Rating Agency a true and complete copy of each Financing Agreement
relating to the financing of each Aircraft together with a true and complete set of the closing
documentation (including legal opinions) delivered to the related Indenture Trustee, Subordination
Agent and Pass Through Trustee under the related Participation Agreement.
(d) The Company agrees that all Equipment Notes issued pursuant to any Trust Indenture shall
initially be registered in the name of the Subordination Agent on behalf of the Applicable Pass
Through Trustee (or, in the case of any Additional Series Equipment Notes, on behalf of the
Additional Pass Through Trustee with respect to the corresponding Additional Certificates).
(e) If on the Scheduled Closing Date of the Aircraft referred to therein the financing thereof
in the manner contemplated hereby shall not be consummated for whatever reason, the Company shall
give the parties hereto and the Depositary prompt notice thereof. Concurrently with the giving of
such notice of postponement or subsequently, the Company shall give the parties hereto and the
Depositary a substitute Closing Notice specifying the date to which the financing of such Aircraft
shall have been re-scheduled (which shall be a Business Day before the Cut-off Date on which the
Escrow Agents shall be entitled to withdraw one or more Deposits under each of the applicable
Deposit Agreements to enable each of the Class A and Class B Pass Through Trustees to fund its
purchase of the related Equipment Notes). Upon receipt of any such notice of postponement, each
Applicable Pass Through Trustee shall comply with its obligations under Section 5.01 of each of the
Trust Supplements and thereafter the financing of such Aircraft, as specified in such substitute
Closing Notice, shall take place on the re-scheduled Closing Date therefor (all on and subject to
the terms and conditions of the relevant Financing Agreements) unless further postponed as provided
herein.
(f) The Company shall have no liability for the failure of the Pass Through Trustees to
purchase Equipment Notes with respect to any Aircraft.
(g) Anything herein to the contrary notwithstanding, the Company shall not have the right, and
shall not be entitled, at any time to request the issuance of Equipment Notes of any series to the
Class A or Class B Pass Through Trustee in an aggregate principal amount in excess of the amount of
the Deposits then available for withdrawal by the Escrow Agent under and in accordance with the
provisions of the related Deposit Agreement.
SECTION 2.
Conditions Precedent
. The obligation of the Applicable Pass Through
Trustees to enter into, and to cause the Subordination Agent to enter into, any Participation
Agreement as directed pursuant to a Closing Notice and to perform its obligations thereunder is
subject to satisfaction of the following conditions:
(a) no Triggering Event shall have occurred; and
4
(b) the Company shall have delivered a certificate to each such Pass Through Trustee and the
Liquidity Provider stating (i) that such Participation Agreement and the other Financing Agreements
to be entered into pursuant to such Participation Agreement do not vary the Required Terms and (ii)
that any substantive modification of such Financing Agreements from the forms of Financing
Agreements attached to this Agreement do not materially and adversely affect the Certificateholders
or the Liquidity Provider, and such certification shall be true and correct.
Anything herein to the contrary notwithstanding, the obligation of each Pass Through Trustee
to purchase Equipment Notes shall terminate on the Cut-off Date.
SECTION 3.
Representations and Warranties
. (a) The Company represents and warrants
that:
(i) the Company is duly incorporated, validly existing and in good standing
under the laws of the State of Delaware and is a citizen of the United States as
defined in Section 40102(a)(15) of the Act, and has the full corporate power,
authority and legal right under the laws of the State of Delaware to execute and
deliver this Agreement and each Financing Agreement to which it will be a party and
to carry out the obligations of the Company under this Agreement and each Financing
Agreement to which it will be a party;
(ii) the execution and delivery by the Company of this Agreement and the
performance by the Company of its obligations under this Agreement have been duly
authorized by the Company and will not violate its Certificate of Incorporation 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; and
(iii) this Agreement constitutes the legal, valid and binding obligation of
the Company, enforceable against it in accordance with its 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.
(b) WTC represents and warrants that:
(i) WTC is duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and is a citizen of the United States as defined in
Section 40102(a)(15) of the Act, and has the full corporate power, authority and
legal right under the laws of the State of Delaware and the United States pertaining
to its banking, trust and fiduciary powers to execute and deliver this Agreement and
each Financing Agreement to which it will be a party and to carry out the
obligations of WTC, in its capacity as Subordination Agent, Pass Through Trustee or
Paying Agent, as the case may be, under this Agreement and each Financing Agreement
to which it will be a party;
5
(ii) the execution and delivery by WTC, in its capacity as Subordination
Agent, Pass Through Trustee or Paying Agent, as the case may be, of this Agreement
and the performance by WTC, in its capacity as Subordination Agent, Pass Through
Trustee or Paying Agent, as the case may be, of its obligations under this Agreement
have been duly authorized by WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, 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; and
(iii) this Agreement constitutes the legal, valid and binding obligations of
WTC, in its capacity as Subordination Agent, Pass Through Trustee or Paying Agent,
as the case may be, enforceable against it in accordance with its 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.
(c) The Pass Through Trustee hereby confirms to each of the other parties hereto that its
representations and warranties set forth in Section 7.15 of the Basic Pass Through Trust Agreement
and Section 5.04 of each Trust Supplement are true and correct as of the date hereof.
(d) The Subordination Agent represents and warrants that:
(i) the Subordination Agent is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, and has the full corporate power,
authority and legal right under the laws of the State of Delaware and the United
States pertaining to its banking, trust and fiduciary powers to execute and deliver
this Agreement and each Financing Agreement to which it is or will be a party and to
perform its obligations under this Agreement and each Financing Agreement to which
it is or will be a party;
(ii) this Agreement has been duly authorized, executed and delivered by the
Subordination Agent; this Agreement constitutes the legal, valid and binding
obligations of the Subordination Agent enforceable against it in accordance with its
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 this Agreement contravenes any law, rule or regulation of the State of
Delaware or any United States governmental authority or agency regulating the
Subordination Agents banking, trust or fiduciary powers or any judgment or order
applicable to or binding on the Subordination Agent and do not contravene the
Subordination Agents articles of association or by-laws or result
6
in any breach of, or constitute a default under, 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 this
Agreement nor the consummation by the Subordination Agent of any of the transactions
contemplated hereby 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
Delaware governmental authority or agency or any federal governmental authority or
agency regulating the Subordination Agents banking, trust or fiduciary powers;
(v) there are no Taxes payable by the Subordination Agent imposed by the State
of Delaware or any political subdivision or taxing authority thereof in connection
with the execution, delivery and performance by the Subordination Agent of this
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 or any of the
Liquidity Facilities), and there are no Taxes payable by the Subordination Agent
imposed by the State of Delaware 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 or any
of the Liquidity Facilities); and
(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.
(e) The Escrow Agent represents and warrants that:
(i) the Escrow Agent is a national banking association duly incorporated,
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 United
States pertaining to its banking, trust and fiduciary powers to execute and deliver
this Agreement, each Deposit Agreement and each Escrow and Paying Agent Agreement
(collectively, the
Escrow Agent Agreements
) and to carry out the
obligations of the Escrow Agent under each of the Escrow Agent Agreements;
(ii) the execution and delivery by the Escrow Agent of each of the Escrow
Agent Agreements and the performance by the Escrow Agent of its obligations
hereunder and thereunder have been duly authorized by the Escrow Agent and will not
violate its articles of association or by-laws or the provisions of any
7
indenture, mortgage, contract or other agreement to which it is a party or by
which it is bound; and
(iii) each of the Escrow Agent Agreements constitutes the legal, valid and
binding obligations of the Escrow Agent enforceable against it in accordance with
its 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.
(f) The Paying Agent represents and warrants that:
(i) the Paying Agent is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the full corporate power,
authority and legal right under the laws of the State of Delaware and the United
States pertaining to its banking, trust and fiduciary powers to execute and deliver
this Agreement and each Escrow and Paying Agent Agreement (collectively, the
Paying Agent Agreements
) and to carry out the obligations of the Paying
Agent under each of the Paying Agent Agreements;
(ii) the execution and delivery by the Paying Agent of each of the Paying
Agent Agreements and the performance by the Paying Agent of its obligations
hereunder and thereunder have been duly authorized by the Paying Agent 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; and
(iii) each of the Paying Agent Agreements constitutes the legal, valid and
binding obligations of the Paying Agent enforceable against it in accordance with
its 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.
SECTION 4.
Covenants
. (a) The Company covenants with each of the other parties
hereto that:
(i) subject to Section 4(a)(iii) of this Agreement, the Company shall at all times maintain
its corporate existence and shall not wind up, liquidate or dissolve or take any action, or fail to
take any action, that would have the effect of any of the foregoing;
(ii) the Company shall at all times remain a U.S. Air Carrier (as defined in the Financing
Agreements) and shall at all times be otherwise certificated and registered to the extent necessary
to entitle the Indenture Trustee to the rights afforded to secured parties of aircraft equipment
under Section 1110;
(iii) Section 4.07 of each Trust Indenture is hereby incorporated by reference herein;
8
(iv) the Company agrees to provide written notice to each of the parties hereto of the
occurrence of the Cut-off Date no later than one Business Day after the date thereof, such notice
to refer specifically to the Pass Through Trustees obligation to assign, transfer and deliver all
of its right, title and interest to the Trust Property (as defined in each Pass Through Trust
Agreement) to the trustee of the Related Trust (as defined in each Pass Through Trust Agreement) in
accordance with Section 7.01 of each of the Trust Supplements;
(v) the Company shall not redeem and re-issue any Series B Equipment Notes or issue any
Additional Series Equipment Notes pursuant to any Trust Indenture, unless it shall have obtained
written confirmation from each Rating Agency that the reissuance or issuance of such Equipment
Notes, as the case may be, will not result in (1) a reduction of the rating for any Class of
Certificates then rated by any Rating Agency that will remain outstanding below the then current
rating for such Class of Certificates or (2) a withdrawal or suspension of the rating of any Class
of Certificates then rated by any Rating Agency that will remain outstanding. Any reissuance of
the Series B Equipment Notes and issuance of Additional Series Equipment Notes shall be subject to
the terms of Section 9.1(c) and 9.1(d), respectively, of the Intercreditor Agreement; and
(vi) If (x) the Depositarys short-term unsecured debt rating or short-term issuer credit
rating, as the case may be, shall at any time fall below A-1+ from Standard & Poors Ratings
Services or P-1 from Moodys Investors Service, Inc. (such minimum ratings, the
Depositary
Threshold Ratings
) or (y) the Company or the Depositary, in its sole discretion, gives written
notice to the other of its election that the Depositary be replaced, the Company shall, within 30
days after such event occurring, cause the Depositary to be replaced with a depositary bank (a
Replacement Depositary
) on the following terms and preconditions:
(A) the Replacement Depositary must meet the Depositary Threshold Ratings and the Company
shall have obtained written confirmation from each Rating Agency that such replacement will not
cause a reduction of any rating then in effect for any Class of Certificates by such Rating Agency
(without regard to any downgrading of any rating of the Depositary being replaced);
(B) the Company shall pay all fees, expenses and other amounts then owing to the replaced
Depositary and, except as expressly provided in clause (C) below, the Company shall pay any
up-front fee of the Replacement Depositary and (without limitation of the foregoing) all
out-of-pocket expenses (including reasonable fees and expenses of legal counsel) of the parties
hereto (including without limitation all amounts payable to the Rating Agencies) incurred in
connection with such replacement;
(C) solely in the case of the Depositary making an election in its discretion that it be
replaced (and without limitation of clause (A) above), (x) the notice given by the Depositary to
the Company shall nominate a Replacement Depositary, which shall satisfy all of terms and
preconditions of this Section 4(a)(vi) (and the Company shall have the right to utilize such
nominee as the Replacement Depositary or to select another Replacement Depositary), (y) the fees,
expenses, indemnities and other amounts payable to the Replacement Depositary upon its execution of
the Replacement Deposit Agreement or thereafter shall not to any extent exceed those which would
have been payable to the Depositary had such replacement not
9
occurred (it being specifically understood and agreed that any up-front fee of the Replacement Depositary
shall be paid by the replaced Depositary, provided that, if the Company selects a Replacement
Depositary other than the nominee of the replaced Depositary and the upfront fee of such selection
exceeds that of such nominee, the Company shall pay such excess), and (without limitation of the
foregoing) the Depositary shall pay all out-of-pocket expenses (including reasonable fees and
expenses of legal counsel) of the parties hereto (including without limitation all amounts payable
to the Rating Agencies) incurred in connection with such replacement, and (z) the Replacement
Depositary shall be willing to enter into a Replacement Deposit Agreement for each of the Class A
and Class B Certificates with the Escrow Agent having the same terms and conditions (including
without limitation as to the interest to be paid on the Deposits) as the Deposit Agreements to
which the Depositary is a party; and
(D) the Company or, in the case of the Depositary making an election that it be replaced
(unless the Company shall have selected such Replacement Depositary), the Depositary, shall cause
the Replacement Depositary to enter into a Replacement Deposit Agreement for each of the Class A
and Class B Certificates with the Escrow Agent (and, upon request of the Company the Escrow Agent
agrees to enter into any such Replacement Deposit Agreement) and shall cause the Replacement
Depositary to deliver to the Company and each Rating Agency legal opinions and other closing
documentation substantially similar in scope and substance as those that were delivered by the
Depositary being replaced in connection with the execution and delivery of the Deposit Agreement
being replaced.
Upon satisfaction of the foregoing conditions, the Company shall instruct the Class A Pass
Through Trustee and the Class B Pass Through Trustee, and each such Pass Through Trustee agrees, to
execute and deliver to the Escrow Agent a duly completed Withdrawal Certificate (as defined in the
Escrow and Paying Agent Agreements) together with a Notice of Replacement Withdrawal (as defined in
the Escrow and Paying Agent Agreements).
Each of the parties hereto agrees, at the Companys request, to enter into any amendments to
this Agreement, the Escrow and Paying Agent Agreements and any other Operative Agreements as may be
necessary or desirable to give effect to the replacement of the Depositary with the Replacement
Depositary and the replacement of the Deposit Agreements with the Replacement Deposit Agreements.
Upon the execution and delivery of the Replacement Deposit Agreements, the Replacement
Depositary shall be deemed to be the Depositary with all of the rights and obligations of the
Depositary hereunder and under the other Operative Agreements and the Replacement Deposit
Agreements shall be deemed to be the Deposit Agreements hereunder and under the other Operative
Agreements, except that the obligations of the replaced Depositary under its Deposit Agreements
resulting from the delivery of any Withdrawal Notice delivered thereunder shall remain in full
force and effect notwithstanding the execution and delivery of the Replacement Deposit Agreements.
(vii) Promptly after the occurrence of a Triggering Event or an Indenture Default resulting
from the failure of the Company to make payments on any Equipment Note and on every Regular
Distribution Date while the Triggering Event or such Indenture Default shall be continuing, the
Company will, at the Subordination Agents request from time to time but in any
10
event no more frequently than once every three months, provide to the Subordination Agent a
statement setting forth the following information with respect to each Aircraft then subject to the
lien of a Trust Indenture: (A) whether the Aircraft are currently in service or parked in storage,
(B) the maintenance status of the Aircraft and (C) the location of the Engines (as defined in the
respective Trust Indentures to which such Aircraft are subject). As used in this sentence, the
terms Triggering Event, Indenture Default, Regular Distribution Date shall have the
respective meanings set forth in the Intercreditor Agreement as originally executed.
(b) WTC, in its individual capacity, covenants with each of the other parties to this
Agreement that it will, immediately upon obtaining knowledge of any facts that would cast doubt
upon its continuing status as a citizen of the United States as defined in Section 40102(a)(15)
of the Act and promptly upon public disclosure of negotiations in respect of any transaction which
would or might adversely affect such status, notify in writing all parties hereto of all relevant
matters in connection therewith. Upon WTC giving any such notice, WTC shall, subject to Section
9.01 of any Trust Indenture then entered into, resign as Indenture Trustee in respect of such Trust
Indenture.
SECTION 5.
Notices
. Unless otherwise specifically provided herein, all notices
required or permitted by the terms of this Agreement shall be in English and in writing, and any
such notice shall become effective upon being delivered personally or, if promptly confirmed by
mail, when dispatched by facsimile or other written telecommunication, addressed to such party
hereto at its address or facsimile number set forth below the signature of such party at the foot
of this Agreement or to such other address or facsimile number as such party may hereafter specify
by notice to the other parties.
SECTION 6.
Expenses
. (a) The Company agrees to pay to the Subordination Agent when
due an amount or amounts equal to the fees payable to the Liquidity Provider under Section 2.03 of
each Liquidity Facility and the related Fee Letter (as defined in the Intercreditor Agreement)
multiplied by a fraction the numerator of which shall be the then outstanding aggregate amount of
the Deposits under the Deposit Agreements pertaining to the Class A and Class B Pass Through Trusts
and the denominator of which shall be the sum of (x) the then outstanding aggregate principal
amount of the Series A Equipment Notes and Series B Equipment Notes issued under all of the Trust
Indentures and (y) the then outstanding aggregate amount of the Deposits under the Deposit
Agreements pertaining to the Class A and Class B Pass Through Trusts.
(b) So long as no Equipment Notes have been issued in respect of any Aircraft, the Company
agrees to pay (i) to the Subordination Agent when due (A) the amount equal to interest on any
Downgrade Advance (other than any Applied Downgrade Advance) payable under Section 3.07 of each
Liquidity Facility minus Investment Earnings while such Downgrade Advance shall be outstanding, (B)
the amount equal to interest on any Non-Extension Advance (other than any Applied Non-Extension
Advance) payable under Section 3.07 of each Liquidity Facility minus Investment Earnings while such
Non-Extension Advance shall be outstanding, (C) the amount equal to interest on any Special
Termination Advance (other than any Applied Special Termination Advance) payable under Section 3.07
of each Liquidity Facility minus Investment Earnings from such Special Termination Advance while
such Special Termination Advance shall be outstanding, and (D) any other amounts owed to the
Liquidity
11
Provider by the Subordination Agent as borrower under each Liquidity Facility (other than
amounts due as repayment of advances thereunder or as interest on such advances, except to the
extent payable pursuant to clause (A), (B) or (C)), (ii) all compensation and reimbursement of
expenses, disbursements and advances payable by the Company under the Pass Through Trust
Agreements, (iii) all compensation and reimbursement of expenses and disbursements payable to the
Subordination Agent under the Intercreditor Agreement except with respect to any income or
franchise taxes incurred by the Subordination Agent in connection with the transactions
contemplated by the Intercreditor Agreement and (iv) in the event the Company requests any
amendment to any Operative Agreement, all reasonable fees and expenses (including, without
limitation, fees and disbursements of counsel) of the Escrow Agent and/or the Paying Agent in
connection therewith. For purposes of this Section 6(b), the terms Applied Downgrade Advance,
Applied Non-Extension Advance, Applied Special Termination Advance, Downgrade Advance,
Investment Earnings, Non-Extension Advance and Special Termination Advance shall have the
meanings specified in each Liquidity Facility.
SECTION 7.
Further Assurances
. Each party hereto shall duly execute, acknowledge and
deliver, or shall cause to be executed, acknowledged and delivered, all such further agreements,
instruments, certificates or documents, and shall do and cause to be done such further acts and
things, in any case, as any other party hereto shall reasonably request in connection with its
administration of, or to carry out more effectually the purposes of, or to better assure and
confirm unto it the rights and benefits to be provided under, this Agreement.
SECTION 8.
Miscellaneous
. (a) Provided that the transactions contemplated hereby
have been consummated, in whole or in part, and except as otherwise provided for herein, the
representations, warranties and agreements herein of the Company, the Subordination Agent, the
Escrow Agent, the Paying Agent and the Pass Through Trustee, and the Companys, the Subordination
Agents, the Escrow Agents, the Paying Agents and the Pass Through Trustees obligations under
any and all thereof, shall survive the expiration or other termination of this Agreement and the
other agreements referred to herein.
(b) This Agreement may be executed in any number of counterparts (and each of the parties
hereto shall not be required to execute the same counterpart). Each counterpart of this Agreement,
including a signature page executed by each of the parties hereto, shall be an original counterpart
of this Agreement, but all of such counterparts together shall constitute one instrument. Neither
this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by the party against which the
enforcement of the termination, amendment, supplement, waiver or modification is sought. The index
preceding this Agreement and the headings of the various Sections of this Agreement are for
convenience of reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof. The terms of this Agreement shall be binding upon, and shall inure to the
benefit of, the Company and 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, the Escrow Agent and its successors as Escrow Agent under the Escrow and
Paying Agent Agreements, the Paying Agent and its successors as Paying Agent under the Escrow and
Paying Agent Agreement and the
Subordination Agent and its successors as Subordination Agent under the Intercreditor
Agreement.
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(c) This Agreement is not intended to, and shall not, provide any person not a party hereto
(other than the Underwriters, each of the beneficiaries of Section 6 hereof and the Depositary as a
beneficiary of Section 4(a)(vi)) with any rights of any nature whatsoever against any of the
parties hereto, and no person not a party hereto (other than the Underwriters, each of the
beneficiaries of Section 6 hereof and the Depositary as a beneficiary of Section 4(a)(vi)) shall
have any right, power or privilege in respect of, or have any benefit or interest arising out of,
this Agreement. To the extent that this Agreement expressly confers upon, gives or grants any
right, power, privilege, benefit, interest, remedy or claim to any of the beneficiaries of Section
6 hereof (including, but not limited to rights, powers, privileges, benefits, interests, remedies
and claims under Section 6) or to the Depositary with respect to Section 4(a)(vi), each such party
is hereby recognized as a third party beneficiary hereunder and may enforce any such right, power,
privilege, benefit, interest, remedy or claim.
SECTION 9.
Governing Law
. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT IS BEING DELIVERED IN THE STATE
OF NEW YORK.
13
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.
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US AIRWAYS, INC.
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By
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/s/ Thomas T. Weir
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Name:
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Thomas T. Weir
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Title:
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Vice President and Treasurer
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Address:
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111 West Rio Salado Parkway
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Tempe, Arizona 85281
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Attention: Treasurer
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Facsimile: (480) 693-5886
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WILMINGTON TRUST COMPANY,
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not in its individual capacity, except as otherwise
provided herein, but solely as Pass Through Trustee
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By
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/s/ Adam Vogelsong
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Name:
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Adam Vogelsong
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Title:
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Senior Financial Services Officer
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Address:
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1100 North Market Street
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Wilmington, Delaware 19890-1605
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Attention: Corporate Trust
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Administration
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Facsimile: (302) 636-4140
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WILMINGTON TRUST COMPANY,
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not in its individual capacity, except as otherwise
provided herein, but solely as Subordination Agent
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By
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/s/ Adam Vogelsong
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Name:
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Adam Vogelsong
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Title:
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Senior Financial Services Officer
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Address:
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1100 North Market Street
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Wilmington, Delaware 19890-1605
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Attention: Corporate Trust
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Administration
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Facsimile: (302) 636-4140
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WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
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By
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/s/ Scott Rosevenor
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Name:
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Scott Rosevenor
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Title:
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Vice President
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Address:
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299 South Main Street
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Salt Lake City, 12th Floor Utah 84111
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Attention: Corporate Trust
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Department
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Facsimile: (801) 246-5053
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15
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WILMINGTON TRUST COMPANY,
as Paying Agent
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By
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/s/ Adam Vogelsong
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Name:
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Adam Vogelsong
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Title:
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Senior Financial Services Officer
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Address:
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1100 North Market Street
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Wilmington, Delaware 19890-1605
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Attention: Corporate Trust
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Administration
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Facsimile: (302) 636-4140
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16
SCHEDULE I to
Note Purchase Agreement
AIRCRAFT
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Registration
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Manufacturers
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Aircraft Type
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Number
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Serial Number
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Airbus A320-214
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N125UW
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4086
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Airbus A321-231
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N535UW
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3993
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Airbus A321-231
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N537UW
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4041
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Airbus A321-231
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N539UW
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|
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4082
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Airbus A321-231
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|
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N541UW
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4123
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Airbus A321-231
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N542UW
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4134
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Airbus A330-243
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N279AY
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1011
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Airbus A330-243
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N280AY
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1022
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Note
Purchase Agreement 10-1
SCHEDULE II to
Note Purchase Agreement
TRUST SUPPLEMENTS
Note
Purchase Agreement 07-1
2
SCHEDULE III to
Note Purchase Agreement
REQUIRED TERMS
Note
Purchase Agreement 10-1
EXECUTION VERSION
SCHEDULE III TO
Note Purchase Agreement
REQUIRED TERMS
Equipment Notes
Obligor: US Airways
Maximum Principal Amount:
The initial principal amount and amortization schedule of the Series A and B Equipment Notes issued
with respect to an Aircraft shall be as set forth in the following table for that Aircraft:
Airbus A320-214
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N125UW
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Equipment Note Ending Balance
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Scheduled Payments of Principal
|
Date
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Series A Equipment Note
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|
Series B Equipment Note
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
At Issuance
|
|
$
|
23,463,000.00
|
|
|
$
|
6,909,000.00
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|
$
|
0.00
|
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$
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0.00
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April 22, 2011
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|
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23,463,000.00
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6,909,000.00
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0.00
|
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0.00
|
|
October 22, 2011
|
|
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22,708,412.37
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|
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6,492,716.04
|
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|
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754,587.63
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|
|
|
416,283.96
|
|
April 22, 2012
|
|
|
21,953,725.39
|
|
|
|
6,076,803.73
|
|
|
|
754,686.98
|
|
|
|
415,912.31
|
|
October 22, 2012
|
|
|
21,198,934.19
|
|
|
|
5,660,809.21
|
|
|
|
754,791.20
|
|
|
|
415,994.52
|
|
April 22, 2013
|
|
|
20,444,033.58
|
|
|
|
5,244,728.39
|
|
|
|
754,900.61
|
|
|
|
416,080.82
|
|
October 22, 2013
|
|
|
19,689,018.01
|
|
|
|
4,828,556.90
|
|
|
|
755,015.57
|
|
|
|
416,171.49
|
|
April 22, 2014
|
|
|
18,933,881.55
|
|
|
|
4,412,290.05
|
|
|
|
755,136.46
|
|
|
|
416,266.85
|
|
October 22, 2014
|
|
|
18,178,617.85
|
|
|
|
3,995,922.84
|
|
|
|
755,263.70
|
|
|
|
416,367.21
|
|
April 22, 2015
|
|
|
17,423,220.12
|
|
|
|
3,579,449.92
|
|
|
|
755,397.73
|
|
|
|
416,472.92
|
|
October 22, 2015
|
|
|
16,667,681.07
|
|
|
|
3,162,865.53
|
|
|
|
755,539.05
|
|
|
|
416,584.39
|
|
April 22, 2016
|
|
|
15,911,992.87
|
|
|
|
2,746,163.50
|
|
|
|
755,688.20
|
|
|
|
416,702.03
|
|
October 22, 2016
|
|
|
15,156,147.11
|
|
|
|
2,329,337.19
|
|
|
|
755,845.76
|
|
|
|
416,826.31
|
|
April 22, 2017
|
|
|
14,400,134.72
|
|
|
|
0.00
|
|
|
|
756,012.39
|
|
|
|
2,329,337.19
|
|
October 22, 2017
|
|
|
13,643,945.93
|
|
|
|
0.00
|
|
|
|
756,188.79
|
|
|
|
0.00
|
|
April 22, 2018
|
|
|
12,887,570.20
|
|
|
|
0.00
|
|
|
|
756,375.73
|
|
|
|
0.00
|
|
October 22, 2018
|
|
|
12,130,996.12
|
|
|
|
0.00
|
|
|
|
756,574.08
|
|
|
|
0.00
|
|
April 22, 2019
|
|
|
11,374,211.34
|
|
|
|
0.00
|
|
|
|
756,784.78
|
|
|
|
0.00
|
|
October 22, 2019
|
|
|
10,617,202.44
|
|
|
|
0.00
|
|
|
|
757,008.90
|
|
|
|
0.00
|
|
April 22, 2020
|
|
|
9,859,954.88
|
|
|
|
0.00
|
|
|
|
757,247.56
|
|
|
|
0.00
|
|
October 22, 2020
|
|
|
9,102,452.78
|
|
|
|
0.00
|
|
|
|
757,502.10
|
|
|
|
0.00
|
|
April 22, 2021
|
|
|
8,344,678.88
|
|
|
|
0.00
|
|
|
|
757,773.90
|
|
|
|
0.00
|
|
October 22, 2021
|
|
|
7,586,614.26
|
|
|
|
0.00
|
|
|
|
758,064.62
|
|
|
|
0.00
|
|
April 22, 2022
|
|
|
6,828,238.26
|
|
|
|
0.00
|
|
|
|
758,376.00
|
|
|
|
0.00
|
|
October 22, 2022
|
|
|
6,069,528.17
|
|
|
|
0.00
|
|
|
|
758,710.09
|
|
|
|
0.00
|
|
April 22, 2023
|
|
|
0.00
|
|
|
|
0.00
|
|
|
|
6,069,528.17
|
|
|
|
0.00
|
|
2
Airbus A321-231
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N535UW
|
|
|
Equipment Note Ending Balance
|
|
Scheduled Payments of Principal
|
Date
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
At Issuance
|
|
$
|
26,813,000.00
|
|
|
$
|
7,895,000.00
|
|
|
$
|
0.00
|
|
|
$
|
0.00
|
|
April 22, 2011
|
|
|
26,813,000.00
|
|
|
|
7,895,000.00
|
|
|
|
0.00
|
|
|
|
0.00
|
|
October 22, 2011
|
|
|
25,944,415.34
|
|
|
|
7,417,943.58
|
|
|
|
868,584.66
|
|
|
|
477,056.42
|
|
April 22, 2012
|
|
|
25,075,796.74
|
|
|
|
6,940,994.86
|
|
|
|
868,618.60
|
|
|
|
476,948.72
|
|
October 22, 2012
|
|
|
24,207,298.22
|
|
|
|
6,464,140.86
|
|
|
|
868,498.52
|
|
|
|
476,854.00
|
|
April 22, 2013
|
|
|
23,338,925.78
|
|
|
|
5,987,386.30
|
|
|
|
868,372.44
|
|
|
|
476,754.56
|
|
October 22, 2013
|
|
|
22,470,685.81
|
|
|
|
5,510,736.23
|
|
|
|
868,239.97
|
|
|
|
476,650.07
|
|
April 22, 2014
|
|
|
21,602,585.13
|
|
|
|
5,034,196.04
|
|
|
|
868,100.68
|
|
|
|
476,540.19
|
|
October 22, 2014
|
|
|
20,734,631.07
|
|
|
|
4,557,771.48
|
|
|
|
867,954.06
|
|
|
|
476,424.56
|
|
April 22, 2015
|
|
|
19,866,831.46
|
|
|
|
4,081,468.74
|
|
|
|
867,799.61
|
|
|
|
476,302.74
|
|
October 22, 2015
|
|
|
18,999,194.68
|
|
|
|
3,605,294.44
|
|
|
|
867,636.78
|
|
|
|
476,174.30
|
|
April 22, 2016
|
|
|
18,131,729.76
|
|
|
|
3,129,255.70
|
|
|
|
867,464.92
|
|
|
|
476,038.74
|
|
October 22, 2016
|
|
|
17,264,446.41
|
|
|
|
2,653,360.17
|
|
|
|
867,283.35
|
|
|
|
475,895.53
|
|
April 22, 2017
|
|
|
16,397,355.05
|
|
|
|
0.00
|
|
|
|
867,091.36
|
|
|
|
2,653,360.17
|
|
October 22, 2017
|
|
|
15,530,466.95
|
|
|
|
0.00
|
|
|
|
866,888.10
|
|
|
|
0.00
|
|
April 22, 2018
|
|
|
14,663,794.27
|
|
|
|
0.00
|
|
|
|
866,672.68
|
|
|
|
0.00
|
|
October 22, 2018
|
|
|
13,797,350.14
|
|
|
|
0.00
|
|
|
|
866,444.13
|
|
|
|
0.00
|
|
April 22, 2019
|
|
|
12,931,148.80
|
|
|
|
0.00
|
|
|
|
866,201.34
|
|
|
|
0.00
|
|
October 22, 2019
|
|
|
12,065,205.71
|
|
|
|
0.00
|
|
|
|
865,943.09
|
|
|
|
0.00
|
|
April 22, 2020
|
|
|
11,199,537.63
|
|
|
|
0.00
|
|
|
|
865,668.08
|
|
|
|
0.00
|
|
October 22, 2020
|
|
|
10,334,162.83
|
|
|
|
0.00
|
|
|
|
865,374.80
|
|
|
|
0.00
|
|
April 22, 2021
|
|
|
9,469,101.25
|
|
|
|
0.00
|
|
|
|
865,061.58
|
|
|
|
0.00
|
|
October 22, 2021
|
|
|
8,604,374.64
|
|
|
|
0.00
|
|
|
|
864,726.61
|
|
|
|
0.00
|
|
April 22, 2022
|
|
|
7,740,006.84
|
|
|
|
0.00
|
|
|
|
864,367.80
|
|
|
|
0.00
|
|
October 22, 2022
|
|
|
6,876,023.99
|
|
|
|
0.00
|
|
|
|
863,982.85
|
|
|
|
0.00
|
|
April 22, 2023
|
|
|
0.00
|
|
|
|
0.00
|
|
|
|
6,876,023.99
|
|
|
|
0.00
|
|
3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N537UW
|
|
|
Equipment Note Ending Balance
|
|
Scheduled Payments of Principal
|
Date
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
At Issuance
|
|
$
|
26,926,000.00
|
|
|
$
|
7,928,000.00
|
|
|
$
|
0.00
|
|
|
$
|
0.00
|
|
April 22, 2011
|
|
|
26,926,000.00
|
|
|
|
7,928,000.00
|
|
|
|
0.00
|
|
|
|
0.00
|
|
October 22, 2011
|
|
|
26,060,490.57
|
|
|
|
7,451,131.44
|
|
|
|
865,509.43
|
|
|
|
476,868.56
|
|
April 22, 2012
|
|
|
25,194,401.28
|
|
|
|
6,973,824.66
|
|
|
|
866,089.29
|
|
|
|
477,306.78
|
|
October 22, 2012
|
|
|
24,328,192.38
|
|
|
|
6,496,423.56
|
|
|
|
866,208.90
|
|
|
|
477,401.10
|
|
April 22, 2013
|
|
|
23,461,857.92
|
|
|
|
6,018,923.41
|
|
|
|
866,334.46
|
|
|
|
477,500.15
|
|
October 22, 2013
|
|
|
22,595,391.52
|
|
|
|
5,541,319.20
|
|
|
|
866,466.40
|
|
|
|
477,604.21
|
|
April 22, 2014
|
|
|
21,728,786.39
|
|
|
|
5,063,605.57
|
|
|
|
866,605.13
|
|
|
|
477,713.63
|
|
October 22, 2014
|
|
|
20,862,035.24
|
|
|
|
4,585,776.76
|
|
|
|
866,751.15
|
|
|
|
477,828.81
|
|
April 22, 2015
|
|
|
19,995,130.28
|
|
|
|
4,107,826.62
|
|
|
|
866,904.96
|
|
|
|
477,950.14
|
|
October 22, 2015
|
|
|
19,128,063.13
|
|
|
|
3,629,748.57
|
|
|
|
867,067.15
|
|
|
|
478,078.05
|
|
April 22, 2016
|
|
|
18,260,824.82
|
|
|
|
3,151,535.51
|
|
|
|
867,238.31
|
|
|
|
478,213.06
|
|
October 22, 2016
|
|
|
17,393,405.69
|
|
|
|
2,673,179.82
|
|
|
|
867,419.13
|
|
|
|
478,355.69
|
|
April 22, 2017
|
|
|
16,525,795.33
|
|
|
|
0.00
|
|
|
|
867,610.36
|
|
|
|
2,673,179.82
|
|
October 22, 2017
|
|
|
15,657,982.54
|
|
|
|
0.00
|
|
|
|
867,812.79
|
|
|
|
0.00
|
|
April 22, 2018
|
|
|
14,789,955.21
|
|
|
|
0.00
|
|
|
|
868,027.33
|
|
|
|
0.00
|
|
October 22, 2018
|
|
|
13,921,700.25
|
|
|
|
0.00
|
|
|
|
868,254.96
|
|
|
|
0.00
|
|
April 22, 2019
|
|
|
13,053,203.48
|
|
|
|
0.00
|
|
|
|
868,496.77
|
|
|
|
0.00
|
|
October 22, 2019
|
|
|
12,184,449.52
|
|
|
|
0.00
|
|
|
|
868,753.96
|
|
|
|
0.00
|
|
April 22, 2020
|
|
|
11,315,421.66
|
|
|
|
0.00
|
|
|
|
869,027.86
|
|
|
|
0.00
|
|
October 22, 2020
|
|
|
10,446,101.70
|
|
|
|
0.00
|
|
|
|
869,319.96
|
|
|
|
0.00
|
|
April 22, 2021
|
|
|
9,576,469.80
|
|
|
|
0.00
|
|
|
|
869,631.90
|
|
|
|
0.00
|
|
October 22, 2021
|
|
|
8,706,504.28
|
|
|
|
0.00
|
|
|
|
869,965.52
|
|
|
|
0.00
|
|
April 22, 2022
|
|
|
7,836,181.41
|
|
|
|
0.00
|
|
|
|
870,322.87
|
|
|
|
0.00
|
|
October 22, 2022
|
|
|
6,965,475.14
|
|
|
|
0.00
|
|
|
|
870,706.27
|
|
|
|
0.00
|
|
April 22, 2023
|
|
|
0.00
|
|
|
|
0.00
|
|
|
|
6,965,475.14
|
|
|
|
0.00
|
|
4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N539UW
|
|
|
Equipment Note Ending Balance
|
|
Scheduled Payments of Principal
|
Date
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
At Issuance
|
|
$
|
26,985,000.00
|
|
|
$
|
7,946,000.00
|
|
|
$
|
0.00
|
|
|
$
|
0.00
|
|
April 22, 2011
|
|
|
26,985,000.00
|
|
|
|
7,946,000.00
|
|
|
|
0.00
|
|
|
|
0.00
|
|
October 22, 2011
|
|
|
26,117,228.14
|
|
|
|
7,467,353.66
|
|
|
|
867,771.86
|
|
|
|
478,646.34
|
|
April 22, 2012
|
|
|
25,249,253.24
|
|
|
|
6,989,007.72
|
|
|
|
867,974.90
|
|
|
|
478,345.94
|
|
October 22, 2012
|
|
|
24,381,158.48
|
|
|
|
6,510,567.24
|
|
|
|
868,094.76
|
|
|
|
478,440.48
|
|
April 22, 2013
|
|
|
23,512,937.88
|
|
|
|
6,032,027.50
|
|
|
|
868,220.60
|
|
|
|
478,539.74
|
|
October 22, 2013
|
|
|
22,644,585.05
|
|
|
|
5,553,383.48
|
|
|
|
868,352.83
|
|
|
|
478,644.02
|
|
April 22, 2014
|
|
|
21,776,093.19
|
|
|
|
5,074,629.79
|
|
|
|
868,491.86
|
|
|
|
478,753.69
|
|
October 22, 2014
|
|
|
20,907,455.00
|
|
|
|
4,595,760.68
|
|
|
|
868,638.19
|
|
|
|
478,869.11
|
|
April 22, 2015
|
|
|
20,038,662.65
|
|
|
|
4,116,769.97
|
|
|
|
868,792.35
|
|
|
|
478,990.71
|
|
October 22, 2015
|
|
|
19,169,707.77
|
|
|
|
3,637,651.07
|
|
|
|
868,954.88
|
|
|
|
479,118.90
|
|
April 22, 2016
|
|
|
18,300,581.36
|
|
|
|
3,158,396.87
|
|
|
|
869,126.41
|
|
|
|
479,254.20
|
|
October 22, 2016
|
|
|
17,431,273.72
|
|
|
|
2,678,999.73
|
|
|
|
869,307.64
|
|
|
|
479,397.14
|
|
April 22, 2017
|
|
|
16,561,774.45
|
|
|
|
0.00
|
|
|
|
869,499.27
|
|
|
|
2,678,999.73
|
|
October 22, 2017
|
|
|
15,692,072.30
|
|
|
|
0.00
|
|
|
|
869,702.15
|
|
|
|
0.00
|
|
April 22, 2018
|
|
|
14,822,155.15
|
|
|
|
0.00
|
|
|
|
869,917.15
|
|
|
|
0.00
|
|
October 22, 2018
|
|
|
13,952,009.87
|
|
|
|
0.00
|
|
|
|
870,145.28
|
|
|
|
0.00
|
|
April 22, 2019
|
|
|
13,081,622.25
|
|
|
|
0.00
|
|
|
|
870,387.62
|
|
|
|
0.00
|
|
October 22, 2019
|
|
|
12,210,976.88
|
|
|
|
0.00
|
|
|
|
870,645.37
|
|
|
|
0.00
|
|
April 22, 2020
|
|
|
11,340,057.02
|
|
|
|
0.00
|
|
|
|
870,919.86
|
|
|
|
0.00
|
|
October 22, 2020
|
|
|
10,468,844.42
|
|
|
|
0.00
|
|
|
|
871,212.60
|
|
|
|
0.00
|
|
April 22, 2021
|
|
|
9,597,319.20
|
|
|
|
0.00
|
|
|
|
871,525.22
|
|
|
|
0.00
|
|
October 22, 2021
|
|
|
8,725,459.64
|
|
|
|
0.00
|
|
|
|
871,859.56
|
|
|
|
0.00
|
|
April 22, 2022
|
|
|
7,853,241.94
|
|
|
|
0.00
|
|
|
|
872,217.70
|
|
|
|
0.00
|
|
October 22, 2022
|
|
|
6,980,640.01
|
|
|
|
0.00
|
|
|
|
872,601.93
|
|
|
|
0.00
|
|
April 22, 2023
|
|
|
0.00
|
|
|
|
0.00
|
|
|
|
6,980,640.01
|
|
|
|
0.00
|
|
5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N541UW
|
|
|
Equipment Note Ending Balance
|
|
Scheduled Payments of Principal
|
Date
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
At Issuance
|
|
$
|
27,284,000.00
|
|
|
$
|
8,034,000.00
|
|
|
$
|
0.00
|
|
|
$
|
0.00
|
|
April 22, 2011
|
|
|
27,284,000.00
|
|
|
|
8,034,000.00
|
|
|
|
0.00
|
|
|
|
0.00
|
|
October 22, 2011
|
|
|
26,406,687.94
|
|
|
|
7,550,115.07
|
|
|
|
877,312.06
|
|
|
|
483,884.93
|
|
April 22, 2012
|
|
|
25,529,093.18
|
|
|
|
7,066,467.58
|
|
|
|
877,594.76
|
|
|
|
483,647.49
|
|
October 22, 2012
|
|
|
24,651,377.24
|
|
|
|
6,582,724.49
|
|
|
|
877,715.94
|
|
|
|
483,743.09
|
|
April 22, 2013
|
|
|
23,773,534.06
|
|
|
|
6,098,881.05
|
|
|
|
877,843.18
|
|
|
|
483,843.44
|
|
October 22, 2013
|
|
|
22,895,557.20
|
|
|
|
5,614,932.17
|
|
|
|
877,976.86
|
|
|
|
483,948.88
|
|
April 22, 2014
|
|
|
22,017,439.76
|
|
|
|
5,130,872.41
|
|
|
|
878,117.44
|
|
|
|
484,059.76
|
|
October 22, 2014
|
|
|
21,139,174.37
|
|
|
|
4,646,695.94
|
|
|
|
878,265.39
|
|
|
|
484,176.47
|
|
April 22, 2015
|
|
|
20,260,753.11
|
|
|
|
4,162,396.54
|
|
|
|
878,421.26
|
|
|
|
484,299.40
|
|
October 22, 2015
|
|
|
19,382,167.52
|
|
|
|
3,677,967.52
|
|
|
|
878,585.59
|
|
|
|
484,429.02
|
|
April 22, 2016
|
|
|
18,503,408.49
|
|
|
|
3,193,401.69
|
|
|
|
878,759.03
|
|
|
|
484,565.83
|
|
October 22, 2016
|
|
|
17,624,466.23
|
|
|
|
2,708,691.35
|
|
|
|
878,942.26
|
|
|
|
484,710.34
|
|
April 22, 2017
|
|
|
16,745,330.21
|
|
|
|
0.00
|
|
|
|
879,136.02
|
|
|
|
2,708,691.35
|
|
October 22, 2017
|
|
|
15,865,989.07
|
|
|
|
0.00
|
|
|
|
879,341.14
|
|
|
|
0.00
|
|
April 22, 2018
|
|
|
14,986,430.54
|
|
|
|
0.00
|
|
|
|
879,558.53
|
|
|
|
0.00
|
|
October 22, 2018
|
|
|
14,106,641.36
|
|
|
|
0.00
|
|
|
|
879,789.18
|
|
|
|
0.00
|
|
April 22, 2019
|
|
|
13,226,607.15
|
|
|
|
0.00
|
|
|
|
880,034.21
|
|
|
|
0.00
|
|
October 22, 2019
|
|
|
12,346,312.33
|
|
|
|
0.00
|
|
|
|
880,294.82
|
|
|
|
0.00
|
|
April 22, 2020
|
|
|
11,465,739.98
|
|
|
|
0.00
|
|
|
|
880,572.35
|
|
|
|
0.00
|
|
October 22, 2020
|
|
|
10,584,871.64
|
|
|
|
0.00
|
|
|
|
880,868.34
|
|
|
|
0.00
|
|
April 22, 2021
|
|
|
9,703,687.23
|
|
|
|
0.00
|
|
|
|
881,184.41
|
|
|
|
0.00
|
|
October 22, 2021
|
|
|
8,822,164.76
|
|
|
|
0.00
|
|
|
|
881,522.47
|
|
|
|
0.00
|
|
April 22, 2022
|
|
|
7,940,280.19
|
|
|
|
0.00
|
|
|
|
881,884.57
|
|
|
|
0.00
|
|
October 22, 2022
|
|
|
7,058,007.13
|
|
|
|
0.00
|
|
|
|
882,273.06
|
|
|
|
0.00
|
|
April 22, 2023
|
|
|
0.00
|
|
|
|
0.00
|
|
|
|
7,058,007.13
|
|
|
|
0.00
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N542UW
|
|
|
Equipment Note Ending Balance
|
|
Scheduled Payments of Principal
|
Date
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
At Issuance
|
|
$
|
27,314,000.00
|
|
|
$
|
8,042,000.00
|
|
|
$
|
0.00
|
|
|
$
|
0.00
|
|
April 22, 2011
|
|
|
27,314,000.00
|
|
|
|
8,042,000.00
|
|
|
|
0.00
|
|
|
|
0.00
|
|
October 22, 2011
|
|
|
26,435,678.08
|
|
|
|
7,558,403.84
|
|
|
|
878,321.92
|
|
|
|
483,596.16
|
|
April 22, 2012
|
|
|
25,557,119.88
|
|
|
|
7,074,225.38
|
|
|
|
878,558.20
|
|
|
|
484,178.46
|
|
October 22, 2012
|
|
|
24,678,440.35
|
|
|
|
6,589,951.23
|
|
|
|
878,679.53
|
|
|
|
484,274.15
|
|
April 22, 2013
|
|
|
23,799,633.45
|
|
|
|
6,105,576.61
|
|
|
|
878,806.90
|
|
|
|
484,374.62
|
|
October 22, 2013
|
|
|
22,920,692.71
|
|
|
|
5,621,096.43
|
|
|
|
878,940.74
|
|
|
|
484,480.18
|
|
April 22, 2014
|
|
|
22,041,611.25
|
|
|
|
5,136,505.25
|
|
|
|
879,081.46
|
|
|
|
484,591.18
|
|
October 22, 2014
|
|
|
21,162,381.66
|
|
|
|
4,651,797.24
|
|
|
|
879,229.59
|
|
|
|
484,708.01
|
|
April 22, 2015
|
|
|
20,282,996.04
|
|
|
|
4,166,966.16
|
|
|
|
879,385.62
|
|
|
|
484,831.08
|
|
October 22, 2015
|
|
|
19,403,445.91
|
|
|
|
3,682,005.31
|
|
|
|
879,550.13
|
|
|
|
484,960.85
|
|
April 22, 2016
|
|
|
18,523,722.15
|
|
|
|
3,196,907.52
|
|
|
|
879,723.76
|
|
|
|
485,097.79
|
|
October 22, 2016
|
|
|
17,643,814.96
|
|
|
|
2,711,665.04
|
|
|
|
879,907.19
|
|
|
|
485,242.48
|
|
April 22, 2017
|
|
|
16,763,713.80
|
|
|
|
0.00
|
|
|
|
880,101.16
|
|
|
|
2,711,665.04
|
|
October 22, 2017
|
|
|
15,883,407.29
|
|
|
|
0.00
|
|
|
|
880,306.51
|
|
|
|
0.00
|
|
April 22, 2018
|
|
|
15,002,883.15
|
|
|
|
0.00
|
|
|
|
880,524.14
|
|
|
|
0.00
|
|
October 22, 2018
|
|
|
14,122,128.10
|
|
|
|
0.00
|
|
|
|
880,755.05
|
|
|
|
0.00
|
|
April 22, 2019
|
|
|
13,241,127.76
|
|
|
|
0.00
|
|
|
|
881,000.34
|
|
|
|
0.00
|
|
October 22, 2019
|
|
|
12,359,866.53
|
|
|
|
0.00
|
|
|
|
881,261.23
|
|
|
|
0.00
|
|
April 22, 2020
|
|
|
11,478,327.45
|
|
|
|
0.00
|
|
|
|
881,539.08
|
|
|
|
0.00
|
|
October 22, 2020
|
|
|
10,596,492.07
|
|
|
|
0.00
|
|
|
|
881,835.38
|
|
|
|
0.00
|
|
April 22, 2021
|
|
|
9,714,340.26
|
|
|
|
0.00
|
|
|
|
882,151.81
|
|
|
|
0.00
|
|
October 22, 2021
|
|
|
8,831,850.03
|
|
|
|
0.00
|
|
|
|
882,490.23
|
|
|
|
0.00
|
|
April 22, 2022
|
|
|
7,948,997.30
|
|
|
|
0.00
|
|
|
|
882,852.73
|
|
|
|
0.00
|
|
October 22, 2022
|
|
|
7,065,755.65
|
|
|
|
0.00
|
|
|
|
883,241.65
|
|
|
|
0.00
|
|
April 22, 2023
|
|
|
0.00
|
|
|
|
0.00
|
|
|
|
7,065,755.65
|
|
|
|
0.00
|
|
7
Airbus A330-243
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N279AY
|
|
|
Equipment Note Ending Balance
|
|
Scheduled Payments of Principal
|
Date
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
At Issuance
|
|
$
|
51,998,000.00
|
|
|
$
|
15,311,000.00
|
|
|
$
|
0.00
|
|
|
$
|
0.00
|
|
April 22, 2011
|
|
|
51,998,000.00
|
|
|
|
15,311,000.00
|
|
|
|
0.00
|
|
|
|
0.00
|
|
October 22, 2011
|
|
|
50,313,298.67
|
|
|
|
14,385,416.13
|
|
|
|
1,684,701.33
|
|
|
|
925,583.87
|
|
April 22, 2012
|
|
|
48,628,810.24
|
|
|
|
13,460,482.45
|
|
|
|
1,684,488.43
|
|
|
|
924,933.68
|
|
October 22, 2012
|
|
|
46,944,554.70
|
|
|
|
12,535,732.47
|
|
|
|
1,684,255.54
|
|
|
|
924,749.98
|
|
April 22, 2013
|
|
|
45,260,543.66
|
|
|
|
11,611,175.33
|
|
|
|
1,684,011.04
|
|
|
|
924,557.14
|
|
October 22, 2013
|
|
|
43,576,789.50
|
|
|
|
10,686,820.82
|
|
|
|
1,683,754.16
|
|
|
|
924,354.51
|
|
April 22, 2014
|
|
|
41,893,305.49
|
|
|
|
9,762,679.38
|
|
|
|
1,683,484.01
|
|
|
|
924,141.44
|
|
October 22, 2014
|
|
|
40,210,105.80
|
|
|
|
8,838,762.20
|
|
|
|
1,683,199.69
|
|
|
|
923,917.18
|
|
April 22, 2015
|
|
|
38,527,205.62
|
|
|
|
7,915,081.26
|
|
|
|
1,682,900.18
|
|
|
|
923,680.94
|
|
October 22, 2015
|
|
|
36,844,621.23
|
|
|
|
6,991,649.41
|
|
|
|
1,682,584.39
|
|
|
|
923,431.85
|
|
April 22, 2016
|
|
|
35,162,370.13
|
|
|
|
6,068,480.43
|
|
|
|
1,682,251.10
|
|
|
|
923,168.98
|
|
October 22, 2016
|
|
|
33,480,471.11
|
|
|
|
5,145,589.17
|
|
|
|
1,681,899.02
|
|
|
|
922,891.26
|
|
April 22, 2017
|
|
|
31,798,944.44
|
|
|
|
0.00
|
|
|
|
1,681,526.67
|
|
|
|
5,145,589.17
|
|
October 22, 2017
|
|
|
30,117,811.94
|
|
|
|
0.00
|
|
|
|
1,681,132.50
|
|
|
|
0.00
|
|
April 22, 2018
|
|
|
28,437,097.19
|
|
|
|
0.00
|
|
|
|
1,680,714.75
|
|
|
|
0.00
|
|
October 22, 2018
|
|
|
26,756,825.67
|
|
|
|
0.00
|
|
|
|
1,680,271.52
|
|
|
|
0.00
|
|
April 22, 2019
|
|
|
25,077,024.99
|
|
|
|
0.00
|
|
|
|
1,679,800.68
|
|
|
|
0.00
|
|
October 22, 2019
|
|
|
23,397,725.10
|
|
|
|
0.00
|
|
|
|
1,679,299.89
|
|
|
|
0.00
|
|
April 22, 2020
|
|
|
21,718,958.55
|
|
|
|
0.00
|
|
|
|
1,678,766.55
|
|
|
|
0.00
|
|
October 22, 2020
|
|
|
20,040,760.76
|
|
|
|
0.00
|
|
|
|
1,678,197.79
|
|
|
|
0.00
|
|
April 22, 2021
|
|
|
18,363,170.37
|
|
|
|
0.00
|
|
|
|
1,677,590.39
|
|
|
|
0.00
|
|
October 22, 2021
|
|
|
16,686,229.59
|
|
|
|
0.00
|
|
|
|
1,676,940.78
|
|
|
|
0.00
|
|
April 22, 2022
|
|
|
15,009,984.63
|
|
|
|
0.00
|
|
|
|
1,676,244.96
|
|
|
|
0.00
|
|
October 22, 2022
|
|
|
13,334,486.22
|
|
|
|
0.00
|
|
|
|
1,675,498.41
|
|
|
|
0.00
|
|
April 22, 2023
|
|
|
0.00
|
|
|
|
0.00
|
|
|
|
13,334,486.22
|
|
|
|
0.00
|
|
8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N280AY
|
|
|
Equipment Note Ending Balance
|
|
Scheduled Payments of Principal
|
Date
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
|
Series A Equipment Note
|
|
Series B Equipment Note
|
At Issuance
|
|
$
|
52,074,000.00
|
|
|
$
|
15,333,000.00
|
|
|
$
|
0.00
|
|
|
$
|
0.00
|
|
April 22, 2011
|
|
|
52,074,000.00
|
|
|
|
15,333,000.00
|
|
|
|
0.00
|
|
|
|
0.00
|
|
October 22, 2011
|
|
|
50,386,472.59
|
|
|
|
14,406,337.78
|
|
|
|
1,687,527.41
|
|
|
|
926,662.22
|
|
April 22, 2012
|
|
|
48,699,534.30
|
|
|
|
13,480,058.91
|
|
|
|
1,686,938.29
|
|
|
|
926,278.87
|
|
October 22, 2012
|
|
|
47,012,829.24
|
|
|
|
12,553,964.00
|
|
|
|
1,686,705.06
|
|
|
|
926,094.91
|
|
April 22, 2013
|
|
|
45,326,369.02
|
|
|
|
11,628,062.22
|
|
|
|
1,686,460.22
|
|
|
|
925,901.78
|
|
October 22, 2013
|
|
|
43,640,166.08
|
|
|
|
10,702,363.36
|
|
|
|
1,686,202.94
|
|
|
|
925,698.86
|
|
April 22, 2014
|
|
|
41,954,233.67
|
|
|
|
9,776,877.88
|
|
|
|
1,685,932.41
|
|
|
|
925,485.48
|
|
October 22, 2014
|
|
|
40,268,585.99
|
|
|
|
8,851,616.99
|
|
|
|
1,685,647.68
|
|
|
|
925,260.89
|
|
April 22, 2015
|
|
|
38,583,238.25
|
|
|
|
7,926,592.68
|
|
|
|
1,685,347.74
|
|
|
|
925,024.31
|
|
October 22, 2015
|
|
|
36,898,206.77
|
|
|
|
7,001,817.82
|
|
|
|
1,685,031.48
|
|
|
|
924,774.86
|
|
April 22, 2016
|
|
|
35,213,509.06
|
|
|
|
6,077,306.22
|
|
|
|
1,684,697.71
|
|
|
|
924,511.60
|
|
October 22, 2016
|
|
|
33,529,163.95
|
|
|
|
5,153,072.73
|
|
|
|
1,684,345.11
|
|
|
|
924,233.49
|
|
April 22, 2017
|
|
|
31,845,191.72
|
|
|
|
0.00
|
|
|
|
1,683,972.23
|
|
|
|
5,153,072.73
|
|
October 22, 2017
|
|
|
30,161,614.24
|
|
|
|
0.00
|
|
|
|
1,683,577.48
|
|
|
|
0.00
|
|
April 22, 2018
|
|
|
28,478,455.11
|
|
|
|
0.00
|
|
|
|
1,683,159.13
|
|
|
|
0.00
|
|
October 22, 2018
|
|
|
26,795,739.87
|
|
|
|
0.00
|
|
|
|
1,682,715.24
|
|
|
|
0.00
|
|
April 22, 2019
|
|
|
25,113,496.14
|
|
|
|
0.00
|
|
|
|
1,682,243.73
|
|
|
|
0.00
|
|
October 22, 2019
|
|
|
23,431,753.94
|
|
|
|
0.00
|
|
|
|
1,681,742.20
|
|
|
|
0.00
|
|
April 22, 2020
|
|
|
21,750,545.85
|
|
|
|
0.00
|
|
|
|
1,681,208.09
|
|
|
|
0.00
|
|
October 22, 2020
|
|
|
20,069,907.35
|
|
|
|
0.00
|
|
|
|
1,680,638.50
|
|
|
|
0.00
|
|
April 22, 2021
|
|
|
18,389,877.13
|
|
|
|
0.00
|
|
|
|
1,680,030.22
|
|
|
|
0.00
|
|
October 22, 2021
|
|
|
16,710,497.46
|
|
|
|
0.00
|
|
|
|
1,679,379.67
|
|
|
|
0.00
|
|
April 22, 2022
|
|
|
15,031,814.64
|
|
|
|
0.00
|
|
|
|
1,678,682.82
|
|
|
|
0.00
|
|
October 22, 2022
|
|
|
13,353,879.44
|
|
|
|
0.00
|
|
|
|
1,677,935.20
|
|
|
|
0.00
|
|
April 22, 2023
|
|
|
0.00
|
|
|
|
0.00
|
|
|
|
13,353,879.44
|
|
|
|
0.00
|
|
9
Trust Indenture
Debt Rate (as such term is defined in clause (i) of the form of Trust Indenture and Security
Agreement marked as Exhibit C of the Note Purchase Agreement (the
Trust Indenture Form
)
for Series A (computed on the basis of a 360-day year consisting of twelve 30-day months, payable
semi-annually in arrears): 6.25%
Debt Rate (as such term is defined in clause (i) of the Trust Indenture Form) for Series B
(computed on the basis of a 360-day year consisting of twelve 30 day months, payable semi-annually
in arrears): 8.50%
|
|
|
Payment Due Rate:
|
|
Debt Rate plus 2% per annum
|
|
|
|
Payment Dates:
|
|
April 22 and October 22
|
|
|
|
Make-Whole Premiums:
|
|
As provided in Article II of the Trust Indenture Form
|
|
|
|
Redemption:
|
|
As provided in Article II of the Trust Indenture Form
|
|
|
|
All-risk hull insurance:
|
|
Not less than the unpaid principal amount of the Equipment Notes relating to an Aircraft, together
with six months of interest accrued thereon, subject to US Airways right to self-insure on terms no
more favorable to US Airways in any material respect than those set forth in Section G of Annex B to
the Trust Indenture Form.
|
Participation Agreement
Indenture Trustee, Subordination Agent, Liquidity Providers, Pass Through Trustees, Escrow Agents
and Note Holders indemnified against Expenses and Taxes to the extent set forth in Section 8 of the
form of the Participation Agreement marked as Exhibit B to the Note Purchase Agreement.
Prohibited Modifications
1.
|
|
May not modify in any material adverse respect the Granting Clause of the Trust Indenture so
as to deprive the Note Holders or the Related Note Holders (as defined in the Trust Indenture)
of a first priority security interest in and mortgage lien on the Aircraft or, to the extent
assigned thereunder, US Airways rights under the Purchase Agreement (as defined in the Trust
Indenture) or to eliminate any of the obligations intended to be secured thereby or otherwise
modify in any material adverse respect as regards the interests of the Note Holders, the
Related Note Holder of a Related Series A Equipment Note, the Related Note Holder of a Related
Series B Equipment Note, the Subordination Agent, the Liquidity Providers or the Indenture
Trustee the provisions of Article II or III or Section 4.05(c), 5.01, 5.02, 6.02, 10.01(a),
10.01(b)(vii), 11.01, 11.04, 11.11, 11.12 or 11.13 of the Trust Indenture or the definition of
Make-Whole Amount in Annex A to the Trust Indenture.
|
|
2.
|
|
May not modify in any material adverse respect as regards the interests of the Note
Holders, the Subordination Agent, the Liquidity Providers or the Indenture Trustee the
provisions of Section 4.1.3, 4.1.8, 4.1.9, 4.1.10, 4.1.11, 6.1.3(b), 6.3, 10, 12.8(a) or
12.9 of the Participation Agreement, of the provisions of Section 4.1.2(x) of the
Participation Agreement so as to eliminate the requirement to deliver to the Loan
Participant or the Indenture Trustee, as the case may be, the legal opinions to be
|
10
|
|
provided to such Persons thereunder (recognizing that the lawyers rendering such opinions may be
changed) or of the provisions of Section 6.4.5(a)(ii) of the Participation Agreement as
regards the rights of the Indenture Trustee thereunder or otherwise modify the terms of the
Participation Agreement to deprive the Trustees, the Subordination Agent, the Liquidity
Providers or the Indenture Trustee of any indemnity or right of reimbursement in its favor
for Expenses or Taxes.
|
Notwithstanding the foregoing, any form of Financing Agreement may be modified to correct or
supplement any such provision which may be defective or to cure any ambiguity or correct any
mistake,
provided
that any such action shall not materially adversely affect the interests
of the Note Holders, the Related Note Holder of a Related Series A Equipment Note, the Related Note
Holder of a Related Series B Equipment Note, the Subordination Agent, the Liquidity Providers, the
Indenture Trustee or the Certificateholders.
ANNEX A to
Note Purchase Agreement
DEFINITIONS
Note
Purchase Agreement 10-1
EXECUTION VERSION
ANNEX A to
Note Purchase Agreement
DEFINITIONS
Act
means 49 U.S.C. §§ 40101-46507.
Additional Series Equipment Notes
means Equipment Notes of a single series issued under a
Trust Indenture and designated other than as Series A or Series B issued thereunder, if any.
Additional Series Pass Through Certificates
means the pass through certificates issued
pursuant to any Additional Series Pass Through Trust Agreement.
Additional Series Pass Through Trust
means a grantor trust created to facilitate the
issuance and sale of pass through certificates in connection with the issuance of any Additional
Series Equipment Notes.
Additional Series Pass Through Trust Agreement
means a Trust Supplement entered into in
connection with the creation of an Additional Series Pass Through Trust, together with the Basic
Pass Through Trust Agreement.
Additional Series Pass Through Trustee
means WTC, in its capacity as trustee under an
Additional Series Pass Through Trust Agreement.
Aircraft
has the meaning set forth in the second recital to the Note Purchase Agreement.
Applicable Pass Through Trustee
has the meaning provided in Section 1(b)(ii) of the Note
Purchase Agreement.
Bankruptcy Code
means the United States Bankruptcy Code, 11 U.S.C. §§ 101
et seq.
Basic Pass Through Trust Agreement
means the Pass Through Trust Agreement, dated December
21, 2010, between the Company and Pass Through Trustee, as such agreement may be supplemented,
amended or modified, but does not include any Trust Supplement.
Business Day
means any day, other than a Saturday, Sunday or other day on which
commercial banks are authorized or required by law to close in New York, New York, Phoenix,
Arizona, Wilmington, Delaware or Salt Lake City, Utah.
Certificates
has the meaning set forth in the fourth recital to the Note Purchase
Agreement.
Certificateholder
means the Person in whose name a Certificate is registered in the
Register.
Class
means the class of Certificates issued by each Pass Through Trust.
Class A Certificates
means Certificates issued by the Class A Pass Through Trust.
Class B Certificates
means Certificates issued by the Class B Pass Through Trust.
2
Class A Pass Through Trustee
has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
Class B Pass Through Trustee
has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
Closing Notice
has the meaning set forth in Section 1(b) of the Note Purchase Agreement.
Company
means US Airways, Inc., a Delaware corporation.
Cut-off Date
means the earlier of (a) the day after the Delivery Period Termination Date
and (b) the date on which a Triggering Event occurs.
Delivery Period Termination Date
means the earlier of (a) January 21, 2011, and (b) the
date on which Equipment Notes issued with respect to all of the Aircraft have been purchased by the
Pass Through Trustees in accordance with the Note Purchase Agreement.
Deposits
has the meaning set forth in the sixth recital to the Note Purchase Agreement.
Deposit Agreements
has the meaning set forth in the sixth recital to the Note Purchase
Agreement.
Depositary
means The Bank of New York Mellon.
Depositary Threshold Ratings
has the meaning set forth in Section 4(a)(vi) of the Note
Purchase Agreement.
Equipment Notes
means and includes any equipment notes issued under any Trust Indenture
in the form specified in Section 2.01 thereof (as such form may be varied pursuant to the terms of
such Trust Indenture) and any Equipment Note issued under any Trust Indenture in exchange for or
replacement of any other Equipment Note.
Escrow Agent
has the meaning set forth in the first paragraph of the Note Purchase
Agreement.
Escrow Agent Agreements
has the meaning set forth in Section 3(e)(i) of the Note Purchase
Agreement.
Escrow and Paying Agent Agreements
has the meaning set forth in the sixth recital to the
Note Purchase Agreement.
FAA
means the Federal Aviation Administration of the United States.
Financing Agreements
means, collectively, the Participation Agreement, the Trust
Indenture and the Equipment Notes issued thereunder.
Funding Date
has the meaning set forth in Section 1(b)(i) of the Note Purchase Agreement.
Government Entity
means (a) any federal, state, provincial or similar government, and any
body, board, department, commission, court, tribunal, authority, agency or other instrumentality
3
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 Agreements or relating to the observance or
performance of the obligations of any of the parties to the Operative Agreements.
Guarantee
means the Guarantee dated as of December 21, 2010 from US Airways Group, Inc.
Indenture Trustee
has the meaning set forth in the Financing Agreements.
Initial Deposits
has the meaning set forth in the sixth recital to the Note Purchase
Agreement.
Intercreditor Agreement
has the meaning set forth in the ninth recital to the Note
Purchase Agreement.
Issuance Date
means the date of the original issuance of the Certificates.
Law
means (a) any constitution, treaty, statute, law, decree, 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.
Liquidity Facility
has the meaning set forth in the ninth recital to the Note Purchase
Agreement.
Liquidity Provider
has the meaning set forth in the ninth recital to the Note Purchase
Agreement.
Note Purchase Agreement
means the Note Purchase Agreement to which this Annex A is
attached.
Notice of Purchase Withdrawal
with respect to each Deposit Agreement, has the meaning set
forth in Section 2.3 thereof.
Operative Agreements
means, collectively, the Pass Through Trust Agreements, the Escrow
and Paying Agent Agreements, the Deposit Agreements, the Liquidity Facilities, the Intercreditor
Agreement, the Equipment Notes, the Certificates and the Financing Agreements.
Participation Agreement
means, the Participation Agreement substantially in the form of
Exhibit B to the Note Purchase Agreement.
Paying Agent Agreements
has the meaning set forth in Section 3(f)(i) of the Note Purchase
Agreement.
Pass Through Trust
has the meaning set forth in the fourth recital to the Note Purchase
Agreement.
Pass Through Trust Agreement
means each of the two separate Trust Supplements referred to
in the fourth recital to the Note Purchase Agreement, together in each case with the Basic Pass
4
Through Trust Agreement, each dated as of the Issuance Date, by and between the Company and Pass
Through Trustee.
Pass Through Trustee
has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
Paying Agent
has the meaning set forth in the first paragraph of the Note Purchase
Agreement.
Person
means any individual, firm, partnership, joint venture, trust, trustee, Government
Entity, organization, association, corporation, limited liability company, government agency,
committee, department, authority and other body, corporate or incorporate, whether having distinct
legal status or not, or any member of any of the same.
Rating Agencies
means, collectively, at any time, each nationally recognized rating
agency which shall have been requested to rate the Certificates and which shall then be rating the
Certificates. The initial Rating Agencies will be Moodys Investors Service, Inc. and Standard &
Poors Ratings Services, a Standard & Poors Financial Services LLC business.
Rating Agency Confirmation
means, with respect to any Financing Agreement that has been
modified in any material respect from the forms thereof attached to the Note Purchase Agreement, a
written confirmation from each of the Rating Agencies that the use of such Financing Agreement with
such modifications would not result in (i) a reduction of the rating for any Class of Certificates
then rated by the Rating Agencies below the then current rating for such Class of Certificates or
(ii) a withdrawal or suspension of the rating of any Class of Certificates then rated by the Rating
Agencies.
Register
means the register maintained pursuant to Sections 3.04 and 7.12 of the Basic
Pass Through Trust Agreement with respect to each Pass Through Trust.
Replacement Deposit Agreement
means, for each Class of Certificates, a deposit agreement
substantially in the form of the replaced Deposit Agreement for such Class of Certificates as shall
permit the Rating Agencies to confirm in writing their respective ratings then in effect for such
Class of Certificates (before the downgrading of such ratings, if any, as a result of the
downgrading of the Depositary, if applicable).
Replacement Depositary
has the meaning set forth in Section 4(a)(vi) of the Note Purchase
Agreement.
Required Terms
means the terms set forth on Schedule III to the Note Purchase Agreement.
Scheduled Closing Date
has the meaning set forth in Section 1(b) of the Note Purchase
Agreement.
Section 1110
means 11 U.S.C. § 1110 of the Bankruptcy Code or any successor or analogous
Section of the federal bankruptcy Law in effect from time to time.
Series A Equipment Notes
means the Series A Equipment Notes as defined in each Trust
Indenture entered into pursuant to the Note Purchase Agreement.
5
Series B Equipment Notes
means the Series B Equipment Notes as defined in each Trust
Indenture entered into pursuant to the Note Purchase Agreement.
Subordination Agent
has the meaning set forth in the first paragraph of the Note Purchase
Agreement.
Taxes
means all license, recording, documentary, registration and other similar fees and
all taxes, levies, imposts, duties, charges, assessments or withholdings of any nature whatsoever
imposed by any Taxing Authority, together with any penalties, additions to tax, fines or interest
thereon or additions thereto.
Taxing Authority
means any federal, state or local government or other taxing authority
in the United States, any foreign government or any political subdivision or taxing authority
thereof, any international taxing authority or any territory or possession of the United States or
any taxing authority thereof.
Triggering Event
has the meaning assigned to such term in the Intercreditor Agreement.
Trust Indenture
means the Trust Indenture and Security Agreement substantially in the
form of Exhibit C to the Note Purchase Agreement.
Trust Supplement
means an agreement supplemental to the Basic Pass Through Trust
Agreement pursuant to which (i) a separate trust is created for the benefit of the holders of the
pass through certificates of a class, (ii) the issuance of the pass through certificates of such
class representing fractional undivided interests in such trust is authorized and (iii) the terms
of the pass through certificates of such class are established.
Underwriters
has the meaning set forth in the fifth recital to the Note Purchase
Agreement.
Underwriting Agreement
has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
WTC
has the meaning set forth in the first paragraph of the Note Purchase Agreement.
EXHIBIT A to
Note Purchase Agreement
FORM OF CLOSING NOTICE
Note
Purchase Agreement 10-1
EXHIBIT A
TO
NOTE PURCHASE AGREEMENT
CLOSING NOTICE
Dated as of [_________]
To each of the addressees listed
in Schedule A hereto
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Re:
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Closing Notice in accordance with Note Purchase
Agreement referred to below
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Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement, dated as of December 21, 2010, among US
Airways, Inc. (the
Company
), Wilmington Trust Company, as Pass Through Trustee under each
of the Pass Through Trust Agreements (as defined therein) (the
Pass Through Trustee
),
Wilmington Trust Company, as Subordination Agent (the
Subordination Agent
), Wells Fargo
Bank Northwest, National Association, as Escrow Agent (the
Escrow Agent
), and Wilmington
Trust Company, as Paying Agent (the
Paying Agent
) (as in effect from time to time, the
Note Purchase Agreement
). Unless otherwise defined herein, capitalized terms used herein
shall have the meanings set forth in the Note Purchase Agreement or, to the extent not defined
therein, the Intercreditor Agreement.
Pursuant to Section 1(b) of the Note Purchase Agreement, the undersigned hereby notifies you,
in respect of the Airbus Model [_______] aircraft with manufacturers serial number [______] (the
Aircraft
), of the following:
(1)
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The Scheduled Closing Date of the Aircraft is [_________];
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(2)
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The Funding Date for the Aircraft shall be [__________]; and
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(3)
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The aggregate amount of each series of Equipment Notes to be issued, and purchased by the
respective Pass Through Trustees referred to below (each, an
Applicable Pass Through
Trustee
), on the Funding Date, in connection with the financing of such Aircraft is as
follows:
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(a)
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the Class A Pass Through Trustee shall purchase Series A Equipment Notes in the
amount of $[__________]; and
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(b)
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the Class B Pass Through Trustee shall purchase Series B Equipment Notes in the
amount of $[__________].
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-2-
The Company hereby instructs the Class A Pass Through Trustee to (i) execute a Withdrawal
Certificate in the form of Annex A hereto dated as of [__________] and attach thereto a Notice of
Purchase Withdrawal dated such date completed as set forth on Exhibit A hereto and (ii) deliver
such Withdrawal Certificate and Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs the Class B Pass Through Trustee to (i) execute a Withdrawal
Certificate in the form of Annex A hereto dated as of [__________] and attach thereto a Notice of
Purchase Withdrawal dated such date completed as set forth on Exhibit B hereto and (ii) deliver
such Withdrawal Certificate and Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs each Applicable Pass Through Trustee to (i) purchase Equipment
Notes of a series and in an amount set forth opposite such Pass Through Trustee in clause (3) above
with a portion of the proceeds of the withdrawals of Deposits referred to in the applicable Notice
of Purchase Withdrawal referred to above and (ii) re-deposit with the Depositary the excess, if
any, of the amount so withdrawn
over
the purchase price of such Equipment Notes.
The Company hereby instructs each Applicable Pass Through Trustee to (a) enter into the
Participation Agreement [____] dated as of [___________] among the Company, as Owner, and
Wilmington Trust Company, as Indenture Trustee and Loan Participant, (b) perform its obligations
thereunder and (c) deliver such certificates, documents and legal opinions relating to such Pass
Through Trustee as required thereby.
Yours faithfully,
US Airways, Inc.
SCHEDULE A
Wilmington Trust Company, as
Pass Through Trustee, Subordination
Agent and Paying Agent
1100 North Market Street
Wilmington, Delaware 19890-1605
Attention: Corporate Trust Administration
Facsimile: (302) 636-4140
Wells Fargo Bank Northwest, National Association,
as Escrow Agent
MAC: U1228-120
299 South Main Street, 12th Floor
Salt Lake City, Utah 84111
Attention: Corporate Trust Department
Facsimile: (801) 246-5053
The Bank of New York Mellon,
as Depositary
101 Barclay Street, Floor 8W
New York, NY 10286
Attention: Corporate Finance, Mary Miselis, Vice President
Reference: US Airways 2010-1
Facsimile: (212) 815-5704
Standard & Poors Ratings Services
55 Water Street, 39th Floor
New York, New York 10041-0003
Attention: Philip A. Baggaley, CFA
Facsimile: (212) 438-7820
Moodys Investors Service, Inc.
7 World Trade Center at 250 Greenwich Street
New York, New York 10007
Attention: Michael Mulvaney
Facsimile: 212-553-4661
Annex A
WITHDRAWAL CERTIFICATE
(Class ___)
Wells Fargo Bank Northwest, National Association,
as Escrow Agent
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent Agreement, dated as of December 21, 2010 (the
Agreement). We hereby certify to you that the conditions to the obligations of the undersigned
to execute a Participation Agreement pursuant to the Note Purchase Agreement have been satisfied.
Pursuant to Section 1.02(c) of the Agreement, please execute the attached Notice of Purchase
Withdrawal and immediately transmit by facsimile to the Depositary, at (212) 815-5704 (Attention:
Corporate Finance, Mary Miselis, Vice President).
Capitalized terms used herein but not defined herein shall have the meanings set forth in the
Agreement.
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Very truly yours,
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WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Pass
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Through Trustee
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By:
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Name:
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Title:
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Dated: As of [____________]
Exhibit A
NOTICE OF PURCHASE WITHDRAWAL
The Bank of New York Mellon,
as Depositary
101 Barclay Street, Floor 8W
New York, NY 10286
Attention: Corporate Finance, Mary Miselis, Vice President
Reference: US Airways 2010-1
Telecopier: (212) 815-5704
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class A) dated as of December 21, 2010 (the
Deposit Agreement
) between Wells Fargo Bank Northwest, National Association, as Escrow
Agent, and The Bank of New York Mellon, as Depositary (the
Depositary
).
In accordance with Section 2.3(a) of the Deposit Agreement, the undersigned hereby requests
the withdrawal of the entire amount of the Deposit, $[_______], Account No. [____].
The undersigned hereby directs the Depositary to pay the entire amount of the Deposit to
[___________________], Account No. [____], Reference: [_________] on [__________], upon the
telephonic request of a representative of the Pass Through Trustee.
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WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
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as Escrow Agent
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By
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Name:
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Title:
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Dated: As of [____________]
Exhibit B
NOTICE OF PURCHASE WITHDRAWAL
The Bank of New York Mellon,
as Depositary
101 Barclay Street, Floor 8W
New York, NY 10286
Attention: Corporate Finance, Mary Miselis, Vice President
Reference: US Airways 2010-1
Telecopier: (212) 815-5704
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class B) dated as of December 21, 2010 (the
Deposit Agreement
) between Wells Fargo Bank Northwest, National Association, as Escrow
Agent, and The Bank of New York Mellon, as Depositary (the
Depositary
).
In accordance with Section 2.3(a) of the Deposit Agreement, the undersigned hereby requests
the withdrawal of the entire amount of the Deposit, $[_______], Account No. [____].
The undersigned hereby directs the Depositary to pay the entire amount of the Deposit to
[___________________], Account No. [____], Reference: [__________] on [__________], upon the
telephonic request of a representative of the Pass Through Trustee.
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WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
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as Escrow Agent
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By
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Name:
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Title:
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Dated: As of [____________]
EXHIBIT B to
Note Purchase Agreement
FORM OF PARTICIPATION AGREEMENT
Note
Purchase Agreement 10-1
EXHIBIT C to
Note Purchase Agreement
FORM OF INDENTURE
Note
Purchase Agreement 10-1
Exhibit 4.14
EXHIBIT B TO NOTE PURCHASE AGREEMENT
PARTICIPATION AGREEMENT [___]
Dated as of [_____________], 2010
Among
US AIRWAYS, INC.,
Owner,
and
WILMINGTON TRUST COMPANY,
Not in its individual capacity
except as expressly provided herein,
but solely as Indenture Trustee, Subordination Agent
under the Intercreditor Agreement and Pass Through Trustee
under each of the Applicable Pass Through Trust Agreements
One Airbus Model [_________] Aircraft
Bearing Manufacturers Serial No.[______]
and U.S. Registration No. N[_______]
CONTENTS
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SECTION 1. DEFINITIONS AND CONSTRUCTION
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1
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SECTION 2. SECURED LOANS; CLOSING
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2
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2.1 Making of Loans and Issuance of Equipment Notes
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2
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2.2 Closing
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2
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SECTION 3. GUARANTEE
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2
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SECTION 4. CONDITIONS PRECEDENT
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2
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4.1 Conditions Precedent to the Obligations of the Pass Through
Trustees
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2
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4.2 Conditions Precedent to Obligations of Indenture Trustee
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4.3 Conditions Precedent to Obligations of Owner
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4.4 Post-Registration Opinion
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SECTION 5. REPRESENTATIONS AND WARRANTIES
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5.1 Owners Representations and Warranties
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5.2 WTCs Representations and Warranties
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10
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SECTION 6. COVENANTS, UNDERTAKINGS AND AGREEMENTS
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6.1 Covenants of Owner
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6.2 Covenants of WTC
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6.3 Covenants of Note Holders
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6.4 Agreements
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SECTION 7. CONFIDENTIALITY
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SECTION 8. INDEMNIFICATION AND EXPENSES
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8.1 General Indemnity
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8.2 Expenses
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8.3 General Tax Indemnity
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8.4 Payments
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8.5 Interest
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8.6 Benefit of Indemnities
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SECTION 9. ASSIGNMENT OR TRANSFER OF INTEREST
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9.1 Note Holders
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9.2 Effect of Transfer
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SECTION 10. SECTION 1110
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SECTION 11. CHANGE OF CITIZENSHIP
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11.1 Generally
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11.2 Indenture Trustee
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PARTICIPATION AGREEMENT (2010-1)
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SECTION 12. MISCELLANEOUS
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12.1 Amendments
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12.2 Severability
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12.3 Survival
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12.4 Reproduction of Documents
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12.5 Counterparts
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12.6 No Waiver
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12.7 Notices
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12.8 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE
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12.9 Third-Party Beneficiary
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12.10 Entire Agreement
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12.11 Further Assurances
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SCHEDULES AND EXHIBITS
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SCHEDULE 1 -
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Accounts; Addresses
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SCHEDULE 2 -
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Commitments
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SCHEDULE 3 -
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Certain Terms
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SCHEDULE 4 -
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Permitted Countries
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EXHIBIT A -
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Opinion of special counsel to Owner
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EXHIBIT B -
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Opinion of regulatory counsel to Owner
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EXHIBIT C-1 -
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Opinion of special counsel to Indenture Trustee
and to the Applicable Pass Through Trustees
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EXHIBIT C-2 -
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Opinion of special counsel to Indenture Trustee
and to the Applicable Pass Through Trustees
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EXHIBIT D -
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Opinion of special counsel in Oklahoma City, Oklahoma
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PARTICIPATION AGREEMENT (2010-1)
ii
PARTICIPATION AGREEMENT [___]
PARTICIPATION AGREEMENT [____], dated as of [____________], 2010 (this Agreement), among (a)
US AIRWAYS, INC., a Delaware corporation (Owner), (b) WILMINGTON TRUST COMPANY, a Delaware
banking corporation, not in its individual capacity, except as expressly provided herein, but
solely as Indenture Trustee (in its capacity as Indenture Trustee, Indenture Trustee and in its
individual capacity, WTC), (c) WILMINGTON TRUST COMPANY, not in its individual capacity, except
as expressly provided herein, but solely as Pass Through Trustee under each of the Applicable Pass
Through Trust Agreements (each, an
Applicable Pass Through Trustee
) and (d) WILMINGTON
TRUST COMPANY, not in its individual capacity, except as expressly provided herein, but solely as
Subordination Agent under the Intercreditor Agreement (Subordination Agent).
RECITALS
A. The Aircraft is currently owned by Owner.
B. Pursuant to each of the Pass Through Trust Agreements, the Pass Through Trusts were created
and the Pass Through Certificates were issued and sold.
C. Each Applicable Pass Through Trustee has agreed to use a portion of the proceeds from the
issuance and sale of the Pass Through Certificates issued by each Applicable Pass Through Trust to
purchase from Owner, on behalf of the related Applicable Pass Through Trust, the Equipment Note
bearing the same interest rate as the Pass Through Certificates issued by such Pass Through Trust.
D. Owner and Indenture Trustee, concurrently with the execution and delivery hereof, have
entered into the Trust Indenture for the benefit of the Note Holders, pursuant to which, among
other things, Owner agrees (1) to issue Equipment Notes, in the amounts and otherwise as provided
in the Trust Indenture, and (2) to mortgage, pledge and assign to Indenture Trustee all of Owners
right, title and interest in the Collateral to secure the Secured Obligations, including, without
limitation, Owners obligations under the Equipment Notes.
E. The parties hereto wish to set forth in this Agreement the terms and conditions upon and
subject to which the aforesaid transactions shall be effected.
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND CONSTRUCTION
Capitalized terms used but not defined herein (including in the initial paragraph and Recitals
above) shall have the respective meanings set forth or incorporated by reference, and shall be
construed and interpreted in the manner described, in Annex A to the Trust Indenture.
PARTICIPATION AGREEMENT (2010-1)
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SECTION 2. SECURED LOANS; CLOSING
2.1 Making of Loans and Issuance of Equipment Notes
Subject to the terms and conditions of this Agreement, on the date hereof or on such other
date agreed to by the parties hereto (the Closing Date):
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(a)
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Each Applicable Pass Through Trustee listed on Schedule 2 shall make a secured
loan to the Owner in the amount in Dollars opposite such Trustees name on Schedule 2;
and
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(b)
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The Owner shall issue, pursuant to and in accordance with the provisions of
Article II of the Trust Indenture, to the Subordination Agent as the registered holder
on behalf of each such Applicable Pass Through Trustee, one or more Equipment Notes,
dated the Closing Date, of the Series set forth opposite such Trustees name on
Schedule 2, in an aggregate principal amount equal to the amount of the secured loan
made by each such Applicable Pass Through Trustee.
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In addition, the Owner shall have the option after the Closing Date to redeem and reissue
Series B Equipment Notes and to issue from time to time Additional Series Equipment Notes, subject
to the terms of the Note Purchase Agreement and the Intercreditor Agreement. If Series B or
Additional Series Equipment Notes are so reissued or issued after the Closing Date, the Note Holder
of such Equipment Notes shall be entitled to execute a counterpart to this Agreement and become a
party hereto.
2.2 Closing
(a) The Closing of the transactions contemplated hereby shall take place at the offices of
[__], or at such other place as the parties shall agree.
(b) All payments pursuant to this Section 2 shall be made in immediately available funds to
such accounts set forth in Schedule 1 hereto.
SECTION 3. GUARANTEE
The payment obligations of the Owner hereunder, under the Trust Indenture and the Equipment
Notes issued thereunder will be guaranteed by US Airways Group, Inc. on and subject to to the terms
and conditions of the Guarantee heretofore delivered to the Pass Through Trustees, the
Subordination Agent and the Indenture Trustee.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions Precedent to the Obligations of the Pass Through Trustees
The obligation of each Applicable Pass Through Trustee listed on Schedule 2 to make the
secured loan described in Section 2.1(a) and to participate in the transactions contemplated by
this Agreement on the Closing Date is subject to the fulfillment, prior to or on the Closing Date,
of the following conditions precedent:
PARTICIPATION AGREEMENT (2010-1)
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4.1.1 Equipment Notes
The Owner shall have tendered the Equipment Notes to be issued to such Applicable Pass Through
Trustees to the Indenture Trustee for authentication and the Indenture Trustee shall have
authenticated such Equipment Notes to be issued to such Applicable Pass Through Trustees and shall
have tendered the Equipment Notes to the Subordination Agent on behalf of such Pass Through
Trustee, against receipt of the loan proceeds, in accordance with Section 2.1.
4.1.2 Delivery of Documents
The Subordination Agent on behalf of each such Applicable Pass Through Trustee shall have
received executed counterparts or conformed copies of the following documents:
(i) this Agreement;
(ii) the Trust Indenture;
(iii) the initial Trust Indenture Supplement;
(iv) the brokers report and insurance certificates required by Section 4.06 of the
Trust Indenture;
(v) the Release;
(vi) the Bills of Sale;
(vii) (A) a copy of the Certificate of Incorporation and By-Laws of Owner and
resolutions of the board of directors of Owner and/or the executive committee thereof, in
each case certified as of the Closing Date, by the Secretary or an Assistant Secretary of
Owner, duly authorizing the execution, delivery and performance by Owner of the Operative
Agreements to which it is party required to be executed and delivered by Owner on or prior
to the Closing Date in accordance with the provisions hereof and thereof; and (B) an
incumbency certificate of Owner as to the person or persons authorized to execute and
deliver the Operative Agreements on behalf of Owner;
(viii) an Officers Certificate of Owner, dated as of the Closing Date, stating that
its representations and warranties set forth in this Agreement are true and correct as of
the Closing Date (or, to the extent that any such representation and warranty expressly
relates to an earlier date, true and correct as of such earlier date);
(ix) the Financing Statements;
(x) the following opinions of counsel, in each case dated the Closing Date:
(A) an opinion of Latham & Watkins LLP, special counsel to Owner, substantially
in the form of Exhibit A;
PARTICIPATION AGREEMENT (2010-1)
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(B) an opinion of Squire, Sanders & Dempsey, L.L.P., regulatory counsel to
Owner, substantially in the form of Exhibit B;
(C) the opinions of Morris James LLP, special counsel to Indenture Trustee and
to the Applicable Pass Through Trustees, each substantially in the form of Exhibits
C-1 and C-2;
(D) an opinion of Daugherty, Fowler, Peregrin, Haught & Jenson, special counsel
in Oklahoma City, Oklahoma, substantially in the form of Exhibit D; and
(xi) a copy of a current, valid Standard Certificate of Airworthiness for the Aircraft
duly issued by the FAA.
4.1.3 Perfected Security Interest
On the Closing Date, after giving effect to the filing of the FAA Filed Documents, the
Financing Statements and the registration of the International Interest (or Prospective
International Interest) of the Indenture Trustee in the Airframe and each Engine with the
International Registry, Indenture Trustee shall have received a duly perfected first priority
security interest in all of Owners right, title and interest in the Aircraft, subject only to
Permitted Liens.
4.1.4 Violation of Law
No change shall have occurred after the date of this Agreement in any applicable Law that
makes it a violation of Law for (a) Owner, any Applicable Pass Through Trustee, Subordination Agent
or Indenture Trustee to execute, deliver and perform the Operative Agreements to which any of them
is a party or (b) any Applicable Pass Through Trustee to make the loan contemplated by Section 2.1,
to acquire an Equipment Note or to realize the benefits of the security afforded by the Trust
Indenture.
4.1.5 Representations, Warranties and Covenants
The representations and warranties of each other party to this Agreement made, in each case,
in this Agreement and in any other Operative Agreement to which it is a party, shall be true and
accurate in all material respects as of the Closing Date (unless any such representation and
warranty shall have been made with reference to a specified date, in which case such representation
and warranty shall be true and accurate as of such specified date) and each other party to this
Agreement shall have performed and observed, in all material respects, all of its covenants,
obligations and agreements in this Agreement and in any other Operative Agreement to which it is a
party to be observed or performed by it as of the Closing Date.
4.1.6 No Event of Default
On the Closing Date, no event shall have occurred and be continuing, or would result from the
mortgage of the Aircraft, which constitutes a Default or an Event of Default.
PARTICIPATION AGREEMENT (2010-1)
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4.1.7 No Event of Loss
No Event of Loss with respect to the Airframe or any Engine shall have occurred and no
circumstance, condition, act or event that, with the giving of notice or lapse of time or both,
would give rise to or constitute an Event of Loss with respect to the Airframe or any Engine shall
have occurred.
4.1.8 Title
Owner shall have good title to the Aircraft, free and clear of all Liens, except Permitted
Liens and subject to filing and recordation of the Release with the FAA.
4.1.9 Certification
The Aircraft shall have been duly certificated by the FAA as to type and airworthiness in
accordance with the terms of the Purchase Agreement.
4.1.10 Section 1110
Indenture Trustee shall be entitled to the benefits of Section 1110 (as currently in effect)
with respect to the right to take possession of the Airframe and Engines and to enforce any of its
other rights or remedies as provided in the Trust Indenture in the event of a case under Chapter 11
of the Bankruptcy Code in which Owner is a debtor.
4.1.11 Filing
On the Closing Date (a) the FAA Filed Documents shall have been duly filed for recordation (or
shall be in the process of being so duly filed for recordation) with the FAA in accordance with the
Act, (b) the International Interest (or Prospective International Interest) of the Indenture
Trustee in the Airframe and Engines granted (or to be granted) under the Trust Indenture shall have
been registered with the International Registry and there shall exist no registered International
Interest with respect to the Airframe or either Engine on the International Registry with a
priority over the International Interest of the Indenture Trustee therein, (c) each Financing
Statement shall have been duly filed (or shall be in the process of being so duly filed) in the
appropriate jurisdiction and (d) the Subordination Agent, on behalf of each Applicable Pass Through
Trustee, shall have received a printout of the priority search certificate from the International
Registry relating to the Airframe and each Engine showing no International Interest with a priority
over the International Interest of the Indenture Trustee therein.
4.1.12 No Proceedings
No action or proceeding shall have been instituted, nor shall any action be threatened in
writing, before any Government Entity, nor shall any order, judgment or decree have been issued or
proposed to be issued by any Government Entity, to set aside, restrain, enjoin or prevent the
completion and consummation of this Agreement or any other Operative Agreement or the transactions
contemplated hereby or thereby.
PARTICIPATION AGREEMENT (2010-1)
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4.1.13 Governmental Action
All appropriate action required to have been taken prior to the Closing Date by the FAA, or
any governmental or political agency, subdivision or instrumentality of the United States, in
connection with the transactions contemplated by this Agreement shall have been taken, and all
orders, permits, waivers, authorizations, exemptions and approvals of such entities required to be
in effect on the Closing Date in connection with the transactions contemplated by this Agreement
shall have been issued.
4.1.14 Note Purchase Agreement
The conditions precedent to the obligations of the Applicable Pass Through Trustees and the
other requirements relating to the Aircraft and the Equipment Notes set forth in the Note Purchase
Agreement shall have been satisfied.
4.2 Conditions Precedent to Obligations of Indenture Trustee
The obligation of Indenture Trustee to authenticate the Equipment Notes on the Closing Date is
subject to the satisfaction or waiver by Indenture Trustee, on or prior to the Closing Date, of the
conditions precedent set forth below in this Section 4.2.
4.2.1 Documents
Executed originals of the agreements, instruments, certificates or documents described in
Section 4.1.2 shall have been received by Indenture Trustee, except as specifically provided
therein, unless the failure to receive any such agreement, instrument, certificate or document is
the result of any action or inaction by Indenture Trustee.
4.2.2 Other Conditions Precedent
Each of the conditions set forth in Sections 4.1.4, 4.1.5, 4.1.6 and 4.1.10 shall have been
satisfied unless the failure of any such condition to be satisfied is the result of any action or
inaction by Indenture Trustee.
4.3 Conditions Precedent to Obligations of Owner
The obligation of Owner to participate in the transaction contemplated hereby on the Closing
Date is subject to the satisfaction or waiver by Owner, on or prior to the Closing Date, of the
conditions precedent set forth below in this Section 4.3.
4.3.1 Documents
Executed originals of the agreements, instruments, certificates or documents described in
Section 4.1.2 shall have been received by Owner, except as specifically provided therein, and shall
be satisfactory to Owner, unless the failure to receive any such agreement, instrument, certificate
or document is the result of any action or inaction by Owner. In addition, the Owner shall have
received the following:
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(i) (A) an incumbency certificate of WTC as to the person or persons authorized to
execute and deliver the Operative Agreements on behalf of WTC and (B) a copy of the
Certificate of Incorporation and By-Laws and general authorizing resolution of the board of
directors (or executive committee) or other satisfactory evidence of authorization of WTC,
certified as of the Closing Date by the Secretary or Assistant or Attesting Secretary of
WTC, which authorize the execution, delivery and performance by WTC of the Operative
Agreements to which it is a party; and
(ii) an Officers Certificate of WTC, dated as of the Closing Date, stating that its
representations and warranties in its individual capacity or as Indenture Trustee, an
Applicable Pass Through Trustee or Subordination Agent, as the case may be, set forth in
this Agreement are true and correct as of the Closing Date (or, to the extent that any such
representation and warranty expressly relates to an earlier date, true and correct as of
such earlier date).
4.3.2 Other Conditions Precedent
Each of the conditions set forth in Sections 4.1.4, 4.1.5, 4.1.6, 4.1.7, 4.1.8, 4.1.9, 4.1.10,
4.1.11, 4.1.12 and 4.1.13 shall have been satisfied or waived by Owner, unless the failure of any
such condition to be satisfied is the result of any action or inaction by Owner.
4.4 Post-Registration Opinion
Promptly upon the recordation of the FAA Filed Documents pursuant to the Act, Owner will cause
Daugherty, Fowler, Peregrin, Haught & Jenson, special counsel in Oklahoma City, Oklahoma, to
deliver to Owner, each Pass Through Trustee and Indenture Trustee a favorable opinion or opinions
addressed to each of them with respect to such recordation.
SECTION 5. REPRESENTATIONS AND WARRANTIES
5.1 Owners Representations and Warranties
Owner represents and warrants to each Pass Through Trustee, Subordination Agent and Indenture
Trustee that:
5.1.1 Organization; Qualification
Owner is a corporation duly incorporated, validly existing and in good standing under the Laws
of the State of Delaware and has the corporate power and authority to conduct the business in which
it is currently engaged and to own or hold under lease its properties and to enter into and perform
its obligations under the Operative Agreements to which it is party. Owner is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction in which the nature and
extent of the business conducted by it, or the ownership of its properties, requires such
qualification, except where the failure to be so qualified would not give rise to a Material
Adverse Change to Owner.
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5.1.2 Corporate Authorization
Owner has taken, or caused to be taken, all necessary corporate action (including, without
limitation, the obtaining of any consent or approval of stockholders required by its Certificate of
Incorporation or By-Laws) to authorize the execution and delivery of each of the Operative
Agreements to which it is party, and the performance of its obligations thereunder.
5.1.3 No Violation
The execution and delivery by Owner of the Operative Agreements to which it is party, the
performance by Owner of its obligations thereunder and the consummation by Owner on the Closing
Date of the transactions contemplated thereby, do not and will not (a) violate any provision of the
Certificate of Incorporation or By-Laws of Owner, (b) violate any Law applicable to or binding on
Owner or (c) violate or constitute any default under (other than any violation or default that
would not result in a Material Adverse Change to Owner), or result in the creation of any Lien
(other than as permitted under the Trust Indenture) upon the Aircraft under, any indenture,
mortgage, chattel mortgage, deed of trust, conditional sales contract, lease, loan or other
material agreement, instrument or document to which Owner is a party or by which Owner or any of
its properties is bound.
5.1.4 Approvals
The execution and delivery by Owner of the Operative Agreements to which Owner is a party, the
performance by Owner of its obligations thereunder and the consummation by Owner on the Closing
Date of the transactions contemplated thereby do not and will not require the consent or approval
of, or the giving of notice to, or the registration with, or the recording or filing of any
documents with, or the taking of any other action in respect of, (a) any trustee or other holder of
any Debt of Owner and (b) any Government Entity, other than (x) the filings, registrations and
recordations referred to in Section 5.1.6 and (y) filings, recordings, notices or other ministerial
actions pursuant to any routine recording, contractual or regulatory requirements applicable to it.
5.1.5 Valid and Binding Agreements
The Operative Agreements to which Owner is a party have been duly authorized, executed and
delivered by Owner and, assuming the due authorization, execution and delivery thereof by the other
party or parties thereto, constitute the legal, valid and binding obligations of Owner and are
enforceable against Owner in accordance with the respective terms thereof, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium
and other similar Laws affecting the rights of creditors generally and general principles of
equity, whether considered in a proceeding at law or in equity.
5.1.6 Registration and Recordation
Except for (a) the filing with the FAA of the AC Forms 8050-135 with respect to the
International Interests (or Prospective International Interests) granted under the Trust Indenture
on the Airframe and Engines, (b) the filing with the FAA for recordation (and recordation) of the
FAA Filed Documents, (c) the registration with the International Registry of the International
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Interest (or Prospective International Interest) in the Airframe and Engines, (d) the filing
of the Financing Statements (and continuation statements relating thereto at periodic intervals),
and (e) the affixation of the nameplates referred to in Section 4.02(f) of the Trust Indenture, no
further action, including any filing or recording of any document (including any financing
statement in respect thereof under Article 9 of the UCC) is necessary in order to establish and
perfect Indenture Trustees security interest in the Aircraft as against Owner and any other
Person, in each case, in any applicable jurisdictions in the United States.
5.1.7 Owners Location
The Owners location (as such term is used in Section 9-307 of the UCC) is Delaware. The full
and correct legal name and mailing address of Owner are correctly set forth in Schedule 1 hereto in
the column Address for Notices.
5.1.8 No Event of Loss
No Event of Loss has occurred with respect to the Airframe or any Engine, and, to the Actual
Knowledge of Owner, no circumstance, condition, act or event has occurred that, with the giving of
notice or lapse of time or both gives rise to or constitutes an Event of Loss with respect to the
Airframe or any Engine.
5.1.9 Compliance With Laws
(a) Owner is a Citizen of the United States and a U.S. Air Carrier.
(b) 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 give rise to a Material Adverse Change to Owner.
(c) Owner is not an investment company or a company controlled by an investment company
within the meaning of the Investment Company Act of 1940, as amended.
5.1.10 Securities Laws
Neither Owner nor any person authorized to act on its behalf has directly or indirectly
offered any beneficial interest or Security relating to the ownership of the Aircraft, or any of
the Equipment Notes or any other interest in or security under the Trust Indenture, for sale to, or
solicited any offer to acquire any such interest or security from, or has sold any such interest or
security to, any person in violation of the Securities Act.
5.1.11 Brokers Fees
No Person acting on behalf of Owner is or will be entitled to any brokers fee, commission or
finders fee in connection with the Transactions, other than the fees and expenses payable by Owner
in connection with the sale of the Pass Through Certificates.
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5.1.12 Section 1110
Indenture Trustee is entitled to the benefits of Section 1110 (as currently in effect) with
respect to the right to take possession of the Airframe and Engines and to enforce any of its other
rights or remedies as provided in the Trust Indenture in the event of a case under Chapter 11 of
the Bankruptcy Code in which Owner is a debtor.
5.1.13 Cape Town
The Owner is a Transacting User Entity (as defined in the regulations of the International
Registry); is situated, for the purposes of the Cape Town Treaty, in the United States; and has
the power to dispose (as such term is used in the Cape Town Treaty) of the Airframe and each
Engine. The Trust Indenture, as supplemented by the Trust Indenture Supplement in which such
Airframe and Engines are listed, creates an International Interest in such Airframe and Engines.
The Airframe and each Engine are aircraft objects (as defined in the Cape Town Treaty); and the
United States is a Contracting State under the Cape Town Treaty.
5.2 WTCs Representations and Warranties
WTC represents and warrants (with respect to Section 5.2.10, solely in its capacity as
Subordination Agent) to Owner that:
5.2.1 Organization, Etc.
WTC is a Delaware banking corporation duly organized, validly existing and in good standing
under the Laws of the State of Delaware, holding a valid certificate to do business as a Delaware
banking corporation with banking authority to execute and deliver, and perform its obligations
under, the Applicable Pass Through Trustee Agreements and the Operative Agreements to which it is a
party.
5.2.2 Corporate Authorization
WTC has taken, or caused to be taken, all necessary corporate action (including, without
limitation, the obtaining of any consent or approval of stockholders required by Law or by its
Certificate of Incorporation or By-Laws) to authorize the execution and delivery by WTC, in its
individual capacity or as Indenture Trustee, a Pass Through Trustee or Subordination Agent, as the
case may be, of the Pass Through Trustee Agreements and the Operative Agreements to which it is a
party and the performance of its obligations thereunder.
5.2.3 No Violation
The execution and delivery by WTC, in its individual capacity or as Indenture Trustee, a Pass
Through Trustee or Subordination Agent, as the case may be, of the Pass Through Trustee Agreements
and the Operative Agreements to which it is a party, the performance by WTC, in its individual
capacity or as Indenture Trustee, a Pass Through Trustee or Subordination Agent, as the case may
be, of its obligations thereunder and the consummation on the Closing Date of the transactions
contemplated thereby, do not and will not (a) violate any provision of the Certificate of
Incorporation or By-Laws of WTC, (b) violate any Law applicable to or binding on WTC, in
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its individual capacity or (except in the case of any Law relating to any Plan) as Indenture
Trustee, a Pass Through Trustee or Subordination Agent, or (c) violate or constitute any default
under (other than any violation or default that would not result in a Material Adverse Change to
WTC, in its individual capacity or Indenture Trustee, a Pass Through Trustee or Subordination
Agent), or result in the creation of any Lien (other than the Lien of the Trust Indenture) upon any
property of WTC, in its individual capacity or as Indenture Trustee, a Pass Through Trustee or
Subordination Agent, or any of WTCs subsidiaries under, any indenture, mortgage, chattel mortgage,
deed of trust, conditional sales contract, lease, loan or other agreement, instrument or document
to which WTC, in its individual capacity or as Indenture Trustee, a Pass Through Trustee or
Subordination Agent, is a party or by which WTC, in its individual capacity or as Indenture
Trustee, a Pass Through Trustee or Subordination Agent, or any of their respective properties is
bound.
5.2.4 Approvals
The execution and delivery by WTC, in its individual capacity or as Indenture Trustee, a Pass
Through Trustee or Subordination Agent, as the case may be, of the Pass Through Trustee Agreements
and the Operative Agreements to which it is a party, the performance by WTC, in its individual
capacity or as Indenture Trustee, a Pass Through Trustee or Subordination Agent, as the case may
be, of its obligations thereunder and the consummation on the Closing Date by WTC, in its
individual capacity or as Indenture Trustee, a Pass Through Trustee or Subordination Agent, as the
case may be, of the transactions contemplated thereby do not and will not require the consent,
approval or authorization of, or the giving of notice to, or the registration with, or the
recording or filing of any documents with, or the taking of any other action in respect of, (a) any
trustee or other holder of any Debt of WTC or (b) any Government Entity, other than the filing of
the FAA Filed Documents and the Financing Statements.
5.2.5 Valid and Binding Agreements
The Pass Through Trustee Agreements and the Operative Agreements to which it is a party have
been duly authorized, executed and delivered by WTC and, assuming the due authorization, execution
and delivery by the other party or parties thereto, constitute the legal, valid and binding
obligations of WTC, in its individual capacity or as Indenture Trustee, a Pass Through Trustee or
Subordination Agent, as the case may be, and are enforceable against WTC, in its individual
capacity or as Indenture Trustee, a Pass Through Trustee or Subordination Agent, as the case may
be, in accordance with the respective terms thereof, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar Laws affecting
the rights of creditors generally and general principles of equity, whether considered in a
proceeding at law or in equity.
5.2.6 Citizenship
WTC is a Citizen of the United States.
5.2.7 No Liens
On the Closing Date, there are no Liens attributable to WTC in respect of all or any part of
the Collateral.
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5.2.8 Litigation
There are no pending or, to the Actual Knowledge of WTC, threatened actions or proceedings
against WTC, in its individual capacity or as Indenture Trustee, a Pass Through Trustee or
Subordination Agent, before any court, administrative agency or tribunal which, if determined
adversely to WTC, in its individual capacity or as Indenture Trustee, a Pass Through Trustee or
Subordination Agent, as the case may be, would materially adversely affect the ability of WTC, in
its individual capacity or as Indenture Trustee, a Pass Through Trustee or Subordination Agent, as
the case may be, to perform its obligations under any of the Indenture Trustee Agreements, the Pass
Through Trustee Agreements or the Subordination Agent Agreements.
5.2.9 Securities Laws
Neither WTC nor any person authorized to act on its behalf has directly or indirectly offered
any beneficial interest or Security relating to the ownership of the Aircraft or any interest in
the Collateral or any of the Equipment Notes or any other interest in or security under the
Collateral for sale to, or solicited any offer to acquire any such interest or security from, or
has sold any such interest or security to, any Person other than the Subordination Agent and the
Pass Through Trustees, except for the offering and sale of the Pass Through Certificates.
5.2.10 Investment
The Equipment Notes to be acquired by the Subordination Agent are being acquired by it for the
account of the Applicable Pass Through Trustees, for investment and not with a view to any resale
or distribution thereof, except that, subject to the restrictions on transfer set forth in Section
9, the disposition by it of its Equipment Notes shall at all times be within its control.
5.2.11 Taxes
There are no Taxes payable by any Applicable Pass Through Trustee or WTC, as the case may be,
imposed by the State of Delaware or any political subdivision or taxing authority thereof in
connection with the execution, delivery and performance by such Pass Through Trustee or WTC, as the
case may be, of this Agreement or any of the Pass Through Trustee Agreements (other than franchise
or other taxes based on or measured by any fees or compensation received by any such Pass Through
Trustee or WTC, as the case may be, for services rendered in connection with the transactions
contemplated by any of the Pass Through Trust Agreements), and there are no Taxes payable by any
Applicable Pass Through Trustee or WTC, as the case may be, imposed by the State of Delaware or any
political subdivision thereof in connection with the acquisition, possession or ownership by any
such 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 any such Pass Through Trustee or WTC, as the
case may be, 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 as a
grantor trust under subpart E, Part I of Subchapter J of the Code or as a partnership under
Subchapter K of the Code,
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such trusts will not be subject to any Taxes imposed by the State of Delaware or any political
subdivision thereof.
5.2.12 Brokers Fees
No Person acting on behalf of WTC, in its individual capacity or as Indenture Trustee, any
Applicable Pass Through Trustee or Subordination Agent, is or will be entitled to any brokers fee,
commission or finders fee in connection with the Transactions.
SECTION 6. COVENANTS, UNDERTAKINGS AND AGREEMENTS
6.1 Covenants of Owner
Owner covenants and agrees, at its own cost and expense, with Note Holder and Indenture
Trustee as follows:
6.1.1 Corporate Existence; U.S. Air Carrier
Owner shall at all times maintain its corporate existence, except as permitted by Section 4.07
of the Trust Indenture, and shall at all times remain a U.S. Air Carrier.
6.1.2 Notice of Change of Location
Owner will give Indenture Trustee timely written notice (but in any event within 30 days prior
to the expiration of the period of time specified under applicable Law to prevent lapse of
perfection) of any change in its location (as such term is used in Section 9-307 of the UCC) or
legal name and will promptly take any action required by Section 6.1.3(c) as a result of such
relocation.
6.1.3 Certain Assurances
(a) Owner shall duly execute, acknowledge and deliver, or shall cause to be executed,
acknowledged and delivered, all such further agreements, instruments, certificates or documents,
and shall do and cause to be done such further acts and things, in any case, as Indenture Trustee
shall reasonably request for accomplishing the purposes of this Agreement and the other Operative
Agreements,
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 Agreement.
(b) Owner shall promptly take such action with respect to the recording, filing, re-recording
and refiling of the Trust Indenture and any supplements thereto, including, without limitation, the
initial Trust Indenture Supplement, as shall be necessary to continue the perfection and priority
of the Lien created by the Trust Indenture.
(c) Owner, at its sole cost and expense, will cause the FAA Filed Documents, the Financing
Statements and all continuation statements (and any amendments necessitated by any combination,
consolidation or merger of the Owner, or any relocation of its chief executive office) in respect
of the Financing Statements to be prepared and, subject only to the execution
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and delivery thereof by Indenture Trustee, duly and timely filed and recorded, or filed for
recordation, to the extent permitted under the Act (with respect to the FAA Filed Documents) or the
UCC or similar law of any other applicable jurisdiction (with respect to such other documents).
Indenture Trustee, and not Owner, shall be responsible for any amendments to the foregoing
documents and filings, recordings and registrations thereof necessitated in any such case by any
combination, consolidation or merger of Indenture Trustee or change in the Indenture Trustees
name, status, jurisdiction of organization or address.
(d) If the Aircraft has been registered in a country other than the United States pursuant to
Section 4.02(e) of the Trust Indenture, Owner will furnish to Indenture Trustee annually after such
registration, commencing with the calendar year after such registration is effected, an opinion of
special counsel reasonably satisfactory to Indenture Trustee stating that, in the opinion of such
counsel, either that (i) such action has been taken with respect to the recording, filing,
rerecording and refiling of the Operative Agreements and any supplements and amendments thereto as
is necessary to establish, perfect and protect the Lien created by the Trust Indenture, reciting
the details of such actions, or (ii) no such action is necessary to maintain the perfection of such
Lien.
6.1.4 Securities Laws
Neither Owner nor any person authorized to act on its behalf will directly or indirectly offer
any beneficial interest or Security relating to the ownership of the Aircraft or any interest in
any of the Equipment Notes or any other interest in or security under the Trust Indenture, for sale
to, or solicit any offer to acquire any such interest or security from, or sell any such interest
or security to, any person in violation of the Securities Act or applicable state or foreign
securities Laws.
6.1.5. Notice of Lease
Owner shall give to Standard & Poors Ratings Services, a Standard & Poors Financial Services
LLC business, a copy of any notice regarding a lease of the Aircraft required to be given to the
Indenture Trustee pursuant to clause (w) of the first sentence of the penultimate paragraph of
Section 4.02(b) of the Mortgage, at the time such notice is given to Indenture Trustee, if at such
time Standard & Poors is then rating the Pass Through Certificates.
6.2 Covenants of WTC
WTC in its individual capacity or as Indenture Trustee, each Applicable Pass Through Trustee
or Subordination Agent, as the case may be, covenants and agrees with Owner as follows:
6.2.1 Liens
WTC (a) will not directly or indirectly create, incur, assume or suffer to exist any Lien
attributable to it on or with respect to all or any part of the Collateral or the Aircraft, (b)
will, at its own cost and expense, promptly take such action as may be necessary to discharge any
Lien attributable to WTC on all or any part of the Collateral or the Aircraft and (c) will
personally hold harmless and indemnify Owner, each Note Holder, each of their respective
Affiliates,
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successors and permitted assigns, and the Collateral from and against (i) any and all
Expenses, (ii) any reduction in the amount payable out of the Collateral, and (iii) any
interference with the possession, operation or other use of all or any part of the Aircraft,
imposed on, incurred by or asserted against any of the foregoing as a consequence of any such Lien.
6.2.2 Securities Act
WTC in its individual capacity or as Indenture Trustee, an Applicable Pass Through Trustee or
Subordination Agent, will not offer any beneficial interest or Security relating to the ownership
of the Aircraft or any interest in the Collateral, or any of the Equipment Notes or any other
interest in or security under the Trust Indenture for sale to, or solicit any offer to acquire any
such interest or security from, or sell any such interest or security to, any Person in violation
of the Securities Act or applicable state or foreign securities Laws, provided that the foregoing
shall not be deemed to impose on WTC any responsibility with respect to any such offer, sale or
solicitation by any other party hereto.
6.2.3 Performance of Agreements
WTC, in its individual capacity and as Indenture Trustee, an Applicable Pass Through Trustee
or Subordination Agent, as the case may be, shall perform its obligations under the Pass Through
Trustee Agreements and the Operative Agreements in accordance with the terms thereof.
6.2.4 Withholding Taxes
WTC shall indemnify (on an after-tax basis) and hold harmless Owner against any United States
withholding taxes (and related interest, penalties and additions to tax) as a result of the failure
by WTC to withhold on payments to any Note Holder if such Note Holder failed to provide to
Indenture Trustee necessary certificates or forms to substantiate the right to exemption from such
withholding tax.
6.3 Covenants of Note Holders
Each Note Holder (including Subordination Agent) as to itself only covenants and agrees with
Owner and Indenture Trustee as follows:
6.3.1 Withholding Taxes
Such Note Holder (if it is a Non-U.S. Person) agrees to indemnify (on an after-tax basis) and
hold harmless Owner and Indenture Trustee against any United States withholding taxes (and related
interest, penalties and additions to tax) as a result of the inaccuracy or invalidity of any
certificate or form provided by such Note Holder to Indenture Trustee in connection with such
withholding taxes. Any amount payable hereunder shall be paid within 30 days after receipt by a
Note Holder of a written demand therefor.
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6.3.2 Transfer; Compliance
(a) Such Note Holder will (i) not transfer any Equipment Note or interest therein in violation
of the Securities Act or applicable state or foreign securities Law;
provided
, that the
foregoing provisions of this section shall not be deemed to impose on such Note Holder any
responsibility with respect to any such offer, sale or solicitation by any other party hereto, and
(ii) perform and comply with the obligations specified to be imposed on it (as a Note Holder) under
each of the Trust Indenture and the form of Equipment Note set forth in the Trust Indenture.
(b) Except for the transfer of the interests of each Applicable Pass Through Trustee in the
Equipment Notes to the trustee of the Related Trust (as defined in each Applicable Pass Through
Trust Agreement) in accordance with the related Applicable Pass Through Trust Agreement, each Note
Holder will not sell, assign, convey, exchange or otherwise transfer any Equipment Note or any
interest in, or represented by, any Equipment Note (it being understood that this provision is not
applicable to the Pass Through Certificates) unless the proposed transferee thereof first provides
Owner with both of the following:
(i) a written representation and covenant that either (a) no portion of the funds it
uses to purchase, acquire and hold such Equipment Note or interest directly or indirectly
constitutes, or may be deemed under the Code or ERISA or any rulings, regulations or court
decisions thereunder to constitute, the assets of any Plan or (b) the transfer, and
subsequent holding, of such Equipment Note or interest shall not involve or give rise to a
transaction that constitutes a prohibited transaction within the meaning of Section 406 of
ERISA or Section 4975(c)(1) of the Code involving Owner, a Pass Through Trustee, the
Subordination Agent or the proposed transferee (other than a transaction that is exempted
from the prohibitions of such sections by applicable provisions of ERISA or the Code or
administrative exemptions or regulations issued thereunder); and
(ii) a written covenant that it will not transfer any Equipment Note or any interest
in, or represented by, any Equipment Note unless the subsequent transferee also makes the
representation described in clause (i) above and agrees to comply with this clause (ii).
6.4 Agreements
6.4.1 Quiet Enjoyment
Each Applicable Pass Through Trustee, Subordination Agent, each Note Holder and Indenture
Trustee each agrees as to itself with Owner that, so long as no Event of Default shall have
occurred and be continuing, such Person shall not (and shall not permit any Affiliate or other
Person claiming by, through or under it to) interfere with Owners rights in accordance with the
Indenture to the quiet enjoyment, possession and use of the Aircraft.
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6.4.2 Consents
Each Pass Through Trustee, Subordination Agent and Indenture Trustee each covenants and
agrees, for the benefit of Owner, that it shall not unreasonably withhold its consent to any
consent or approval requested of it under the terms of any of the Operative Agreements which by its
terms is not to be unreasonably withheld.
6.4.3 Insurance
Each Pass Through Trustee, Subordination Agent, Indenture Trustee and each Note Holder each
agrees not to obtain or maintain insurance for its own account as permitted by Section 4.06 of the
Trust Indenture if such insurance would limit or otherwise adversely affect the coverage of any
insurance required to be obtained or maintained by Owner pursuant to Section 4.06 of the Trust
Indenture.
6.4.4 Extent of Interest of Note Holders
A Note Holder shall not, as such, have any further interest in, or other right with respect
to, the Collateral when and if the principal and Make-Whole Amount, if any, of and interest on the
Equipment Note held by such Holder, and all other sums, then due and payable to such Holder
hereunder and under any other Operative Agreement, shall have been paid in full. The preceding
sentence shall not limit the rights of the Related Note Holders with respect to Related Secured
Obligations under the Trust Indenture,
provided
that a Related Note Holder shall not, as
such, have any further interest in, or other right with respect to, the Collateral when and if the
Related Secured Obligations attributable to the Related Equipment Note held by such Holder shall
have been paid in full.
6.4.5 Foreign Registration
Each Note Holder and Indenture Trustee hereby agree, for the benefit of Owner but subject to
the provisions of Section 4.02(b) of the Trust Indenture:
(a) that Owner shall be entitled to register the Aircraft or cause the Aircraft to be
registered in a country other than the United States subject to compliance with the following:
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(i)
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each of the following requirements is satisfied:
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(A)
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no Special Default or Event of Default shall have occurred and
be continuing at the time of such registration;
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(B)
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such proposed change of registration is made in connection with
a Permitted Lease to a Permitted Air Carrier; and
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(C)
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such country is a country with which the United States then
maintains normal diplomatic relations or, if such country is Taiwan, the United
States then maintains diplomatic relations at least as good as those in effect
on the Closing Date; and
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(ii) the Indenture Trustee shall have received an opinion of counsel (subject to
customary exceptions) reasonably satisfactory to the Indenture Trustee addressed to
Indenture Trustee to the effect that:
(A) such country would recognize the Owners ownership interest in the
Aircraft;
(B) after giving effect to such change in registration, the Lien of the Trust
Indenture on the Owners right, title and interest in and to the Aircraft shall
continue as a valid and duly perfected first priority security interest and
International 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);
(C) unless Owner or the Permitted Air Carrier shall have agreed to provide
insurance covering the risk of requisition of use of the Aircraft by the government
of such country (so long as the Aircraft is registered under the laws of such
country), the laws of such country require fair compensation by the government of
such country payable in currency freely convertible into Dollars and freely
removable from such country (without license or permit, unless Owner prior to such
proposed reregistration has obtained such license or permit) for the taking or
requisition by such government of such use; and
(D) 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 of the Indenture Trustee), for the Indenture Trustee to qualify to do
business in such jurisdiction as a result of such reregistration in order to
exercise any rights or remedies with respect to the Aircraft.
(b) In addition, as a condition precedent to any change in registration Owner shall have given
to Indenture Trustee assurances reasonably satisfactory to Indenture Trustee:
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(i)
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to the effect that the provisions of Section 4.06 of the Trust
Indenture have been complied with after giving effect to such change of
registration;
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(ii)
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of the payment by Owner of all reasonable out-of-pocket
expenses of each Note Holder and Indenture Trustee in connection with such
change of registry, including, without limitation (1) the reasonable fees and
disbursements of counsel to Indenture Trustee, (2) any filing or recording
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fees, Taxes or similar payments incurred in connection with the change of
registration of the Aircraft and the creation and perfection of the
security interest therein in favor of Indenture Trustee for the benefit of
Note Holders, and (3) all costs and expenses incurred in connection with
any filings necessary to continue in the United States the perfection of
the security interest in the Aircraft in favor of Indenture Trustee for the
benefit of Note Holders; and
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(iii)
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to the effect that the tax and other indemnities in favor of
each person named as an indemnitee under any other Operative Agreement afford
each such person substantially the same protection as provided prior to such
change of registration (or Owner shall have agreed upon additional indemnities
that, together with such original indemnities, in the reasonable judgment of
Indenture Trustee, afford such protection).
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6.4.6 Interest in Certain Engines
Each Note Holder and Indenture Trustee agree, for the benefit of each of the lessor,
conditional seller, mortgagee or secured party of any airframe or engine leased to, or purchased
by, Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other
security agreement that it will not acquire or claim, as against such lessor, conditional seller,
mortgagee or secured party, any right, title or interest in any engine as the result of such engine
being installed on the Airframe at any time while such engine is subject to such lease, conditional
sale, trust indenture or other security agreement and owned by such lessor or conditional seller or
subject to a trust indenture or security interest in favor of such mortgagee or secured party.
SECTION 7. CONFIDENTIALITY
Owner, Note Holders and Indenture Trustee shall keep the Participation Agreement and Annex B
to the Trust Indenture confidential and shall not disclose, or cause to be disclosed, the same to
any Person, except (A) to prospective and permitted transferees of Owners, a Note Holders, the
Liquidity Providers, Indenture Trustees or other Indenture Indemnitees interest or their
respective counsel or special counsel, independent insurance brokers, auditors, or other agents who
agree to hold such information confidential, (B) to Owners, a Note Holders, the Liquidity
Providers, a Pass Through Trustees, Indenture Trustees or other Indenture Indemnitees counsel
or special counsel, independent insurance brokers, auditors, or other agents, Affiliates or
investors who agree to hold such information confidential, (C) as may be required by any statute,
court or administrative order or decree, legal process or governmental ruling or regulation,
including those of any applicable insurance regulatory bodies (including, without limitation, the
National Association of Insurance Commissioners), federal or state banking examiners, Internal
Revenue Service auditors or any stock exchange, (D) with respect to a Note Holder or any Pass
Through Trustee, to a nationally recognized rating agency for the purpose of obtaining a rating on
the Equipment Notes or the Pass Through Certificates or to support an NAIC rating for the Equipment
Notes or (E) such other Persons as are reasonably deemed necessary by the disclosing party in order
to protect the interests of such party or for the purposes of enforcing such documents by such
party;
provided
, that any and all disclosures permitted by
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19
clauses (C), (D), or (E) above shall be made only to the extent necessary to meet the specific
requirements or needs of the Persons making such disclosures.
SECTION 8. INDEMNIFICATION AND EXPENSES
8.1 General Indemnity
8.1.1 Indemnity
Whether or not any of the transactions contemplated hereby are consummated, Owner shall
indemnify, protect, defend and hold harmless each Indemnitee from, against and in respect of, and
shall pay on a net after-tax basis, any and all Expenses of any kind or nature whatsoever that may
be imposed on, incurred by or asserted against any Indemnitee, relating to, resulting from, or
arising out of or in connection with, any one or more of the following:
(a) The Operative Agreements, the Pass Through Agreements, or the enforcement of any of the
terms of any of the Operative Agreements or the Pass Through Agreements;
(b) The Aircraft, the Airframe, any Engine or any Part, including, without limitation, with
respect thereto, (i) the manufacture, design, purchase, acceptance, nonacceptance or rejection,
ownership, registration, reregistration, deregistration, delivery, nondelivery, lease, sublease,
assignment, possession, use or non-use, operation, maintenance, testing, repair, overhaul,
condition, alteration, modification, addition, improvement, storage, airworthiness, replacement,
repair, sale, substitution, return, abandonment, redelivery or other disposition of the Aircraft,
any Engine or any Part, (ii) any claim or penalty arising out of violations of applicable Laws by
Owner (or any Permitted Lessee), (iii) tort liability, whether or not arising out of the negligence
of any Indemnitee (whether active, passive or imputed), (iv) death or property damage of
passengers, shippers or others, (v) environmental control, noise or pollution and (vi) any Liens in
respect of the Aircraft, any Engine or any Part;
(c) The offer, sale, or delivery of any Equipment Notes, Pass Through Certificates or any
interest therein or represented thereby; and
(d) Any breach of or failure to perform or observe, or any other noncompliance with, any
covenant or agreement or other obligation to be performed by Owner under any Operative Agreement to
which it is party or any Pass Through Agreement or the falsity of any representation or warranty of
Owner in any Operative Agreement to which it is party or any Pass Through Agreement.
8.1.2 Exceptions
Notwithstanding anything contained in Section 8.1.1, Owner shall not be required to indemnify,
protect, defend and hold harmless any Indemnitee pursuant to Section 8.1.1 in respect of any
Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax benefit, whether or not Owner is required to indemnify
therefor pursuant to Section 8.3;
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(b) Except to the extent attributable to acts or events occurring prior thereto, acts or
events (other than acts or events related to the performance by Owner of its obligations pursuant
to the terms of the Operative Agreements) that occur after the Trust Indenture is required to be
terminated in accordance with Section 11.01 of the Trust Indenture;
provided
, that nothing
in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under
applicable Law by reason of an Event of Default or for damages from Owner for breach of Owners
covenants contained in the Operative Agreements or to release Owner from any of its obligations
under the Operative Agreements that expressly provide for performance after termination of the
Trust Indenture;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of
such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and
expenses incurred as a result of any such Transfer pursuant to the exercise of remedies under any
Operative Agreement;
(d) To the extent attributable to the gross negligence or willful misconduct of such
Indemnitee or any related Indemnitee (as defined below) (other than gross negligence or willful
misconduct imputed to such person by reason of its interest in the Aircraft or any Operative
Agreement);
(e) To the extent attributable to the incorrectness or breach of any representation or
warranty of such Indemnitee or any related Indemnitee contained in or made pursuant to any
Operative Agreement or any Pass Through Agreement;
(f) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to
perform or observe any agreement, covenant or condition on its part to be performed or observed in
any Operative Agreement or any Pass Through Agreement;
(g) To the extent attributable to the offer or sale by such Indemnitee or any related
Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or
any similar interest, in violation of the Securities Act or other applicable federal, state or
foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(h) (i) With respect to any Indemnitee (other than Indenture Trustee), to the extent
attributable to the failure of the Indenture Trustee to distribute funds received and distributable
by it in accordance with the Trust Indenture, (ii) with respect to any Indemnitee (other than the
Subordination Agent), to the extent attributable to the failure of the Subordination Agent to
distribute funds received and distributable by it in accordance with the Intercreditor Agreement,
(iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent
attributable to the failure of a Pass Through Trustee to distribute funds received and
distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any
Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow
Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with
respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure
of the Paying Agent to distribute funds received and distributable by it in accordance with any
Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds
payable by it in accordance with any Deposit Agreement, (vii) with respect to Indenture Trustee, to
the
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21
extent attributable to the negligence or willful misconduct of Indenture Trustee in the
distribution of funds received and distributable by it in accordance with the Trust Indenture,
(viii) with respect to the Subordination Agent, to the extent attributable to the negligence or
willful misconduct of the Subordination Agent in the distribution of funds received and
distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass
Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass
Through Trustee in the distribution of funds received and distributable by it in accordance with
the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable
to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and
payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to
the extent attributable to the negligence or willful misconduct of the Paying Agent in the
distribution of funds received and distributable by it in accordance with any Escrow Agreement;
(i) Other than during the continuation of an Event of Default, to the extent attributable to
the authorization or giving or withholding of any future amendments, supplements, waivers or
consents with respect to any Operative Agreement or Pass Through Agreement other than such as have
been requested by Owner or as are required by or made pursuant to the terms of the Operative
Agreements or Pass Through Agreements (unless such requirement results from the actions of an
Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through
Agreements);
(j) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or
such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(k) To the extent that it is an ordinary and usual operating or overhead expense;
(l) For any Lien attributable to such Indemnitee or any related Indemnitee;
(m) If another provision of an Operative Agreement or a Pass Through Agreement specifies the
extent of Owners responsibility or obligation with respect to such Expense, to the extent arising
from other than failure of Owner to comply with such specified responsibility or obligation; or
(n) To the extent incurred by or asserted against an Indemnitee as a result of any prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code.
For purposes of this Section 8.1, a Person shall be considered a related Indemnitee with
respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director,
officer, employee, agent, or servant of such Indemnitee or any such Affiliate or a successor or
permitted assignee of any of the foregoing.
8.1.3 Separate Agreement
This Agreement constitutes a separate agreement with respect to each Indemnitee and is
enforceable directly by each such Indemnitee.
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8.1.4 Notice
If a claim for any Expense that an Indemnitee shall be indemnified against under this Section
8.1 is made, such Indemnitee shall give prompt written notice thereof to Owner. Notwithstanding
the foregoing, the failure of any Indemnitee to notify Owner as provided in this Section 8.1.4, or
in Section 8.1.5, shall not release Owner from any of its obligations to indemnify such Indemnitee
hereunder, except to the extent that such failure results in an additional Expense to Owner (in
which event Owner shall not be responsible for such additional expense) or materially impairs
Owners ability to contest such claim.
8.1.5 Notice of Proceedings; Defense of Claims; Limitations
(a) In case any action, suit or proceeding shall be brought against any Indemnitee for which
Owner is responsible under this Section 8.1, such Indemnitee shall notify Owner of the commencement
thereof and Owner may, at its expense, participate in and to the extent that it shall wish (subject
to the provisions of the following paragraph), assume and control the defense thereof and, subject
to Section 8.1.5(c), settle or compromise the same.
(b) Owner or its insurer(s) shall have the right, at its or their expense, to investigate or,
if Owner or its insurer(s) shall agree not to dispute liability to the Indemnitee giving notice of
such action, suit or proceeding under this Section 8.1.5 for indemnification hereunder or under any
insurance policies pursuant to which coverage is sought, control the defense of, any action, suit
or proceeding, relating to any Expense for which indemnification is sought pursuant to this Section
8.1, and each Indemnitee shall cooperate with Owner or its insurer(s) with respect thereto;
provided
, that Owner shall not be entitled to control the defense of any such action, suit,
proceeding or compromise any such Expense during the continuance of any Event of Default. In
connection with any such action, suit or proceeding being controlled by Owner, such Indemnitee
shall have the right to participate therein, at its sole cost and expense, with counsel reasonably
satisfactory to Owner;
provided
, that such Indemnitees participation does not, in the
reasonable opinion of the independent counsel appointed by the Owner or its insurers to conduct
such proceedings, interfere with the defense of such case.
(c) In no event shall any Indemnitee 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 8.1.
(d) In the case of any Expense indemnified by the Owner hereunder which is covered by a policy
of insurance maintained by Owner pursuant to Section 4.06 of the Indenture, at Owners expense,
each Indemnitee agrees to cooperate with the insurers in the exercise of their rights to
investigate, defend or compromise such Expense as may be required to retain the benefits of such
insurance with respect to such Expense.
(e) If an Indemnitee is not a party to this Agreement, Owner may require such Indemnitee to
agree in writing to the terms of this Section 8 and Section 12.8 prior to making any payment to
such Indemnitee under this Section 8.
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(f) Nothing contained in this Section 8.1.5 shall be deemed to require an Indemnitee to
contest any Expense or to assume responsibility for or control of any judicial proceeding with
respect thereto.
8.1.6 Information
Owner will provide the relevant Indemnitee with such information not within the control of
such Indemnitee, as is in Owners control or is reasonably available to Owner, which such
Indemnitee may reasonably request and will otherwise cooperate with such Indemnitee so as to enable
such Indemnitee to fulfill its obligations under Section 8.1.5. The Indemnitee shall supply Owner
with such information not within the control of Owner, as is in such Indemnitees control or is
reasonably available to such Indemnitee, which Owner may reasonably request to control or
participate in any proceeding to the extent permitted by Section 8.1.5.
8.1.7 Effect of Other Indemnities; Subrogation; Further Assurances
Upon the payment in full by Owner of any indemnity provided for under this Agreement, Owner,
without any further action and to the full extent permitted by Law, will be subrogated to all
rights and remedies of the person indemnified (other than in connection with any indemnity claim
such Indemnitee may have under Section 6.03 or 8.01 of the Trust Indenture) in respect of the
matter as to which such indemnity was paid. Each Indemnitee will give such further assurances or
agreements and cooperate with Owner to permit Owner to pursue such claims, if any, to the extent
reasonably requested by Owner and at Owners expense.
8.1.8 Refunds
If an Indemnitee receives any refund, in whole or in part, with respect to any Expense paid by
Owner hereunder, it will promptly pay the amount refunded (but not an amount in excess of the
amount Owner or any of its insurers has paid in respect of such Expense) over to Owner unless an
Event of Default shall have occurred and be continuing, in which case such amounts shall be paid
over to Indenture Trustee to hold as security for Owners obligations under the Operative
Agreements or, if requested by Owner, applied to satisfy such obligations.
8.2 Expenses
8.2.1 Invoices and Payment
The Indenture Trustee, the Applicable Pass Through Trustees and the Subordination Agent shall
promptly submit to Owner for its prompt approval (which shall not be unreasonably withheld) copies
of invoices in reasonable detail of the Transaction Expenses for which it is responsible for
providing information as they are received (but in no event later than the 90th day after the
Closing Date). If so submitted and approved, the Owner agrees promptly, but in any event no later
than the 105th day after the Closing Date, to pay Transaction Expenses.
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8.2.2 Payment of Other Expenses
Owner shall pay (i) the ongoing fees and expenses of Indenture Trustee, and (ii) all
reasonable out-of-pocket costs and expenses (including the reasonable fees and disbursements of
counsel) incurred by Indenture Trustee or any Note Holder attributable to any waiver, amendment or
modification of any Operative Agreement to the extent requested by Owner.
8.3 General Tax Indemnity
8.3.1 General
Except as provided in Section 8.3.2, Owner agrees that each payment paid by Owner under the
Equipment Notes, and any other payment or indemnity paid by Owner to a Tax Indemnitee under any
Operative Agreement, shall be free of all withholdings or deductions with respect to Taxes of any
nature (other than U.S. federal, state or local withholding taxes on, based on or measured by gross
or net income), and in the event that Owner shall be required by applicable law to make any such
withholding or deduction for any such payment (x) Owner shall make all such withholdings or
deductions, (y) the amount payable by Owner shall be increased so that after making all required
withholdings or deductions such Tax Indemnitee receives the same amount that it would have received
had no such withholdings or deductions been made, and (z) Owner shall pay the full amount withheld
or deducted to the relevant Taxing Authority in accordance with applicable law. Except as provided
in Section 8.3.2 and whether or not any of the transactions contemplated hereby are consummated,
Owner shall pay, indemnify, protect, defend and hold each Tax Indemnitee harmless from all Taxes
imposed by any Taxing Authority that may from time to time be imposed on or asserted against any
Tax Indemnitee or the Aircraft, the Airframe, any Engine or any Part or any interest in any of the
foregoing (whether or not indemnified against by any other Person), upon or with respect to the
Operative Agreements or the transactions or payments contemplated thereby, including but not
limited to any Tax imposed upon or with respect to (x) the Aircraft, the Airframe, any Engine, any
Part, any Operative Agreement (including without limitation any Equipment Notes) or any data or any
other thing delivered or to be delivered under an Operative Agreement, (y) the purchase,
manufacture, acceptance, rejection, sale, transfer of title, return, ownership, mortgaging,
delivery, transport, charter, rental, lease, re-lease, sublease, assignment, possession,
repossession, presence, use, condition, storage, preparation, maintenance, modification,
alteration, improvement, operation, registration, transfer or change of registration,
reregistration, repair, replacement, overhaul, location, control, the imposition of any Lien,
financing, refinancing requested by the Owner, abandonment or other disposition of the Aircraft,
the Airframe, any Engine, any Part, any data or any other thing delivered or to be delivered under
an Operative Agreement or (z) interest, fees or any other income, proceeds, receipts or earnings,
whether actual or deemed, arising upon, in connection with, or in respect of, any of the Operative
Agreements (including the property or income or other proceeds with respect to property held as
part of the Collateral) or the transactions contemplated thereby.
8.3.2 Certain Exceptions
The provisions of Section 8.3.1 shall not apply to, and Owner shall have no liability
hereunder for, Taxes:
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(a) imposed on a Tax Indemnitee by the federal government of the United States or any Taxing
Authority or governmental subdivision of the United States or therein (including any state or local
Taxing Authority) (i) on, based on, or measured by, gross or net income or gross or net receipts,
including capital gains taxes, excess profits taxes, minimum taxes from tax preferences,
alternative minimum taxes, branch profits taxes, accumulated earnings taxes, personal holding
company taxes, succession taxes and estate taxes, and any withholding taxes on, based on or
measured by gross or net income or receipts or (ii) on, or with respect to, or measured by, capital
or net worth or in the nature of a franchise tax or a tax for the privilege of doing business
(other than, in the case of clause (i) or (ii), sales, use, license or property Taxes);
(b) imposed on a Tax Indemnitee by any Taxing Authority or governmental subdivision thereof or
therein outside of the United States (including any Taxing Authority in or of a territory,
possession or commonwealth of the United States) (i) on, based on, or measured by, gross or net
income or gross or net receipts, including capital gains taxes, excess profits taxes, minimum taxes
from tax preferences, alternative minimum taxes, branch profits taxes, accumulated earnings taxes,
personal holding company taxes, succession taxes and estate taxes, and any withholding taxes on,
based on or measured by gross or net income or receipts or (ii) on, or with respect to, or measured
by, capital or net worth or in the nature of a franchise tax or a tax for the privilege of doing
business (other than, in the case of clause (i) or (ii), (A) sales, use, license or property Taxes,
or (B) any Taxes imposed by any Taxing Authority (other than a Taxing Authority within whose
jurisdiction such Tax Indemnitee is incorporated or organized or maintains its principal place of
business) if such Tax Indemnitee would not have been subject to Taxes of such type by such
jurisdiction but for (I) the location, use or operation of the Aircraft, the Airframe, any Engine
or any Part thereof by an Owner Person within the jurisdiction of the Taxing Authority imposing
such Tax, or (II) the activities of any Owner Person in such jurisdiction, including, but not
limited to, use of any other aircraft by Owner in such jurisdiction, (III) the status of any Owner
Person as a foreign entity or as an entity owned in whole or in part by foreign persons, (IV) Owner
having made (or having been deemed to have made) payments to such Tax Indemnitee from the relevant
jurisdiction or (V) in the case of the Pass Through Trustees, the Note Holders or any related Tax
Indemnitee, the Owner being incorporated or organized or maintaining a place of business or
conducting activities in such jurisdiction);
(c) on, or with respect to, or measured by, any trustee fees, commissions or compensation
received by the Pass Through Trustee, Subordination Agent or Indenture Trustee;
(d) that are being contested as provided in Section 8.3.4 hereof;
(e) imposed on any Tax Indemnitee to the extent that such Taxes result from the gross
negligence or willful misconduct of such Tax Indemnitee or any Affiliate thereof;
(f) imposed on or with respect to a Tax Indemnitee (including the transferee in those cases in
which the Tax on transfer is imposed on, or is collected from, the transferee) as a result of a
transfer or other disposition (including a deemed transfer or disposition) by such Tax Indemnitee
or a related Tax Indemnitee of any interest in the Aircraft, the Airframe, any Engine or any Part,
any interest arising under the Operative Agreements or any Equipment Note or as a result of a
transfer or disposition (including a deemed transfer or disposition) of any interest in a Tax
Indemnitee (other than (A) a substitution or replacement of the Aircraft, the Airframe, any
PARTICIPATION AGREEMENT (2010-1)
26
Engine or any Part by an Owner Person that is treated for Tax purposes as a transfer or
disposition, or (B) a transfer pursuant to an exercise of remedies upon an Event of Default that
shall have occurred and have been continuing);
(g) Taxes in excess of those that would have been imposed had there not been a transfer or
other disposition by or to such Tax Indemnitee or a related Tax Indemnitee described in paragraph
(f) above;
(h) consisting of any interest, penalties or additions to tax imposed on a Tax Indemnitee as a
result of (in whole or in part) failure of such Tax Indemnitee or a related Tax Indemnitee to file
any return properly and timely, unless such failure shall be caused by the failure of Owner to
fulfill its obligations, if any, under Section 8.3.6 with respect to such return;
(i) resulting from, or that would not have been imposed but for, any Liens arising as a result
of claims against, or acts or omissions of, or otherwise attributable to such Tax Indemnitee or a
related Tax Indemnitee that the Owner is not obligated to discharge under the Operative Agreements;
(j) imposed on any Tax Indemnitee as a result of the breach by such Tax Indemnitee or a
related Tax Indemnitee of any covenant of such Tax Indemnitee or any Affiliate thereof contained in
any Operative Agreement or the inaccuracy of any representation or warranty by such Tax Indemnitee
or any Affiliate thereof in any Operative Agreement;
(k) in the nature of an intangible or similar Tax (i) upon or with respect to the value or
principal amount of the interest of any Note Holder in any Equipment Note or the loan evidenced
thereby but only if such Taxes are in the nature of franchise Taxes or result from the Tax
Indemnitee doing business in the taxing jurisdiction and are imposed because of the place of
incorporation or the activities unrelated to the transactions contemplated by the Operative
Agreements in the taxing jurisdiction of such Tax Indemnitee;
(l) imposed on a Tax Indemnitee by a Taxing Authority of a jurisdiction outside the United
States to the extent that such Taxes would not have been imposed but for a connection between the
Tax Indemnitee or a related Tax Indemnitee and such jurisdiction imposing such Tax unrelated to the
transactions contemplated by the Operative Agreements; or
(m) Taxes relating to ERISA or Section 4975 of the Code.
For purposes hereof, a Tax Indemnitee and any other Tax Indemnitees that are successors,
assigns, agents, servants or Affiliates of such Tax Indemnitee shall be related Tax Indemnitees.
8.3.3 Payment
(a) Owners indemnity obligation to a Tax Indemnitee under this Section 8.3 shall equal the
amount which, after taking into account any Tax imposed upon the receipt or accrual of the amounts
payable under this Section 8.3 and any tax benefits actually recognized by such Tax Indemnitee as a
result of the indemnifiable Tax (including, without limitation, any benefits recognized as a result
of an indemnifiable Tax being utilized by such Tax Indemnitee as a credit
PARTICIPATION AGREEMENT (2010-1)
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against Taxes not indemnifiable under this Section 8.3), shall equal the amount of the Tax
indemnifiable under this Section 8.3.
(b) At Owners request, the computation of the amount of any indemnity payment owed by Owner
or any amount owed by a Tax Indemnitee to Owner pursuant to this Section 8.3 shall be verified and
certified by an independent public accounting firm selected by such Tax Indemnitee and reasonably
satisfactory to Owner. Such verification shall be binding. The costs of such verification
(including the fee of such public accounting firm) shall be borne by Owner unless such verification
shall result in an adjustment in Owners favor of 5% or more of the net present value of the
payment as computed by such Tax Indemnitee, in which case the costs shall be paid by such Tax
Indemnitee.
(c) Each Tax Indemnitee shall provide Owner with such certifications, information and
documentation as shall be in such Tax Indemnitees possession and as shall be reasonably requested
by Owner to minimize any indemnity payment pursuant to this Section 8.3; provided, that
notwithstanding anything to the contrary contained herein, no Tax Indemnitee shall be required to
provide Owner with any Tax returns.
(d) Each Tax Indemnitee shall promptly forward to Owner any written notice, bill or advice
received by it from any Taxing Authority concerning any Tax for which it seeks indemnification
under this Section 8.3. Owner shall pay any amount for which it is liable pursuant to this Section
8.3 directly to the appropriate Taxing Authority if legally permissible or upon demand of a Tax
Indemnitee, to such Tax Indemnitee within 30 days of such demand (or, if a contest occurs in
accordance with Section 8.3.4, within 30 days after a Final Determination (as defined below)), but
in no event more than one Business Day prior to the date the Tax to which such amount payable
hereunder relates is due. If requested by a Tax Indemnitee in writing, Owner shall furnish to the
appropriate Tax Indemnitee the original or a certified copy of a receipt for Owners payment of any
Tax paid by Owner or such other evidence of payment of such Tax as is acceptable to such Tax
Indemnitee. Owner shall also furnish promptly upon written request such data as any Tax Indemnitee
may reasonably require to enable such Tax Indemnitee to comply with the requirements of any taxing
jurisdiction unless such data is not reasonably available to Owner or, unless such data is
specifically requested by a Taxing Authority, is not customarily furnished by domestic air carriers
under similar circumstances. For purposes of this Section 8.3, a Final Determination shall mean
(i) a decision, judgment, decree or other order by any court of competent jurisdiction that occurs
pursuant to the provisions of Section 8.3.4, which decision, judgment, decree or other order has
become final and unappealable, (ii) a closing agreement or settlement agreement entered into in
accordance with Section 8.3.4 that has become binding and is not subject to further review or
appeal (absent fraud, misrepresentation, etc.), or (iii) the termination of administrative
proceedings and the expiration of the time for instituting a claim in a court proceeding.
(e) If any Tax Indemnitee shall actually realize a tax savings by reason of any Tax paid or
indemnified by Owner pursuant to this Section 8.3 (whether such tax savings shall be by means of a
foreign tax credit, depreciation or cost recovery deduction or otherwise) and such savings is not
otherwise taken into account in computing such payment or indemnity such Tax 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
PARTICIPATION AGREEMENT (2010-1)
28
to this sentence, when, as, if, and to the extent, realized or (ii) the amount of all payments
pursuant to this Section 8.3 by Owner to such Tax Indemnitee (less any payments previously made by
such Tax Indemnitee to Owner pursuant to this Section 8.3.3 (e)) (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 Tax
Indemnitee pursuant to this Section 8.3); provided, that such Tax Indemnitee shall not be required
to make any payment pursuant to this sentence so long as a Lease Event of Default of a monetary
nature has occurred and is continuing. If a tax benefit is later disallowed or denied, the
disallowance or denial shall be treated as a Tax indemnifiable under Section 8.3.1 without regard
to the provisions of Section 8.3.2 (other than Section 8.3.2 (f)). Each such Tax Indemnitee shall
in good faith use reasonable efforts in filing its tax returns and in dealing with Taxing
Authorities to seek and claim any such tax benefit.
8.3.4 Contest
(a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner
could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination
that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee
shall promptly give Owner notice in writing of such claim (provided, that failure to so notify
Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify
effectively forecloses Owners rights to require a contest of such claim) and shall take no action
with respect to such claim without the prior written consent of Owner for 30 days following the
receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax
Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such
30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax
Indemnitee shall take no action for as long as it is legally able to do so (it being understood
that a Tax Indemnitee shall be entitled to pay the Tax claimed and sue for a refund prior to the
end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial
penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not
materially prejudice the right to contest or (B) the failure to so pay would result in criminal
penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so
paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In
addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such
information confidential other than to the extent necessary in order to contest the claim) furnish
Owner with copies of any requests for information from any Taxing Authority relating to such Taxes
with respect to which Owner may be required to indemnify hereunder. If requested by Owner in
writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense
of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys
and accountants fees and disbursements), in good faith contest (or, if permitted by applicable
law, allow Owner to contest) through appropriate administrative and judicial proceedings the
validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying
the same except under protest if protest is necessary and proper or (III) if the payment is made,
using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or
judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse
administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue
any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to
separate the contested issue or issues from other
PARTICIPATION AGREEMENT (2010-1)
29
issues arising in the same administrative or judicial proceeding that are unrelated to the
transactions contemplated by the Operative Agreements without, in the good faith judgment of such
Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to
control the conduct of any such proceeding and shall provide to Owner (at Owners cost and expense)
with such information or data that is in such Tax Indemnitees control or possession that is
reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax
Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of
contesting such claim and shall keep Owner reasonably informed regarding the progress of such
contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section
8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination
with respect to any claim) or settle or compromise any claim without the prior written consent of
the Owner (except as contemplated by Section 8.3.4(b) or (c)).
(b) Notwithstanding the foregoing, in no event shall a Tax Indemnitee be required to pursue
any contest (or to permit Owner to pursue any contest) unless (i) Owner shall have agreed to pay
such Tax Indemnitee on demand all reasonable costs and expenses incurred by such Tax Indemnitee in
connection with contesting such Taxes, including, without limitation, all reasonable out of pocket
costs and expenses and reasonable attorneys and accountants fees and disbursements, (ii) if such
contest shall involve the payment of the claim, Owner shall advance the amount thereof (to the
extent indemnified hereunder) plus interest, penalties and additions to tax with respect thereto
that are required to be paid prior to the commencement of such contest on an interest-free
after-Tax basis to such Tax Indemnitee (and such Tax Indemnitee shall promptly pay to the Owner any
net realized tax benefits resulting from such advance including any tax benefits resulting from
making such payment), (iii) such Tax Indemnitee shall have reasonably determined that the action to
be taken will not result in any material risk of forfeiture, sale or loss of the Aircraft (unless
Owner shall have made provisions to protect the interests of any such Tax Indemnitee in a manner
reasonably satisfactory to such Tax Indemnitee) (provided, that such Tax Indemnitee agrees to
notify Owner in writing promptly after it becomes aware of any such risk), (iv) no Lease Event of
Default shall have occurred and be continuing unless Owner has provided security for its
obligations hereunder by advancing to such Tax Indemnitee before proceeding or continuing with such
contest, the amount of the Tax being contested, plus any interest and penalties and an amount
estimated in good faith by such Tax Indemnitee for expenses, and (v) prior to commencing any
judicial action controlled by Owner, Owner shall have acknowledged its liability for such claim
hereunder, provided that Owner shall not be bound by its acknowledgment if the Final Determination
articulates conclusions of law and fact that demonstrate that Owner has no liability for the
contested amounts hereunder. Notwithstanding the foregoing, if any Tax Indemnitee shall release,
waive, compromise or settle any claim which may be indemnifiable by Owner pursuant to this Section
8.3 without the written permission of Owner, Owners obligation to indemnify such Tax Indemnitee
with respect to such claim (and all directly related claims and claims based on the outcome of such
claim) shall terminate, subject to Section 8.3.4(c), and subject to Section 8.3.4(c), such Tax
Indemnitee shall repay to Owner any amount previously paid or advanced to such Tax Indemnitee with
respect to such claim, plus interest at the rate that would have been payable by the relevant
Taxing Authority with respect to a refund of such Tax.
PARTICIPATION AGREEMENT (2010-1)
30
(c) Notwithstanding anything contained in this Section 8.3, a Tax Indemnitee will not be
required to contest the imposition of any Tax and shall be permitted to settle or compromise any
claim without Owners consent if such Tax Indemnitee (i) shall waive its right to indemnity under
this Section 8.3 with respect to such Tax (and any directly related claim and any claim the outcome
of which is determined based upon the outcome of such claim), (ii) shall pay to Owner any amount
previously paid or advanced by Owner pursuant to this Section 8.3 with respect to such Tax, plus
interest at the rate that would have been payable by the relevant Taxing Authority with respect to
a refund of such Tax, and (iii) shall agree to discuss with Owner the views or positions of any
relevant Taxing Authority with respect to the imposition of such Tax.
8.3.5 Refund
If any Tax Indemnitee shall receive a refund of, or be entitled to a credit against other
liability for, all or any part of any Taxes paid, reimbursed or advanced by Owner, such Tax
Indemnitee shall pay to Owner within 30 days of such receipt an amount equal to the lesser of (a)
the amount of such refund or credit plus any net tax benefit (taking into account any Taxes
incurred by such Tax Indemnitee by reason of the receipt of such refund or realization of such
credit) actually realized by such Tax Indemnitee as a result of any payment by such Tax Indemnitee
made pursuant to this sentence (including this clause (a)) and (b) such tax payment, reimbursement
or advance by Owner to such Tax Indemnitee theretofore made pursuant to this Section 8.3 (and the
excess, if any, of the amount described in clause (a) over the amount described in clause (b) shall
be carried forward and applied to reduce pro tanto any subsequent obligation of Owner to make
payments to such Tax Indemnitee pursuant to this Section 8.3). If, in addition to such refund or
credit, such Tax Indemnitee shall receive (or be credited with) an amount representing interest on
the amount of such refund or credit, such Tax Indemnitee shall pay to Owner within 30 days of such
receipt or realization of such credit that proportion of such interest that shall be fairly
attributable to Taxes paid, reimbursed or advanced by Owner prior to the receipt of such refund or
realization of such credit.
8.3.6 Tax Filing
If any report, return or statement is required to be filed with respect to any Tax which is
subject to indemnification under this Section 8.3, Owner shall timely file the same (except for any
such report, return or statement which a Tax Indemnitee has timely notified the Owner in writing
that such Tax Indemnitee intends to file, or for which such Tax Indemnitee is required by law to
file, in its own name); provided, that the relevant Tax Indemnitee shall furnish Owner with any
information in such Tax Indemnitees possession or control that is reasonably necessary to file any
such return, report or statement and is reasonably requested in writing by Owner (it being
understood that the Tax Indemnitee shall not be required to furnish copies of its actual tax
returns, although it may be required to furnish relevant information contained therein). Owner
shall either file such report, return or statement and send a copy of such report, return or
statement to such Tax Indemnitee, or, where Owner is not permitted to file such report, return or
statement, it shall notify such Tax Indemnitee of such requirement and prepare and deliver such
report, return or statement to such Tax Indemnitee in a manner satisfactory to such Tax Indemnitee
within a reasonable time prior to the time such report, return or statement is to be filed.
PARTICIPATION AGREEMENT (2010-1)
31
8.3.7 Forms
Each Tax Indemnitee agrees to furnish from time to time to Owner or Indenture Trustee or to
such other person as Owner or Indenture Trustee may designate, at Owners or Indenture Trustees
request, such duly executed and properly completed forms as may be necessary or appropriate in
order to claim any reduction of or exemption from any withholding or other Tax imposed by any
Taxing Authority, if (x) such reduction or exemption is available to such Tax Indemnitee and (y)
Owner has provided such Tax Indemnitee with any information necessary to complete such form not
otherwise reasonably available to such Tax Indemnitee.
8.3.8 Non-Parties
If a Tax Indemnitee is not a party to this Agreement, Owner may require the Tax Indemnitee to
agree in writing, in a form reasonably acceptable to Owner, to the terms of this Section 8.3 and
Section 15.8 prior to making any payment to such Tax Indemnitee under this Section 8.3.
8.3.9 Subrogation
Upon payment of any Tax by Owner pursuant to this Section 8.3 to or on behalf of a Tax
Indemnitee, Owner, without any further action, shall be subrogated to any claims that such Tax
Indemnitee may have relating thereto. Such Tax Indemnitee shall cooperate with Owner (to the
extent such cooperation does not result in any unreimbursed cost, expense or liability to such Tax
Indemnitee) to permit Owner to pursue such claims.
8.4 Payments
Any payments made pursuant to Section 8.1 or 8.3 shall be due on the 60th day after demand
therefor and shall be made directly to the relevant Indemnitee or Tax Indemnitee or to Owner, in
immediately available funds at such bank or to such account as specified by such Indemnitee or Tax
Indemnitee or Owner, as the case may be, in written directives to the payor, or, if no such
direction shall have been given, by check of the payor payable to the order of, and mailed to, such
Indemnitee or Tax Indemnitee or Owner, as the case may be, by certified mail, postage prepaid, at
its address as set forth in this Agreement.
8.5 Interest
If any amount, payable by Owner, any Indemnitee or any Tax Indemnitee under Section 8.1 or 8.3
is not paid when due, the person obligated to make such payment shall pay on demand, to the extent
permitted by Law, to the person entitled thereto, interest on any such amount for the period from
and including the due date for such amount to but excluding the date the same is paid, at the
Payment Due Rate. Such interest shall be paid in the same manner as the unpaid amount in respect
of which such interest is due.
8.6 Benefit of Indemnities
The obligations of Owner in respect of all indemnities, obligations, adjustments and payments
in Section 8.1 or 8.3 are expressly made for the benefit of, and shall be enforceable by,
PARTICIPATION AGREEMENT (2010-1)
32
the Indemnitee or Tax Indemnitee entitled thereto, notwithstanding any provision of the Trust
Indenture.
SECTION 9. ASSIGNMENT OR TRANSFER OF INTEREST
9.1 Note Holders
Subject to Section 6.3.2 hereof and Section 2.06 of the Trust Indenture, any Note Holder may,
at any time and from time to time, Transfer or grant participations in all or any portion of the
Equipment Notes and/or all or any portion of its beneficial interest in its Equipment Notes to any
person (it being understood that the sale or issuance of Pass Through Certificates by a Pass
Through Trustee shall not be considered a Transfer or participation);
provided
, that any
participant in any such participations shall not have any direct rights under the Operative
Agreements or any Lien on all or any part of the Aircraft or the Collateral and Owner shall not
have any increased liability or obligations as a result of any such participation. In the case of
any such Transfer, the Transferee, by acceptance of Equipment Notes in connection with such
Transfer, shall be deemed to be bound by (i) all of the covenants of Note Holders contained in the
Operative Agreements and (ii) certain terms of the Intercreditor Agreement as specified in such
Equipment Notes and/or Section 2.06 of the Trust Indenture.
9.2 Effect of Transfer
Upon any Transfer in accordance with Section 9.1 (other than any Transfer by any Note Holder,
to the extent it only grants participations in Equipment Notes or in its beneficial interest
therein), Transferee shall be deemed a Note Holder, for all purposes of this Agreement and the
other Operative Agreements, and the transferring Note Holder shall be released from all of its
liabilities and obligations under this Agreement and any other Operative Agreements to the extent
such liabilities and obligations arise after such Transfer and, in each case, to the extent such
liabilities and obligations are assumed by the Transferee;
provided
, that such transferring
Note Holder (and its respective Affiliates, successors, assigns, agents, servants, representatives,
directors and officers) will continue to have the benefit of any rights or indemnities under any
Operative Agreement vested or relating to circumstances, conditions, acts or events prior to such
Transfer.
SECTION 10. SECTION 1110
It is the intention of each of the Owner, the Note Holders (such intention being evidenced by
each of their acceptance of an Equipment Note), and Indenture Trustee that Indenture Trustee shall
be entitled to the benefits of Section 1110 in the event of a case under Chapter 11 of the
Bankruptcy Code in which Owner is a debtor.
SECTION 11. CHANGE OF CITIZENSHIP
11.1 Generally
Without prejudice to the representations, warranties or covenants regarding the status of any
party hereto as a Citizen of the United States, each of Owner, WTC and Indenture Trustee agrees
that it will, immediately upon obtaining knowledge of any facts that would cast doubt
PARTICIPATION AGREEMENT (2010-1)
33
upon its continuing status as a Citizen of the United States and promptly upon public
disclosure of negotiations in respect of any transaction which would or might adversely affect such
status, notify in writing all parties hereto of all relevant matters in connection therewith.
11.2 Indenture Trustee
Upon WTC giving any notice in accordance with Section 11.1, Indenture Trustee shall (if and so
long as such citizenship is necessary under the Act as in effect at such time or, if it is not
necessary, if and so long as Indenture Trustees citizenship could have any adverse effect on
Owner, or any Note Holder), subject to Section 9.02 of the Trust Indenture, resign as Indenture
Trustee promptly upon its ceasing to be such a citizen.
SECTION 12. MISCELLANEOUS
12.1 Amendments
No provision of this Agreement may be amended, supplemented, waived, modified, discharged,
terminated or otherwise varied orally, but only by an instrument in writing that specifically
identifies the provision of this Agreement that it purports to amend, supplement, waive, modify,
discharge, terminate or otherwise vary and is signed by the party against which the enforcement of
the amendment, supplement, waiver, modification, discharge, termination or variance is sought.
Each such amendment, supplement, waiver, modification, discharge, termination or variance shall be
effective only in the specific instance and for the specific purpose for which it is given. No
provision of this Agreement shall be varied or contradicted by oral communication, course of
dealing or performance or other manner not set forth in an agreement, document or instrument in
writing and signed by the party against which enforcement of the same is sought.
12.2 Severability
If any provision hereof shall be held invalid, illegal or unenforceable in any respect in any
jurisdiction, then, to the extent permitted by Law, (a) all other provisions hereof shall remain in
full force and effect in such jurisdiction and (b) such invalidity, illegality or unenforceability
shall not affect the validity, legality or enforceability of such provision in any other
jurisdiction. If, however, any Law pursuant to which such provisions are held invalid, illegal or
unenforceable may be waived, such Law is hereby waived by the parties hereto to the full extent
permitted, to the end that this Agreement shall be deemed to be a valid and binding agreement in
all respects, enforceable in accordance with its terms.
12.3 Survival
The indemnities set forth herein shall survive the delivery or return of the Aircraft, the
Transfer of any interest by any Note Holder of its Equipment Note and the expiration or other
termination of this Agreement or any other Operative Agreement.
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34
12.4 Reproduction of Documents
This Agreement, all schedules and exhibits hereto and all agreements, instruments and
documents relating hereto, including, without limitation, (a) consents, waivers and modifications
that may hereafter be executed and (b) financial statements, certificates and other information
previously or hereafter furnished to any party hereto, may be reproduced by such party by any
photographic, photostatic, microfilm, micro-card, miniature photographic or other similar process,
and such party may destroy any original documents so reproduced. Any such reproduction shall be as
admissible in evidence as the original itself in any judicial or administrative proceeding (whether
or not the original is in existence and whether or not such reproduction was made by such party in
the regular course of business) and any enlargement, facsimile or further reproduction of such
reproduction likewise is admissible in evidence.
12.5 Counterparts
This Agreement and any amendments, waivers, consents or supplements hereto may be executed in
any number of counterparts (or upon separate signature pages bound together into one or more
counterparts), each of which when so executed shall be deemed to be an original, and all of which
counterparts, taken together, shall constitute one and the same instrument.
12.6 No Waiver
No failure on the part of any party hereto to exercise, and no delay by any party hereto in
exercising, any of its respective rights, powers, remedies or privileges under this Agreement or
provided at Law, in equity or otherwise shall impair, prejudice or constitute a waiver of any such
right, power, remedy or privilege or be construed as a waiver of any breach hereof or default
hereunder or as an acquiescence therein nor shall any single or partial exercise of any such right,
power, remedy or privilege preclude any other or further exercise thereof by it or the exercise of
any other right, power, remedy or privilege by it. No notice to or demand on any party hereto in
any case shall, unless otherwise required under this Agreement, entitle such party to any other or
further notice or demand in similar or other circumstances or constitute a waiver of the rights of
any party hereto to any other or further action in any circumstances without notice or demand.
12.7 Notices
Unless otherwise expressly permitted by the terms hereof, all notices, requests, demands,
authorizations, directions, consents, waivers and other communications required or permitted to be
made, given, furnished or filed hereunder shall be in writing (it being understood that the
specification of a writing in certain instances and not in others does not imply an intention that
a writing is not required as to the latter), shall refer specifically to this Agreement or other
applicable Operative Agreement, and shall be personally delivered, sent by facsimile or
telecommunication transmission (which in either case provides written confirmation to the sender of
its delivery), sent by registered mail or certified mail, return receipt requested, postage
prepaid, or sent by overnight courier service, in each case to the respective address, or facsimile
number set forth for such party in Schedule 1, or to such other address, facsimile or other number
as each party hereto may hereafter specify by notice to the other parties hereto. Each such
notice, request, demand, authorization, direction, consent, waiver or other communication shall
PARTICIPATION AGREEMENT (2010-1)
35
be effective when received or, if made, given, furnished or filed (a) by facsimile or
telecommunication transmission, when confirmed, or (b) by registered or certified mail, three
Business Days after being deposited, properly addressed, with the U.S. Postal Service.
12.8 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE
(a) THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. THIS AGREEMENT IS BEING DELIVERED
IN THE STATE OF NEW YORK.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY AGREES, ACCEPTS AND SUBMITS ITSELF TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN THE CITY AND COUNTY OF NEW
YORK AND OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN CONNECTION WITH ANY LEGAL
ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY MATTER RELATING TO OR ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS AND AGREES TO THE SERVICE OF ANY AND ALL
LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT,
ACTION OR PROCEEDING MAY BE MADE BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, AT THE ADDRESS SET FORTH PURSUANT TO SECTION 12.7. EACH PARTY HERETO HEREBY AGREES THAT
SERVICE UPON IT, OR ANY OF ITS AGENTS, IN EACH CASE IN ACCORDANCE WITH THIS SECTION 12.
8(c)
, SHALL
CONSTITUTE VALID AND EFFECTIVE PERSONAL SERVICE UPON SUCH PARTY, AND EACH PARTY HERETO HEREBY
AGREES THAT THE FAILURE OF ANY OF ITS AGENTS TO GIVE ANY NOTICE OF SUCH SERVICE TO ANY SUCH PARTY
SHALL NOT IMPAIR OR AFFECT IN ANY WAY THE VALIDITY OF SUCH SERVICE ON SUCH PARTY OR ANY JUDGMENT
RENDERED IN ANY ACTION OR PROCEEDING BASED THEREON.
(d) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY LEGAL ACTION OR
PROCEEDING BROUGHT HEREUNDER IN ANY OF THE ABOVE-NAMED COURTS, THAT SUCH ACTION OR PROCEEDING IS
BROUGHT IN AN INCONVENIENT FORUM, THAT VENUE FOR THE ACTION OR PROCEEDING IS IMPROPER OR THAT THIS
AGREEMENT OR ANY OTHER OPERATIVE AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS.
(e) EACH PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION IN ANY COURT IN ANY JURISDICTION BASED UPON OR ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
PARTICIPATION AGREEMENT (2010-1)
36
12.9 Third-Party Beneficiary
This Agreement is not intended to, and shall not, provide any person not a party hereto (other
than the Indenture Indemnitees (including the Related Note Holders), each of which is an intended
third party beneficiary with respect to the provisions of Section 8.1 (and, in the case of the Tax
Indemnitees, Section 8.3) and the persons referred to in Section 6.4.6, which are intended third
party beneficiaries with respect to such Section) with any rights of any nature whatsoever against
any of the parties hereto and no person not a party hereto (other than the Indenture Indemnitees
(including the Related Note Holders), with respect to the provisions of Section 8.1 (and, in the
case of the Tax Indemnitees, Section 8.3), and the persons referred to in Section 6.4.6 with
respect to the provisions of such Section) shall have any right, power or privilege in respect of
any party hereto, or have any benefit or interest, arising out of this Agreement.
12.10 Entire Agreement
This Agreement, together with the other Operative Agreements, on and as of the date hereof,
constitutes the entire agreement of the parties hereto with respect to the subject matter hereof,
and all prior or contemporaneous understandings or agreements, whether written or oral, among any
of the parties hereto with respect to such subject matter are hereby superseded in their
entireties.
12.11 Further Assurances
Each party hereto shall execute, acknowledge and deliver or shall cause to be executed,
acknowledged and delivered, all such further agreements, instruments, certificates or documents,
and shall do and cause to be done such further acts and things, in any case, as any other party
hereto shall reasonably request in connection with the administration of, or to carry out more
effectually the purposes of, or to better assure and confirm into such other party the rights and
benefits to be provided under this Agreement and the other Operative Agreements.
[This space intentionally left blank]
PARTICIPATION AGREEMENT (2010-1)
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IN WITNESS WHEREOF, each of the parties has caused this Participation Agreement to be duly
executed and delivered as of the day and year first above written.
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US AIRWAYS, INC.,
Owner
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By
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Name:
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Title:
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WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
expressly provided herein, but solely as Indenture
Trustee
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By
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Name:
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Title:
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WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
expressly provided herein, but solely as Pass
Through Trustee under the Pass Through Trust
Agreement for the US Airways Pass Through Trust,
2010-1A-O
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By
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Name:
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Title:
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PARTICIPATION AGREEMENT (2010-1)
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SIGNATURE PAGE
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WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
expressly provided herein, but solely as Pass
Through Trustee under the Pass Through Trust
Agreement for the US Airways Pass Through Trust,
2010-1B-O
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By
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Name:
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Title:
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WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
expressly provided herein, but solely as
Subordination Agent
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By
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Name:
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Title:
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PARTICIPATION AGREEMENT (2010-1)
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SIGNATURE PAGE
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SCHEDULE 1 ACCOUNTS;
ADDRESSES
Participation Agreement [___]
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ACCOUNTS; ADDRESSES
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Account for Payments
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Address for Notices
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US Airways, Inc.
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US Airways, Inc.
JP Morgan Chase- New York, NY
Account No.: 708038021
ABA#: 021-000-021
Attention: Simon Little
Voice: 480-693-2822
Facsimile: 480-693-8953
Reference: US Airways 2010-1 EETC
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US Airways, Inc.
111 West Rio Salado Parkway
Tempe, Arizona 85281
Attention: Vice President and Treasurer
Facsimile: (480) 693-5886
with a copy to: Deputy General Counsel
Facsimile: (480) 693-5932
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Wilmington Trust
Company, Indenture
Trustee
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Wilmington Trust Company
Wilmington, Delaware 19890
Account No.: [___]
ABA#: 031100092
Attention: Corporate Trust
Administration
Reference: US Airways 2010-1
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Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-1605
Attention: Corporate Trust
Administration
Facsimile: (302) 636-4140
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Wilmington Trust
Company, as
Subordination Agent
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Wilmington Trust Company
Wilmington, Delaware 19890
Account No.: [___]
ABA#: 031100092
Attention: Corporate Trust
Administration
Reference: US Airways 2010-1
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Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-1605
Attention: Corporate Trust
Administration
Facsimile: (302) 636-4140
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Wilmington Trust
Company, as Pass
Through Trustee for
the 2010-1A Pass
Through Trust
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Wilmington Trust Company
Wilmington, Delaware 19890
Account No.: [___]
ABA#: 031100092
Attention: Corporate Trust
Administration
Reference: US Airways 2010-1
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Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-1605
Attention: Corporate Trust
Administration
Facsimile: (302) 636-4140
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Wilmington Trust
Company, as Pass
Through Trustee for
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Wilmington Trust Company
Wilmington, Delaware 19890
Account No.: [___]
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Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-1605
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the 2010-1B Pass
Through Trust
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ABA#: 031100092
Attention: Corporate Trust
Administration
Reference: US Airways 2010-1
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Attention: Corporate Trust
Administration
Facsimile: (302) 636-4140
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SCHEDULE 1 TO PARTICIPATION AGREEMENT (2010-1)
1
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SCHEDULE 2 COMMITMENTS
PARTICIPATION AGREEMENT [___]
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COMMITMENTS
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Series of
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Dollar Amount
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Pass Through Trustee
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Equipment Notes
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of Loan
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2010-1A
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Series A
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2010-1B
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Series B
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SCHEDULE 2 TO PARTICIPATION AGREEMENT (2010-1)
1
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SCHEDULE 3 CERTAIN TERMS
PARTICIPATION AGREEMENT [___]
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CERTAIN TERMS
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Defined Term
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Definition
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Minimum Liability Insurance Amount
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$
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500,000,000
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Threshold Amount
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$
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5,000,000
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SCHEDULE 3 TO PARTICIPATION AGREEMENT (2010-1)
1
PERMITTED COUNTRIES
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Argentina
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Luxembourg
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Australia
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Malaysia
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Austria
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Malta
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Bahamas
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Mexico
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Belgium
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Morocco
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Bolivia
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Netherlands
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Brazil
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Netherlands Antilles
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Canada
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New Zealand
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Chile
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Norway
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Colombia
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Panama
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Czech Republic
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Peoples Republic of China
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Denmark
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Peru
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Egypt
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Philippines
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Ecuador
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Poland
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Finland
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Portugal
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France
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Republic of China (Taiwan)
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Germany
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Russia
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Greece
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Singapore
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Guatemala
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South Africa
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Hungary
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South Korea
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Iceland
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Spain
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India
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Sweden
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Indonesia
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Switzerland
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Ireland
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Thailand
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Italy
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Trinidad and Tobago
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Jamaica
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Turkey
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Japan
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United Kingdom
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Jordan
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Uruguay
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Kuwait
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Venezuela
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SCHEDULE 4 TO PARTICIPATION AGREEMENT (2010-1)
1
Exhibit 4.15
EXHIBIT C TO NOTE PURCHASE AGREEMENT
TRUST INDENTURE AND SECURITY AGREEMENT [____]
Dated as of [________ __], 20[__]
Between
US AIRWAYS, INC.,
Owner
and
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as expressly stated herein,
but solely as Indenture Trustee,
Indenture Trustee
EQUIPMENT NOTES COVERING
ONE AIRBUS [______] AIRCRAFT
BEARING U.S. REGISTRATION MARK N[______]
AND MANUFACTURERS SERIAL NO. [______]
Form of Indenture
TABLE OF CONTENTS
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Page
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GRANTING CLAUSE
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1
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ARTICLE I DEFINITIONS
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4
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ARTICLE II THE EQUIPMENT NOTES
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4
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SECTION 2.01. Form of Equipment Notes
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4
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SECTION 2.02. Issuance and Terms of Equipment Notes
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10
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SECTION 2.03. Method of Payment
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12
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SECTION 2.04. Application of Payments
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14
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SECTION 2.05. Termination of Interest in Collateral
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15
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SECTION 2.06. Registration Transfer and Exchange of Equipment Notes
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15
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SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Equipment Notes
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16
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SECTION 2.08. Payment of Expenses on Transfer; Cancellation
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17
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SECTION 2.09. Mandatory Redemptions of Equipment Notes
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17
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SECTION 2.10. Optional Redemptions of Equipment Notes
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17
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SECTION 2.11. Redemptions; Notice of Redemption
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18
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SECTION 2.12. Subordination
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19
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ARTICLE III RECEIPT, DISTRIBUTION AND APPLICATION OF PAYMENTS
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20
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SECTION 3.01. Basic Distributions
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20
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SECTION 3.02. Event of Loss; Replacement; Optional Redemption
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20
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SECTION 3.03. Payments After Event of Default
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22
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SECTION 3.04. Certain Payments
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24
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SECTION 3.05. Other Payments
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25
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SECTION 3.06. Cooperation
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25
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SECTION 3.07. Securities Account
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25
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SECTION 3.08 Payments to Owner
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26
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ARTICLE IV COVENANTS OF THE OWNER
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26
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SECTION 4.01. Liens
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26
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SECTION 4.02. Possession, Operation and Use, Maintenance, Registration and Markings
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27
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SECTION 4.03. Inspection
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32
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SECTION 4.04. Replacement and Pooling of Parts, Alterations, Modifications and Additions; Substitution of Engines
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33
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SECTION 4.05. Loss, Destruction or Requisition
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37
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SECTION 4.06. Insurance
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41
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SECTION 4.07. Merger of Owner
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42
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ARTICLE V EVENTS OF DEFAULT; REMEDIES OF INDENTURE TRUSTEE
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43
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SECTION 5.01. Event of Default
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43
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TABLE OF CONTENTS
(continued)
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Page
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SECTION 5.02. Remedies
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45
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SECTION 5.03. Return of Aircraft, Etc.
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46
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SECTION 5.04. Remedies Cumulative
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47
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SECTION 5.05. Discontinuance of Proceedings
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47
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SECTION 5.06. Waiver of Past Defaults
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48
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SECTION 5.07. Appointment of Receiver
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48
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SECTION 5.08. Indenture Trustee Authorized to Execute Bills of Sale, Etc.
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48
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SECTION 5.09. Rights of Note Holders to Receive Payment
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48
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ARTICLE VI DUTIES OF THE INDENTURE TRUSTEE
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49
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SECTION 6.01. Notice of Event of Default
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49
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SECTION 6.02. Action Upon Instructions; Certain Rights and Limitations
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49
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SECTION 6.03. Indemnification
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50
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SECTION 6.04. No Duties Except as Specified in Trust Indenture or Instructions
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50
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SECTION 6.05. No Action Except Under Trust Indenture or Instructions
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51
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SECTION 6.06. Investment of Amounts Held by Indenture Trustee
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51
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ARTICLE VII THE INDENTURE TRUSTEE
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51
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SECTION 7.01. Acceptance of Trusts and Duties
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51
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SECTION 7.02. Absence of Duties
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52
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SECTION 7.03. No Representations or Warranties as to Aircraft or Documents
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52
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SECTION 7.04. No Segregation of Monies; No Interest
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52
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SECTION 7.05. Reliance; Agreements; Advice of Counsel
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53
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SECTION 7.06. Compensation
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53
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SECTION 7.07. Instructions from Note Holders
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53
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ARTICLE VIII INDEMNIFICATION
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54
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SECTION 8.01. Scope of Indemnification
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54
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ARTICLE IX SUCCESSOR AND SEPARATE TRUSTEES
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54
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SECTION 9.01. Resignation of Indenture Trustee; Appointment of Successor
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54
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SECTION 9.02. Appointment of Additional and Separate Trustees
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55
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ARTICLE X SUPPLEMENTS AND AMENDMENTS TO THIS TRUST INDENTURE AND OTHER DOCUMENTS
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57
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SECTION 10.01. Instructions of Majority; Limitations
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57
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ii
TABLE OF CONTENTS
(continued)
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Page
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SECTION 10.02. Indenture Trustee Protected
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58
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SECTION 10.03. Documents Mailed to Note Holders
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58
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SECTION 10.04. No Request Necessary for Trust Indenture Supplement
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59
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ARTICLE XI MISCELLANEOUS
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59
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SECTION 11.01. Termination of Trust Indenture
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59
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SECTION 11.02. No Legal Title to Collateral in Note Holders
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59
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SECTION 11.03. Sale of Aircraft by Indenture Trustee Is Binding
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59
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SECTION 11.04. Trust Indenture for Benefit of Owner, Indenture Trustee, Note Holders and the other Indenture Indemnitees
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60
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SECTION 11.05. Notices
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60
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SECTION 11.06. Severability
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60
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SECTION 11.07. No Oral Modification or Continuing Waivers
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60
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SECTION 11.08. Successors and Assigns
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61
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SECTION 11.09. Headings
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61
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SECTION 11.10. Normal Commercial Relations
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61
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SECTION 11.11. Governing Law; Counterpart Form
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61
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SECTION 11.12. Voting By Note Holders
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61
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SECTION 11.13. Bankruptcy
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61
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ANNEX A
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Definitions
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ANNEX B
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Insurance
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EXHIBIT A
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|
Form of Trust Indenture and Security Agreement Supplement
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SCHEDULE I
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Equipment Notes Amortization and Interest Rates
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iii
TRUST INDENTURE AND SECURITY AGREEMENT [____]
TRUST INDENTURE AND SECURITY AGREEMENT [____], dated as of [________ __], 20[__] (this Trust
Indenture), between US AIRWAYS, INC., a Delaware corporation (Owner), and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, not in its individual capacity, except as expressly stated
herein, but solely as Indenture Trustee hereunder (together with its successors hereunder, the
Indenture Trustee).
W I T N E S S E T H
WHEREAS, all capitalized terms used herein shall have the respective meanings set forth or
referred to in Article I hereof;
WHEREAS, the parties hereto desire by this Trust Indenture, among other things, (i) to provide
for the issuance by the Owner of the Series of Equipment Notes specified on Schedule I hereto, and
the possible issuance of Additional Series, and (ii) to provide for the assignment, mortgage and
pledge by the Owner to the Indenture Trustee, as part of the Collateral hereunder, among other
things, of all of the Owners right, title and interest in and to the Aircraft and, except as
hereinafter expressly provided, all payments and other amounts received hereunder in accordance
with the terms hereof, as security for, among other things, the Owners obligations to the Note
Holders and the Indenture Indemnitees;
WHEREAS, all things have been done to make the Equipment Notes of the Series listed on
Schedule I hereto, when executed by the Owner and authenticated and delivered by the Indenture
Trustee hereunder, the valid, binding and enforceable obligations of the Owner; and
WHEREAS, all things necessary to make this Trust Indenture the valid, binding and legal
obligation of the Owner for the uses and purposes herein set forth, in accordance with its terms,
have been done and performed and have happened;
GRANTING CLAUSE
NOW, THEREFORE, THIS TRUST INDENTURE AND SECURITY AGREEMENT WITNESSETH, that, to secure the
prompt payment of the Original Amount of, interest on, Make-Whole Amount, if any, and all other
amounts due with respect to, all Equipment Notes from time to time outstanding hereunder according
to their tenor and effect and to secure the performance and observance by the Owner of all the
agreements, covenants and provisions contained herein and in the Participation Agreement and in the
Equipment Notes and to secure the Related Secured Obligations and the performance and observance by
the Owner of all agreements, covenants and provisions contained in the Related Equipment Notes, for
the benefit of the Note Holders and each of the Indenture Indemnitees, and in consideration of the
premises and of the covenants herein contained, and of the acceptance of the Equipment Notes and
the Related Equipment Notes by the holders thereof, and for other good and valuable consideration
the receipt and adequacy whereof are hereby acknowledged, the Owner has granted, bargained, sold,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and does hereby grant, bargain,
sell, assign, transfer, convey, mortgage, pledge and confirm, unto the Indenture Trustee, its
successors in trust and assigns, for the security and benefit of, the Note
Holders and each of the Indenture Indemnitees, a first priority security interest and, in the
case of the Airframe and Engines, an International Interest in and mortgage lien on all right,
title and interest of the Owner in, to and under the following described property, rights and
privileges, whether now or hereafter acquired (which, collectively, together with all property
hereafter specifically subject to the Lien of this Trust Indenture by the terms hereof or any
supplement hereto, are included within, and are referred to as, the Collateral), to wit:
(1) The Airframe which is one Airbus [______] aircraft with the FAA Registration number of
N[______] and the manufacturers serial number of [______] and [two] Engines, each of which Engines
is a [________________________] jet propulsion aircraft engine with at least 1750 lb. of thrust,
with the manufacturers serial numbers of [______] and [______] (such Airframe and Engines more
particularly described in the Trust Indenture Supplement executed and delivered as provided herein)
as the same is now and will hereafter be constituted, whether now owned by the Owner or hereafter
acquired, and in the case of such Engines, whether or not any such Engine shall be installed in or
attached to the Airframe or any other airframe, together with (a) all Parts of whatever nature,
which are from time to time included within the definitions of Airframe or Engines, whether now
owned or hereafter acquired, including all substitutions, renewals and replacements of and
additions, improvements, accessions and accumulations to the Airframe and Engines (other than
additions, improvements, accessions and accumulations which constitute appliances, parts,
instruments, appurtenances, accessories, furnishings or other equipment excluded from the
definition of Parts) and (b) all Aircraft Documents;
(2) The Bills of Sale, to the extent they relate to any continuing rights of the Owner, and
any other continuing rights of the Owner, to the extent the Owner may assign or otherwise grant a
Lien on them without the consent of any other Person, in respect of any warranty, indemnity or
agreement, express or implied, as to title, materials, workmanship, design or patent infringement
or related matters with respect to the Airframe or the Engines (reserving to the Owner, however,
all of the Owners other rights and interest in and to such other continuing rights of the Owner)
together with all rights, powers, privileges, options and other benefits of the Owner thereunder
(subject to such reservation) with respect to the Airframe or the Engines, including, without
limitation, the right to make all waivers and agreements, to give and receive all notices and other
instruments or communications, to take such action upon the occurrence of a default thereunder,
including the commencement, conduct and consummation of legal, administrative or other proceedings,
as shall be permitted thereby or by law, and to do any and all other things which the Owner is or
may be entitled to do thereunder (subject to such reservation);
(3) All proceeds with respect to the requisition of title to or use of the Aircraft or any
Engine by any Government Entity or from the sale or other disposition of the Aircraft, the
Airframe, any Engine or other property described in any of these Granting Clauses by the Indenture
Trustee pursuant to the terms of this Trust Indenture, and all insurance proceeds with respect to
the Aircraft, the Airframe, any Engine or any part thereof, but excluding any insurance maintained
by the Owner and not required under Section 4.06;
2
(4) All rents, revenues and other proceeds collected by the Indenture Trustee pursuant to
paragraph (iv) of clause Third of Section 3.03 and Section 5.03(b) and all monies and securities
from time to time deposited or required to be deposited with the Indenture Trustee by or for the
account of the Owner pursuant to any terms of this Trust Indenture held or required to be held by
the Indenture Trustee hereunder, including the Securities Account and all monies and securities
deposited into the Securities Account; and
(5) All proceeds of the foregoing.
PROVIDED, HOWEVER, that notwithstanding any of the foregoing provisions, so long as no Event
of Default shall have occurred and be continuing, (a) the Indenture Trustee shall not take or cause
to be taken any action contrary to the Owners right hereunder to quiet enjoyment of the Airframe
and Engines, and to possess, use, retain and control the Airframe and Engines and all revenues,
income and profits derived therefrom, and (b) the Owner shall have the right, to the exclusion of
the Indenture Trustee, with respect to the Indenture Agreements, to exercise in the Owners name
all rights and powers of the Owner under the Indenture Agreements (other than to amend, modify or
waive any of the warranties or indemnities contained therein, except in the exercise of the Owners
reasonable business judgment) and to retain any recovery or benefit resulting from the enforcement
of any warranty or indemnity under the Indenture Agreements; and
provided further that
,
notwithstanding the occurrence or continuation of an Event of Default, the Indenture Trustee shall
not enter into any amendment of any Indenture Agreement which would increase the obligations of the
Owner thereunder.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the Indenture Trustee, and
its successors and assigns, in trust for the equal and proportionate benefit and security of the
Note Holders and the Indenture Indemnitees, except as provided in Section 2.12 and Article III
hereof, without any preference, distinction or priority of any one Equipment Note over any other,
or any Related Equipment Note over any other, by reason of priority of time of issue, sale,
negotiation, date of maturity thereof or otherwise for any reason whatsoever, and for the uses and
purposes and in all cases and as to all property specified in clauses (1) through (5) inclusive
above, subject to the terms and provisions set forth in this Trust Indenture.
It is expressly agreed that anything herein contained to the contrary notwithstanding, the
Owner shall remain liable under the Indenture Agreements to perform all of the obligations assumed
by it thereunder, except to the extent prohibited or excluded from doing so pursuant to the terms
and provisions thereof, and the Indenture Trustee, the Note Holders and the Indenture Indemnitees
shall have no obligation or liability under the Indenture Agreements by reason of or arising out of
the assignment hereunder, nor shall the Indenture Trustee, the Note Holders or the Indenture
Indemnitees be required or obligated in any manner to perform or fulfill any obligations of the
Owner under or pursuant to the Indenture Agreements, or, except as herein expressly provided, to
make any payment, or to make any inquiry as to the nature or sufficiency of any payment received by
it, or present or file any claim, or take any action to collect or enforce the payment of any
amounts which may have been assigned to it or to which it may be entitled at any time or times.
3
The Owner does hereby constitute the Indenture Trustee the true and lawful attorney of the
Owner, irrevocably, granted for good and valuable consideration and coupled with an interest and
with full power of substitution, and with full power (in the name of the Owner or otherwise) to ask
for, require, demand, receive, compound and give acquittance for any and all monies and claims for
monies (in each case including insurance and requisition proceeds) due and to become due under or
arising out of the Indenture Agreements, and all other property which now or hereafter constitutes
part of the Collateral, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or to take any action or to institute any proceedings which the
Indenture Trustee may deem to be necessary or advisable in the premises;
provided
that no
action of the Indenture Trustee pursuant to this paragraph shall increase the obligations or
liabilities of the Owner to any Person beyond those obligations and liabilities specifically set
forth in this Trust Indenture and in the other Operative Agreements and the Indenture Trustee shall
not exercise any such rights except upon the occurrence and during the continuance of an Event of
Default hereunder.
The Owner agrees that at any time and from time to time, upon the written request of the
Indenture Trustee, the Owner will promptly and duly execute and deliver or cause to be duly
executed and delivered any and all such further instruments and documents (including without
limitation UCC continuation statements) as the Indenture Trustee may reasonably deem necessary to
perfect, preserve or protect the mortgage, security interests, International Interests and
assignments created or intended to be created hereby or to obtain for the Indenture Trustee the
full benefits of the assignment hereunder and of the rights and powers herein granted.
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not defined herein shall have the respective meanings set forth or
incorporated by reference, and shall be construed in the manner described, in Annex A hereto.
ARTICLE II
THE EQUIPMENT NOTES
SECTION 2.01. Form of Equipment Notes
The Equipment Notes shall be substantially in the form set forth below:
THIS EQUIPMENT NOTE HAS NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT), OR PURSUANT TO THE SECURITIES LAWS OF ANY STATE. ACCORDINGLY, THIS EQUIPMENT NOTE MAY NOT BE SOLD UNLESS EITHER REGISTERED UNDER THE ACT AND SUCH
4
APPLICABLE STATE LAWS OR AN EXEMPTION FROM SUCH REGISTRATIONS IS AVAILABLE.
US AIRWAYS, INC.
SERIES [_____] EQUIPMENT NOTE DUE
[____]
ISSUED IN CONNECTION WITH THE AIRBUS MODEL [_____] AIRCRAFT BEARING UNITED STATES REGISTRATION NUMBER N[_____]
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No. ____
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Date:
[__________, ____]
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_______________________
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INTEREST RATE
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MATURITY DATE
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[___________]
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[____________]
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US AIRWAYS, INC., a Delaware corporation (Owner), hereby promises to pay to
__________________, or the registered assignee thereof, the principal sum of $____________ (the
Original Amount), together with interest on the amount of the Original Amount remaining unpaid
from time to time (calculated on the basis of a year of 360 days comprised of twelve 30-day months)
from the date hereof until paid in full at a rate per annum equal to the Debt Rate. The Original
Amount of this Equipment Note shall be due and payable in installments on the dates set forth in
Schedule I hereto equal to the corresponding percentage of the Original Amount of this Equipment
Note set forth in Schedule I hereto. Accrued but unpaid interest shall be due and payable in
semi-annual installments commencing on April 22, 2011 and thereafter on April 22 and October 22 of
each year, to and including [_______________]. Notwithstanding the foregoing, the final payment
made on this Equipment Note shall be in an amount sufficient to discharge in full the unpaid
Original Amount and all accrued and unpaid interest on, and any other amounts due under, this
Equipment Note. Notwithstanding anything to the contrary contained herein, if any date on which a
payment under this Equipment Note becomes due and payable is not a Business Day, then such payment
shall not be made on such scheduled date but shall be made on the next succeeding Business Day and
if such payment is made on such next succeeding Business Day, no interest shall accrue on the
amount of such payment during such extension.
For purposes hereof, the term Trust Indenture means the Trust Indenture and Security
Agreement [____] dated as of [______ __], 20[__], between the Owner and Wilmington Trust Company
(the Indenture Trustee), as the same may be amended or supplemented from time to time. All other
capitalized terms used in this Equipment Note and not defined herein shall have the respective
meanings assigned in the Trust Indenture.
This Equipment Note shall bear interest, payable on demand, at the Payment Due Rate
(calculated on the basis of a year of 360 days comprised of twelve 30-day months) on any overdue
Original Amount, any overdue Make-Whole Amount, if any, and (to the extent
5
permitted by applicable Law) any overdue interest and any other amounts payable hereunder
which are overdue, in each case for the period the same is overdue. Amounts shall be overdue if
not paid when due (whether at stated maturity, by acceleration or otherwise).
There shall be maintained an Equipment Note Register for the purpose of registering transfers
and exchanges of Equipment Notes at the Corporate Trust Office of the Indenture Trustee or at the
office of any successor in the manner provided in Section 2.06 of the Trust Indenture.
The Original Amount and interest and other amounts due hereunder shall be payable in Dollars
in immediately available funds at the Corporate Trust Office of the Indenture Trustee, or as
otherwise provided in the Trust Indenture. Each such payment shall be made on the date such
payment is due and without any presentment or surrender of this Equipment Note, except that in the
case of any final payment with respect to this Equipment Note, the Equipment Note shall be
surrendered promptly thereafter to the Indenture Trustee for cancellation.
The holder hereof, by its acceptance of this Equipment Note, agrees that, except as provided
in the Trust Indenture, each payment of the Original Amount, Make-Whole Amount, if any, and
interest received by it hereunder shall be applied,
first
, to the payment of Make-Whole
Amount, if any, and any other amount (other than as covered by any of the following clauses) due
hereunder or under the Trust Indenture,
second
, to the payment of accrued interest on this
Equipment Note (as well as any interest on any overdue Original Amount, any overdue Make-Whole
Amount, if any, or, to the extent permitted by Law, any overdue interest and other amounts
hereunder) to the date of such payment,
third
, to the payment of the Original Amount of
this Equipment Note then due, and
fourth
, the balance, if any, remaining thereafter, to the
payment of installments of the Original Amount of this Equipment Note remaining unpaid in the
inverse order of their maturity.
This Equipment Note is one of the Equipment Notes referred to in the Trust Indenture which
have been or are to be issued by the Owner pursuant to the terms of the Trust Indenture. The
Collateral is held by the Indenture Trustee as security, in part, for the Equipment Notes. The
provisions of this Equipment Note are subject to the Trust Indenture and the Related Indentures.
Reference is hereby made to the Trust Indenture and the Related Indentures for a complete statement
of the rights and obligations of the holder of, and the nature and extent of the security for, this
Equipment Note (including as a Related Equipment Note under each of the Related Indentures) and
the rights and obligations of the holders of, and the nature and extent of the security for, any
other Equipment Notes executed and delivered under the Trust Indenture, as well as for a statement
of the terms and conditions of the Trust created by the Trust Indenture, to all of which terms and
conditions in the Trust Indenture each holder hereof agrees by its acceptance of this Equipment
Note.
As provided in the Trust Indenture and subject to certain limitations therein set forth, this
Equipment Note is exchangeable for a like aggregate Original Amount of Equipment Notes of different
authorized denominations, as requested by the holder surrendering the same.
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Prior to due presentment for registration of transfer of this Equipment Note, the Owner and
the Indenture Trustee shall treat the person in whose name this Equipment Note is registered as the
owner hereof for all purposes, whether or not this Equipment Note be overdue, and neither the Owner
nor the Indenture Trustee shall be affected by notice to the contrary.
This Equipment Note is subject to redemption as provided in Sections 2.09, 2.10 and 2.11 of
the Trust Indenture but not otherwise. In addition, this Equipment Note may be accelerated as
provided in Section 5.02 of the Trust Indenture.
This Equipment Note is subject to certain restrictions set forth in Sections 4.1(a)(i) and
4.1(a)(iii) of the Intercreditor Agreement, as further specified in Section 2.06 of the Trust
Indenture, to all of which terms and conditions in the Intercreditor Agreement each holder hereof
agrees by its acceptance of this Equipment Note.
[The indebtedness evidenced by this Equipment Note is, to the extent and in the manner
provided in the Trust Indenture, subordinate and subject in right of payment to the prior payment
in full of the Secured Obligations (as defined in the Trust Indenture) in respect of [Series A
Equipment Notes and Related Series A Equipment Notes]
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[Series A Equipment Notes, Series
B Equipment Notes, Related Series A Equipment Notes and Related Series B Equipment
Notes]
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, and certain other Secured Obligations, and this Equipment Note is issued
subject to such provisions. The Note Holder of this Equipment Note, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the Indenture Trustee
on its behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Trust Indenture and (c) appoints the Indenture Trustee its
attorney-in-fact for such purpose.]
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Unless the certificate of authentication hereon has been executed by or on behalf of the
Indenture Trustee by manual signature, this Equipment Note shall not be entitled to any benefit
under the Trust Indenture or be valid or obligatory for any purpose.
THIS EQUIPMENT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
* * *
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To be inserted in the case of a Series B
Equipment Note.
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.
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To be inserted in the case of an Additional
Series Equipment Note
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.
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To be inserted for each Equipment Note other
than any Series A Equipment Note.
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IN WITNESS WHEREOF, the Owner has caused this Equipment Note to be executed in its corporate
name by its officer thereunto duly authorized on the date hereof.
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US AIRWAYS, INC.
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By:
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Name:
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Title:
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INDENTURE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Equipment Notes referred to in the within-mentioned Trust Indenture.
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WILMINGTON TRUST COMPANY, as Indenture Trustee
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By:
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Name:
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Title:
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SCHEDULE I
EQUIPMENT NOTE AMORTIZATION
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Payment Date
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Percentage of Original Amount to Be Paid
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[SEE SCHEDULE I TO TRUST INDENTURE
WHICH IS INSERTED UPON ISSUANCE]
* * *
9
SECTION 2.02. Issuance and Terms of Equipment Notes
The Equipment Notes (other than the Additional Series Equipment Notes) shall be dated the
Closing Date, shall be issued in two separate series consisting of Series A and Series B and in the
maturities and principal amounts and shall bear interest as specified in Schedule I hereto. On the
Closing Date, each Series specified in Schedule I shall be issued to the Subordination Agent on
behalf of the Applicable Pass Through Trustee under the Applicable Pass Through Trust Agreement.
In addition to the foregoing, the Owner shall have the option to issue a single series of
Additional Series Equipment Notes at any time at or after the Delivery Period Termination Date
(as defined in the Note Purchase Agreement), subject to the terms of Section 4(a)(v) of the Note
Purchase Agreement and Section 9.1(d) of the Intercreditor Agreement. If the Owner so elects to
issue the Additional Series Equipment Notes, Additional Series Equipment Notes shall be issued in a
single separate series, shall be dated the date of original issuance thereof and shall have such
maturity, principal amount and interest rate as specified in an amendment to this Trust Indenture.
The Equipment Notes shall be issued in registered form only. The Equipment Notes shall be issued
in denominations of $1,000 and integral multiples thereof, except that one Equipment Note of each
Series may be in an amount that is not an integral multiple of $1,000. Without limitation of the
foregoing, new Series B Equipment Notes may be issued pursuant to the provisions of Section
2.10(b).
Each Equipment Note shall bear interest at the applicable Debt Rate (calculated on the basis
of a year of 360 days comprised of twelve 30-day months) on the unpaid Original Amount thereof from
time to time outstanding. Accrued interest shall be payable in arrears on April 22, 2011, and on
each April 22 and October 22 thereafter until maturity. The Original Amount of each Equipment Note
shall be payable on the dates and in the installments equal to the corresponding percentage of the
Original Amount as set forth in Schedule I hereto (as amended, in the case of any Additional
Series, at the time of original issuance of such Additional Series) which shall be attached as
Schedule I to such Equipment Notes. Notwithstanding the foregoing, the final payment made under
each Equipment Note shall be in an amount sufficient to discharge in full the unpaid Original
Amount and all accrued and unpaid interest on, and any other amounts due under, such Equipment
Note. Each Equipment Note shall bear interest, payable on demand, at the Payment Due Rate
(calculated on the basis of a year of 360 days comprised of twelve 30-day months) on any part of
the Original Amount, Make-Whole Amount, if any, and, to the extent permitted by applicable Law,
interest and any other amounts payable thereunder not paid when due for any period during which the
same shall be overdue, in each case for the period the same is overdue. Amounts under any
Equipment Note shall be overdue if not paid when due (whether at stated maturity, by acceleration
or otherwise). Notwithstanding anything to the contrary contained herein, if any date on which a
payment under any Equipment Note becomes due and payable is not a Business Day then such payment
shall not be made on such scheduled date but shall be made on the next succeeding Business Day and
if such payment is made on such next succeeding Business Day, no interest shall accrue on the
amount of such payment during such extension.
The Owner agrees to pay to the Indenture Trustee for distribution in accordance with Section
3.04 hereof: (a)(i) to the extent not payable (whether or not in fact paid) under
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Section 6(a) of the Note Purchase Agreement, an amount equal to the fees payable to the
Liquidity Provider under Section 2.03 of each Liquidity Facility and the related Fee Letter (as
defined in the Intercreditor Agreement) multiplied by a fraction the numerator of which shall be
the then outstanding aggregate principal amount of the Series A Equipment Notes and Series B
Equipment Notes and the denominator of which shall be the then outstanding aggregate principal
amount of all Series A Equipment Notes and Series B Equipment Notes (each as defined in the
Note Purchase Agreement); (ii) (x) the amount equal to interest on any Downgrade Advance (other
than any Applied Downgrade Advance) payable under Section 3.07 of each Liquidity Facility minus
Investment Earnings from such Downgrade Advance multiplied by (y) the fraction specified in the
foregoing clause (i); (iii) (x) the amount equal to interest on any Non-Extension Advance (other
than any Applied Non-Extension Advance) payable under Section 3.07 of each Liquidity Facility minus
Investment Earnings from such Non-Extension Advance multiplied by (y) the fraction specified in the
foregoing clause (i); (iv) (x) the amount equal to interest on any Special Termination Advance
(other than any Applied Special Termination Advance) payable under Section 3.07 of each Liquidity
Facility minus Investment Earnings from such Special Termination Advance multiplied by (y) the
fraction specified in the foregoing clause (i); (v) if any payment default shall have occurred and
be continuing with respect to interest on any Series A Equipment Notes or Series B Equipment
Notes (each as defined in the Note Purchase Agreement), (x) the excess, if any, of (1) an amount
equal to interest on any Unpaid Advance, Applied Downgrade Advance, Applied Non-Extension Advance
or Applied Special Termination Advance payable under Section 3.07 of each Liquidity Facility over
(2) the sum of Investment Earnings from any Final Advance plus any amount of interest at the
Payment Due Rate actually payable (whether or not in fact paid) by the Owner on the overdue
scheduled interest on the Equipment Notes (as defined in the Note Purchase Agreement) in respect
of which such Unpaid Advance, Applied Downgrade Advance, Applied Non-Extension Advance or Applied
Special Termination Advance was made by the Liquidity Provider multiplied by (y) a fraction the
numerator of which shall be the then aggregate overdue amounts of interest on the Series A
Equipment Notes and Series B Equipment Notes (other than interest becoming due and payable solely
as a result of acceleration of any such Equipment Notes) and the denominator of which shall be the
then aggregate overdue amounts of interest on all Series A Equipment Notes and Series B
Equipment Notes (each as defined in the Note Purchase Agreement) (other than interest becoming due
and payable solely as a result of acceleration of any such Equipment Notes); and (vi) any other
amounts owed to the Liquidity Provider by the Subordination Agent as borrower under each Liquidity
Facility other than amounts due as repayment of advances thereunder or as interest on such
advances, except to the extent payable pursuant to clause (ii), (iii), (iv) or (v) above,
multiplied by the fraction specified in the foregoing clause (i), (b) without duplication of any
amounts paid or payable pursuant to the provisions hereof, Owners pro rata share of all
compensation and reimbursement of expenses, disbursements and advances payable by the Owner under
the Pass Through Trust Agreements, (c) without duplication of any amounts paid or payable pursuant
to the provisions hereof, Owners pro rata share of all compensation and reimbursement of expenses
and disbursements payable to the Subordination Agent under the Intercreditor Agreement except with
respect to any income or franchise taxes incurred by the Subordination Agent in connection with the
transactions contemplated by the Intercreditor Agreement and (d) in the event the Owner requests
any amendment to any Operative Agreement or Pass Through Agreement, the Owners pro rata share of
all reasonable fees and expenses (including, without limitation, fees and
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disbursements of counsel) of the Escrow Agents and the Paying Agents in connection therewith
payable by the Pass Through Trustees under the Escrow Agreements. As used herein, Owners pro
rata share means as of any time a fraction, the numerator of which is the principal balance then
outstanding of Equipment Notes and the denominator of which is the aggregate principal balance then
outstanding of all Equipment Notes (as each such term is defined in each of the Operative
Indentures). For purposes of this paragraph, the terms Applied Downgrade Advance, Applied
Non-Extension Advance, Applied Special Termination Advance, Cash Collateral Account,
Downgrade Advance, Final Advance, Investment Earnings, Non-Extension Advance, Special
Termination Advance and Unpaid Advance shall have the meanings specified in each Liquidity
Facility.
The Equipment Notes shall be executed on behalf of the Owner by one of its authorized
officers. Equipment Notes bearing the signatures of individuals who were at any time the proper
officers of the Owner shall bind the Owner, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of such Equipment Notes
or did not hold such offices at the respective dates of such Equipment Notes. The Owner may from
time to time execute and deliver Equipment Notes with respect to the Aircraft to the Indenture
Trustee for authentication upon original issue and such Equipment Notes shall thereupon be
authenticated and delivered by the Indenture Trustee upon the written request of the Owner signed
by an authorized officer of the Owner. No Equipment Note shall be secured by or entitled to any
benefit under this Trust Indenture or be valid or obligatory for any purposes, unless there appears
on such Equipment Note a certificate of authentication in the form provided for herein executed by
the Indenture Trustee by the manual signature of one of its authorized officers and such
certificate upon any Equipment Notes be conclusive evidence, and the only evidence, that such
Equipment Note has been duly authenticated and delivered hereunder.
The aggregate Original Amount of any Series of Equipment Notes issued hereunder shall not
exceed the amount set forth as the maximum therefor on Schedule I hereto (as amended, in the case
of any Additional Series, at the time of original issuance of such Additional Series).
SECTION 2.03. Method of Payment
(a) The Original Amount of, interest on, Make-Whole Amount, if any, and other amounts due
under each Equipment Note or hereunder will be payable in Dollars by wire transfer of immediately
available funds not later than 12:30 p.m., New York time, on the due date of payment to the
Indenture Trustee at the Corporate Trust Office for distribution among the Note Holders in the
manner provided herein, and payment of such amount by the Owner to the Indenture Trustee shall be
deemed to satisfy the Owners obligation to make such payment. The Owner shall not have any
responsibility for the distribution of such payment to any Note Holder. Notwithstanding the
foregoing or any provision in any Equipment Note to the contrary, the Indenture Trustee will use
reasonable efforts to pay or cause to be paid, if so directed in writing by any Note Holder (with a
copy to the Owner), all amounts paid by the Owner hereunder and under such holders Equipment Note
or Equipment Notes to such holder or a nominee therefor (including all amounts distributed pursuant
to Article III of this Trust
12
Indenture) by transferring, or causing to be transferred, by wire transfer of immediately
available funds in Dollars, prior to 2:00 p.m., New York City time, on the due date of payment, to
an account maintained by such holder with a bank located in the continental United States the
amount to be distributed to such holder, for credit to the account of such holder maintained at
such bank. If the Indenture Trustee shall fail to make any such payment as provided in the
immediately foregoing sentence after its receipt of funds at the place and prior to the time
specified above, the Indenture Trustee, in its individual capacity and not as trustee, agrees to
compensate such holders for loss of use of funds at Debt Rate until such payment is made and the
Indenture Trustee shall be entitled to any interest earned on such funds until such payment is
made. Any payment made hereunder shall be made without any presentment or surrender of any
Equipment Note, except that, in the case of the final payment in respect of any Equipment Note,
such Equipment Note shall be surrendered to the Indenture Trustee for cancellation promptly after
such payment. Notwithstanding any other provision of this Trust Indenture to the contrary, the
Indenture Trustee shall not be required to make, or cause to be made, wire transfers as aforesaid
prior to the first Business Day on which it is practicable for the Indenture Trustee to do so in
view of the time of day when the funds to be so transferred were received by it if such funds were
received after 12:30 p.m., New York time, at the place of payment. Prior to the due presentment
for registration of transfer of any Equipment Note, the Owner and the Indenture Trustee shall deem
and treat the Person in whose name any Equipment Note is registered on the Equipment Note Register
as the absolute owner and holder of such Equipment Note for the purpose of receiving payment of all
amounts payable with respect to such Equipment Note and for all other purposes, and none of the
Owner or the Indenture Trustee shall be affected by any notice to the contrary. So long as any
signatory to the Participation Agreement or nominee thereof shall be a registered Note Holder, all
payments to it shall be made to the account of such Note Holder specified in Schedule 1 thereto and
otherwise in the manner provided in or pursuant to the Participation Agreement unless it shall have
specified some other account or manner of payment by notice to the Indenture Trustee consistent
with this Section 2.03.
(b) The Indenture Trustee, as agent for the Owner, shall exclude and withhold at the
appropriate rate from each payment of Original Amount of, interest on, Make-Whole Amount, if any,
and other amounts due hereunder or under each Equipment Note (and such exclusion and withholding
shall constitute payment in respect of such Equipment Note) any and all United States withholding
taxes applicable thereto as required by Law. The Indenture Trustee agrees to act as such
withholding agent and, in connection therewith, whenever any present or future United States taxes
or similar charges are required to be withheld with respect to any amounts payable hereunder or in
respect of the Equipment Notes, to withhold such amounts and timely pay the same to the appropriate
authority in the name of and on behalf of the Note Holders, that it will file any necessary United
States withholding tax returns or statements when due, and that as promptly as possible after the
payment thereof it will deliver to each Note Holder (with a copy to the Owner) appropriate receipts
showing the payment thereof, together with such additional documentary evidence as any such Note
Holder may reasonably request from time to time.
If a Note Holder which is a Non-U.S. Person has furnished to the Indenture Trustee a properly
completed, accurate and currently effective U.S. Internal Revenue Service Form W-8BEN, W-8EXP or
W-8IMY (or such successor form or forms as may be required by
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the United States Treasury Department) during the calendar year in which the payment hereunder
or under the Equipment Note(s) held by such holder is made (but prior to the making of such
payment), or in any of the three preceding calendar years, and has not notified the Indenture
Trustee of the withdrawal or inaccuracy of such form prior to the date of such payment (and the
Indenture Trustee has no reason to believe that any information set forth in such form is
inaccurate), the Indenture Trustee shall withhold only the amount, if any, required by Law (after
taking into account any applicable exemptions properly claimed by the Note Holder) to be withheld
from payments hereunder or under the Equipment Notes held by such holder in respect of United
States federal income tax. If a Note Holder (x) which is a Non-U.S. Person has furnished to the
Indenture Trustee a properly completed, accurate and currently effective U.S. Internal Revenue
Service Form W-8ECI in duplicate (or such successor certificate, form or forms as may be required
by the United States Treasury Department as necessary in order to properly avoid withholding of
United States federal income tax) during the calendar year in which the payment hereunder or under
the Equipment Note(s) held by such holder is made (but prior to the making of such payment) or in
any of the three preceding calendar years, and has not notified the Indenture Trustee of the
withdrawal or inaccuracy of such certificate or form prior to the date of such payment (and the
Indenture Trustee has no reason to believe that any information set forth in such form is
inaccurate) or (y) which is a U.S. Person has furnished to the Indenture Trustee a properly
completed, accurate and currently effective U.S. Internal Revenue Service Form W-9, if applicable,
prior to a payment hereunder or under the Equipment Notes held by such holder, no amount shall be
withheld from payments in respect of United States federal income tax. If any Note Holder has
notified the Indenture Trustee that any of the foregoing forms or certificates is withdrawn or
inaccurate, or if such holder has not filed a form claiming an exemption from United States
withholding tax or if an applicable income tax convention, the Code or the regulations thereunder
or the administrative interpretation of any of the foregoing is at any time after the date hereof
amended to require such withholding of United States federal income taxes from payments under the
Equipment Notes held by such holder, the Indenture Trustee agrees to withhold from each payment due
to the relevant Note Holder withholding taxes at the appropriate rate under Law and will, on a
timely basis as more fully provided above, deposit such amounts with an authorized depository and
make such returns, statements, receipts and other documentary evidence in connection therewith as
required by Law.
SECTION 2.04. Application of Payments
In the case of each Equipment Note, each payment of Original Amount, Make-Whole Amount, if
any, and interest due thereon shall be applied:
First: to the payment of Make-Whole Amount, if any, with respect to such Equipment
Note and any other amount (other than as covered by any of the following clauses) due
hereunder or under such Equipment Note;
Second: to the payment of accrued interest on such Equipment Note (as well as any
interest on any overdue Original Amount, any overdue Make-Whole Amount, if any, and to the
extent permitted by Law, any overdue interest and any other overdue amounts thereunder) to
the date of such payment;
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Third: to the payment of the Original Amount of such Equipment Note (or a portion
thereof) then due thereunder; and
Fourth: the balance, if any, remaining thereafter, to the payment of the Original
Amount of such Equipment Note remaining unpaid (provided that such Equipment Note shall not
be subject to redemption except as provided in Sections 2.09, 2.10 and 2.11 hereof).
The amounts paid pursuant to clause Fourth above shall be applied to the installments of Original
Amount of such Equipment Note in the inverse order of their maturity.
SECTION 2.05. Termination of Interest in Collateral
No Note Holder nor any other Indenture Indemnitee shall, as such, have any further interest
in, or other right with respect to, the Collateral when and if the Original Amount of, Make-Whole
Amount, if any, and interest on and other amounts due under all Equipment Notes held by such Note
Holder and all other sums then due and payable to such Note Holder, such Indenture Indemnitee or
the Indenture Trustee hereunder (including, without limitation, under the third paragraph of
Section 2.02 hereof) and under the other Operative Agreements by the Owner and all Related Secured
Obligations (collectively, the Secured Obligations) shall have been paid in full.
SECTION 2.06. Registration Transfer and Exchange of Equipment Notes
The Indenture Trustee shall keep a register (the Equipment Note Register) in which the
Indenture Trustee shall provide for the registration of Equipment Notes and the registration of
transfers of Equipment Notes. No such transfer shall be given effect unless and until registration
hereunder shall have occurred. The Equipment Note Register shall be kept at the Corporate Trust
Office of the Indenture Trustee. The Indenture Trustee is hereby appointed Equipment Note
Registrar for the purpose of registering Equipment Notes and transfers of Equipment Notes as
herein provided. A holder of any Equipment Note intending to exchange such Equipment Note shall
surrender such Equipment Note to the Indenture Trustee at the Corporate Trust Office, together with
a written request from the registered holder thereof for the issuance of a new Equipment Note,
specifying, in the case of a surrender for transfer, the name and address of the new holder or
holders. Upon surrender for registration of transfer of any Equipment Note, the Owner shall
execute, and the Indenture Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Equipment Notes of a like aggregate Original Amount and
of the same Series. At the option of the Note Holder, Equipment Notes may be exchanged for other
Equipment Notes of any authorized denominations of a like aggregate Original Amount, upon surrender
of the Equipment Notes to be exchanged to the Indenture Trustee at the Corporate Trust Office.
Whenever any Equipment Notes are so surrendered for exchange, the Owner shall execute, and the
Indenture Trustee shall authenticate and deliver, the Equipment Notes which the Note Holder making
the exchange is entitled to receive. All Equipment Notes issued upon any registration of transfer
or exchange of Equipment Notes (whether under this Section 2.06 or under Section 2.07 hereof or
otherwise under this Trust Indenture) shall be the valid obligations of the Owner evidencing the
same
15
respective obligations, and entitled to the same security and benefits under this Trust
Indenture, as the Equipment Notes surrendered upon such registration of transfer or exchange.
Every Equipment Note presented or surrendered for registration of transfer, shall (if so required
by the Indenture Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Indenture Trustee duly executed by the Note Holder or such holders
attorney duly authorized in writing, and the Indenture Trustee shall require evidence satisfactory
to it as to the compliance of any such transfer with the Securities Act, and the securities Laws of
any applicable state. The Indenture Trustee shall make a notation on each new Equipment Note of
the amount of all payments of Original Amount previously made on the old Equipment Note or
Equipment Notes with respect to which such new Equipment Note is issued and the date to which
interest on such old Equipment Note or Equipment Notes has been paid. Interest shall be deemed to
have been paid on such new Equipment Note to the date on which interest shall have been paid on
such old Equipment Note, and all payments of the Original Amount marked on such new Equipment Note,
as provided above, shall be deemed to have been made thereon. The Owner shall not be required to
exchange any surrendered Equipment Notes as provided above during the ten-day period preceding the
due date of any payment on such Equipment Note. The Owner shall in all cases deem the Person in
whose name any Equipment Note shall have been issued and registered as the absolute owner and
holder of such Equipment Note for the purpose of receiving payment of all amounts payable by the
Owner with respect to such Equipment Note and for all purposes until a notice stating otherwise is
received from the Indenture Trustee and such change is reflected on the Equipment Note Register.
The Indenture Trustee will promptly notify the Owner of each registration of a transfer of an
Equipment Note. Any such transferee of an Equipment Note, by its acceptance of an Equipment Note,
(i) agrees to the provisions of this Trust Indenture and the Participation Agreement applicable to
Note Holders, including Sections 6.3, 6.4 and 9.1 thereof, and shall be deemed to have covenanted
to the parties to the Participation Agreement as to the matters covenanted by the original Note
Holder in the Participation Agreement and (ii) agrees to the restrictions set forth in Sections
4.1(a)(i) and 4.1(a)(iii) of the Intercreditor Agreement, and shall be deemed to have covenanted to
the parties to the Intercreditor Agreement not to give any direction, or otherwise authorize, the
Indenture Trustee to take any action that would violate Sections 4.1(a)(i) or 4.1(a)(iii) of the
Intercreditor Agreement. Subject to compliance by the Note Holder and its transferee (if any) of
the requirements set forth in this Section 2.06, the Indenture Trustee and the Owner shall use all
reasonable efforts to issue new Equipment Notes upon transfer or exchange within 10 Business Days
of the date an Equipment Note is surrendered for transfer or exchange.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Equipment Notes
If any Equipment Note shall become mutilated, destroyed, lost or stolen, the Owner shall, upon
the written request of the holder of such Equipment Note, execute and the Indenture Trustee shall
authenticate and deliver in replacement thereof a new Equipment Note, payable in the same Original
Amount dated the same date and captioned as issued in connection with the Aircraft. If the
Equipment Note being replaced has become mutilated, such Equipment Note shall be surrendered to the
Indenture Trustee and a photocopy thereof shall be furnished to the Owner. If the Equipment Note
being replaced has been destroyed, lost or stolen, the holder of such Equipment Note shall furnish
to the Owner and the Indenture Trustee such security or indemnity as may be required by them to
save the Owner and the Indenture Trustee harmless and
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evidence satisfactory to the Owner and the Indenture Trustee of the destruction, loss or theft
of such Equipment Note and of the ownership thereof. If a qualified institutional buyer of the
type referred to in paragraph (a)(1)(i)(A), (B), (D) or (E) of Rule 144A under the Securities Act
(a QIB) is the holder of any such destroyed, lost or stolen Equipment Note, then the written
indemnity of such QIB, signed by an authorized officer thereof, in favor of, delivered to and in
form reasonably satisfactory the Owner shall be accepted as satisfactory indemnity and security and
no further indemnity or security shall be required as a condition to the execution and delivery of
such new Equipment Note. Subject to compliance by the Note Holder with the requirements set forth
in this Section 2.07, the Indenture Trustee and the Owner shall use all reasonable efforts to issue
new Equipment Notes within 10 Business Days of the date of the written request therefor from the
Note Holder.
SECTION 2.08. Payment of Expenses on Transfer; Cancellation
(a) No service charge shall be made to a Note Holder for any registration of transfer or
exchange of Equipment Notes, but the Indenture Trustee, as Equipment Note Registrar, may require
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Equipment Notes.
(b) The Indenture Trustee shall cancel all Equipment Notes surrendered for replacement,
redemption, transfer, exchange, payment or cancellation and shall destroy the canceled Equipment
Notes.
SECTION 2.09. Mandatory Redemptions of Equipment Notes
On the date on which the Owner is required pursuant to Section 4.05 hereof to make payment for
an Event of Loss with respect to the Airframe, all of the Equipment Notes shall be redeemed in
whole at a redemption price equal to 100% of the unpaid Original Amount thereof, together with all
accrued interest thereon to the date of redemption and all other Secured Obligations (other than
Related Secured Obligations) owed or then due and payable to the Note Holders but without
Make-Whole Amount.
SECTION 2.10. Optional Redemptions of Equipment Notes
(a) All (but not less than all) of the Equipment Notes may be redeemed by the Owner upon at
least thirty (30) days revocable prior written notice to the Indenture Trustee and the Note
Holders, and such Equipment Notes shall be redeemed in whole at a redemption price equal to 100% of
the unpaid Original Amount thereof, together with accrued interest thereon to the date of
redemption and all other Secured Obligations (other than Related Secured Obligations) owed or then
due and payable to the Note Holders plus Make-Whole Amount, if any,
provided
that no
redemption shall be permitted under this Section 2.10(a) unless simultaneously with such redemption
all Related Series A Equipment Notes and Related Series B Equipment Notes shall also be redeemed.
(b) All of the Series B Equipment Notes may be redeemed by the Owner upon at least thirty (30)
days revocable prior written notice to the Indenture Trustee and
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the Note Holders of such Series, and such Equipment Notes shall be redeemed in whole at a
redemption price equal to 100% of the unpaid Original Amount thereof, together with accrued
interest thereon to the date of redemption and all other Secured Obligations (other than Related
Secured Obligations) owed or then due and payable to the Note Holders of such Series plus
Make-Whole Amount, if any;
provided
that no redemption shall be permitted under this
Section 2.10(b) unless the following conditions have been satisfied: (1) simultaneously with such
redemption, the Related Series B Equipment Notes shall also be redeemed; and (2) simultaneously
with such redemption, new Series B Equipment Notes shall be reissued in accordance with Section
4(a)(v) of the Note Purchase Agreement and Section 9.1(c) of the Intercreditor Agreement.
SECTION 2.11. Redemptions; Notice of Redemption
(a) No redemption of any Equipment Note may be made except to the extent and in the manner
expressly permitted by this Trust Indenture. No purchase of any Equipment Note may be made by the
Indenture Trustee.
(b) Notice of redemption with respect to the Equipment Notes shall be given by the Indenture
Trustee by first-class mail, postage prepaid, mailed not less than twenty (20) nor more than sixty
(60) days prior to the applicable redemption date, to each Note Holder of such Equipment Notes to
be redeemed, at such Note Holders address appearing in the Equipment Note Register; provided that
such notice shall be revocable by written notice from the Owner to the Indenture Trustee given not
later than three days prior to the redemption date. All notices of redemption shall state: (1) the
redemption date, (2) the applicable basis for determining the redemption price, (3) that on the
redemption date, the redemption price will become due and payable upon each such Equipment Note,
and that, if any such Equipment Notes are then outstanding, interest on such Equipment Notes shall
cease to accrue on and after such redemption date, and (4) the place or places where such Equipment
Notes are to be surrendered for payment of the redemption price.
(c) On or before the redemption date, the Owner (or any person on behalf of the Owner) shall,
to the extent an amount equal to the redemption price for the Equipment Notes to be redeemed on the
redemption date shall not then be held by the Indenture Trustee, deposit or cause to be deposited
with the Indenture Trustee by 12:30 p.m. New York time on the redemption date in immediately
available funds the redemption price of the Equipment Notes to be redeemed.
(d) Notice of redemption having been given as aforesaid, the Equipment Notes to be redeemed
shall, on the redemption date, become due and payable at the Corporate Trust Office of the
Indenture Trustee or at any office or agency maintained for such purposes pursuant to Section 2.06,
and from and after such redemption date (unless there shall be a default in the payment of the
redemption price) any such Equipment Notes then outstanding shall cease to bear interest. Upon
surrender of any such Equipment Note for redemption in accordance with said notice, such Equipment
Note shall be redeemed at the redemption price. If any Equipment Note called for redemption shall
not be so paid upon surrender thereof for redemption, the principal amount thereof shall, until
paid, continue to bear interest from the
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applicable redemption date at the interest rate in effect for such Equipment Note as of such
redemption date.
SECTION 2.12. Subordination
(a) The Owner, each Note Holder (by acceptance of its Equipment Notes of any Series) and each
Related Note Holder (by acceptance of its Related Equipment Note), hereby agree that no payment or
distribution shall be made on or in respect of the Secured Obligations owed to such Note Holder of
such Series or owed to such Related Note Holder, including any payment or distribution of cash,
property or securities after the commencement of a proceeding of the type referred to in Section
5.01(v), (vi) or (vii) hereof, except as expressly provided in Article III hereof.
(b) By the acceptance of its Equipment Notes of any Series (other than Series A), each Note
Holder of such Series agrees that in the event that such Note Holder, in its capacity as a Note
Holder, shall receive any payment or distribution on any Secured Obligations in respect of such
Series which it is not entitled to receive under this Section 2.12 or Article III hereof, it will
hold any amount so received in trust for the Senior Holder and will forthwith turn over such
payment to the Indenture Trustee in the form received to be applied as provided in Article III
hereof. By the acceptance of its Related Equipment Notes (other than Related Series A Equipment
Notes), each Related Note Holder agrees that in the event that such Related Note Holder, in its
capacity as a Related Note Holder, shall receive any payment or distribution pursuant to this Trust
Indenture on any Related Secured Obligations which it is not entitled to receive under this Section
2.12 or Article III hereof, it will hold any amount so received in trust for the Senior Holder (as
defined in Section 2.12(c) hereof) and will forthwith turn over such payment to the Indenture
Trustee in the form received to be applied as provided in Article III hereof.
(c) As used in this Section 2.12, the term Senior Holder shall mean (i) the Note Holders of
Series A Equipment Notes and Related Note Holders of the Related Series A Equipment Notes until the
Secured Obligations in respect of Series A Equipment Notes and Related Series A Equipment Notes
have been paid in full, (ii) after the Secured Obligations in respect of Series A Equipment Notes
and Related Series A Equipment Notes have been paid in full, the Note Holders of Series B Equipment
Notes and Related Note Holders of the Related Series B Equipment Notes until the Secured
Obligations in respect of Series B Equipment Notes and Related Series B Equipment Notes have been
paid in full, and (iii) after the Secured Obligations in respect of Series B Equipment Notes and
Related Series B Equipment Notes have been paid in full (and except as otherwise provided in an
amendment to this Trust Indenture pursuant to Section 10.01(b) hereof), the Note Holders of the
Additional Series Equipment Notes, if issued, and Related Note Holders of the Related Additional
Series Equipment Notes, if issued, until the Secured Obligations in respect of the Additional
Series Equipment Notes and Related Additional Series Equipment Notes have been paid in full.
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ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF PAYMENTS
SECTION 3.01. Basic Distributions
Except as otherwise provided in Sections 3.02 and 3.03 hereof, each periodic payment of
principal or interest on the Equipment Notes received by the Indenture Trustee shall be promptly
distributed in the following order of priority:
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(i)
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so much of such payment as shall be required to pay in full the aggregate
amount of the payment or payments of Original Amount and interest (as well as any
interest on any overdue Original Amount and, to the extent permitted by Law, on any
overdue interest) then due under all Series A Equipment Notes shall be distributed
to the Note Holders of Series A ratably, without priority of one over the other, in
the proportion that the amount of such payment or payments then due under each
Series A Equipment Note bears to the aggregate amount of the payments then due under
all Series A Equipment Notes;
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(ii)
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after giving effect to paragraph (i) above, so much of such payment
remaining as shall be required to pay in full the aggregate amount of the payment or
payments of Original Amount and interest (as well as any interest on any overdue
Original Amount and, to the extent permitted by Law, on any overdue interest) then
due under all Series B Equipment Notes shall be distributed to the Note Holders of
Series B ratably, without priority of one over the other, in the proportion that the
amount of such payment or payments then due under each Series B Equipment Note bears
to the aggregate amount of the payments then due under all Series B Equipment Notes;
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(iii)
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after giving effect to paragraph (ii) above (and except as otherwise
provided in an amendment to this Trust Indenture pursuant to Section 10.01(b)
hereof), so much of such payment remaining as shall be required to pay in full the
aggregate amount of the payment or payments of Original Amount and interest (as well
as any interest on any overdue Original Amount and, to the extent permitted by Law,
on any overdue interest) then due under all Additional Series Equipment Notes shall
be distributed to the Note Holders of Additional Series ratably, without priority of
one over the other, in the proportion that the amount of such payment or payments
then due under each Additional Series Equipment Note bears to the aggregate amount
of the payments then due under all Additional Series Equipment Notes.
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SECTION 3.02. Event of Loss; Replacement; Optional Redemption
Except as otherwise provided in Section 3.03 hereof, any payments received by the Indenture
Trustee (i) with respect to the Airframe or the Airframe and one or more Engines as the result of
an Event of Loss pursuant to Section 2.09 or (ii) pursuant to an optional redemption of the
Equipment Notes pursuant to Section 2.10 hereof shall be applied to
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redemption of the Equipment Notes and to all other Secured Obligations then due by applying
such funds in the following order of priority:
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First,
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(a) to reimburse the Indenture Trustee and the Note
Holders for any reasonable costs or expenses incurred in
connection with such redemption for which they are
entitled to reimbursement, or indemnity by the Owner,
under the Operative Agreements and then (b) to pay any
other Secured Obligations then due (except as provided in
clauses Second and Third below) to the Indenture
Trustee, the Note Holders and the other Indenture
Indemnitees under this Trust Indenture, the Participation
Agreement or the Equipment Notes (other than amounts
specified in clauses Second and Third below);
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Second,
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(i)
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to pay the amounts specified in paragraph (i) of clause
Third of Section 3.03 hereof plus Make-Whole Amount, if
any, then due and payable in respect of the Series A
Equipment Notes, but excluding distributions of amounts
of Related Secured Obligations to Related Note Holders;
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(ii)
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after giving effect to paragraph (i) above, to pay the amounts specified
in paragraph (ii) of clause Third of Section 3.03 hereof plus Make Whole Amount,
if any, then due and payable in respect of the Series B Equipment Notes, but
excluding distributions of amounts of Related Secured Obligations to Related Note
Holders;
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(iii)
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after giving effect to paragraph (ii) above, to pay the amounts
specified in paragraph (iii) of clause Third of Section 3.03 hereof then due and
payable in respect of the Additional Series Equipment Notes, but excluding
distributions of amounts of Related Secured Obligations to Related Note Holders; and
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Third,
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(i)
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to pay the amounts specified in paragraph (i) of clause Third of Section 3.03 hereof
then due and payable in respect of the Related Series A Equipment Notes;
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(ii)
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after giving effect to paragraph (i) above, to pay the amounts specified
in paragraph (ii) of clause Third of Section 3.03 hereof then due and payable in
respect of the Related Series B Equipment Notes;
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(iii)
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after giving effect to paragraph (ii) above, to pay the
amounts specified in paragraph (iii) of clause Third of Section
3.03 then due and payable in respect of the Related Additional
Series Equipment Notes; and
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Fourth,
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as provided in clause Fourth of Section 3.03 hereof;
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provided
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however
, that if a Replacement Airframe or Replacement Engine shall be
substituted for the Airframe or Engine subject to such Event of Loss as provided in Section 4.05
hereof, any insurance, condemnation or similar proceeds which result from such Event of Loss and
are paid over to the Indenture Trustee shall be held by the Indenture Trustee as permitted by
Section 7.04 hereof (provided that such moneys shall be invested as provided in Section 6.06
hereof) as additional security for the obligations of the Owner under Operative Agreements and such
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proceeds (and such investment earnings), to the extent not theretofore applied as provided herein,
shall be released to the Owner at the Owners written request upon the release of such Airframe or
Engine and the replacement thereof as provided herein;
provided
,
further
,
however
, in the case of a redemption of Equipment Notes pursuant to Section 2.10(b), if a
particular Series is not being redeemed pursuant thereto, no application of funds shall be made
pursuant to the paragraph in clause Second above that refers to such Series in connection with
such redemption. No Make-Whole Amount shall be due and payable on the Equipment Notes as a
consequence of the redemption of the Equipment Notes as a result of an Event of Loss with respect
to the Airframe or the Airframe and one or more Engines.
SECTION 3.03. Payments After Event of Default
Except as otherwise provided in Section 3.04 hereof, all payments received and amounts held or
realized by the Indenture Trustee (including any amounts realized by the Indenture Trustee from the
exercise of any remedies pursuant to Article V hereof) after an Event of Default shall have
occurred and be continuing, as well as all payments or amounts then held by the Indenture Trustee
as part of the Collateral, shall be promptly distributed by the Indenture Trustee in the following
order of priority:
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First,
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so much of such payments or amounts as shall be required to (i)
reimburse the Indenture Trustee or WTC for any tax (except to the
extent resulting from a failure of the Indenture Trustee to
withhold taxes pursuant to Section 2.03(b) hereof), expense or
other loss (including, without limitation, all amounts to be
expended at the expense of, or charged upon the rents, revenues,
issues, products and profits of, the property included in the
Collateral (all such property being herein called the Mortgaged
Property) pursuant to Section 5.03(b) hereof) incurred by the
Indenture Trustee or WTC (to the extent not previously
reimbursed), the expenses of any sale, or other proceeding,
reasonable attorneys fees and expenses, court costs, and any
other expenditures incurred or expenditures or advances made by
the Indenture Trustee, WTC or the Note Holders in the protection,
exercise or enforcement of any right, power or remedy or any
damages sustained by the Indenture Trustee, WTC or any Note
Holder, liquidated or otherwise, upon such Event of Default shall
be applied by the Indenture Trustee as between itself, WTC and the
Note Holders in reimbursement of such expenses and any other
expenses for which the Indenture Trustee, WTC or the Note Holders
are entitled to reimbursement under any Operative Agreement and
(ii) pay all Secured Obligations payable to the other Indenture
Indemnitees hereunder and under the Participation Agreement (other
than amounts specified in clauses Second and Third below); and in
the case the aggregate amount to be so distributed is insufficient
to pay as aforesaid in clauses (i) and (ii), then ratably, without
priority of one over the other, in proportion to the amounts owed
each hereunder;
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Second,
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so much of such payments or amounts remaining as shall be required
to reimburse the then existing or prior Note Holders for payments
made pursuant to Section 6.03 hereof (to the extent not previously
reimbursed) shall be distributed to such
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then existing or prior Note Holders ratably, without priority of one over the
other, in accordance with the amount of the payment or payments made by each
such then existing or prior Note Holder pursuant to said Section 6.03 hereof;
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Third,
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(i)
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so much of such payments or amounts
remaining as shall be required to pay in
full the aggregate unpaid Original Amount of
all Series A Equipment Notes, and the
accrued but unpaid interest and other
amounts due thereon and all other Secured
Obligations in respect of the Series A
Equipment Notes to the date of distribution
and all other Related Secured Obligations in
respect of Related Series A Equipment Notes
then due, shall be distributed to the Note
Holders of Series A and Related Note Holders
of the Related Series A Equipment Notes, and
in case the aggregate amount so to be
distributed shall be insufficient to pay in
full as aforesaid, then ratably, without
priority of one over the other, to each Note
Holder and Related Note Holder in the
proportion that the aggregate unpaid
Original Amount of all Series A Equipment
Notes held by such holder plus the accrued
but unpaid interest and other amounts due
hereunder or thereunder to the date of
distribution and all other Related Secured
Obligations then due in respect of the
Related Series A Equipment Notes held by
such holder, bears to the aggregate unpaid
Original Amount of all Series A Equipment
Notes plus the accrued but unpaid interest
and other amounts due thereon to the date of
distribution and all other Related Secured
Obligations in respect of the Related Series
A Equipment Notes then due;
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(ii)
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after giving effect to paragraph (i) above, so much of such payments or
amounts remaining as shall be required to pay in full the aggregate unpaid Original
Amount of all Series B Equipment Notes, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations in respect of the Series B
Equipment Notes to the date of distribution and all other Related Secured Obligations
in respect of Related Series B Equipment Notes then due, shall be distributed to the
Note Holders of Series B and Related Note Holders of the Related Series B Equipment
Notes, and in case the aggregate amount so to be distributed shall be insufficient to
pay in full as aforesaid, then ratably, without priority of one over the other, to
each Note Holder and Related Note Holder in the proportion that the aggregate unpaid
Original Amount of all Series B Equipment Notes held by such holder plus the accrued
but unpaid interest and other amounts due hereunder or thereunder to the date of
distribution and all other Related Secured Obligations then due in respect of the
Related Series B Equipment Notes held by such holder, bears to the aggregate unpaid
Original Amount of all Series B Equipment Notes plus the accrued but unpaid interest
and other amounts due thereon to the date of distribution and all other Related
Secured Obligations in respect of the Related Series B Equipment Notes then due;
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(iii)
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after giving effect to paragraph (ii) above (and except as otherwise
provided in an amendment to this Trust Indenture pursuant to Section 10.01(b)
hereof), so much of such payments or amounts remaining as shall be required to pay in
full the aggregate unpaid Original Amount of all Additional Series Equipment Notes,
and
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the accrued but unpaid interest and other amounts due thereon and all other Secured
Obligations in respect of the Additional Series Equipment Notes to the date of
distribution and all other Related Secured Obligations in respect of the Related
Additional Series Equipment Notes then due, shall be distributed to the Note Holders
of Additional Series and Related Note Holders of the Related Additional Series
Equipment Notes, and in case the aggregate amount so to be distributed shall be
insufficient to pay in full as aforesaid, then ratably, without priority of one over
the other, in the proportion that the aggregate unpaid Original Amount of all
Additional Series Equipment Notes held by each holder plus the accrued but unpaid
interest and other amounts due hereunder or thereunder to the date of distribution
and all other Related Secured Obligations then due in respect of Related Additional
Series Equipment Notes held by such holder, bears to the aggregate unpaid Original
Amount of all Additional Series Equipment Notes held by all such holders plus the
accrued but unpaid interest and other amounts due thereon to the date of
distribution and all other Related Secured Obligations in respect of Related
Additional Series Equipment Notes then due; and
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(iv)
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after giving effect to paragraph (iii) above, if any Related Equipment Note
is outstanding, any of such payments or amounts remaining and any invested Cash
Equivalents shall be held by the Indenture Trustee in an Eligible Account in
accordance with the provisions of Section 3.07 (and invested as provided in Section
6.06 hereof) as additional security for the Related Secured Obligations, and such
amounts (and any investment earnings thereon) shall be distributed from time to time
in accordance with the foregoing provisions of this clause Third as and to the
extent any Related Secured Obligation shall at any time and from time to time become
due and remain unpaid after the giving of any required notice and the expiration of
any applicable grace period; and, upon the payment in full of all Related Secured
Obligations the balance, if any, of any such remaining amounts and investment
earnings thereon shall be applied as provided in clause Fourth of this Section 3.03;
and
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Fourth,
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the balance, if any, of such payments or amounts remaining thereafter shall be distributed to the Owner.
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No Make-Whole Amount shall be due and payable on the Equipment Notes as a consequence of the
acceleration of the Equipment Notes as a result of an Event of Default.
SECTION 3.04. Certain Payments
(a) Any payments received by the Indenture Trustee for which no provision as to the
application thereof is made in this Trust Indenture and for which such provision is made in any
other Operative Agreement shall be applied forthwith to the purpose for which such payment was made
in accordance with the terms of such other Operative Agreement, as the case may be.
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(b) Notwithstanding anything to the contrary contained in this Article III, the Indenture
Trustee will distribute promptly upon receipt any indemnity payment received by it from the Owner
in respect of the Indenture Trustee in its individual capacity, any Note Holder or any other
Indenture Indemnitee, in each case whether or not pursuant to Section 8 of the Participation
Agreement, directly to the Person entitled thereto. Any payment received by the Indenture Trustee
under the third paragraph of Section 2.02 shall be distributed to the Subordination Agent in its
capacity as Note Holder to be distributed in accordance with the terms of the Intercreditor
Agreement.
(c) For the avoidance of doubt, no amount will be distributed pursuant to this Article III to
any holder of a note issued under a Related Indenture that is not a Related Note Holder (as such).
SECTION 3.05. Other Payments
Any payments received by the Indenture Trustee for which no provision as to the application
thereof is made elsewhere in this Trust Indenture or in any other Operative Agreement shall be
distributed by the Indenture Trustee to the extent received or realized at any time, in the order
of priority specified in Section 3.01 hereof, and after payment in full of all amounts then due in
accordance with Section 3.01 in the manner provided in clause Fourth of Section 3.03 hereof.
SECTION 3.06. Cooperation
Prior to making any distribution under this Article III, the Indenture Trustee shall consult
with the Related Indenture Trustees to determine amounts payable with respect to the Related
Secured Obligations. The Indenture Trustee shall cooperate with the Related Indenture Trustees and
shall provide such information as shall be reasonably requested by each Related Indenture Trustee
to enable such Related Indenture Trustee to determine amounts distributable under Article III of
its Related Indenture.
SECTION 3.07. Securities Account
In furtherance of the provisions of Section 3.03 of this Trust Indenture, WTC agrees to act as
an Eligible Institution under this Trust Indenture in accordance with the provisions of this Trust
Indenture (in such capacity, the Securities Intermediary). Except in its capacity as the
Indenture Trustee, WTC waives any claim or lien against any Eligible Account it may have, by
operation of law or otherwise, for any amount owed to it by the Owner. The Securities Intermediary
hereby agrees that, notwithstanding anything to the contrary in this Trust Indenture, (i) any
amounts to be held by the Indenture Trustee pursuant to paragraph (iv) of clause Third of Section
3.03 and any investment earnings thereon or other Cash Equivalents will be credited to an Eligible
Account (the Securities Account) for which it is a securities intermediary (as defined in
Section 8-102(a)(14) of the NY UCC) and the Indenture Trustee is the entitlement holder (as
defined in Section 8-102(a)(7) of the NY UCC) of the securities entitlement (as defined in
Section 8-102(a)(17) of the NY UCC) with respect to each financial asset (as defined in Section
8-102(a)(9) of the NY UCC) credited to such Eligible Account, (ii) all such amounts, Cash
Equivalents and all other property acquired with cash credited to the
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Securities Account will be credited to the Securities Account, (iii) all items of property
(whether cash, investment property, Cash Equivalents, other investments, securities, instruments or
other property) credited to the Securities Account will be treated as a financial asset under
Article 8 of the NY UCC, (iv) its securities intermediarys jurisdiction (as defined in Section
8-110(e) of the NY UCC) with respect to the Securities Account is the State of New York, and (v)
all securities, instruments and other property in order or registered from and credited to the
Securities Account shall be payable to or to the order of, or registered in the name of, the
Securities Intermediary or shall be indorsed to the Securities Intermediary or in blank, and in no
case whatsoever shall any financial asset credited to the Securities Account be registered in the
name of the Owner, payable to or to the order of the Owner or specially indorsed to the Owner
except to the extent the foregoing have been specially endorsed by the Owner to the Securities
Intermediary or in blank. The Indenture Trustee agrees that it will hold (and will indicate
clearly in its books and records that it holds) its securities entitlement to the financial
assets credited to the Securities Account in trust for the benefit of the Note Holders and each of
the Indenture Indemnitees as set forth in this Trust Indenture. The Owner acknowledges that, by
reason of the Indenture Trustee being the entitlement holder in respect of the Securities Account
as provided above, the Indenture Trustee shall have the sole right and discretion, subject only to
the terms of this Trust Indenture, to give all entitlement orders (as defined in Section
8-102(a)(8) of the NY UCC) with respect to the Securities Account and any and all financial assets
and other property credited thereto to the exclusion of the Owner.
SECTION 3.08. Payments to Owner.
Any amount distributed hereunder by the Indenture Trustee to Owner shall be paid to Owner
(within the time limits contemplated by Section 2 03(a)) by wire transfer of funds of the type
received by the Indenture Trustee at such office and to such account or accounts of such entity or
entities as shall be designated by notice from the Owner to the Indenture Trustee from time to
time. The Owner hereby notifies the Indenture Trustee that unless and until the Indenture Trustee
receives notice to the contrary from the Owner, all amounts to be distributed to the Owner pursuant
to this Trust Indenture shall be distributed by wire transfer of funds of the type received by the
Indenture Trustee to the Owners account specified in Schedule 1 to the Participation Agreement.
ARTICLE IV
COVENANTS OF THE OWNER
SECTION 4.01. Liens
The Owner will not directly or indirectly create, incur, assume or suffer to exist any Lien on
or with respect to the Airframe or any Engine, title to any of the foregoing or any interest of the
Owner therein, except Permitted Liens. The Owner shall promptly, at its own expense, take such
action as may be necessary to duly discharge (by bonding or otherwise) any Lien other than a
Permitted Lien arising at any time.
26
SECTION 4.02. Possession, Operation and Use, Maintenance, Registration and Markings
(a)
General
. Except as otherwise expressly provided herein, the Owner shall be
entitled to operate, use, locate, employ or otherwise utilize or not utilize the Airframe, any
Engine or any Parts in any lawful manner or place in accordance with the Owners business judgment.
(b)
Possession
. The Owner, without the prior consent of the Indenture Trustee, shall
not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft,
the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any
airframe other than the Airframe; except that the Owner may, without such prior written consent of
the Indenture Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange
agreements or (ii) any Engine to normal interchange, pooling, borrowing or similar arrangements, in
each case customary in the commercial airline industry and entered into by the Owner or such
Permitted Lessee, as the case may be, in the ordinary course of business;
provided
,
however
, that if the Owners title to any such Engine is divested under any such agreement
or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date
of such divestiture, and the Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe,
any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider
for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or
any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications
in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of
transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by the
Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x)
Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties
under normal interchange or pooling agreements and arrangements of the type that would be permitted
under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to the
Owner or such Permitted Lessee, or purchased by the Owner or such Permitted Lessee subject to a
mortgage, security agreement, conditional sale or other secured financing arrangement, but only if
(x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such
lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type
permitted by clause (iii) above and (y) the Owner or Permitted Lessee, as the case may be, shall
have received from the lessor, mortgagee, secured party or conditional seller, in respect of such
airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement,
conditional sale or other agreement covering such
27
airframe), whereby such Person agrees that it will not acquire or claim any right, title or
interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at
any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by the
Owner or such Permitted Lessee, leased to the Owner or such Permitted Lessee, or purchased by the
Owner or such Permitted Lessee subject to a conditional sale or other security agreement under
circumstances where neither clause (iii) or (iv) above is applicable;
provided
,
however
, that any such installation shall be deemed an Event of Loss with respect to such
Engine, and the Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe
or any Engine to the U.S. Government, in which event the Owner shall promptly notify the Indenture
Trustee in writing of any such transfer of possession and, in the case of any transfer pursuant to
CRAF, in such notification shall identify by name, address and telephone numbers the Contracting
Office Representative or Representatives for the Military Airlift Command of the United States Air
Force to whom notices must be given and to whom requests or claims must be made to the extent
applicable under CRAF;
(vii) To the extent permitted by Section 4.04(c) hereof, subject any appliances, Parts or
other equipment owned by the Owner and removed from the Airframe, or any Engine, to any pooling
arrangement referred to in Section 4.04(c) hereof;
(viii) Enter into a charter or Wet Lease or other similar arrangement with respect to the
Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered
a transfer of possession hereunder);
provided
that
the Owners obligations
hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or
other similar arrangement;
(ix) So long as no Event of Default shall have occurred and be continuing, subject to the
provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft,
Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy,
insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have
substantially all of its property in the possession of any liquidator, trustee, receiver or similar
person;
provided
that
, in the case only of a lease to a Permitted Foreign Air
Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such
Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as
those in effect on the Closing Date) and (B) the Owner shall have furnished the Indenture Trustee
with a favorable opinion of counsel, reasonably satisfactory to the Indenture Trustee, in the
country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the
legal, valid and binding obligations of the parties thereto enforceable under the laws of such
jurisdiction, (w) it is not necessary for the Indenture Trustee to register or qualify to do
business in such jurisdiction, if not already so registered or qualified, as a result, in whole or
in part, of the proposed lease, (x) the Indenture Trustees Lien in respect of, the Aircraft,
Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of
28
domicile require fair compensation by the government of such jurisdiction, payable in a
currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or
Engines in the event of the requisition by such government of such title (unless the Owner shall
provide insurance in the amounts required with respect to hull insurance under this Trust Indenture
covering the requisition of title to the Aircraft, Airframe or Engines by the government of such
jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the
agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate
to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under
applicable law;
provided
that (1) the rights of any transferee or Permitted Lessee who receives possession
by reason of a transfer permitted by any of clauses (i) through (ix) of this Section 4.02(b) (other
than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate
to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the
performance of all of the terms of this Trust Indenture and all the terms and conditions of this
Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or
transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any
registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e)
or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d)
or (y) permit any action not permitted to the Owner hereunder.
In the case of any lease permitted under this Section 4.02(b), the Owner will comply with the
notice requirement of Section 6.1.5 of the Participation Agreement and will include in such lease
appropriate provisions which (t) make such lease expressly subject and subordinate to all of the
terms of this Trust Indenture, including the rights of the Indenture Trustee to avoid such lease in
the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the
Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any
Engine subject thereto be used in accordance with the limitations applicable to the Owners
possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b)
shall be entered into unless (w) the Owner shall provide written notice to the Indenture Trustee
(such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into
any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of
entering into such lease); (x) the Owner shall furnish to the Indenture Trustee evidence reasonably
satisfactory to the Indenture Trustee that the insurance required by Section 4.06 remains in
effect; (y) all necessary documents shall have been duly filed, registered or recorded in such
public offices as may be required fully to preserve the first priority security interest and
International Interest (subject to Permitted Liens) of the Indenture Trustee in the Aircraft,
Airframe and Engines; and (z) the Owner shall reimburse the Indenture Trustee for all of its
reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and
disbursements of counsel, incurred by the Indenture Trustee in connection with any such lease.
Except as otherwise provided herein and without in any way relieving the Owner from its primary
obligation for the performance of its obligations under this Trust Indenture, the Owner may in its
sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to
exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owners
obligations under Article IV, and the Indenture
29
Trustee agrees to accept actual and full performance thereof by a lessee in lieu of
performance by the Owner.
Any Wet Lease or similar arrangement under which the Owner maintains operational control of
the Aircraft shall not constitute a deliver, transfer or relinquishment of possession of the
Aircraft for purposes of this Section.
The Indenture Trustee hereby agrees, and each Note Holder and Related Note Holder by
acceptance of an Equipment Note and a Related Equipment Note, respectively, agrees, for the benefit
of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or
purchased by, the Owner or any Permitted Lessee subject to a lease, conditional sale, trust
indenture or other security agreement that the Indenture Trustee, each Note Holder and Related Note
Holder and their respective successors and assigns will not acquire or claim, as against such
lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any
engine as the result of such engine being installed on the Airframe at any time while such engine
is subject to such lease, conditional sale, trust indenture or other security agreement and owned
by such lessor or conditional seller or subject to a trust indenture or security interest in favor
of such indenture trustee or secured party.
(c)
Operation and Use
. So long as the Aircraft, Airframe or any Engine is subject to
the Lien of this Trust Indenture, the Owner shall not operate, use or locate the Aircraft, Airframe
or any Engine, or allow the Aircraft, Airframe or any Engine to be operated, used or located, (i)
in any area excluded from coverage by any insurance required by the terms of Section 4.06, except
in the case of a requisition by the U.S. Government where the Owner obtains indemnity in lieu of
such insurance from the U.S. Government, or insurance from the U.S. Government, against
substantially the same risks and for at least the amounts of the insurance required by Section 4.06
covering such area, or (ii) in any recognized area of hostilities unless covered in accordance with
Section 4.06 by war risk insurance, or in either case unless the Aircraft, the Airframe or any
Engine is only temporarily operated, used or located in such area as a result of an emergency,
equipment malfunction, navigational error, hijacking, weather condition, medical emergency or other
circumstances beyond the reasonable control of the Owner (or any Permitted Lessee), so long as the
Owner (or any Permitted Lessee) diligently and in good faith proceeds to remove the Aircraft from
such area. The Owner shall also have the right to operate the Aircraft without having on board the
original registration certificate or airworthiness certificate in the event that either or both
such certificates disappear from the Aircraft, but only to the extent permitted by Exemption No.
5318 of the FAA Regulations or other similar exemption. So long as the Aircraft, the Airframe or
any Engine is subject to the Lien of this Trust Indenture, the Owner shall not permit such
Aircraft, Airframe or any Engine, as the case may be, to be used, operated, maintained, serviced,
repaired or overhauled (x) in violation of any Law of any Government Entity having jurisdiction
over the Aircraft that is binding on or applicable to such Aircraft, Airframe or Engine or (y) in
violation of any airworthiness certificate, license or registration of any Government Entity
relating to the Aircraft, the Airframe or any Engine, except (i) immaterial or non-recurring
violations with respect to which corrective measures are taken promptly by the Owner or Permitted
Lessee, as the case may be, upon discovery thereof, or (ii) to the extent the validity or
application of any such Law or requirement relating to any such certificate, license or
registration is being contested in good
30
faith by the Owner or Permitted Lessee in any reasonable manner which does not involve any
material risk of the sale, forfeiture or loss of the Aircraft, Airframe or any Engine, any material
risk of criminal liability or material civil penalty against the Indenture Trustee or impair the
Indenture Trustees security interest or International Interest in the Aircraft, Airframe or any
Engine. Owner shall not be in default under or required to take any action set forth in the
preceding sentence if it is not possible for Owner to comply with the laws of a jurisdiction other
than the United States (or other jurisdiction in which the Aircraft is registered) because of a
conflict with the Laws of the United States (or other jurisdiction in which the Aircraft is
registered).
(d)
Maintenance and Repair
. So long as the Aircraft, Airframe or any Engine is
subject to the Lien of this Trust Indenture, the Owner shall cause the Aircraft, Airframe and each
Engine to be maintained, serviced, repaired and overhauled in accordance with (i) maintenance
standards required by or substantially equivalent to those required by the Owners FAA approved
maintenance program or while registered in another jurisdiction, under the applicable maintenance
standards required by the Aviation Authority in such jurisdiction (
provided
, that in any
case, if operated under the maintenance program of an Aviation Authority other the FAA, the
Aircraft, Airframe and each Engine shall be maintained according to standards substantially
equivalent to those required by the Aviation Authority of any of Australia, Austria, Belgium,
Canada, Denmark, Finland, France, Germany, Ireland, Italy, Japan, the Netherlands, New Zealand,
Norway, Spain, Sweden, Switzerland or the United Kingdom) so as to (A) keep the Aircraft, the
Airframe and each Engine in as good operating condition as on the Closing Date, ordinary wear and
tear excepted, (B) keep the Aircraft in such operating condition as may be necessary to enable the
applicable airworthiness certification of such Aircraft to be maintained under the regulations of
the FAA or other Aviation Authority then having jurisdiction over the operation of the Aircraft,
except (w) during temporary periods of storage in accordance with applicable regulations, (x)
maintenance, testing and modification permitted hereunder, (y) during periods when the FAA or such
other Aviation Authority has revoked or suspended the airworthiness certificates for Similar
Aircraft or (z) with respect to minor or nonrecurring violations with respect to which corrective
measures are taken upon discovery thereof and except to the extent the Owner or Permitted Lessee is
promptly contesting in good faith the validity or application of any such Law or requirement
relating to any such certificate, license or registration in any reasonable manner which does not
create a material risk of sale, loss or forfeiture of the Aircraft, the Airframe or any Engine or
the interest of the Indenture Trustee therein or any material risk of criminal liability or
material civil penalty against the Indenture Trustee; and (ii) except during periods when a
Permitted Lease is in effect, the same standards as the Owner uses with respect to similar aircraft
of similar size in its fleet operated by the Owner in similar circumstances and, during any period
in which a Permitted Lease is in effect, the same standards used by the Permitted Lessee with
respect to similar aircraft of similar size in its fleet and operated by the Permitted Lessee in
similar circumstances (it being understood that this clause (ii) shall not limit the Owners
obligations under the preceding clause (i)). The Owner further agrees that the Aircraft, Airframe
and Engines will be maintained, used, serviced, repaired, overhauled or inspected in compliance
with each applicable airworthiness certificate, license and registration relating to the Aircraft,
Airframe or any Engine issued by the FAA (or other applicable Aviation Authority). The Owner shall
maintain or cause to be maintained the Aircraft Documents in the English language.
31
(e)
Registration
. The Owner on or prior to the date of the Closing shall cause the
Aircraft to be duly registered in its name under the Act and except as otherwise permitted by this
Section 4.02(e) at all times thereafter shall cause the Aircraft to remain so registered. So long
as no Special Default or Event of Default shall have occurred and be continuing, the Owner may, by
written notice to the Indenture Trustee, request to change the country of registration of the
Aircraft. Any such change in registration shall be effected only in compliance with, and subject
to all of the conditions set forth in, Section 6.4.5 of the Participation Agreement. Unless the
Trust Indenture has been discharged, the Owner shall also cause the Trust Indenture to be duly
recorded and at all times maintained of record as a first-priority perfected mortgage (subject to
Permitted Liens) on the Aircraft, the Airframe and each of the Engines (except to the extent such
perfection or priority cannot be maintained solely as a result of the failure by the Indenture
Trustee to execute and deliver any necessary documents). Unless the Lien of this Indenture has
been discharged, the Owner shall cause the International Interest granted under this Indenture in
favor of the Indenture Trustee in each Airframe and Engine to be registered on the International
Registry as an International Interest on such Airframe and Engine, subject to the Indenture Trustee
providing its consent to the International Registry with respect thereto.
(f)
Markings
. If permitted by applicable Law, on or reasonably promptly after the
Closing Date, the Owner will cause to be affixed to, and maintained in, the cockpit of the Airframe
and on each Engine, in each case, in a clearly visible location, a placard of a reasonable size and
shape bearing the legend: Subject to a security interest in favor of Wilmington Trust Company,
not in its individual capacity but solely as Indenture Trustee. Such placards may be removed
temporarily, if necessary, in the course of maintenance of the Airframe or Engines. If any such
placard is damaged or becomes illegible, the Owner shall promptly replace it with a placard
complying with the requirements of this Section.
SECTION 4.03. Inspection
(a) At all reasonable times upon at least 15 Business Days prior written notice to Owner, so
long as the Aircraft is subject to the Lien of this Trust Indenture, the Indenture Trustee and its
authorized representatives (the Inspecting Parties) may (not more than once every twelve (12)
months unless an Event of Default has occurred and is continuing then such inspection right shall
not be so limited) inspect the Aircraft, Airframe and Engines (including without limitation, the
Aircraft Documents) and any such Inspecting Party may make copies of such Aircraft Documents not
reasonably deemed confidential by the Owner or such Permitted Lessee.
(b) Any inspection of the Aircraft hereunder shall be limited to a visual, walk-around
inspection and shall not include the opening of any panels, bays or the like or other components of
the Aircraft, and no such inspection shall interfere with the Owners or any Permitted Lessees
maintenance and operation of the Aircraft, Airframe and Engines. Any inspection shall be subject
to the Owners safety and security rules applicable to the location of the Aircraft.
32
(c) With respect to such rights of inspection, the Indenture Trustee shall not have any duty
or liability to make, or any duty or liability by reason of not making, any such visit, inspection
or survey.
(d) Each Inspecting Party shall bear its own expenses in connection with any such inspection
(including the cost of any copies made in accordance with Section 4.03(a)).
SECTION 4.04. Replacement and Pooling of Parts, Alterations, Modifications and Additions;
Substitution of Engines
(a)
Replacement of Parts
. Except as otherwise provided herein, so long as the
Airframe or Engine is subject to the Lien of this Trust Indenture, the Owner, at its own cost and
expense, will, or will cause a Permitted Lessee to, at its own cost and expense, promptly replace
(or cause to be replaced) all Parts which may from time to time be incorporated or installed in or
attached to the Aircraft, Airframe or any Engine and which may from time to time become worn out,
lost, stolen, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit
for use for any reason whatsoever, except as otherwise provided in paragraph (d) of this Section
4.04 or if the Airframe or Engine to which a Part relates has suffered an Event of Loss. In
addition, the Owner may, at its own cost and expense, or may permit a Permitted Lessee at its own
cost and expense to, remove (or cause to be removed) in the ordinary course of maintenance,
service, repair, overhaul or testing any Parts, whether or not worn out, lost, stolen, destroyed,
seized, confiscated, damaged beyond repair or permanently rendered unfit for use;
provided
,
however
, that the Owner, except as otherwise provided herein, at its own cost and expense,
will, or will cause a Permitted Lessee at its own cost and expense to, replace such Parts as
promptly as practicable. All replacement parts shall be free and clear of all Liens, except for
Permitted Liens and pooling arrangements to the extent permitted by Section 4.04(c) below (and
except in the case of replacement property temporarily installed on an emergency basis) and shall
be in good operating condition and have a value and utility not less than the value and utility of
the Parts replaced (assuming such replaced Parts were in the condition required hereunder).
(b)
Parts
. Except as otherwise provided herein, any Part at any time removed from the
Airframe or any Engine shall remain subject to the Lien of this Trust Indenture, no matter where
located, until such time as such Part shall be replaced by a part that has been incorporated or
installed in or attached to such Airframe or any Engine and that meets the requirements for
replacement parts specified above. Immediately upon any replacement part becoming incorporated or
installed in or attached to such Airframe or any Engine as provided in Section 4.04(a), without
further act, (i) the replaced Part shall thereupon be free and clear of all rights of the Indenture
Trustee and shall no longer be deemed a Part hereunder, and (ii) such replacement part shall become
a Part subject to this Trust Indenture and be deemed part of such Airframe or any Engine, as the
case may be, for all purposes hereof to the same extent as the Parts originally incorporated or
installed in or attached to such Airframe or any Engine. Upon request of Owner, the Indenture
Trustee shall, at Owners expense, execute and deliver to Owner such documents as may be reasonably
required to evidence the release of any replaced Part from the Lien of the Indenture.
33
(c)
Pooling of Parts
. Any Part removed from the Aircraft, Airframe or an Engine may
be subjected by the Owner or a Permitted Lessee to a normal pooling arrangement customary in the
airline industry and entered into in the ordinary course of business of the Owner or Permitted
Lessee, provided that the part replacing such removed Part shall be incorporated or installed in or
attached to such Airframe or any Engine in accordance with Sections 4.04(a) and 4.04(b) as promptly
as practicable after the removal of such removed Part. In addition, any replacement part when
incorporated or installed in or attached to the Airframe or any Engine may be owned by any third
party, subject to a normal pooling arrangement, so long as the Owner or a Permitted Lessee, at its
own cost and expense, as promptly thereafter as reasonably possible, either (i) causes such
replacement part to become subject to the Lien of this Trust Indenture, free and clear of all Liens
except Permitted Liens, at which time such replacement part shall become a Part or (ii) replaces
(or causes to be replaced) such replacement part by incorporating or installing in or attaching to
the Aircraft, Airframe or any Engine a further replacement part owned by the Owner free and clear
of all Liens except Permitted Liens and which shall become subject to the Lien of this Trust
Indenture in accordance with Section 4.04(b).
(d)
Alterations, Modifications and Additions
. The Owner shall, or shall cause a
Permitted Lessee to, make (or cause to be made) alterations and modifications in and additions to
the Aircraft, Airframe and each Engine as may be required to be made from time to time to meet the
applicable standards of the FAA or other Aviation Authority having jurisdiction over the operation
of the Aircraft, to the extent made mandatory in respect of the Aircraft (a Mandatory
Modification); except for (i) immaterial and non-recurring violations with respect to which
corrective measures are being taken promptly by Owner or a Permitted Lessee and (ii) any law, rule,
regulation or order the validity or application of which is being contested in good faith by the
Owner or any Permitted Lessee in any reasonable manner which does not materially adversely affect
the Indenture Trustees interest in the Aircraft, does not impair the Indenture Trustees security
interest or International Interest in the Aircraft and does not involve any material risk of sale,
forfeiture or loss of the Aircraft or the interest of the Indenture Trustee therein or any material
risk of material civil penalty or any material risk of criminal liability being imposed on the
Indenture Trustee or the holder of any Equipment Note. In addition, the Owner, at its own expense,
may, or may permit a Permitted Lessee at its own cost and expense to, from time to time make or
cause to be made such alterations and modifications in and additions to the Airframe or any Engine
(each an Optional Modification) as the Owner or such Permitted Lessee may deem desirable in the
proper conduct of its business including, without limitation, removal of Parts which the Owner
deems are obsolete or no longer suitable or appropriate for use in the Aircraft, Airframe or such
Engine;
provided
,
however
, that no such Optional Modification shall (i) materially
diminish the fair market value, utility, or useful life of the Aircraft or any Engine below its
fair market value, utility or useful life immediately prior to such Optional Modification (assuming
the Aircraft or such Engine was in the condition required by this Trust Indenture immediately prior
to such Optional Modification) or (ii) cause the Aircraft to cease to have the applicable standard
certificate of airworthiness except that such certificate of airworthiness temporarily may be
replaced by an experimental certificate during the process of implementing and testing such
Optional Modification and securing related FAA re-certification of the Aircraft. For the avoidance
of doubt, Owner may make alterations in the passenger configuration of the Aircraft and such
alterations shall not
34
constitute an Optional Modification. All Parts incorporated or installed in or attached to
any Airframe or any Engine as the result of any alteration, modification or addition effected by
the Owner shall be free and clear of any Liens except Permitted Liens and become subject to the
Lien of this Trust Indenture;
provided
that the Owner or any Permitted Lessee may, at any
time so long as the Airframe or any Engine is subject to the Lien of this Trust Indenture, remove
any such Part (such Part being referred to herein as a
Removable Part
) from such Airframe
or an Engine if (i) such Part is in addition to, and not in replacement of or in substitution for,
any Part originally incorporated or installed in or attached to such Airframe or any Engine at the
time of delivery thereof hereunder or any Part in replacement of, or in substitution for, any such
original Part, (ii) such Part is not required to be incorporated or installed in or attached or
added to such Airframe or any Engine pursuant to the terms of Section 4.02(d) or the first sentence
of this Section 4.04(d) and (iii) such Part can be removed from such Airframe or any Engine without
materially diminishing the fair market value, utility or remaining useful life which such Airframe
or any Engine would have had at the time of removal had such removal not been effected by the
Owner, assuming the Aircraft was otherwise maintained in the condition required by this Trust
Indenture and such Removable Part had not been incorporated or installed in or attached to the
Aircraft, Airframe or such Engine. Upon the removal by the Owner of any such Part as above
provided in this Section 4.04(d), title thereto shall, without further act, be free and clear of
all rights of the Indenture Trustee and such Part shall no longer be deemed a Part hereunder.
Removable Parts may be leased from or financed by third parties other than the Indenture Trustee.
Notwithstanding any other provision of this Indenture, Owner may, at any time, install or permit to
be installed in the Aircraft Passenger Convenience Equipment owned by Owner or any Permitted Lessee
or by third parties and leased or otherwise furnished to Owner in the ordinary course of business
(including pursuant to a conditional sale contract, a licence or otherwise), and Owner may remove
(and not replace) or permit to be removed (and not replaced) the same, and Indenture Trustee shall
not acquire a Lien thereon by virtue of such installation or otherwise, and the rights of the
owners therein shall not constitute a default under this Trust Indenture, it being acknowledged and
agreed, however, that in no event shall the installation of any such Passenger Convenience
Equipment impair or otherwise affect the rights and remedies of the Indenture Trustee hereunder and
under applicable law.
(e)
Substitution of Engines
. Upon the occurrence of an Event of Loss with respect to
an Engine under circumstances in which an Event of Loss with respect to the Airframe has not
occurred, the Owner shall promptly (and in any event within fifteen (15) days after such
occurrence) give the Indenture Trustee written notice of such Event of Loss. The Owner shall have
the right at its option at any time, on at least five (5) Business Days prior notice to the
Indenture Trustee, to substitute, and if an Event of Loss shall have occurred with respect to an
Engine under circumstances in which an Event of Loss with respect to the Airframe has not occurred,
shall within one hundred and twenty (120) days of the occurrence of such Event of Loss substitute,
a Replacement Engine for any Engine. In such event, immediately upon the effectiveness of such
substitution and without further act, (i) the replaced Engine shall thereupon be free and clear of
all rights of the Indenture Trustee and the Lien of this Trust Indenture and shall no longer be
deemed an Engine hereunder and (ii) such Replacement Engine shall become subject to this Trust
Indenture and be deemed part of the Aircraft for all purposes hereof to the same extent as the
replaced Engine. Such Replacement Engine shall be an engine manufactured by Engine Manufacturer
that is the same model as the Engine to be replaced
35
thereby, or an improved model, and that is suitable for installation and use on the Airframe,
and that has a value, utility and remaining useful life (without regard to hours and cycles
remaining until overhaul) at least equal to the Engine to be replaced thereby (assuming that such
Engine had been maintained in accordance with this Trust Indenture). The Owners right to make a
replacement hereunder shall be subject to the fulfillment (which may be simultaneous with such
replacement) of the following conditions precedent at the Owners sole cost and expense, and the
Indenture Trustee agrees to cooperate with the Owner to the extent necessary to enable it to timely
satisfy such conditions:
(i) an executed counterpart of each of the following documents shall be delivered to the
Indenture Trustee:
(A) a Trust Indenture Supplement covering the Replacement Engine, which shall
have been duly filed for recordation pursuant to the Act or such other applicable
law of the jurisdiction other than the United States in which the Aircraft of which
such Engine is a part is registered in accordance with Section 4.02(e), as the case
may be;
(B) a full warranty bill of sale (as to title), covering the Replacement
Engine, executed by the former owner thereof in favor of the Owner (or, at the
Owners option, other evidence of the Owners ownership of such Replacement Engine,
reasonably satisfactory to the Indenture Trustee); and
(C) UCC financing statements covering the security interests created by this
Trust Indenture (or any similar statements or other documents required to be filed
or delivered pursuant to the laws of the jurisdiction in which such Aircraft may be
registered) as are deemed necessary or desirable by counsel for the Indenture
Trustee to protect the security interests of the Indenture Trustee in the
Replacement Engine;
(ii) the Owner shall cause to be delivered to the Indenture Trustee an opinion of counsel to
the effect that the Lien of this Trust Indenture continues to be in full force and effect with
respect to the Replacement Engine and such evidence of compliance with the insurance provisions of
Section 4.06 with respect to such Replacement Engine as the Indenture Trustee shall reasonably
request;
(iii) promptly after the filing of the Trust Indenture Supplement, the Owner shall have caused
to be furnished to the Indenture Trustee an opinion of the Owners aviation law counsel reasonably
satisfactory to the Indenture Trustee addressed to the Indenture Trustee as to the due filing for
recordation of the Trust Indenture Supplement with respect to such Replacement Engine under the Act
or such other applicable law of the jurisdiction other than the United States in which the Aircraft
is registered in accordance with Section 4.02(e), as the case may be, and the registration (which
the Owner shall have caused to be effected) with the International Registry of the sale to the
Owner of such Replacement Engine (if occurring after February 28, 2006) and the International
Interest granted under such Trust Indenture Supplement with respect to such Replacement Engine; and
36
(iv) the Owner shall have furnished to the Indenture Trustee a certificate of a qualified
aircraft engineer (who may be an employee of the Owner) or an independent appraiser certifying that
such Replacement Engine has a value and utility and remaining useful life (without regard to hours
and cycles remaining until overhaul) at least equal to the Engine so replaced (assuming that such
Engine had been maintained in accordance with this Trust Indenture).
Upon satisfaction of all conditions to such substitution, (x) the Indenture Trustee shall execute
and deliver to the Owner such documents and instruments, prepared at the Owners expense, as the
Owner shall reasonably request to evidence the release of such replaced Engine from the Lien of
this Trust Indenture, (y) the Indenture Trustee shall assign to the Owner all claims it may have
against any other Person relating to any Event of Loss giving rise to such substitution and (z) the
Owner shall receive all insurance proceeds (other than those reserved to others under Section
4.06(b)) and proceeds in respect of any Event of Loss giving rise to such replacement to the extent
not previously applied to the purchase price of the Replacement Engine as provided in Section
4.05(d).
SECTION 4.05. Loss, Destruction or Requisition
(a)
Event of Loss With Respect to the Airframe
. Upon the occurrence of an Event of
Loss with respect to the Airframe, the Owner shall promptly (and in any event within fifteen (15)
days after such occurrence) give the Indenture Trustee written notice of such Event of Loss. The
Owner shall, within forty-five (45) days after such occurrence, give the Indenture Trustee written
notice of the Owners election to either replace the Airframe as provided under Section 4.05(a)(i)
or to make payment in respect of such Event of Loss as provided under Section 4.05(a)(ii) (it being
agreed that if the Owner shall not have given the Indenture Trustee such notice of such election
within the above specified time period, the Owner shall be deemed to have elected to make payment
in respect of such Event of Loss as provided under Section 4.05(a)(ii)):
(i) if the Owner elects to replace the Airframe, the Owner shall, subject to the satisfaction
of the conditions contained in Section 4.05(c), as promptly as possible and in any event within one
hundred and twenty (120) days after the occurrence of such Event of Loss, cause to be subjected to
the Lien of this Trust Indenture, in replacement of the Airframe with respect to which the Event of
Loss occurred, a Replacement Airframe and, if any Engine shall have been installed on the Airframe
when it suffered the Event of Loss, a Replacement Engine therefor, such Replacement Airframe and
Replacement Engines to be free and clear of all Liens except Permitted Liens and to have a value,
utility and remaining useful life (without regard to hours or cycles remaining until the next
regular maintenance check) at least equal to the Airframe or Engine, as the case may be, to be
replaced thereby (assuming that such Airframe or Engine had been maintained in accordance with this
Trust Indenture);
provided
that
if the Owner shall not perform its obligation to
effect such replacement under this clause (i) during the 120-day period of time provided herein, it
shall pay the amounts required to be paid pursuant to and within the time frame specified in clause
(ii) below; or
37
(ii) if the Owner elects to make a payment in respect of such Event of Loss of the Airframe,
the Owner shall make a payment to the Indenture Trustee for purposes of redeeming Equipment Notes
in accordance with Section 2.09 hereof on a date on or before the Business Day next following the
earlier of (x) the one hundred and twentieth (120)th day following the date of the occurrence of
such Event of Loss, and (y) the fourth (4
th
) Business Day following the receipt of
insurance proceeds with respect to such Event of Loss (but in any event not earlier than the date
of the Owners election under Section 4.05(a) to make payment under this Section 4.05 (a)(ii)); and
upon such payment and payment of all other Secured Obligations then due and payable, the Indenture
Trustee shall, at the cost and expense of the Owner, release from the Lien of this Trust Indenture
the Airframe and the Engines, by executing and delivering to the Owner all documents and
instruments as the Owner may reasonably request to evidence such release.
(b)
Effect of Replacement
. Should the Owner have provided a Replacement Airframe and
Replacement Engines, if any, as provided for in Section 4.05(a)(i), (i) the Lien of this Trust
Indenture shall continue with respect to such Replacement Airframe and Replacement Engines, if any,
as though no Event of Loss had occurred; (ii) the Indenture Trustee shall, at the cost and expense
of the Owner, release from the Lien of this Trust Indenture the replaced Airframe and Engines, if
any, by executing and delivering to the Owner such documents and instruments as the Owner may
reasonably request to evidence such release; and (iii) in the case of a replacement upon an Event
of Loss, the Indenture Trustee shall assign to the Owner all claims the Indenture Trustee may have
against any other Person arising from the Event of Loss and the Owner shall receive all insurance
proceeds (other than those reserved to others under Section 4.06(b)) and proceeds from any award in
respect of condemnation, confiscation, seizure or requisition, including any investment interest
thereon, to the extent not previously applied to the purchase price of the Replacement Airframe and
Replacement Engines, if any, as provided in Section 4.05(d).
(c)
Conditions to Airframe and Engine Replacement
. The Owners right to substitute a
Replacement Airframe and Replacement Engines, if any, as provided in Section 4.05(a)(i) shall be
subject to the fulfillment, at the Owners sole cost and expense, in addition to the conditions
contained in such Section 4.05(a)(i), of the following conditions precedent:
(i) on the date when the Replacement Airframe and Replacement Engines, if any, is subjected to
the Lien of this Trust Indenture (such date being referred to in this Section 4.05 as the
Replacement Closing Date), an executed counterpart of each of the following documents (or, in the
case of the FAA Bill of Sale and full warranty bill of sale referred to below, a photocopy thereof)
shall have been delivered to the Indenture Trustee:
(A) a Trust Indenture Supplement covering the Replacement Airframe and
Replacement Engines, if any, which shall have been duly filed for recordation
pursuant to the Act or such other applicable law of such jurisdiction other than the
United States in which the Replacement Airframe and Replacement Engines, if any, are
to be registered in accordance with Section 4.02(e), as the case may be;
38
(B) an FAA Bill of Sale (or a comparable document, if any, of another Aviation
Authority, if applicable) covering the Replacement Airframe and Replacement Engines,
if any, executed by the former owner thereof in favor of the Owner;
(C) a full warranty (as to title) bill of sale, covering the Replacement
Airframe and Replacement Engines, if any, executed by the former owner thereof in
favor of the Owner (or, at the Owners option, other evidence of the Owners
ownership of such Replacement Airframe and Replacement Engines, if any, reasonably
satisfactory to the Indenture Trustee); and
(D) UCC financing statements (or any similar statements or other documents
required to be filed or delivered pursuant to the laws of the jurisdiction in which
the Replacement Airframe and Replacement Engines, if any, may be registered in
accordance with Section 4.02(e)) as are deemed necessary or desirable by counsel for
the Indenture Trustee to protect the security interests of the Indenture Trustee in
the Replacement Airframe and Replacement Engines, if any;
(ii) the Replacement Airframe and Replacement Engines, if any, shall be of the same model as
the Airframe or Engines, as the case may be, or an improved model of such aircraft or engines of
the manufacturer thereof, shall have a value and utility (without regard to hours or cycles
remaining until the next regular maintenance check) at least equal to, and be in as good operating
condition and repair as, the Airframe and any Engines replaced (assuming such Airframe and Engines
had been maintained in accordance with this Trust Indenture);
(iii) the Indenture Trustee (acting directly or by authorization to its special counsel) shall
have received satisfactory evidence as to the compliance with Section 4.06 with respect to the
Replacement Airframe and Replacement Engines, if any;
(iv) on the Replacement Closing Date, (A) the Owner shall cause the Replacement Airframe and
Replacement Engines, if any, to be subject to the Lien of this Trust Indenture free and clear of
Liens (other than Permitted Liens), (B) the Replacement Airframe shall have been duly certified by
the FAA as to airworthiness in accordance with the terms of this Trust Indenture, (C) application
for registration of the Replacement Airframe in accordance with Section 4.02(e) shall have been
duly made with the FAA or other applicable Aviation Authority and the Owner shall have authority to
operate the Replacement Airframe and (D) the Owner shall have caused the sale of such Replacement
Airframe and Replacement Engine(s), if any, to the Owner (if occurring after February 28, 2006) and
the International Interest granted under the Trust Indenture Supplement in favor of the Indenture
Trustee with respect to such Replacement Airframe and Replacement Engine(s), if any, each to be
registered on the International Registry as a sale or an International Interest, respectively;
(v) the Indenture Trustee at the expense of the Owner, shall have received (acting directly or
by authorization to its special counsel) (A) an opinion of
39
counsel, addressed to the Indenture Trustee, to the effect that the Replacement Airframe and
Replacement Engine, if any, has or have duly been made subject to the Lien of this Trust Indenture,
and the Indenture Trustee will be entitled to the benefits of Section 1110 with respect to the
Replacement Airframe, provided that such opinion with respect to Section 1110 need not be delivered
to the extent that immediately prior to such replacement the benefits of Section 1110 were not,
solely by reason of a change in law or court interpretation thereof, available to the Indenture
Trustee;
(vi) promptly after the filing of the Trust Indenture Supplement, the Owner shall cause to be
furnished to the Indenture Trustee an opinion of the Owners aviation law counsel reasonably
satisfactory to and addressed to the Indenture Trustee as to the due registration of any such
Replacement Airframe and the due filing for recordation of each Trust Indenture Supplement with
respect to such Replacement Airframe or Replacement Engine under the Act or such other applicable
law of the jurisdiction other than the United States in which the Replacement Airframe is to be
registered in accordance with Section 4.02(e), as the case may be, and the registration (which the
Owner shall have caused to be effected) with the International Registry of the sale of such
Replacement Airframe and Replacement Engine(s), if any, to the Owner (if occurring after February
28, 2006) and of the International Interest granted under the Trust Indenture Supplement with
respect to such Replacement Aircraft and Replacement Engine(s), if any; and
(vii) the Owner shall have furnished to the Indenture Trustee a certificate of a qualified
aircraft engineer (who may be an employee of the Owner) or an independent appraiser certifying that
the Replacement Airframe and Replacement Engines, if any, have a value and utility and remaining
useful life (without regard to hours and cycles remaining until overhaul) at least equal to the
Airframe and any Engines so replaced (assuming that such Airframe and Engines had been maintained
in accordance with this Trust Indenture).
(d)
Non-Insurance Payments Received on Account of an Event of Loss
. Any amounts,
other than insurance proceeds in respect of damage or loss not constituting an Event of Loss (the
application of which is provided for in Annex B), received at any time by the Indenture Trustee or
the Owner from any Government Entity or any other Person in respect of any Event of Loss will be
applied as follows:
(i) If such amounts are received with respect to the Airframe, and any Engine
installed thereon at the time of such Event of Loss, upon compliance by the Owner
with the applicable terms of Section 4.05(c) with respect to the Event of Loss for
which such amounts are received, such amounts shall be paid over to, or retained by,
the Owner;
(ii) If such amounts are received with respect to an Engine (other than an
Engine installed on the Airframe at the time such Airframe suffers an Event of
Loss), upon compliance by the Owner with the applicable terms of Section 4.04(e)
with respect to the Event of Loss for which such amounts are received, such amounts
shall be paid over to, or retained by, the Owner;
40
(iii) If such amounts are received, in whole or in part, with respect to the
Airframe, and the Owner makes, has made or is deemed to have made the election set
forth in Section 4.05(a)(ii), such amounts shall be applied as follows:
first
, if the sum described in Section 4.05(a)(ii) has not then been
paid in full by the Owner, such amounts shall be paid to the Indenture Trustee to
the extent necessary to pay in full such sum; and
second
, the remainder, if any, shall be paid to the Owner.
(e)
Requisition for Use
. In the event of a requisition for use by any Government
Entity of the Airframe and the Engines, if any, or engines installed on such Airframe while such
Airframe is subject to the Lien of this Trust Indenture, the Owner shall promptly notify the
Indenture Trustee of such requisition and all of the Owners obligations under this Trust Indenture
shall continue to the same extent as if such requisition had not occurred except to the extent that
the performance or observance of any obligation by the Owner shall have been prevented or delayed
by such requisition;
provided
that
the Owners obligations under this Section 4.05
with respect to the occurrence of an Event of Loss for the payment of money and under Section 4.06
(except while an assumption of liability by the U.S. Government of the scope referred to in Section
4.02(c) is in effect) shall not be reduced or delayed by such requisition. Any payments received
by the Indenture Trustee or the Owner or Permitted Lessee from such Government Entity with respect
to such requisition of use shall be paid over to, or retained by, the Owner. In the event of an
Event of Loss of an Engine resulting from the requisition for use by a Government Entity of such
Engine (but not the Airframe), the Owner will replace such Engine hereunder by complying with the
terms of Section 4.04(e) and any payments received by the Indenture Trustee or the Owner from such
Government Entity with respect to such requisition shall be paid over to, or retained by, the
Owner.
(f)
Certain Payments to be Held As Security
. Any amount referred to in this Section
4.05 or Section 4.06 which is payable or creditable to, or retainable by, the Owner shall not be
paid or credited to, or retained by the Owner if at the time of such payment, credit or retention a
Special Default or an Event of Default shall have occurred and be continuing, but shall be paid to
and held by the Indenture Trustee as security for the obligations of the Owner under this Trust
Indenture and the Operative Agreements, and at such time as there shall not be continuing any such
Special Default or Event of Default such amount and any gain realized as a result of investments
required to be made pursuant to Section 6.06 shall to the extent not theretofore applied as
provided herein, be paid over to the Owner.
SECTION 4.06. Insurance
(a)
Owners Obligation to Insure
. The Owner shall comply with, or cause to be
complied with, each of the provisions of Annex B, which provisions are hereby incorporated by this
reference as if set forth in full herein.
(b)
Insurance for Own Account
. Nothing in Section 4.06 shall limit or prohibit (a)
Owner from maintaining the policies of insurance required under Annex B with higher limits than
those specified in Annex B, or (b) Indenture Trustee from obtaining insurance
41
for its own account (and any proceeds payable under such separate insurance shall be payable
as provided in the policy relating thereto);
provided
,
however
, that no insurance
may be obtained or maintained that would limit or otherwise adversely affect the coverage of any
insurance required to be obtained or maintained by the Owner pursuant to this Section 4.06 and
Annex B.
(c)
Indemnification by Government in Lieu of Insurance
. The Indenture Trustee agrees
to accept, in lieu of insurance against any risk with respect to the Aircraft described in Annex B,
indemnification from, or insurance provided by, the U.S. Government, or upon the written consent of
the Indenture Trustee, other Government Entity, against such risk in an amount that, when added to
the amount of insurance (including permitted self-insurance), if any, against such risk that the
Owner (or any Permitted Lessee) may continue to maintain, in accordance with this Section 4.06,
during the period of such requisition or transfer, shall be at least equal to the amount of
insurance against such risk otherwise required by this Section 4.06.
(d)
Application of Insurance Proceeds
. As between the Owner and the Indenture
Trustee, all insurance proceeds received as a result of the occurrence of an Event of Loss with
respect to the Aircraft or any Engine under policies required to be maintained by the Owner
pursuant to this Section 4.06 will be applied in accordance with Section 4.05(d). All proceeds of
insurance required to be maintained by the Owner, in accordance with Section 4.06 and Section B of
Annex B, in respect of any property damage or loss not constituting an Event of Loss with respect
to the Aircraft, Airframe or any Engine will be applied in payment (or to reimburse Owner) for
repairs or for replacement property, and any balance remaining after such repairs or replacement
with respect to such damage or loss shall be paid over to, or retained by, the Owner.
SECTION 4.07. Merger of Owner
(a)
In General
. The Owner shall not consolidate with or merge into any other person
under circumstances in which Owner is not the surviving corporation, or convey, transfer or lease
in one or more transactions all or substantially all of its assets to any other person, unless:
(i) such person is organized, existing and in good standing under the Laws of the United
States, any State of the United States or the District of Columbia and, upon consummation of such
transaction, such person will be a U.S. Air Carrier;
(ii) such person executes and delivers to the Indenture Trustee a duly authorized, legal,
valid, binding and enforceable agreement, reasonably satisfactory in form and substance to the
Indenture Trustee, containing an effective assumption by such person of the due and punctual
performance and observance of each covenant, agreement and condition in the Operative Agreements to
be performed or observed by the Owner;
(iii) if the Aircraft is, at the time, registered with the FAA, such person makes such filings
and recordings with the FAA pursuant to the Act or if the Aircraft is, at the time, not registered
with FAA, such person makes such filings and recordings with the applicable Aviation Authority and,
irrespective of the registry of the Aircraft, such person makes
42
such registrations with the International Registry, in any case, as shall be necessary to
evidence such consolidation or merger; and
(iv) immediately after giving effect to such consolidation or merger no Event of Default shall
have occurred and be continuing.
(b)
Effect of Merger
. Upon any such consolidation or merger of the Owner with or
into, or the conveyance, transfer or lease by the Owner of all or substantially all of its assets
to, any Person in accordance with this Section 4.07, such Person will succeed to, and be
substituted for, and may exercise every right and power of, the Owner under the Operative
Agreements with the same effect as if such person had been named as Owner therein. No such
consolidation or merger, or conveyance, transfer or lease, shall have the effect of releasing Owner
or such Person from any of the obligations, liabilities, covenants or undertakings of the Owner
under this Trust Indenture.
ARTICLE V
EVENTS OF DEFAULT; REMEDIES OF INDENTURE TRUSTEE
SECTION 5.01. Event of Default
Event of Default means any of the following events (whatever the reason for such Event of
Default and whether such event shall be voluntary or involuntary or come about or be effected by
operation of Law or pursuant to or in compliance with any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) the failure of the Owner to pay (i) principal of, interest on or Make-Whole Amount, if
any, under any Equipment Note when due, and such failure shall continue unremedied for a period of
ten (10) Business Days, or (ii) any other amount payable by it to the Note Holders under this Trust
Indenture or the Participation Agreement when due, and such failure shall continue for a period in
excess of ten (10) Business Days after the Owner has received written notice from the Indenture
Trustee of the failure to make such payment when due;
(ii) Owner shall fail to carry and maintain, or cause to be carried and maintained, insurance
on and in respect of the Aircraft, Airframe and Engines in accordance with the provisions of
Section 4.06;
(iii) Owner shall fail to observe or perform (or caused to be observed and performed) in any
material respect any other covenant, agreement or obligation set forth herein or in any other
Operative Agreement to which Owner is a party and such failure shall continue unremedied for a
period of thirty (30) days from and after the date of written notice thereof to the Owner from the
Indenture Trustee, unless such failure is capable of being corrected and the Owner shall be
diligently proceeding to correct such failure, in which case there shall be no Event of Default
unless and until such failure shall continue unremedied for a period of two hundred and seventy
(270) days after receipt of such notice;
43
(iv) any representation or warranty made by the Owner herein, in the Participation Agreement
or in any other Operative Agreement to which Owner is a party (a) shall prove to have been untrue
or inaccurate in any material respect as of the date made, (b) such untrue or inaccurate
representation or warranty is material at the time in question, (c) and the same shall remain
uncured (to the extent of the adverse impact of such incorrectness on the interest of the Indenture
Trustee) for a period in excess of thirty (30) days from and after the date of written notice
thereof from the Indenture Trustee to the Owner;
(v) the Owner shall consent to the appointment of or taking possession by a receiver, trustee
or liquidator of itself or of a substantial part of its property, or the Owner shall admit in
writing its inability to pay its debts generally as they come due or shall make a general
assignment for the benefit of its creditors, or the Owner shall file a voluntary petition in
bankruptcy or a voluntary petition or an answer seeking reorganization, liquidation or other relief
under any bankruptcy laws or insolvency laws (as in effect at such time), or an answer admitting
the material allegations of a petition filed against it in any such case, or the Owner shall seek
relief by voluntary petition, answer or consent, under the provisions of any other bankruptcy or
similar law providing for the reorganization or winding-up of corporations (as in effect at such
time), or the Owner shall seek an agreement, composition, extension or adjustment with its
creditors under such laws;
(vi) an order, judgment or decree shall be entered by any court of competent jurisdiction
appointing, without the consent of the Owner, a receiver, trustee or liquidator of the Owner or of
any substantial part of its property, or any substantial part of the property of the Owner shall be
sequestered, or granting any other relief in respect of the Owner as a debtor under any bankruptcy
laws or other insolvency laws (as in effect at such time), and any such order, judgment, decree, or
decree of appointment or sequestration shall remain in force undismissed, unstayed or unvacated for
a period of ninety (90) consecutive days after the date of entry thereof;
(vii) a petition against the Owner in a proceeding under any bankruptcy laws or other
insolvency laws (as in effect at such time) is filed and not withdrawn or dismissed within 90 days
thereafter, or if, under the provisions of any law providing for reorganization or winding-up of
corporations which may apply to the Owner, any court of competent jurisdiction shall assume
jurisdiction, custody or control of the Owner of any substantial part of its property and such
jurisdiction, custody or control shall remain in force unrelinquished, unstayed or unterminated for
a period of ninety (90) consecutive days; or
(viii) the occurrence of a Related Indenture Event of Default.
provided
,
however
, that, notwithstanding anything to the contrary contained in this
Section 5.01, any failure of Owner to perform or observe any covenant, condition, agreement or any
error in a representation or warranty shall not constitute an Event of Default if such failure or
error is caused solely by reason of any event that constitutes an Event of Loss so long as Owner is
continuing to comply with all of the terms of Section 4.04(e) and Section 4.05 hereof.
44
SECTION 5.02. Remedies
(a) If an Event of Default shall have occurred and be continuing and so long as the same shall
continue unremedied, then and in every such case the Indenture Trustee may exercise any or all of
the rights and powers and pursue any and all of the remedies pursuant to this Article V and shall
have and may exercise all of the rights and remedies of a secured party under the Uniform
Commercial Code or of a chargee under the Cape Town Treaty and may take possession of all or any
part of the properties covered or intended to be covered by the Lien created hereby or pursuant
hereto and may exclude the Owner and all persons claiming under it wholly or partly therefrom;
provided
that the Indenture Trustee shall give the Owner twenty (20) days prior written
notice of its intention to sell the Aircraft;
provided further
, that during any period the
Aircraft is subject to the CRAF program and in possession of the U.S. Government or an agency or
instrumentality of the United States, the Indenture Trustee shall not, on account of any Event of
Default, be entitled to exercise or pursue any of the powers, rights or remedies described in this
Article V in such manner as to limit the Owners control (or any Permitted Lessees control under
any lease) of any Airframe or any Engines installed thereon, unless at least sixty (60) days (or
such lesser period as may then be applicable under the Air Mobility Command program of the U.S.
Government) written notice of default hereunder shall have been given by the Indenture Trustee by
registered or certified mail to the Owner (any Permitted Lessee) with a copy addressed to the
Contracting Office Representative of the Air Mobility Command of the United States Air Force under
any contract with the Owner (or any Permitted Lessee) relating to the Aircraft. Without limiting
any of the foregoing, it is understood and agreed that the Indenture Trustee may exercise any right
of sale of the Aircraft available to it, even though it shall not have taken possession of the
Aircraft and shall not have possession thereof at the time of such sale.
(b) If an Event of Default shall have occurred and be continuing, then and in every such case
the Indenture Trustee may (and shall, upon receipt of a written demand therefor from a Majority in
Interest of Note Holders), at any time, by delivery of written notice or notices to the Owner,
declare all the Equipment Notes to be due and payable, whereupon the unpaid Original Amount of all
Equipment Notes then outstanding, together with accrued but unpaid interest thereon (without
Make-Whole Amount) and other amounts due thereunder or otherwise payable hereunder, shall
immediately become due and payable without presentment, demand, protest or notice, all of which are
hereby waived; provided that if an Event of Default referred to in clause (v), (vi) or (vii) of
Section 5.01 hereof shall have occurred, then and in every such case the unpaid Original Amount
then outstanding, together with accrued but unpaid interest (without Make-Whole Amount) and all
other amounts due hereunder and under the Equipment Notes shall immediately and without further act
become due and payable without presentment, demand, protest or notice, all of which are hereby
waived.
This Section 5.02(b), however, is subject to the condition that, if at any time after the
Original Amount of the Equipment Notes shall have become so due and payable, and before any
judgment or decree for the payment of the money so due, or any thereof, shall be entered, all
overdue payments of interest upon the Equipment Notes and all other amounts payable hereunder or
under the Equipment Notes (except the Original Amount of the Equipment Notes and any Make-Whole
Amount which by such declaration shall have become payable) shall have
45
been duly paid, and every other Default and Event of Default with respect to any covenant or
provision of this Trust Indenture shall have been cured, then and in every such case a Majority in
Interest of Note Holders may (but shall not be obligated to), by written instrument filed with the
Indenture Trustee, rescind and annul the Indenture Trustees declaration (or such automatic
acceleration) and its consequences; but no such rescission or annulment shall extend to or affect
any subsequent Default or Event of Default or impair any right consequent thereon.
(c) The Note Holders shall be entitled, at any sale pursuant to this Section 5.02, to credit
against any purchase price bid at such sale by such holder all or any part of the unpaid
obligations owing to such Note Holder and secured by the Lien of this Trust Indenture (only to the
extent that such purchase price would have been paid to such Note Holder pursuant to Article III
hereof if such purchase price were paid in cash and the foregoing provisions of this subsection (c)
were not given effect).
(d) In the event of any sale of the Collateral, or any part thereof, pursuant to any judgment
or decree of any court or otherwise in connection with the enforcement of any of the terms of this
Trust Indenture, the unpaid Original Amount of all Equipment Notes then outstanding, together with
accrued interest thereon (without Make-Whole Amount), and other amounts due thereunder, shall
immediately become due and payable without presentment, demand, protest or notice, all of which are
hereby waived.
(e) Notwithstanding anything contained herein, so long as the Pass Through Trustee under any
Pass Through Trust Agreement (or its designee) is a Note Holder, the Indenture Trustee will not be
authorized or empowered to acquire title to any Collateral or take any action with respect to any
Collateral so acquired by it if such acquisition or action would cause any Trust to fail to qualify
as a grantor trust for federal income tax purposes.
SECTION 5.03. Return of Aircraft, Etc.
(a) If an Event of Default shall have occurred and be continuing and the Equipment Notes have
been accelerated, at the request of the Indenture Trustee, the Owner shall promptly execute and
deliver to the Indenture Trustee such instruments of title and other documents as the Indenture
Trustee may deem necessary or advisable to enable the Indenture Trustee or an agent or
representative designated by the Indenture Trustee, at such time or times and place or places as
the Indenture Trustee may specify, to obtain possession of all or any part of the Collateral to
which the Indenture Trustee shall at the time be entitled hereunder. If the Owner shall for any
reason fail to execute and deliver such instruments and documents after such request by the
Indenture Trustee, the Indenture Trustee may (i) obtain a judgment conferring on the Indenture
Trustee the right to immediate possession and requiring the Owner to execute and deliver such
instruments and documents to the Indenture Trustee, to the entry of which judgment the Owner hereby
specifically consents to the fullest extent permitted by Law, and (ii) pursue all or part of such
Collateral wherever it may be found and may enter any of the premises of the Owner wherever such
Collateral may be or be supposed to be and search for such Collateral and take possession of and
remove such Collateral. All expenses of obtaining such judgment or of pursuing, searching for and
taking such property shall, until paid, be secured by the Lien of this Trust Indenture.
46
(b) Upon every such taking of possession, the Indenture Trustee may, from time to time, at the
expense of the Collateral, make all such expenditures for maintenance, use, operation, storage,
insurance, leasing, control, management, disposition, modifications or alterations to and of the
Collateral, as it may deem proper. In each such case, the Indenture Trustee shall have the right
to maintain, use, operate, store, insure, lease, control, manage, dispose of, modify or alter the
Collateral and to exercise all rights and powers of the Owner relating to the Collateral, as the
Indenture Trustee shall deem best, including the right to enter into any and all such agreements
with respect to the maintenance, use, operation, storage, insurance, leasing, control, management,
disposition, modification or alteration of the Collateral or any part thereof as the Indenture
Trustee may determine, and the Indenture Trustee shall be entitled to collect and receive directly
all rents, revenues and other proceeds of the Collateral and every part thereof, without prejudice,
however, to the right of the Indenture Trustee under any provision of this Trust Indenture to
collect and receive all cash held by, or required to be deposited with, the Indenture Trustee
hereunder. Such rents, revenues and other proceeds shall be applied to pay the expenses of the
maintenance, use, operation, storage, insurance, leasing, control, management, disposition,
improvement, modification or alteration of the Collateral and of conducting the business thereof,
and to make all payments which the Indenture Trustee may be required or may elect to make, if any,
for taxes, assessments, insurance or other proper charges upon the Collateral or any part thereof
(including the employment of engineers and accountants to examine, inspect and make reports upon
the properties and books and records of the Owner), and all other payments which the Indenture
Trustee may be required or authorized to make under any provision of this Trust Indenture, as well
as just and reasonable compensation for the services of the Indenture Trustee, and of all persons
properly engaged and employed by the Indenture Trustee with respect hereto.
SECTION 5.04. Remedies Cumulative
Each and every right, power and remedy given to the Indenture Trustee specifically or
otherwise in this Trust Indenture shall be cumulative and shall be in addition to every other
right, power and remedy herein specifically given or now or hereafter existing at Law, in equity or
by statute, and each and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised from time to time and as often and in such order as may be
deemed expedient by the Indenture Trustee, and the exercise or the beginning of the exercise of any
power or remedy shall not be construed to be a waiver of the right to exercise at the same time or
thereafter any other right, power or remedy. No delay or omission by the Indenture Trustee in the
exercise of any right, remedy or power or in the pursuance of any remedy shall impair any such
right, power or remedy or be construed to be a waiver of any default on the part of the Owner or to
be an acquiescence therein.
SECTION 5.05. Discontinuance of Proceedings
In case the Indenture Trustee shall have instituted any proceeding to enforce any right, power
or remedy under this Trust Indenture by foreclosure, entry or otherwise, and such proceedings shall
have been discontinued or abandoned for any reason or shall have been determined adversely to the
Indenture Trustee, then and in every such case the Owner and the Indenture Trustee shall, subject
to any determination in such proceedings, be restored to their
47
former positions and rights hereunder with respect to the Collateral, and all rights, remedies
and powers of the Owner or the Indenture Trustee shall continue as if no such proceedings had been
instituted.
SECTION 5.06. Waiver of Past Defaults
Upon written instruction from a Majority in Interest of Note Holders, the Indenture Trustee
shall waive any past Default hereunder and its consequences and upon any such waiver such Default
shall cease to exist and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Trust Indenture, but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon; provided, that in the absence of written
instructions from all the Note Holders, the Indenture Trustee shall not waive any Default (i) in
the payment of the Original Amount, Make-Whole Amount, if any, and interest and other amounts due
under any Equipment Note then outstanding, or (ii) in respect of a covenant or provision hereof
which, under Article X hereof, cannot be modified or amended without the consent of each Note
Holder.
SECTION 5.07. Appointment of Receiver
If an Event of Default shall have occurred and be continuing, the Indenture Trustee shall, as
a matter of right, be entitled to the appointment of a receiver (who may be the Indenture Trustee
or any successor or nominee thereof) for all or any part of the Collateral, whether such
receivership be incidental to a proposed sale of the Collateral or the taking of possession thereof
or otherwise, and the Owner hereby consents to the appointment of such a receiver and will not
oppose any such appointment. Any receiver appointed for all or any part of the Collateral shall be
entitled to exercise all the rights and powers of the Indenture Trustee with respect to the
Collateral.
SECTION 5.08. Indenture Trustee Authorized to Execute Bills of Sale, Etc.
The Owner irrevocably appoints, while an Event of Default has occurred and is continuing, the
Indenture Trustee the true and lawful attorney-in-fact of the Owner (which appointment is coupled
with an interest) in its name and stead and on its behalf, for the purpose of effectuating any
sale, assignment, transfer or delivery for the enforcement of the Lien of this Trust Indenture,
whether pursuant to foreclosure or power of sale, assignments and other instruments as may be
necessary or appropriate, with full power of substitution, the Owner hereby ratifying and
confirming all that such attorney or any substitute shall do by virtue hereof in accordance with
applicable law. Nevertheless, if so requested by the Indenture Trustee or any purchaser, the Owner
shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and
delivering to the Indenture Trustee or such purchaser all bills of sale, assignments, releases and
other proper instruments to effect such ratification and confirmation as may be designated in any
such request.
SECTION 5.09. Rights of Note Holders to Receive Payment
Notwithstanding any other provision of this Trust Indenture, the right of any Note Holder to
receive payment of principal of, and premium, if any, and interest on an Equipment
48
Note on or after the respective due dates expressed in such Equipment Note, or to bring suit
for the enforcement of any such payment on or after such respective dates in accordance with the
terms hereof, shall not be impaired or affected without the consent of such Note Holder.
ARTICLE VI
DUTIES OF THE INDENTURE TRUSTEE
SECTION 6.01. Notice of Event of Default
If the Indenture Trustee shall have Actual Knowledge of an Event of Default or of a Default
arising from a failure to pay any installment of principal and interest on any Equipment Note, the
Indenture Trustee shall give prompt written notice thereof to each Note Holder. Subject to the
terms of Sections 5.06, 6.02 and 6.03 hereof, the Indenture Trustee shall take such action, or
refrain from taking such action, with respect to such Event of Default or Default (including with
respect to the exercise of any rights or remedies hereunder) as the Indenture Trustee shall be
instructed in writing by a Majority in Interest of Note Holders. Subject to the provisions of
Section 6.03, if the Indenture Trustee shall not have received instructions as above provided
within 20 days after mailing notice of such Event of Default to the Note Holders, the Indenture
Trustee may, subject to instructions thereafter received pursuant to the preceding provisions of
this Section 6.01, take such action, or refrain from taking such action, but shall be under no duty
to take or refrain from taking any action, with respect to such Event of Default or Default as it
shall determine advisable in the best interests of the Note Holders;
provided
,
however
, that the Indenture Trustee may not sell the Aircraft or any Engine without the
consent of a Majority in Interest of Note Holders. For all purposes of this Trust Indenture, in
the absence of Actual Knowledge on the part of the Indenture Trustee, the Indenture Trustee shall
not be deemed to have knowledge of a Default or an Event of Default (except, the failure of the
Owner to pay any installment of principal or interest within one Business Day after the same shall
become due, which failure shall constitute knowledge of a Default) unless notified in writing by
the Owner or one or more Note Holders.
SECTION 6.02. Action Upon Instructions; Certain Rights and Limitations
Subject to the terms of Sections 5.02(a), 5.06, 6.01 and 6.03 hereof, upon the written
instructions at any time and from time to time of a Majority in Interest of Note Holders, the
Indenture Trustee shall, subject to the terms of this Section 6.02, take such of the following
actions as may be specified in such instructions: (i) give such notice or direction or exercise
such right, remedy or power hereunder as shall be specified in such instructions and (ii) give such
notice or direction or exercise such right, remedy or power hereunder with respect to any part of
the Collateral as shall be specified in such instructions; it being understood that without the
written instructions of a Majority in Interest of Note Holders, the Indenture Trustee shall not,
except as provided in Section 6.01, approve any such matter as satisfactory to the Indenture
Trustee.
The Indenture Trustee will execute and the Owner will file such continuation statements with
respect to financing statements relating to the security interest created hereunder
49
in the Collateral as may be specified from time to time in written instructions of a Majority
in Interest of Note Holders (which instructions shall be accompanied by the form of such
continuation statement so to be filed). The Indenture Trustee will furnish to each Note Holder,
promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands,
certificates and other instruments furnished to the Indenture Trustee hereunder.
SECTION 6.03. Indemnification
The Indenture Trustee shall not be required to take any action or refrain from taking any
action under Section 6.01 (other than the first sentence thereof), 6.02 or Article V hereof unless
the Indenture Trustee shall have been indemnified to its reasonable satisfaction against any
liability, cost or expense (including counsel fees) which may be incurred in connection therewith
pursuant to a written agreement with one or more Note Holders. The Indenture Trustee agrees that
it shall look solely to the Note Holders for the satisfaction of any indemnity (except expenses for
foreclosure of the type referred to in clause First of Section 3.03 hereof) owed to it pursuant
to this Section 6.03. The Indenture Trustee shall not be under any obligation to take any action
under this Trust Indenture or any other Operative Agreement and nothing herein or therein shall
require the Indenture Trustee to expend or risk its own funds or otherwise incur the risk of any
financial liability in the performance of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it (the written indemnity of any Note Holder who is a QIB,
signed by an authorized officer thereof, in favor of, delivered to and in form reasonably
satisfactory to the Indenture Trustee shall be accepted as reasonable assurance of adequate
indemnity). The Indenture Trustee shall not be required to take any action under Section 6.01
(other than the first sentence thereof) or 6.02 or Article V hereof, nor shall any other provision
of this Trust Indenture or any other Operative Agreement be deemed to impose a duty on the
Indenture Trustee to take any action, if the Indenture Trustee shall have been advised by counsel
that such action is contrary to the terms hereof or is otherwise contrary to Law.
SECTION 6.04. No Duties Except as Specified in Trust Indenture or Instructions
The Indenture Trustee shall not have any duty or obligation to use, operate, store, lease,
control, manage, sell, dispose of or otherwise deal with the Aircraft or any other part of the
Collateral, or to otherwise take or refrain from taking any action under, or in connection with,
this Trust Indenture or any part of the Collateral, except as expressly provided by the terms of
this Trust Indenture or as expressly provided in written instructions from Note Holders as provided
in this Trust Indenture; and no implied duties or obligations shall be read into this Trust
Indenture against the Indenture Trustee. The Indenture Trustee agrees that it will in its
individual capacity and at its own cost and expense (but without any right of indemnity in respect
of any such cost or expense under Section 8.01 hereof), promptly take such action as may be
necessary duly to discharge all liens and encumbrances on any part of the Collateral which result
from claims against it in its individual capacity not related to the administration of the
Collateral or any other transaction pursuant to this Trust Indenture or any document included in
the Collateral.
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SECTION 6.05. No Action Except Under Trust Indenture or Instructions
The Indenture Trustee will not use, operate, store, lease, control, manage, sell, dispose of
or otherwise deal with the Aircraft or any other part of the Collateral except in accordance with
the powers granted to, or the authority conferred upon the Indenture Trustee pursuant to this Trust
Indenture and in accordance with the express terms hereof.
SECTION 6.06. Investment of Amounts Held by Indenture Trustee
Any amounts held by the Indenture Trustee pursuant to Section 3.02, 3.03 or 3.07 or pursuant
to any provision of any other Operative Agreement providing for amounts to be held by the Indenture
Trustee which are not distributed pursuant to the other provisions of Article III hereof shall be
invested by the Indenture Trustee from time to time in Cash Equivalents as directed by the Owner so
long as the Indenture Trustee may acquire the same using its best efforts. All Cash Equivalents
held by the Indenture Trustee pursuant to this Section 6.06 shall either be (a) registered in the
name of, payable to the order of, or specially endorsed to, the Indenture Trustee, or (b) held in
an Eligible Account. Unless otherwise expressly provided in this Trust Indenture, any income
realized as a result of any such investment, net of the Indenture Trustees reasonable fees and
expenses in making such investment, shall be held and applied by the Indenture Trustee in the same
manner as the principal amount of such investment is to be applied and any losses, net of earnings
and such reasonable fees and expenses, shall be charged against the principal amount invested. The
Indenture Trustee shall not be liable for any loss resulting from any investment required to be
made by it under this Trust Indenture other than by reason of its willful misconduct or gross
negligence or negligence in the handling of funds, and any such investment may be sold (without
regard to its maturity) by the Indenture Trustee without instructions whenever such sale is
necessary to make a distribution required by this Trust Indenture.
ARTICLE VII
THE INDENTURE TRUSTEE
SECTION 7.01. Acceptance of Trusts and Duties
The Indenture Trustee accepts the duties hereby created and applicable to it and agrees to
perform the same but only upon the terms of this Trust Indenture and agrees to receive and disburse
all monies constituting part of the Collateral in accordance with the terms hereof. The Indenture
Trustee, in its individual capacity, shall not be answerable or accountable under any
circumstances, except (i) for its own willful misconduct or gross negligence (other than for the
handling of funds, for which the standard of accountability shall be willful misconduct or
negligence), (ii) as provided in the fourth sentence of Section 2.03(a) hereof and the last
sentence of Section 6.04 hereof, and (iii) from the inaccuracy of any representation or warranty of
the Indenture Trustee (in its individual capacity) in the Participation Agreement or expressly made
hereunder.
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SECTION 7.02. Absence of Duties
Except in accordance with written instructions furnished pursuant to Section 6.01 or 6.02
hereof, and except as provided in, and without limiting the generality of, Sections 6.03, 6.04 and
7.07 hereof the Indenture Trustee shall have no duty (i) to see to any registration of the Aircraft
or any recording or filing of this Trust Indenture or any other document, or to see to the
maintenance of any such registration, recording or filing, (ii) to see to any insurance on the
Aircraft or to effect or maintain any such insurance, whether or not the Owner shall be in default
with respect thereto, (iii) to see to the payment or discharge of any lien or encumbrance of any
kind against any part of the Collateral, (iv) to confirm, verify or inquire into the failure to
receive any financial statements from the Owner, or (v) to inspect the Aircraft at any time or
ascertain or inquire as to the performance or observance of any of the Owners covenants herein or
any Permitted Lessees covenants under any assigned Permitted Lease with respect to the Aircraft.
SECTION 7.03. No Representations or Warranties as to Aircraft or Documents
THE INDENTURE TRUSTEE IN ITS INDIVIDUAL OR TRUST CAPACITY DOES NOT MAKE AND SHALL NOT BE
DEEMED TO HAVE MADE AND HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO THE TITLE, AIRWORTHINESS, VALUE, COMPLIANCE WITH SPECIFICATIONS, CONDITION, DESIGN,
QUALITY, DURABILITY, OPERATION, MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OF THE
AIRCRAFT OR ANY ENGINE, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE,
AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF
OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER.
The Indenture Trustee, in its individual or trust capacities, does not make or shall not be deemed
to have made any representation or warranty as to the validity, legality or enforceability of this
Trust Indenture, the Participation Agreement, the Equipment Notes, or as to the correctness of any
statement contained in any thereof, except for the representations and warranties of the Owner made
in its individual capacity and the representations and warranties of the Indenture Trustee in its
individual capacity, in each case expressly made in this Trust Indenture or in the Participation
Agreement. The Note Holders make no representation or warranty hereunder whatsoever.
SECTION 7.04. No Segregation of Monies; No Interest
Except as otherwise provided in Section 3.07 hereof, any monies paid to or retained by the
Indenture Trustee pursuant to any provision hereof and not then required to be distributed to the
Note Holders, or the Owner as provided in Article III hereof need not be segregated in any manner
except to the extent required by Law or Section 6.06 hereof, and may be deposited under such
general conditions as may be prescribed by Law, and the Indenture Trustee shall not be liable for
any interest thereon (except that the Indenture Trustee shall invest all monies held as directed by
the Owner so long as no Event of Default has occurred and is continuing (or in the absence of such
direction, by the Majority In Interest of Note Holders) in
52
Cash Equivalents);
provided
,
however
, that any payments received, or applied
hereunder, by the Indenture Trustee shall be accounted for by the Indenture Trustee so that any
portion thereof paid or applied pursuant hereto shall be identifiable as to the source thereof.
SECTION 7.05. Reliance; Agreements; Advice of Counsel
The Indenture Trustee shall not incur any liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or
other document or paper believed by it to be genuine and believed by it to be signed by the proper
party or parties. The Indenture Trustee may accept a copy of a resolution of the Board of
Directors of the Owner, certified by the Secretary or an Assistant Secretary thereof as duly
adopted and in full force and effect, as conclusive evidence that such resolution has been duly
adopted and that the same is in full force and effect. As to the aggregate unpaid Original Amount
of Equipment Notes outstanding as of any date, the Owner may for all purposes hereof rely on a
certificate signed by any Vice President or other authorized corporate trust officer of the
Indenture Trustee. As to any fact or matter relating to the Owner the manner of the ascertainment
of which is not specifically described herein, the Indenture Trustee may for all purposes hereof
rely on a certificate, signed by a duly authorized officer of the Owner, as to such fact or matter,
and such certificate shall constitute full protection to the Indenture Trustee for any action taken
or omitted to be taken by it in good faith in reliance thereon. In the administration of the
trusts hereunder, the Indenture Trustee may execute any of the trusts or powers hereof and perform
its powers and duties hereunder directly or through agents or attorneys and may, at the expense of
the Collateral, advise with counsel, accountants and other skilled persons to be selected and
retained by it, and the Indenture Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written advice or written opinion of any such
counsel, accountants or other skilled persons.
SECTION 7.06. Compensation
The Indenture Trustee shall be entitled to reasonable compensation, including expenses and
disbursements (including the reasonable fees and expenses of counsel), for all services rendered
hereunder and shall, on and subsequent to an Event of Default hereunder, have a priority claim on
the Collateral for the payment of such compensation, to the extent that such compensation shall not
be paid by the Owner, and shall have the right, on and subsequent to an Event of Default hereunder,
to use or apply any monies held by it hereunder in the Collateral toward such payments. The
Indenture Trustee agrees that it shall have no right against the Note Holders for any fee as
compensation for its services as trustee under this Trust Indenture.
SECTION 7.07. Instructions from Note Holders
In the administration of the trusts created hereunder, the Indenture Trustee shall have the
right to seek instructions from a Majority in Interest of Note Holders should any provision of this
Trust Indenture appear to conflict with any other provision herein or should the Indenture
Trustees duties or obligations hereunder be unclear, and the Indenture Trustee shall incur no
liability in refraining from acting until it receives such instructions. The Indenture
53
Trustee shall be fully protected for acting in accordance with any instructions received under
this Section 7.07.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Scope of Indemnification
The Indenture Trustee shall be indemnified by the Owner to the extent and in the manner
provided in Section 8 of the Participation Agreement.
ARTICLE IX
SUCCESSOR AND SEPARATE TRUSTEES
SECTION 9.01. Resignation of Indenture Trustee; Appointment of Successor
(a) The Indenture Trustee or any successor thereto may resign at any time without cause by
giving at least thirty (30) days prior written notice to the Owner and each Note Holder, such
resignation to be effective upon the acceptance of the trusteeship by a successor Indenture
Trustee. In addition, a Majority in Interest of Note Holders may at any time (but only with the
consent of the Owner, which consent shall not be unreasonably withheld, except that such consent
shall not be necessary if an Event of Default is continuing) remove the Indenture Trustee without
cause by an instrument in writing delivered to the Owner and the Indenture Trustee, and the
Indenture Trustee shall promptly notify each Note Holder thereof in writing, such removal to be
effective upon the acceptance of the trusteeship by a successor Indenture Trustee. In the case of
the resignation or removal of the Indenture Trustee, a Majority in Interest of Note Holders may
appoint a successor Indenture Trustee by an instrument signed by such holders, which successor, so
long as no Event of Default shall have occurred and be continuing, shall be subject to the Owners
reasonable approval. If a successor Indenture Trustee shall not have been appointed within thirty
(30) days after such notice of resignation or removal, the Indenture Trustee, the Owner or any Note
Holder may apply to any court of competent jurisdiction to appoint a successor Indenture Trustee to
act until such time, if any, as a successor shall have been appointed as above provided. The
successor Indenture Trustee so appointed by such court shall immediately and without further act be
superseded by any successor Indenture Trustee appointed as above provided.
(b) Any successor Indenture Trustee, however appointed, shall execute and deliver to the Owner
and the predecessor Indenture Trustee an instrument accepting such appointment and assuming the
obligations of the Indenture Trustee arising from and after the time of such appointment, and
thereupon such successor Indenture Trustee, without further act, shall become vested with all the
estates, properties, rights, powers and duties of the predecessor Indenture Trustee hereunder in
the trust hereunder applicable to it with like effect as if originally
54
named the Indenture Trustee herein; but nevertheless upon the written request of such
successor Indenture Trustee, such predecessor Indenture Trustee shall execute and deliver an
instrument transferring to such successor Indenture Trustee, upon the trusts herein expressed
applicable to it, all the estates, properties, rights and powers of such predecessor Indenture
Trustee, and such predecessor Indenture Trustee shall duly assign, transfer, deliver and pay over
to such successor Indenture Trustee all monies or other property then held by such predecessor
Indenture Trustee hereunder.
(c) Any successor Indenture Trustee, however appointed, shall be a bank or trust company
having its principal place of business in the Borough of Manhattan, City and State of New York;
Chicago, Illinois; Hartford, Connecticut; Wilmington, Delaware; or Boston, Massachusetts and having
(or whose obligations under the Operative Agreements are guaranteed by an affiliated entity having)
a combined capital and surplus of at least $100,000,000, if there be such an institution willing,
able and legally qualified to perform the duties of the Indenture Trustee hereunder upon reasonable
or customary terms.
(d) Any corporation into which the Indenture Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Indenture Trustee shall be a party, or any corporation to which substantially all the
corporate trust business of the Indenture Trustee may be transferred, shall, subject to the terms
of paragraph (c) of this Section 9.01, be a successor Indenture Trustee and the Indenture Trustee
under this Trust Indenture without further act.
(e) The Owner consents to any change in the identity of the Indenture Trustee on the
International Registry occasioned by provisions of this Section 9.01, and if required by the
International Registry to reflect such change, will provide its consent thereto.
SECTION 9.02. Appointment of Additional and Separate Trustees
(a) Whenever (i) the Indenture Trustee shall deem it necessary or desirable in order to
conform to any Law of any jurisdiction in which all or any part of the Collateral shall be situated
or to make any claim or bring any suit with respect to or in connection with the Collateral, this
Trust Indenture, any other Indenture Agreement, the Equipment Notes or any of the transactions
contemplated by the Participation Agreement, (ii) the Indenture Trustee shall be advised by counsel
satisfactory to it that it is so necessary or prudent in the interests of the Note Holders (and the
Indenture Trustee shall so advise the Owner), or (iii) the Indenture Trustee shall have been
requested to do so by a Majority in Interest of Note Holders, then in any such case, the Indenture
Trustee and, upon the written request of the Indenture Trustee, the Owner, shall execute and
deliver an indenture supplemental hereto and such other instruments as may from time to time be
necessary or advisable either (1) to constitute one or more bank or trust companies or one or more
persons approved by the Indenture Trustee, either to act jointly with the Indenture Trustee as
additional trustee or trustees of all or any part of the Collateral, or to act as separate trustee
or trustees of all or any part of the Collateral, in each case with such rights, powers, duties and
obligations consistent with this Trust Indenture as may be provided in such supplemental indenture
or other instruments as the Indenture Trustee or a Majority in Interest of Note Holders may deem
necessary or advisable, or (2) to clarify, add to
55
or subtract from the rights, powers, duties and obligations theretofore granted any such
additional or separate trustee, subject in each case to the remaining provisions of this Section
9.02. If the Owner shall not have taken any action requested of it under this Section 9.02(a) that
is permitted or required by its terms within 15 days after the receipt of a written request from
the Indenture Trustee so to do, or if an Event of Default shall have occurred and be continuing,
the Indenture Trustee may act under the foregoing provisions of this Section 9.02(a) without the
concurrence of the Owner, and the Owner hereby irrevocably appoints (which appointment is coupled
with an interest) the Indenture Trustee, its agent and attorney-in-fact to act for it under the
foregoing provisions of this Section 9.02(a) in either of such contingencies. The Indenture
Trustee may, in such capacity, execute, deliver and perform any such supplemental indenture, or any
such instrument, as may be required for the appointment of any such additional or separate trustee
or for the clarification of, addition to or subtraction from the rights, powers, duties or
obligations theretofore granted to any such additional or separate trustee. In case any additional
or separate trustee appointed under this Section 9.02(a) shall die, become incapable of acting,
resign or be moved, all the assets, property, rights, powers, trusts, duties and obligations of
such additional or separate trustee shall revert to the Indenture Trustee until a successor
additional or separate trustee is appointed as provided in this Section 9.02(a).
(b) No additional or separate trustee shall be entitled to exercise any of the rights, powers,
duties and obligations conferred upon the Indenture Trustee in respect of the custody, investment
and payment of monies and all monies received by any such additional or separate trustee from or
constituting part of the Collateral or otherwise payable under any Operative Agreement to the
Indenture Trustee shall be promptly paid over by it to the Indenture Trustee. All other rights,
powers, duties and obligations conferred or imposed upon any additional or separate trustee shall
be exercised or performed by the Indenture Trustee and such additional or separate trustee jointly
except to the extent that applicable Law of any jurisdiction in which any particular act is to be
performed renders the Indenture Trustee incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations (including the holding of title to all or part of
the Collateral in any such jurisdiction) shall be exercised and performed by such additional or
separate trustee. No additional or separate trustee shall take any discretionary action except on
the instructions of the Indenture Trustee or a Majority in Interest of Note Holders. No trustee
hereunder shall be personally liable by reason of any act or omission of any other trustee
hereunder, except that the Indenture Trustee shall be liable for the consequences of its lack of
reasonable care in selecting, and the Indenture Trustees own actions in acting with, any
additional or separate trustee. Each additional or separate trustee appointed pursuant to this
Section 9.02 shall be subject to, and shall have the benefit of Articles V through IX and Article
XI hereof insofar as they apply to the Indenture Trustee. The powers of any additional or separate
trustee appointed pursuant to this Section 9.02 shall not in any case exceed those of the Indenture
Trustee hereunder.
(c) If at any time the Indenture Trustee shall deem it no longer necessary or in order to
conform to any such Law or take any such action or shall be advised by such counsel that it is no
longer so necessary or desirable in the interest of the Note Holders, or in the event that the
Indenture Trustee shall have been requested to do so in writing by a Majority in Interest of Note
Holders, the Indenture Trustee and, upon the written request of the Indenture Trustee, the Owner,
shall execute and deliver an indenture supplemental hereto and all other
56
instruments and agreements necessary or proper to remove any additional or separate trustee.
The Indenture Trustee may act on behalf of the Owner under this Section 9.02(c) when and to the
extent it could so act under Section 9.02(a) hereof.
ARTICLE X
SUPPLEMENTS AND AMENDMENTS TO THIS TRUST INDENTURE
AND OTHER DOCUMENTS
SECTION 10.01. Instructions of Majority; Limitations
(a) The Indenture Trustee agrees with the Note Holders that it shall not enter into any
amendment, waiver or modification of, supplement or consent to this Trust Indenture, or any other
Operative Agreement to which it is a party, unless such supplement, amendment, waiver, modification
or consent is consented to in writing by a Majority in Interest of Note Holders, but upon the
written request of a Majority in Interest of Note Holders, the Indenture Trustee shall from time to
time enter into any such supplement or amendment, or execute and deliver any such waiver,
modification or consent, as may be specified in such request and as may be (in the case of any such
amendment, supplement or modification), to the extent such agreement is required, agreed to by the
Owner and, as may be appropriate, the Airframe Manufacturer or the Engine Manufacturer;
provided
,
however
, that, without the consent of each holder of an affected
Equipment Note then outstanding and the Liquidity Providers, no such amendment, waiver or
modification of the terms of, or consent under, any thereof, shall (i) modify any of the provisions
of this Section 10.01, or of Article II or III or Section 5.01, 5.02(c), 5.02(d), or 6.02 hereof,
the definitions of Event of Default, Default, Majority in Interest of Note Holders,
Make-Whole Amount or Note Holder, or the percentage of Note Holders required to take or approve
any action hereunder, (ii) reduce the amount, or change the time of payment or method of
calculation of any amount, of Original Amount, Make-Whole Amount, if any, or interest with respect
to any Equipment Note, (iii) reduce, modify or amend any indemnities in favor of the Indenture
Trustee or the Note Holders (except that the Indenture Trustee may consent to any waiver or
reduction of an indemnity payable to it), or the other Indenture Indemnitees or (iv) permit the
creation of any Lien on the Collateral or any part thereof other than Permitted Liens or deprive
any Note Holder of the benefit of the Lien of this Trust Indenture on the Collateral, except as
provided in connection with the exercise of remedies under Article V hereof;
provided
,
further
, that without the consent of each holder of an affected Related Equipment Note then
outstanding, no such amendment, waiver or modification of terms of, or consent under, any thereof
shall modify Section 3.03 or deprive any Related Note Holder of the benefit of the Lien of this
Trust Indenture on the Collateral, except as provided in connection with the exercise of remedies
under Article V hereof. Notwithstanding the foregoing, without the consent of the affected
Liquidity Provider neither the Owner nor the Indenture Trustee shall enter into any amendment,
waiver or modification of, supplement or consent to this Trust Indenture or the other Operative
Agreements which shall reduce, modify or amend any indemnities in favor of such Liquidity Provider.
57
(b) The Owner and the Indenture Trustee may enter into one or more agreements supplemental
hereto without the consent of any Note Holder for any of the following purposes: (i) (a) to cure
any defect or inconsistency herein or in the Equipment Notes, or to make any change not
inconsistent with the provisions hereof (
provided
that such change does not adversely
affect the interests of any Note Holder in its capacity solely as Note Holder) or (b) to cure any
ambiguity or correct any mistake; (ii) to evidence the succession of another party as the Owner in
accordance with the terms hereof or to evidence the succession of a new trustee hereunder pursuant
hereto, the removal of the trustee hereunder or the appointment of any co-trustee or co-trustees or
any separate or additional trustee or trustees; (iii) to convey, transfer, assign, mortgage or
pledge any property to or with the Indenture Trustee or to make any other provisions with respect
to matters or questions arising hereunder so long as such action shall not adversely affect the
interests of the Note Holders in its capacity solely as Note Holder; (iv) to correct or amplify the
description of any property at any time subject to the Lien of this Trust Indenture or better to
assure, convey and confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Trust Indenture, the Airframe or Engines or any Replacement Airframe or
Replacement Engine; (v) to add to the covenants of the Owner for the benefit of the Note Holders,
or to surrender any rights or power herein conferred upon the Owner; (vi) to add to the rights of
the Note Holders; (vii) to provide for the reissuance of Series B Equipment Notes (and Related
Series B Equipment Notes) or the issuance of a single series of Additional Series Equipment Notes
(and any Related Additional Series Equipment Notes) and for pass through certificates issued by any
pass through trust that acquires any such Equipment Notes and to make changes relating to any of
the foregoing and to provide for any credit support for any such reissued Series B Equipment Notes
or Related Series B Equipment Notes (including without limitation to secure claims for fees,
interest, expenses, reimbursement of advances and other obligations arising from such credit
support (including without limitation to specify such credit support as a Liquidity Facility and
the provider of any such credit support as a Liquidity Provider)), provided that such Equipment
Notes are issued in accordance with the Note Purchase Agreement and Section 9.1 of the
Intercreditor Agreement; and (viii) to include on the Equipment Notes any legend as may be required
by Law.
SECTION 10.02. Indenture Trustee Protected
If, in the opinion of the institution acting as the Indenture Trustee hereunder, any document
required to be executed by it pursuant to the terms of Section 10.01 hereof affects any right,
duty, immunity or indemnity with respect to such institution under this Trust Indenture, such
institution may in its discretion decline to execute such document.
SECTION 10.03. Documents Mailed to Note Holders
Promptly after the execution by the Owner or the Indenture Trustee of any document entered
into pursuant to Section 10.01 hereof, the Indenture Trustee shall mail, by first class mail,
postage prepaid, a copy thereof to the Owner (if not a party thereto) and to each Note Holder at
its address last set forth in the Equipment Note Register, but the failure of the Indenture Trustee
to mail such copies shall not impair or affect the validity of such document.
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SECTION 10.04. No Request Necessary for Trust Indenture Supplement
No written request or consent of the Note Holders pursuant to Section 10.01 hereof shall be
required to enable the Indenture Trustee to execute and deliver a Trust Indenture Supplement
specifically required by the terms hereof.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Termination of Trust Indenture
Upon (or at any time after) payment in full of the Original Amount of, Make-Whole Amount, if
any, and interest on and all other amounts due under all Equipment Notes and provided that there
shall then be no other Secured Obligations due to the Indenture Indemnitees, the Note Holders and
the Indenture Trustee hereunder or under the Participation Agreement, any other Operative
Agreement, any Related Equipment Note or any Related Indenture, the Owner shall direct the
Indenture Trustee to execute and deliver to or as directed in writing by the Owner an appropriate
instrument releasing the Aircraft and the Engines and (subject to paragraph (iv) of clause Third
of Section 3.03 hereof, if applicable) all other Collateral from the Lien of this Trust Indenture
and the Indenture Trustee shall execute and deliver such instrument as aforesaid;
provided
,
however
, that this Trust Indenture and the trusts created hereby shall earlier terminate
and this Trust Indenture shall be of no further force or effect upon any sale or other final
disposition by the Indenture Trustee of all property constituting part of the Collateral and the
final distribution by the Indenture Trustee of all monies or other property or proceeds
constituting part of the Collateral in accordance with the terms hereof. Except as aforesaid
otherwise provided, this Trust Indenture and the trusts created hereby shall continue in full force
and effect in accordance with the terms hereof.
SECTION 11.02. No Legal Title to Collateral in Note Holders
No holder of an Equipment Note or a Related Equipment Note shall have legal title to any part
of the Collateral. No transfer, by operation of law or otherwise, of any Equipment Note or Related
Equipment Note or other right, title and interest of any Note Holder or holder of a Related
Equipment Note in and to the Collateral or hereunder shall operate to terminate this Trust
Indenture or entitle such holder or any successor or transferee of such holder to an accounting or
to the transfer to it of any legal title to any part of the Collateral.
SECTION 11.03. Sale of Aircraft by Indenture Trustee Is Binding
Any sale or other conveyance of the Collateral, or any part thereof (including any part
thereof or interest therein), by the Indenture Trustee made pursuant to the terms of this Trust
Indenture shall bind the Note Holders and shall be effective to transfer or convey all right, title
and interest of the Indenture Trustee, the Owner and such holders in and to such Collateral or part
thereof. No purchaser or other grantee shall be required to inquire as to the authorization,
59
necessity, expediency or regularity of such sale or conveyance or as to the application of any
sale or other proceeds with respect thereto by the Indenture Trustee.
SECTION 11.04. Trust Indenture for Benefit of Owner, Indenture Trustee, Note Holders and the
other Indenture Indemnitees
Nothing in this Trust Indenture, whether express or implied, shall be construed to give any
person other than the Owner, the Indenture Trustee, the Related Indenture Trustees, the Note
Holders, the Related Note Holders and the other Indenture Indemnitees , any legal or equitable
right, remedy or claim under or in respect of this Trust Indenture, except that the persons
referred to in the last paragraph of Section 4.02(b) shall be third party beneficiaries of such
paragraph.
SECTION 11.05. Notices
Unless otherwise expressly specified or permitted by the terms hereof, all notices, requests,
demands, authorizations, directions, consents, waivers or documents provided or permitted by this
Trust Indenture to be made, given, furnished or filed shall be in writing, personally delivered or
mailed by certified mail, postage prepaid, or by facsimile or confirmed telex, and (i) if to the
Owner, addressed to it at 111 West Rio Salado Parkway, Tempe, Arizona 85281, Attention: Vice
President and Treasurer, facsimile number (480) 693-5886, with a copy to Deputy General Counsel,
facsimile number (480) 693-5932, (ii) if to the Indenture Trustee, addressed to it at its office at
1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration,
facsimile number (302) 636-4140, (iii) if to any Note Holder or any Indenture Indemnitee, addressed
to such party at such address as such party shall have furnished by notice to the Owner and the
Indenture Trustee, or, until an address is so furnished, addressed to the address of such party (if
any) set forth on Schedule 1 to the Participation Agreement or in the Equipment Note Register.
Whenever any notice in writing is required to be given by the Owner or the Indenture Trustee or any
Note Holder to any of the other of them, such notice shall be deemed given and such requirement
satisfied when such notice is received, or if such notice is mailed by certified mail, postage
prepaid, three Business Days after being mailed, addressed as provided above. Any party hereto may
change the address to which notices to such party will be sent by giving notice of such change to
the other parties to this Trust Indenture.
SECTION 11.06. Severability
Any provision of this Trust Indenture which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 11.07. No Oral Modification or Continuing Waivers
No term or provision of this Trust Indenture or the Equipment Notes may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
60
the Owner and the Indenture Trustee, in compliance with Section 10.01 hereof. Any waiver of
the terms hereof or of any Equipment Note shall be effective only in the specific instance and for
the specific purpose given.
SECTION 11.08. Successors and Assigns
All covenants and agreements contained herein shall be binding upon, and inure to the benefit
of, each of the parties hereto and the permitted successors and assigns of each, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or action by any
Note Holder shall bind the successors and assigns of such holder. Each Note Holder by its
acceptance of an Equipment Note agrees to be bound by this Trust Indenture and all provisions of
the Operative Agreements applicable to a Note Holder.
SECTION 11.09. Headings
The headings of the various Articles and sections herein and in the table of contents hereto
are for convenience of reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION 11.10. Normal Commercial Relations
Anything contained in this Trust Indenture to the contrary notwithstanding, the Owner and the
Indenture Trustee may conduct any banking or other financial transactions, and have banking or
other commercial relationships, with Owner, fully to the same extent as if this Trust Indenture
were not in effect, including without limitation the making of loans or other extensions of credit
to the Owner for any purpose whatsoever, whether related to any of the transactions contemplated
hereby or otherwise.
SECTION 11.11. Governing Law; Counterpart Form
THIS TRUST INDENTURE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
THIS TRUST INDENTURE IS BEING DELIVERED IN THE STATE OF NEW YORK. This Trust Indenture may be
executed by the parties hereto in separate counterparts (or upon separate signature pages bound
together into one or more 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.
SECTION 11.12. Voting By Note Holders
All votes of the Note Holders shall be governed by a vote of a Majority in Interest of Note
Holders, except as otherwise provided herein.
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SECTION 11.13. Bankruptcy
It is the intention of the parties that the Indenture Trustee shall be entitled to the
benefits of Section 1110 with respect to the right to take possession of the Aircraft, Airframe,
Engines and Parts and to enforce any of its other rights or remedies as provided herein in the
event of a case under Chapter 11 of the Bankruptcy Code in which Owner is a debtor, and in any
instance where more than one construction is possible of the terms and conditions hereof or any
other pertinent Operative Agreement, each such party agrees that a construction which would
preserve such benefits shall control over any construction which would not preserve such benefits.
62
IN WITNESS WHEREOF, the parties hereto have caused this Trust Indenture and Security Agreement
to be duly executed by their respective officers thereof duly authorized as of the day and year
first above written.
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US AIRWAYS, INC.
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By:
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Name:
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Title:
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WILMINGTON TRUST COMPANY,
as Indenture Trustee
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By:
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Name:
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Title:
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ANNEX A
DEFINITIONS
GENERAL PROVISIONS
(a) In each Operative Agreement, unless otherwise expressly provided, a reference to:
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(i)
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each of Owner, Indenture Trustee, Note Holder or any other person
includes, without prejudice to the provisions of any Operative Agreement, any successor
in interest to it and any permitted transferee, permitted purchaser or permitted
assignee of it;
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(ii)
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words importing the plural include the singular and words importing the
singular include the plural;
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(iii)
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any agreement, instrument or document, or any annex, schedule or exhibit
thereto, or any other part thereof, includes, without prejudice to the provisions of
any Operative Agreement, that agreement, instrument or document, or annex, schedule or
exhibit, or part, respectively, as amended, modified or supplemented from time to time
in accordance with its terms and in accordance with the Operative Agreements, and any
agreement, instrument or document entered into in substitution or replacement therefor
(including, without limitation, in the case of each Pass Through Trust Agreement, the
Related Pass Through Trust Agreement as defined therein);
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(iv)
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any provision of any Law includes any such provision as amended, modified,
supplemented, substituted, reissued or reenacted prior to the Closing Date, and
thereafter from time to time;
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(v)
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the words Agreement, this Agreement, hereby, herein, hereto, hereof
and hereunder and words of similar import when used in any Operative Agreement refer
to such Operative Agreement as a whole and not to any particular provision of such
Operative Agreement;
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(vi)
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the words including, including, without limitation, including, but not
limited to, and terms or phrases of similar import when used in any Operative
Agreement, with respect to any matter or thing, mean including, without limitation,
such matter or thing; and
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(vii)
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a Section, an Exhibit, an Annex or a Schedule in any Operative
Agreement, or in any annex thereto, is a reference to a section of, or an exhibit, an
annex or a schedule to, such Operative Agreement or such annex, respectively.
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(b) Each exhibit, annex and schedule to each Operative Agreement is incorporated in, and shall
be deemed to be a part of, such Operative Agreement.
(c) Unless otherwise defined or specified in any Operative Agreement, all accounting terms
therein shall be construed and all accounting determinations thereunder shall be made in accordance
with GAAP.
(d) Headings used in any Operative Agreement are for convenience only and shall not in any way
affect the construction of, or be taken into consideration in interpreting, such Operative
Agreement.
(e) For purposes of each Operative Agreement, the occurrence and continuance of a Default or
Event of Default referred to in Section 5.01(v),(vi) or (vii) shall not be deemed to prohibit the
Owner from taking any action or exercising any right that is conditioned on no Special Default,
Default or Event of Default having occurred and be continuing if such Special Default, Default or
Event of Default consists of the institution of reorganization proceedings with respect to the
Owner under Chapter 11 of the Bankruptcy Code and the trustee or debtor-in-possession in such
proceedings shall have agreed to perform its obligations under the Trust Indenture with the
approval of the applicable court and thereafter shall have continued to perform such obligations in
accordance with Section 1110.
DEFINED TERMS
Act
means part A of subtitle VII of title 49, United States Code.
Actual Knowledge
means (a) as it applies to the Indenture Trustee, actual knowledge
of a responsible officer in the Corporate Trust Office, and (b) as it applies to the Owner, actual
knowledge of a Vice President or more senior officer of the Owner or any other officer of the Owner
having responsibility for the transactions contemplated by the Operative Agreements;
provided
that each of the Owner and the Indenture Trustee shall be deemed to have Actual
Knowledge of any matter as to which it has received notice from the Owner, any Note Holder or the
Indenture Trustee, such notice having been given pursuant to Section 11.05 of the Trust Indenture.
Additional Series
or
Additional Series Equipment Notes
means Equipment
Notes issued under the Trust Indenture and designated as a single series (other than Series A or
Series B) thereunder, in the Original Amount and maturity and bearing interest as specified in
Schedule I to the Trust Indenture amended at the time of original issuance of such Additional
Series) under the heading for such series.
Affiliate
means, with respect to any person, any other person directly or indirectly
controlling, controlled by or under common control with such person. For purposes of this
definition, control means 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 and controlling, controlled by and under common control with have
correlative meanings.
Aircraft
means, collectively, the Airframe and Engines.
2
Aircraft Bill of Sale
means the full warranty bill of sale covering the Aircraft
delivered by Airframe Manufacturer to the Owner.
Aircraft Documents
means all technical data, manuals and log books, and all
inspection, modification and overhaul records and other service, repair, maintenance and technical
records that are required by the Owners FAA approved maintenance program (or the maintenance
program of an applicable Aviation Authority), to be maintained with respect to the Aircraft,
Airframe, Engines or Parts, and such term shall include all additions, renewals, revisions and
replacements of any such materials from time to time made, or required to be made, by the Owners
FAA approved maintenance program (or the maintenance program of an applicable Aviation Authority),
and in each case in whatever form and by whatever means or medium (including, without limitation,
microfiche, microfilm, paper or computer disk) such materials may be maintained or retained by or
on behalf of the Owner (
provided
, that all such materials shall be maintained in the
English language).
Airframe
means (a) the aircraft (excluding Engines or engines from time to time
installed thereon) manufactured by Airframe Manufacturer and identified by Airframe Manufacturers
model number, United States registration number and Airframe Manufacturers serial number set forth
in the initial Trust Indenture Supplement and any Replacement Airframe and (b) any and all Parts
incorporated or installed in or attached or appurtenant to such airframe, and any and all Parts
removed from such airframe, unless the Lien of the Trust Indenture shall not be applicable to such
Parts in accordance with Section 4.04 of the Trust Indenture. Upon substitution of a Replacement
Airframe under and in accordance with the Trust Indenture, such Replacement Airframe shall become
subject to the Trust Indenture and shall be the Airframe for all purposes of the Trust Indenture
and the other Operative Agreements and thereupon the Airframe for which the substitution is made
shall no longer be subject to the Trust Indenture, and such replaced Airframe shall cease to be the
Airframe.
Airframe Manufacturer
means Airbus S.A.S., a
société par actions simplifiée
organized and existing under the laws of the Republic of France.
Applicable Pass Through Trust
means each of the separate pass through trusts created
under the Applicable Pass Through Trust Agreements.
Applicable Pass Through Trust Agreement
means each of the separate Pass Through
Trust Agreements by and between the Owner and an Applicable Pass Through Trustee.
Applicable Pass Through Trustee
means each Pass Through Trustee that is a party to
the Participation Agreement.
Average Life Date
for any Equipment Note shall be the date which follows the time of
determination by a period equal to the Remaining Weighted Average Life of such Equipment Note.
Remaining Weighted Average Life on a given date with respect to any Equipment Note shall be the
number of days equal to the quotient obtained by dividing (a) the sum of each of the products
obtained by multiplying (i) the amount of each then remaining scheduled payment of principal of
such Equipment Note by (ii) the number of days from and
3
including such determination date to but excluding the date on which such payment of principal
is scheduled to be made, by (b) the then outstanding principal amount of such Equipment Note.
Aviation Authority
means the FAA or, if the Aircraft is permitted to be, and is,
registered with any other Government Entity under and in accordance with Section 4.02(e) of the
Trust Indenture and Section 6.4.5 of the Participation Agreement, such other Government Entity.
Bankruptcy Code
means the United States Bankruptcy Code, 11 U.S.C. Sections 101
et
seq.
Basic Pass Through Trust Agreement
means the Pass Through Trust Agreement, dated
December 21, 2010, between the Owner and Pass Through Trustee, but does not include any Trust
Supplement.
Bills of Sale
means the FAA Bill of Sale and the Aircraft Bill of Sale.
Business Day
means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized or required by law to close in New York, New York, Phoenix,
Arizona, or Wilmington, Delaware.
Cape Town Treaty
means the Cape Town Convention on International Interests in
Mobile Equipment and the related Aircraft Equipment Protocol, as in effect in the United States.
Cash Equivalents
means the following securities (which shall mature within 90 days
of the date of purchase thereof): (a) direct obligations of the U.S. Government; (b) obligations
fully guaranteed by the U.S. Government; (c) certificates of deposit issued by, or bankers
acceptances of, or time deposits or a deposit account with, the Indenture Trustee or any bank,
trust company or national banking association incorporated or doing business under the laws of the
United States or any state thereof having a combined capital and surplus and retained earnings of
at least $500,000,000 and having a rating of C or better from the Thomson BankWatch Service; or
(d) commercial paper of any issuer doing business under the laws of the United States or one of the
states thereof and in each case having a rating assigned to such commercial paper by Standard &
Poors Ratings Services or Moodys Investors Service, Inc. equal to A1 (or higher) or P-1,
respectively.
Certificate Owner
is defined in the Pass Through Trust Agreements.
Citizen of the United States
is defined in 49 U.S.C. § 40102(a)(15).
Class A Pass Through Trust
means the US Airways Pass Through Trust 2010-2A.
Class B Pass Through Trust
means the US Airways Pass Through Trust 2010-2B.
Closing
means the closing of the transactions contemplated by the Participation
Agreement.
4
Closing Date
means the date on which the Closing occurs.
Code
means the Internal Revenue Code of 1986, as amended; provided that, when used
in relation to a Plan, Code shall mean the Internal Revenue Code of 1986 and any regulations and
rulings issued thereunder, all as amended and in effect from time to time.
Collateral
is defined in the Granting Clause of the Trust Indenture.
Corporate Trust Office
means the principal office of the Indenture Trustee located
at Indenture Trustees address for notices under the Participation Agreement or such other office
at which the Indenture Trustees corporate trust business shall be administered which the Indenture
Trustee shall have specified by notice in writing to the Owner and each Note Holder.
CRAF
means the Civil Reserve Air Fleet Program established pursuant to 10 U.S.C.
Section 9511-13 or any similar substitute program.
Debt Rate
means, with respect to (i) any Series of Equipment Notes, the rate per
annum specified for such Series under the heading Interest Rate in Schedule I to the Trust
Indenture (as amended, in the case of any Additional Series, at the time of original issuance of
such Additional Series), and (ii) any other purpose, with respect to any period, the weighted
average interest rate per annum during such period borne by the outstanding Equipment Notes,
excluding any interest payable at the Payment Due Rate.
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.
Deposit Agreement
means each of the two Deposit Agreements between the Escrow Agent
and the Depositary, dated as of the Issuance Date, which relate to the Class A or Class B Pass
Through Trust,
provided
that, for purposes of any obligation of the Owner, no amendment,
modification or supplement to, or substitution or replacement of, any such Deposit Agreement shall
be effective unless consented to by the Owner.
Depositary
means The Bank of New York Mellon, as Depositary under each Deposit
Agreement.
Dollars
,
United States Dollars
or
$
means the lawful currency of
the United States.
DOT
means the Department of Transportation of the United States or any Government
Entity succeeding to the functions of such Department of Transportation.
Eligible Account
means an account established by and with an Eligible Institution at
the request of the Indenture Trustee, which institution agrees, for all purposes of the UCC
including Article 8 thereof, that (a) such account shall be a securities account (as defined in
Section 8-501(a) of the UCC), (b) all property (other than cash) credited to such account shall be
treated as a financial asset (as defined in Section 8-102(a)(9) of the UCC), (c) the Indenture
Trustee shall be the entitlement holder (as defined in Section 8-102(a)(7) of the UCC) in
5
respect of such account, (d) it will comply with all entitlement orders issued by the
Indenture Trustee to the exclusion of the Owner, and (e) the securities intermediary jurisdiction
(under Section 8-110(e) of the UCC) shall be the State of New York.
Eligible Institution
means the corporate trust department of (a) Wilmington Trust
Company, acting solely in its capacity as a securities intermediary (as defined in Section
8-102(a)(14) of the UCC), or (b) a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia (or any U.S. branch
of a foreign bank), which has a long-term unsecured debt rating from Moodys and Standard & Poors
of at least A-3 or its equivalent.
Engine
means (a) each of the engines manufactured by Engine Manufacturer and
identified by Engine Manufacturers model number and Engine Manufacturers serial number set forth
in the initial Trust Indenture Supplement and originally installed on the Airframe on the Closing
Date, and any Replacement Engine, in any case whether or not from time to time installed on such
Airframe or installed on any other airframe or aircraft, and (b) any and all Parts incorporated or
installed in or attached or appurtenant to such engine, and any and all Parts removed from such
engine, unless the Lien of the Trust Indenture shall not apply to such Parts in accordance with
Section 4.04 of the Trust Indenture. Upon substitution of a Replacement Engine under and in
accordance with the Trust Indenture, such Replacement Engine shall become subject to the Trust
Indenture and shall be an Engine for all purposes of the Trust Indenture and the other Operative
Agreements and thereupon the Engine for which the substitution is made shall no longer be subject
to the Trust Indenture, and such replaced Engine shall cease to be an Engine.
Engine Manufacturer
means [__________________], a [__________] organized under the
laws of [__________].
Equipment Note Register
is defined in Section 2.06 of the Trust Indenture.
Equipment Notes
means and includes any equipment notes issued under the Trust
Indenture in the form specified in Section 2.01 thereof (as such form may be varied pursuant to the
terms of the Trust Indenture) and any Equipment Note issued under the Trust Indenture in exchange
for or replacement of any Equipment Note.
ERISA
means the Employee Retirement Income Security Act of 1974, and any regulations
and rulings issued thereunder all as amended and in effect from time to time.
Escrow Agent
means Wells Fargo Bank Northwest, National Assocation, as Escrow Agent
under each of the Escrow Agreements.
Escrow Agreement
means each of the two Escrow and Paying Agent Agreements, among the
Escrow Agent, the Paying Agent, certain initial purchasers of the Pass Through Certificates named
therein and one of the Pass Through Trustees, dated as of the Issuance Date, which relate to the
Class A or Class B Pass Through Trust,
provided
that, for purposes of any obligation of the
Owner, no amendment, modification or supplement to, or
6
substitution or replacement of, any such Escrow Agreement shall be effective unless consented
to by the Owner.
Event of Default
is defined in Section 5.01 of the Trust Indenture.
Event of Loss
means, with respect to the Aircraft, Airframe or any Engine, any of
the following circumstances, conditions or events with respect to such property, for any reason
whatsoever:
(a) the destruction of such property, damage to such property beyond economic repair or
rendition of such property permanently unfit for normal use by the Owner;
(b) the actual or constructive total loss of such property or any damage to such property, or
requisition of title or use of such property, which results in an insurance settlement with respect
to such property on the basis of a total loss or constructive or compromised total loss;
(c) any theft, hijacking or disappearance of such property for a period of one hundred and
eighty (180) consecutive days or more;
(d) any seizure, condemnation, confiscation, taking or requisition (including loss of title)
of such property by any Government Entity or purported Government Entity (other than a requisition
of use by the U.S. Government) for a period exceeding one hundred and eighty (180) consecutive
days;
(e) as a result of any law, rule, regulation, order or other action by the Aviation Authority
or by any Government Entity of the government of registry of the Aircraft or by any Government
Entity otherwise having jurisdiction over the operation or use of the Aircraft, the use of such
property in the normal course of the Owners business of passenger air transportation is prohibited
for a period of one hundred and eighty (180) consecutive days unless the Owner, prior to the
expiration of such one hundred and eighty (180)-day period, shall have undertaken and shall be
diligently carrying forward such steps as may be necessary or desirable to permit the normal use of
such property by the Owner, but in any event if such use shall have been prohibited for a period of
two (2) consecutive years, provided that no Event of Loss shall be deemed to have occurred if such
prohibition has been applicable to the Owners entire U.S. fleet of such property and the Owner,
prior to the expiration of such two (2)-year period, shall have conformed at least one unit of such
property 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, in a manner which does not discriminate against such property in so conforming
such property, steps which are necessary or desirable to permit the normal use of the Aircraft by
the Owner, but in any event if such use shall have been prohibited for a period of three (3) years.
Existing Financing
means the financing arrangements that provided for a security
interest granted by the Owner in the Aircraft and were outstanding on or after December 21, 2010.
7
Expenses
means any and 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 costs of investigation).
FAA
means the Federal Aviation Administration of the United States or any Government
Entity succeeding to the functions of such Federal Aviation Administration.
FAA Bill of Sale
means a bill of sale for the Aircraft on AC Form 8050-2 (or such
other form as may be approved by the FAA) delivered to the Owner by Airframe Manufacturer.
FAA Filed Documents
means the Release, the Trust Indenture and the initial Trust
Supplement.
FAA Regulations
means the Federal Aviation Regulations issued or promulgated
pursuant to the Act from time to time.
Financing Statements
means, collectively, UCC financing statements covering the
Collateral, by the Owner, as debtor, showing the Indenture Trustee as secured party, and UCC
termination statements with respect to the termination of the security interest granted under the
Existing Financing for filing in Delaware and each other jurisdiction that, in the opinion of the
Indenture Trustee, is necessary to perfect its Lien on the Collateral.
GAAP
means generally accepted accounting principles as set forth in the statements
of financial accounting standards issued by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants, as such principles may at any time or from time
to time be varied by any applicable financial accounting rules or regulations issued by the SEC
and, with respect to any person, shall mean such principles applied on a basis consistent with
prior periods except as may be disclosed in such persons financial statements.
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 Agreements or relating to
the observance or performance of the obligations of any of the parties to the Operative Agreements.
Indemnitee
means (i) WTC and the Indenture Trustee, (ii) each separate or additional
trustee appointed pursuant to the Trust Indenture, (iii) the Subordination Agent, the Paying Agent
and the Escrow Agent, (iv) the Liquidity Providers, (v) the Pass Through Trustees and each Related
Note Holder, (vi) each Affiliate of the persons described in clauses (i) and (ii), (vii) each
Affiliate of the persons described in clauses (iii), (iv) and (v), (viii) the respective directors,
officers, employees, agents and servants of each of the persons described in clauses (i), (ii) and
(vi), (ix) the respective directors, officers, employees, agents and servants of each of the
persons described in clauses (iii), (iv), (v) and (vii), (x) the successors and permitted assigns
of
8
the persons described in clauses (i), (ii) and (viii), and (xi) the successors and permitted
assigns of the persons described in clauses (iii), (iv), (v) and (ix); provided that the persons
described in clauses (iii), (iv), (v), (vii), (ix) and (xi) are Indemnitees only for purposes of
Section 8.1 of the Participation Agreement. If any Indemnitee is Airframe Manufacturer or Engine
Manufacturer or any subcontractor or supplier of either thereof, such Person shall be an Indemnitee
only in its capacity as Note Holder.
Indenture Agreements
means the Bills of Sale, to the extent included in Granting
Clause (2) of the Trust Indenture, and any other contract, agreement or instrument from time to
time assigned or pledged under the Trust Indenture.
Indenture Default
means any condition, circumstance, act or event that, with the
giving of notice, the lapse of time or both, would constitute an Indenture Event of Default.
Indenture Event of Default
means any one or more of the conditions, circumstances,
acts or events set forth in Section 5.01 of the Trust Indenture.
Indenture Indemnitee
means (i) WTC and the Indenture Trustee, (ii) each separate or
additional trustee appointed pursuant to the Trust Indenture, (iii) the Subordination Agent, (iv)
each Liquidity Provider, (v) each Pass Through Trustee and each Related Note Holder, (vi) the
Paying Agent, (vii) the Escrow Agent and (viii) each of the respective directors, officers,
employees, agents and servants of each of the persons described in clauses (i) through (vii)
inclusive above.
Indenture Trustee
means Wilmington Trust Company, a Delaware banking corporation,
not in its individual capacity but solely as indenture trustee under the Trust Indenture.
Intercreditor Agreement
means that certain Intercreditor Agreement among the Pass
Through Trustees, the Liquidity Providers and the Subordination Agent, dated as of the Issuance
Date, provided that for purposes of any obligation of the Owner, no amendment, modification or
supplement to, or substitution or replacement of, such Intercreditor Agreement shall be effective
unless consented to by the Owner.
International Interest
is defined in the Cape Town Treaty.
International Registry
is defined in the Cape Town Treaty.
IRS
means the Internal Revenue Service of the United States or any Government Entity
succeeding to the functions of such Internal Revenue Service.
Issuance Date
means December 21, 2010.
Law
means (a) any constitution, treaty, statute, law, decree, 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.
9
Lien
means any mortgage, pledge, lien, charge, claim, encumbrance, lease or security
interest affecting the title to or any interest in property.
Liquidity Facilities
means the two Revolving Credit Agreements (consisting of one
Revolving Credit Agreement with the Liquidity Provider with respect to the Class A Pass Through
Trust and a second Revolving Credit Agreement with the Liquidity Provider with respect to the Class
B Pass Through Trust) between the Subordination Agent, as borrower, and the Liquidity Provider,
each dated as of the Issuance Date,
provided
that, for purposes of any obligation of the
Owner, no amendment, modification or supplement to, or substitution or replacement of, any such
Liquidity Facility shall be effective unless consented to by the Owner.
Liquidity Provider
means Morgan Stanley Bank, N.A., a national banking association,
as Class A Liquidity Provider and Class B Liquidity Provider (as such terms are defined in the
Intercreditor Agreement).
Majority in Interest of Note Holders
means as of a particular date of determination,
the holders of a majority in aggregate unpaid Original Amount of all Equipment Notes outstanding as
of such date (excluding any Equipment Notes held by the Owner or any of its Affiliates (unless all
Equipment Notes then outstanding shall be held by the Owner or any Affiliate of the Owner);
provided
that for the purposes of directing any action or casting any vote or giving any
consent, waiver or instruction hereunder, any Note Holder of an Equipment Note or Equipment Notes
may allocate, in such Note Holders sole discretion, any fractional portion of the principal amount
of such Equipment Note or Equipment Notes in favor of or in opposition to any such action, vote,
consent, waiver or instruction.
Make-Whole Amount
means, with respect to any Equipment Note, an amount (as
determined by an independent investment bank of national standing) equal to the excess, if any, of
(a) the present value of the remaining scheduled payments of principal and interest to maturity of
such Equipment Note computed by discounting such payments on a semiannual basis on each Payment
Date (assuming a 360-day year of twelve 30-day months) using a discount rate equal to the Treasury
Yield plus the Make-Whole Spread,
over
(b) the outstanding principal amount of such
Equipment Note plus accrued interest to the date of determination. For purposes of determining the
Make-Whole Amount, Treasury Yield means, at the date of determination with respect to any
Equipment Note, the interest rate (expressed 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 of such Equipment Note and trading in the public securities markets 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 of such Equipment Note and (B) the other
maturing as close as possible to, but later than, the Average Life Date of such Equipment Note, 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 of such Equipment Note is
reported in 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
10
third Business Day prior to the applicable payment or 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 payment or redemption date.
Make-Whole Spread
means (i) in the case of Series A Equipment Notes, 0.50%, (ii) in
the case of Series B Equipment Notes, 0.50%, and (iii) in the case of any Additional Series, the
percentage specified in Schedule I hereto (as amended at the time of original issuance of such
Additional Series) as the Make-Whole Spread for such Additional Series.
Material Adverse Change
means, with respect to any person, any event, condition or
circumstance that materially and adversely affects such persons business or consolidated financial
condition, or its ability to observe or perform its obligations, liabilities and agreements under
the Operative Agreements.
Minimum Liability Insurance Amount
is defined in Schedule 3 to the Participation
Agreement.
Mortgaged Property
is defined in Section 3.03 of the Trust Indenture.
Non-U.S. Person
means any Person other than a United States person, as defined in
Section 7701(a)(30) of the Code.
Note Holder
means at any time each registered holder of one or more Equipment Notes.
Note Purchase Agreement
means the Note Purchase Agreement, dated as of the Issuance
Date, among US Airways, Inc., the Subordination Agent, the Escrow Agent, the Paying Agent and the
Pass Through Trustee under each Pass Through Trust Agreement providing for, among other things, the
issuance and sale of certain equipment notes.
NY UCC
means the UCC as in effect on the date of determination in the State of New
York.
Officers Certificate
means, in respect of any party to the Participation Agreement,
a certificate signed by the Chairman, the President, any Vice President (including those with
varying ranks such as Executive, Senior, Assistant or Staff Vice President), the Treasurer or the
Secretary of such party.
Operative Agreements
means, collectively, the Participation Agreement, the Trust
Indenture, the initial Trust Indenture Supplement, the Bills of Sale, and the Equipment Notes.
Operative Indentures
means each of the indentures under which notes have been issued
and purchased by the Pass Through Trustees pursuant to the Note Purchase Agreement (whether before
or after the date of the Trust Indenture).
11
Original 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.
Owner Person
means the Owner, any lessee, assignee, successor or other user or
person in possession of the Aircraft, Airframe or an Engine with or without color of right, or any
Affiliate of any of the foregoing (excluding any Tax Indemnitee or any related Tax Indemnitee with
respect thereto, or any person using or claiming any rights with respect to the Aircraft, Airframe
or an Engine directly by or through any of the persons in this parenthetical).
Participation Agreement
means the Participation Agreement [____], dated as of
[______ __], 20[__], among Owner, the Applicable Pass Through Trustees, the Subordination Agent and
the Indenture Trustee.
Parts
means all appliances, parts, components, instruments, appurtenances,
accessories, furnishings, seats and other equipment of whatever nature (other than (a) Engines or
engines, (b) Passenger Convenience Equipment, (c) cargo containers and (d) any Removable Part
leased by the Owner from a third party or subject to a security interest granted to a third party),
that may from time to time be installed or incorporated in or attached or appurtenant to the
Airframe or any Engine or removed therefrom unless the Lien of the Trust Indenture shall not be
applicable thereto in accordance with Section 4.04 of the Trust Indenture.
Pass Through Agreements
means the Pass Through Trust Agreements, the Note Purchase
Agreement, the Deposit Agreements, the Escrow Agreements, the Intercreditor Agreement, the
Liquidity Facilities and the Fee Letter referred to in Section 2.03 of each of the Liquidity
Facilities, provided that no amendment, modification or supplement to, or substitution or
replacement of, any such Fee Letter shall be effective for purposes of any obligation of the Owner,
unless consented to by the Owner.
Pass Through Certificates
means the pass through certificates issued by the Pass
Through Trusts (and any other pass through certificates for which such pass through certificates
may be exchanged).
Pass Through Trust
means each of the two separate pass through trusts created under
the Pass Through Trust Agreements.
Pass Through Trust Agreement
means each of the two separate Trust Supplements,
together in each case with the Basic Pass Through Trust Agreement, each dated as of the Issuance
Date by and between the Owner and a Pass Through Trustee, provided, that, for purposes of any
obligation of the Owner, no amendment, modification or supplement to, or substitution or
replacement of, any such Agreement shall be effective unless consented to by the Owner.
Pass Through Trustee
means Wilmington Trust Company, a Delaware banking corporation,
in its capacity as trustee under each Pass Through Trust Agreement.
12
Pass Through Trustee Agreements
means the Participation Agreement, the Pass Through
Trust Agreements, the Note Purchase Agreement, the Deposit Agreements, the Escrow Agreements, and
the Intercreditor Agreement.
Passenger Convenience Equipment
means components or systems installed on or affixed
to the Airframe that are used to provide individual telecommunications services or entertainment
services to passengers aboard the Aircraft.
Paying Agent
means Wilmington Trust Company, as paying agent under each of the
Escrow Agreements.
Payment Date
means each April 22 and October 22, commencing on April 22, 2011.
Payment Due Rate
means (a) with respect to (i) any payment made to a Note Holder
under any Series of Equipment Notes, the Debt Rate applicable to such Series plus 2% and (ii) any
other payment made under any Operative Agreement to any other Person, the Debt Rate applicable to
such payment plus 2% or, if less, (b) the maximum rate permitted by applicable law.
Permitted Air Carrier
means (i) any 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 or (iv) any U.S. Air
Carrier.
Permitted Country
means any country listed on Schedule 4 to the Participation
Agreement.
Permitted Foreign Air Carrier
means any air carrier with its principal executive
offices in any Permitted Country and which is authorized to conduct commercial airline operations
and to operate jet aircraft similar to the Aircraft under the applicable Laws of such Permitted
Country.
Permitted Government Entity
means (i) the U.S. Government or (ii) any Government
Entity if the Aircraft is then registered under the laws of the country of such Government Entity.
Permitted Lease
means a lease permitted under Section 4.02(b) of the Trust
Indenture.
Permitted Lessee
means the lessee under a Permitted Lease.
Permitted Lien
means (a) the rights of the Indenture Trustee under the Operative
Agreements, or of any Permitted Lessee under any Permitted Lease; (b) Liens attributable to the
Indenture Trustee (both in its capacity as trustee under the Trust Indenture and in its individual
capacity); (c) the rights of others under agreements or arrangements to the extent expressly
permitted by the terms of Section 4.02(b) or 4.04 of the Trust Indenture; (d) Liens of Taxes of the
Owner (and its U.S. federal tax law consolidated group), or Liens for Taxes of any
13
Tax Indemnitee (and its U.S. federal tax law consolidated group) for which Owner is obligated
to indemnify such Tax Indemnitee under any of the Operative Agreements, in any such case either not
yet due or being contested in good faith by appropriate proceedings so long as such Liens and such
proceedings do not involve any material risk of the sale, forfeiture or loss of the Aircraft, the
Airframe, or any Engine or the interest of the Indenture Trustee therein or impair the Lien of the
Trust Indenture; (e) materialmens, mechanics, workers, repairers, employees or other like
Liens arising in the ordinary course of business for amounts the payment of which is either not yet
delinquent for more than 60 days or is being contested in good faith by appropriate proceedings, so
long as such Liens and such proceedings do not involve any material risk of the sale, forfeiture or
loss of the Aircraft, the Airframe, or any Engine or the interest of the Indenture Trustee therein
or impair the Lien of the Trust Indenture; (f) Liens arising out of any judgment or award against
the Owner (or any Permitted Lessee), so long as such judgment shall, within 60 days after the entry
thereof, have been discharged or vacated, or execution thereof stayed pending appeal or shall have
been discharged, vacated or reversed within 60 days after the expiration of such stay, and so long
as during any such 60 day period there is not, or any such judgment or award does not involve, any
material risk of the sale, forfeiture or loss of the Aircraft, the Airframe, or any Engine or the
interest of the Indenture Trustee therein or impair the Lien of the Trust Indenture; (g) any other
Lien with respect to which Owner (or any Permitted Lessee) shall have provided a bond, cash
collateral or other security adequate in the reasonable opinion of the Indenture Trustee; (h) any
Lien approved in writing by the Indenture Trustee; and (i) salvage or similar rights of insurers
under policies required to be maintained by Owner under Section 4.06 of the Trust Indenture.
Persons
or
persons
means individuals, firms, partnerships, joint ventures,
trusts, trustees, Government Entities, organizations, associations, corporations, limited liability
companies, government agencies, committees, departments, authorities and other bodies, corporate or
incorporate, whether having distinct legal status or not, or any member of any of the same.
Plan
means any employee benefit plan within the meaning of Section 3(3) of ERISA, or
any plan within the meaning of Section 4975(e)(1) of the Code.
Prospective International Interest
is defined in the Cape Town Treaty.
QIB
is defined in Section 2.07 of the Trust Indenture.
Related Additional Series Equipment Note
means, with respect to the Additional
Series Equipment Notes and as of any date, an Additional Series Equipment Note, as defined in
each Related Indenture, having the same designation as such Additional Series Equipment Notes, but
only if as of such date it is held by the Subordination Agent under the Intercreditor
Agreement, as such terms are defined in such Related Indenture.
Related Equipment Note
means, as of any date, an Equipment Note as defined in each
Related Indenture, but only if as of such date it is held by the Subordination Agent under the
Intercreditor Agreement, as such terms are defined in such Related Indenture.
14
Related Indenture
means each Operative Indenture (other than the Trust Indenture).
Related Indenture Event of Default
means any Indenture Event of Default under any
Related Indenture.
Related Indenture Trustee
means the Indenture Trustee as defined in each Related
Indenture.
Related Make-Whole Amount
means the Make-Whole Amount, as defined in each Related
Indenture.
Related Note Holder
means a registered holder of a Related Equipment Note.
Related Secured Obligations
means, as of any date, the outstanding Original
Amount, as defined in each Related Indenture, of the Related Equipment Notes issued under such
Related Indenture, the accrued and unpaid interest due thereon in accordance with such Related
Indenture as of such date, the Related Make-Whole Amount, if any, due with respect thereto and all
other amounts due with respect thereto in accordance with such Related Indenture.
Related Series A Equipment Note
means, as of any date, a Series A Equipment Note,
as defined in each Related Indenture, but only if as of such date it is held by the Subordination
Agent under the Intercreditor Agreement, as such terms are defined in such Related Indenture.
Related Series B Equipment Note
means, as of any date, a Series B Equipment Note,
as defined in each Related Indenture, but only if as of such date it is held by the Subordination
Agent under the Intercreditor Agreement, as such terms are defined in such Related Indenture.
Release
means the instrument releasing the security interest in the Aircraft granted
to secure the Existing Financing.
Removable Part
is defined in Section 4.04(d) of the Trust Indenture.
Replacement Airframe
means any airframe substituted for the Airframe pursuant to
Article IV of the Trust Indenture.
Replacement Engine
means an engine substituted for an Engine pursuant to Article IV
of the Trust Indenture.
SEC
means the Securities and Exchange Commission of the United States, or any
Government Entity succeeding to the functions of such Securities and Exchange Commission.
Section 1110
means 11 U.S.C. Section 1110 of the Bankruptcy Code or any successor or
analogous section of the federal bankruptcy law in effect from time to time.
15
Secured Obligations
is defined in Section 2.05 of the Trust Indenture.
Securities Account
is defined in Section 3.07 of the Trust Indenture.
Securities Act
means the Securities Act of 1933, as amended.
Security
means a security as defined in Section 2(l) of the Securities Act.
Senior Holder
is defined in Section 2.12(c) of the Trust Indenture.
Series
means any of Series A, Series B or the Additional Series.
Series A
or
Series A Equipment Notes
means Equipment Notes issued under
the Trust Indenture and designated as Series A thereunder, in the Original Amount and maturities
and bearing interest as specified in Schedule I to the Trust Indenture under the heading Series
A.
Series B
or
Series B Equipment Notes
means Equipment Notes issued under
the Trust Indenture and designated as Series B thereunder, in the Original Amount and maturities
and bearing interest as specified in Schedule I to the Trust Indenture under the heading Series
B.
Similar Aircraft
means an Airbus Model [insert model reference the same as the
Aircraft] aircraft.
Special Default
means (i) the failure by the Owner to pay any amount of principal of
or interest on any Equipment Note when due or (ii) the occurrence of any Default or Event of
Default referred to in Section 5.01(v), (vi) or (vii).
Subordination Agent
means Wilmington Trust Company, as subordination agent under the
Intercreditor Agreement, or any successor thereto.
Tax Indemnitee
means (a) WTC and the Indenture Trustee, (b) each separate or
additional trustee appointed pursuant to the Trust Indenture, (c) each Note Holder and (d) the
respective successors, assigns, agents and servants of the foregoing.
Taxes
means all license, recording, documentary, registration and other similar fees
and all taxes, levies, imposts, duties, charges, assessments or withholdings of any nature
whatsoever imposed by any Taxing Authority, together with any penalties, additions to tax, fines or
interest thereon or additions thereto.
Taxing Authority
means any federal, state or local government or other taxing
authority in the United States, any foreign government or any political subdivision or taxing
authority thereof, any international taxing authority or any territory or possession of the United
States or any taxing authority thereof.
Threshold Amount
is defined in Schedule 3 to the Participation Agreement.
16
Transaction Expenses
means all costs and expenses incurred by the Indenture Trustee
in connection with (a) the preparation, execution and delivery of the Operative Agreements and the
recording or filing of any documents, certificates or instruments in accordance with any Operative
Agreement, including, without limitation, the FAA Filed Documents and the Financing Statements, (b)
the initial fee of the Indenture Trustee under the Trust Indenture and (c) the reasonable fees and
disbursements of counsel for the Indenture Trustee and special counsel in Oklahoma City, Oklahoma,
in each case, in connection with the Closing.
Transactions
means the transactions contemplated by the Participation Agreement.
Transfer
means the transfer, sale, assignment or other conveyance of all or any
interest in any property, right or interest.
Transferee
means a person to which any Note Holder purports or intends to Transfer
any or all of its right, title or interest in the Equipment Note, as described in Section 9 of the
Participation Agreement.
Trust Indenture
means the Trust Indenture and Security Agreement [____], dated as of
the date of the Participation Agreement between the Owner and the Indenture Trustee.
Trust Indenture Supplement
means a Trust Indenture and Security Agreement
Supplement, substantially in the form of Exhibit A to the Trust Indenture, with appropriate
modifications to reflect the purpose for which it is being used.
Trust Supplement
means an agreement supplemental to the Basic Pass Through Trust
Agreement pursuant to which (i) a separate trust is created for the benefit of the holders of the
Pass Through Certificates of a class, (ii) the issuance of the Pass Through Certificates of such
Class representing fractional undivided interests in such trust is authorized and (iii) the terms
of the Pass Through Certificates of such class are established.
UCC
means the Uniform Commercial Code as in effect in any applicable jurisdiction.
United States
or
U.S.
means the United States of America; provided that
for geographic purposes, United States means, in aggregate, the 50 states and the District of
Columbia of the United States of America.
U.S. Air Carrier
means any United States air carrier that is a Citizen of the United
States holding an air carrier operating certificate issued pursuant to chapter 447 of title 49 of
the United States Code for aircraft capable of carrying 10 or more individuals or 6000 pounds or
more of cargo, and as to which there is in force an air carrier operating certificate issued
pursuant to Part 121 of the FAA Regulations, or which may operate as an air carrier by
certification or otherwise under any successor or substitute provisions therefor or in the absence
thereof.
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U.S. Government
means the federal government of the United States, or any
instrumentality or agency thereof the obligations of which are guaranteed by the full faith and
credit of the federal government of the United States.
U.S. Person
means any Person described in Section 7701 (a)(30) of the Code.
Weighted Average Life to Maturity
means, with respect to any specified Debt, at the
time of the determination thereof the number of years obtained by dividing the then Remaining
Dollar-years of such Debt by the then outstanding principal amount of such Debt. The term
Remaining Dollar-years shall mean the amount obtained by (1) multiplying the amount of each
then-remaining principal payment on such Debt by the number of years (calculated at the nearest
one-twelfth) that will elapse between the date of determination of the Weighted Average Life to
Maturity of such Debt and the date of that required payment and (2) totaling all the products
obtained in clause (1) above.
Wet Lease
means any arrangement whereby the Owner or a Permitted Lessee agrees to
furnish the Aircraft, Airframe or any Engine to a third party pursuant to which the Aircraft,
Airframe or Engine shall at all times be in the operational control of the Owner or a Permitted
Lessee, provided that the Owners obligations under the Trust Indenture shall continue in full
force and effect notwithstanding any such arrangement.
WTC
means Wilmington Trust Company, a Delaware banking corporation, not in its
capacity as Indenture Trustee under the Trust Indenture, but in its individual capacity.
18
ANNEX B - INSURANCE
TRUST INDENTURE [
]
ANNEX B
INSURANCE
Capitalized terms used but not defined herein shall have the respective meanings set forth or
incorporated by reference in Annex A to the Trust Indenture.
A. Liability Insurance
1. Except as provided in Section A.2 below, and subject to the self-insurance permitted by
Section G below, the Owner will carry or cause to be carried at all times, at no expense to the
Indenture Trustee, comprehensive airline legal liability (including, but not limited to passenger
liability, property damage, baggage liability, cargo and mail liability, hangarkeepers liability
and contractual liability insurance) with respect to the Aircraft, the Airframe and the Engines,
which is (i) in an amount not less than the greater of (x) the amount of comprehensive airline
legal liability insurance from time to time applicable to aircraft owned or leased and operated by
the Owner of the same type and operating on similar routes as the Aircraft and (y) the Minimum
Liability Insurance Amount per occurrence; (ii) of the type and covering the same risks as from
time to time applicable to aircraft operated by the Owner of the same type as the Aircraft; and
(iii) maintained in effect with insurers of nationally or internationally recognized responsibility
(such insurers being referred to herein as Approved Insurers);
provided
, however, that
the Owner need not maintain such cargo liability insurance, or may maintain such cargo liability
insurance in an amount less than the Minimum Liability Insurance Amount per occurrence, so long as
the amount of cargo liability insurance, if any, maintained with respect to the Aircraft is not
less than the cargo liability insurance, if any, maintained for other Airbus model [_________]
aircraft owned or leased and operated by the Owner
2. During any period that the Aircraft is on the ground and not in operation, the Owner may
carry or cause to be carried, in lieu of the insurance required by Section A.1 above, and subject
to the self insurance permitted by Section G below, insurance otherwise conforming with the
provisions of said Section A.1 except that (i) the amounts of coverage shall not be required to
exceed the amounts of public liability and property damage insurance from time to time applicable
to aircraft owned or operated by the Owner of the same type as the Aircraft which are on the ground
and not in operation and (ii) the scope of the risks covered and the type of insurance shall be the
same as from time to time shall be applicable to aircraft owned or operated by the Owner of the
same type which are on the ground and not in operation.
B. Hull Insurance
1. Except as provided in Section B.2 below and subject to the self-insurance permitted by
Section G below, the Owner will carry or cause to be carried at all times, at no expense to the
Indenture Trustee, with Approved Insurers all-risk ground and flight aircraft hull insurance
covering each Aircraft (including the Engines when they are installed on the Airframe or any other
airframe) which is of the type as from time to time applicable to aircraft owned by the Owner of
the same type as the Aircraft for an amount denominated in United
States Dollars not less than the unpaid Original Amount together with six months of interest
accrued thereon (collectively, the Debt Balance).
Any policies of insurance carried in accordance with this Section B.1 or Section C covering
the Aircraft and any policies taken out in substitution or replacement for any such policies (i)
shall name Indenture Trustee as exclusive loss payee for any proceeds to be paid under such
policies in excess of the Threshold Amount, if applicable up to an amount equal to the Debt Balance
and (ii) shall provide that (A) in the event of a loss involving proceeds in excess of the
Threshold Amount, the proceeds in respect of such loss up to an amount equal to the Debt Balance
shall be payable to the Indenture Trustee, except in the case of a loss with respect to an Engine
installed on an airframe other than the Airframe, in which case the Owner (or any Permitted Lessee)
shall endeavor to arrange for any payment of insurance proceeds in respect of such loss to be held
for the account of the Indenture Trustee whether such payment is made to the Owner (or any
Permitted Lessee) or any third party, it being understood and agreed that in the case of any
payment to the Indenture Trustee otherwise than in respect of an Event of Loss, the Indenture
Trustee shall, upon receipt of evidence satisfactory to it that the damage giving rise to such
payment shall have been repaired or that such payment shall then be required to pay for repairs
then being made, pay the amount of such payment to the Owner or its order, and (B) the entire
amount of any loss involving proceeds of the Threshold Amount or less or the amount of any proceeds
of any loss in excess of the Debt Balance shall be paid to the Owner or its order unless an Event
of Default shall have occurred and be continuing and the insurers have been notified thereof by the
Indenture Trustee. In the case of a loss with respect to an engine (other than an Engine)
installed on the Airframe, the Indenture Trustee shall hold any payment to it of any insurance
proceeds in respect of such loss for the account of the Owner or any other third party that is
entitled to receive such proceeds.
2. During any period that the Aircraft is on the ground and not in operation, the Owner may
carry or cause to be carried, subject to the self-insurance permitted by Section G below, in lieu
of the insurance required by Section B.1 above, insurance otherwise conforming with the provisions
of said Section B.1 except that the scope of the risks and the type of insurance shall be the same
as from time to time applicable to aircraft owned by the Owner of the same type similarly on the
ground and not in operation,
provided
that the Owner shall maintain insurance against risk
of loss or damage to the Aircraft in an amount equal to the Debt Balance during such period that
the Aircraft is on the ground and not in operation.
C. War-Risk, Hijacking and Allied Perils Insurance
If the Owner (or any Permitted Lessee) shall at any time operate or propose to operate the
Aircraft, Airframe or any Engine (i) in any area of recognized hostilities or (ii) on international
routes and war-risk, hijacking or allied perils insurance is maintained by the Owner (or any
Permitted Lessee) with respect to other aircraft owned or operated by the Owner (or any Permitted
Lessee) on such routes or in such areas, the Owner shall maintain or cause to be maintained
war-risk, hijacking and related perils insurance of substantially the same type carried by major
United States commercial air carriers operating the same or comparable models of aircraft on
similar routes or in such areas and in no event in an amount less than the unpaid Original Amount.
2
D. General Provisions
Any policies of insurance carried in accordance with Sections A, B and C, including any
policies taken out in substitution or replacement for such policies:
(i) in the case of Section A, shall name Indenture Trustee, each Note Holder, each
Related Indenture Trustee, each Related Note Holder and each Liquidity Provider as an
additional insured (collectively, the Additional Insureds), as its interests may appear;
(ii) shall apply worldwide and have no territorial restrictions or limitations (except
only in the case of war, hijacking and related perils insurance required under Section C,
which shall apply to the fullest extent available in the international insurance market);
(iii) shall provide that, in respect of the interests of the Additional Insureds in
such policies, the insurance shall not be invalidated or impaired by any act or omission
(including misrepresentation and nondisclosure) by the Owner (or any Permitted Lessee) or
any other Person (including, without limitation, use for illegal purposes of the Aircraft or
any Engine) and shall insure the Additional Insureds regardless of any breach or violation
of any representation, warranty, declaration, term or condition contained in such policies
by the Owner (or any Permitted Lessee);
(iv) shall provide that, if the insurers cancel such insurance for any reason
whatsoever, or if the same is allowed to lapse for nonpayment of premium, or if any material
change is made in the insurance which adversely affects the interest of any of the
Additional Insureds, such cancellation, lapse or change shall not be effective as to the
Additional Insureds for thirty (30) (ten (10) days in the event of cancellation due to
non-payment of premium and seven (7) days in the case of war risk, hijacking and allied
perils insurance) days after issuance of written notice by such insurers of such
cancellation, lapse or change,
provided
that if any notice period specified above is
not reasonably obtainable, such policies shall provide for as long a period of prior notice
as shall then be reasonably obtainable;
(v) shall waive any rights of setoff (including for unpaid premiums), recoupment,
counterclaim or other deduction, whether by attachment or otherwise, against each Additional
Insured;
(vi) shall waive any right of recourse or subrogation against any Additional Insured;
(vii) shall be primary without right of contribution from any other insurance that may
be available to any Additional Insured;
(viii) shall provide that all of the liability insurance provisions thereof, except the
limits of liability, shall operate in all respects as if a separate policy had been issued
covering each party insured thereunder;
3
(ix) with respect to hull insurance and war risk, hijacking and allied perils
insurance, shall provide that (a) in the event of a loss involving proceeds in excess of the
Threshold Amount, the proceeds in respect of such loss up to an amount equal to the amount
payable upon the occurrence of an Event of Loss shall be payable to the Indenture Trustee
(so long as the Trust Indenture shall not have been discharged) in the manner set forth in
Sections 2.09 and 2.11 (except in the case of a loss with respect to an Engine installed on
an airframe other than the Airframe, in which case the Owner (or any Permitted Lessee) shall
arrange for any payment of insurance proceeds in respect of such loss to be held for the
account of the Indenture Trustee (so long as the Trust Indenture shall not have been
discharged) whether such payment is made to Owner (or any Lessee) or any third party), it
being understood and agreed that in the case of any payment to the Indenture Trustee
otherwise than in respect of an Event of Loss, the Indenture Trustee shall, upon receipt of
evidence satisfactory to it that the damage giving rise to such payment shall have been
repaired or that such payment shall then be required to pay for repairs then being made, pay
the amount of such payment (and all earnings, if any, thereon) to the Owner or its order,
and (ii) the entire amount of any loss involving proceeds of the Threshold Amount or less or
the amount of any proceeds of any loss in excess of the amount payable upon the occurrence
of an Event of Loss pursuant to Section 4.05(a) shall be paid to Owner or its order unless
an Event of Default shall have occurred and be continuing and the insurers have been
notified thereof by the Indenture Trustee;
(x) shall provide that none of the Additional Insureds shall be liable for any
insurance premium; and
(xi) shall contain a 50/50% Clause per Lloyds Aviation Underwriters Association
Standard Policy Form AVS 103.
E. Reports and Certificates; Other Information
On or prior to the Closing Date and on or prior to each renewal date of the insurance policies
required hereunder, the Owner will furnish or cause to be furnished to the Indenture Trustee
insurance certificates describing in reasonable detail the insurance maintained by the Owner
hereunder and a report, signed by the Owners regularly retained independent insurance broker (the
Insurance Broker), stating the opinion of such Insurance Broker that (a) all premiums in
connection with the insurance then due have been paid and (b) such insurance complies with the
terms of this Annex B, except that such opinion shall not be required with respect to war risk
insurance provided by the FAA. To the extent such agreement is reasonably obtainable Owner will
also cause the Insurance Broker to agree to advise Indenture Trustee in writing of any default in
the payment of any premium due and to advise Indenture Trustee promptly in writing (seven days in
the case of war-risk and allied perils coverage or such shorter period as may be available in the
international insurance market, as the case may be, if applicable) prior to the cancellation, lapse
or material adverse change of any insurance maintained pursuant to this Annex B.
4
F. Right to Pay Premiums
The Additional Insureds shall have the rights but not the obligations of an additional named
insured. None of the Indenture Trustee and the other Additional Insured shall have any obligation
to pay any premium, commission, assessment or call due on any such insurance (including
reinsurance). Notwithstanding the foregoing, in the event of cancellation of any insurance due to
the nonpayment of premiums, the Indenture Trustee shall have the option, in its sole discretion, to
pay any such premium in respect of the Aircraft that is due in respect of the coverage pursuant to
the Trust Indenture and to maintain such coverage, as the Indenture Trustee may require, until the
scheduled expiry date of such insurance and, in such event, the Owner shall, upon demand, reimburse
Indenture Trustee for amounts so paid by them.
G. Deductibles; Self-insurance
The Owner may self-insure by way of deductible, premium adjustment or franchise provisions or
otherwise (including, with respect to insurance maintained pursuant to Section B, insuring for a
maximum amount which is less than the Debt Balance) in the insurance covering the risks required to
be insured against pursuant to Section 4.06 and this Annex B under a program applicable to all
aircraft in the Owners fleet, but in no case shall the aggregate amount of self-insurance in
regard to Section 11 and this Annex B exceed during any policy year, with respect to all of the
aircraft in the Owners fleet (including, without limitation, the Aircraft), the lesser of (a) 50%
of the largest replacement value of any single aircraft in the Owners fleet and (b) 1-1/2% of the
average aggregate insurable value (during the preceding policy year) of all aircraft (including,
without limitation, the Aircraft) on which the Owner carries insurance, unless an insurance broker
of national standing shall certify that the standard among all other major U.S. airlines is a
higher level of self-insurance, in which case the Owner may self-insure to such higher level. In
addition, the Owner (and any Permitted Lessee) may self-insure to the extent of any applicable
deductible per aircraft that does not exceed industry standards for major U.S. airlines.
5
EXHIBIT A
TO
TRUST INDENTURE AND SECURITY AGREEMENT
TRUST INDENTURE AND SECURITY AGREEMENT SUPPLEMENT
This TRUST INDENTURE AND SECURITY AGREEMENT SUPPLEMENT NO. __, dated [______________ ___,
____] (herein called this Trust Indenture Supplement) of US AIRWAYS, INC., as Owner (the
Owner).
W I T N E S S E T H:
WHEREAS, the Trust Indenture and Security Agreement [____], dated as of [______ __], 2010 (as
amended and supplemented, the Trust Indenture), between the Owner and Wilmington Trust Company,
as Indenture Trustee (the Indenture Trustee), provides for the execution and delivery of a
supplement thereto substantially in the form hereof, which shall particularly describe the
Aircraft, and shall specifically mortgage such Aircraft to the Indenture Trustee; and
WHEREAS, the Trust Indenture relates to the Airframe and Engines described below, and a
counterpart of the Trust Indenture is attached hereto and made a part hereof and this Trust
Indenture Supplement, together with such counterpart of the Trust Indenture, is being filed for
recordation on the date hereof with the FAA as one document;
NOW, THEREFORE, this Trust Indenture Supplement WITNESSETH that the Owner hereby confirms that
the Lien of the Trust Indenture on the Collateral covers all of the Owners right, title and
interest in and to the following described property and that it hereby grants to the Security
Trustee an International Interest (as defined in the Cape Town Convention on International
Interests in Mobile Equipment and related Aircraft Equipment Protocol, as in effect in the United
States) in the following airframe and engines:
AIRFRAME
One airframe identified as follows:
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FAA Registration
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Manufacturers Serial
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Manufacturer
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Model
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Number
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Number
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Airbus S.A.S.
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together with all of the Owners right, title and interest in and to all Parts of whatever nature,
whether now owned or hereinafter acquired and which are from time to time incorporated or installed
in or attached to said airframe.
AIRCRAFT ENGINES
[Two] aircraft engines, each such engine being a jet propulsion aircraft engine with at least
1750 lb of thrust or its equivalent, identified as follows:
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Manufacturer
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Manufacturers Model
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Serial Number
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together with all of the Owners right, title and interest in and to all Parts of whatever nature,
whether now owned or hereafter acquired and which are from time to time incorporated or installed
in or attached to either of such engines.
Together with all of the Owners right, title and interest in and to (a) all Parts of whatever
nature, which from time to time are included within the definition of Airframe or Engine,
whether now owned or hereafter acquired, including all substitutions, renewals and replacements of
and additions, improvements, accessions and accumulations to the Airframe and Engines (other than
additions, improvements, accessions and accumulations which constitute appliances, parts,
instruments, appurtenances, accessories, furnishings or other equipment excluded from the
definition of Parts) and (b) all Aircraft Documents.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the Indenture Trustee, its
successors and assigns, in trust for the equal and proportionate benefit and security of the Note
Holders and the Indenture Indemnitees, except as provided in Section 2.12 and Article III of the
Trust Indenture without any preference, distinction or priority of any one Equipment Note over any
other by reason of priority of time of issue, sale, negotiation, date of maturity thereof or
otherwise for any reason whatsoever, and for the uses and purposes and subject to the terms and
provisions set forth in the Trust Indenture.
This Trust Indenture Supplement shall be construed as supplemental to the Trust Indenture and
shall form a part thereof. The Trust Indenture is each hereby incorporated by reference herein and
is hereby ratified, approved and confirmed.
AND, FURTHER, the Owner hereby acknowledges that the Aircraft referred to in this Trust
Indenture Supplement has been delivered to the Owner and is included in the property of the Owner
subject to the pledge and mortgage thereof under the Trust Indenture.
* * *
IN WITNESS WHEREOF, the Owner has caused this Trust Indenture Supplement to be duly executed
by one of its officers, thereunto duly authorized, on the day and year first above written.
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US AIRWAYS, INC.
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By:
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Name:
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Title:
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2
SCHEDULE I
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Original Amount
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Interest Rate
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Series A:
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Series B:
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Total:
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Trust Indenture and Security Agreement
Equipment Note Amortization
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Percentage of Original
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Payment Date
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Amount to be Paid
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