Opinion
Case No. 02-83984-SSM, Jointly Administered
November 7, 2002
John Wm. Butler, Jr., John K. Lyons, SKADDEN, ARPS, SLATE, MEAGHER FLOM (ILLINOIS), Chicago, Illinois, Lawrence E. Rifken (VSB No. 29037), Douglas M. Foley (VSB No. 34364), McGUIREWOODS LLP, McLean, Virginia, Attorneys for Debtors and Debtors-in-Possession.
US Airways, Inc., a debtor in possession in the above-captioned chapter 11 case ("Mortgagor" and together with the other debtors-in-possession in the above-captioned chapter 11 cases, the "Debtors"), and Canadian Regional Aircraft Finance Transaction No. 1 Limited (the "Aircraft Creditor") to this Stipulation, Agreement and Order (this "Stipulation") stipulate and agree as follows:
1. On August 11, 2002 (the "Petition Date"), the Debtors filed voluntary petitions in this Court for reorganization relief under chapter 11 of the Bankruptcy Code. The Debtors continue to operate their businesses and manage their properties as debtor-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
2. The Mortgagor and the Aircraft Creditor on the signature pages attached hereto are parties to the aircraft leases, security agreements or conditional sale contracts described on Exhibit A hereto, as amended by the parties (collectively, the "Aircraft Agreements"). Pursuant to the Aircraft Agreements, the Mortgagor has the right to use aircraft, engines, appliances and related parts and equipment (such property including all technical records and documents relating thereto, the "Aircraft Equipment"). The Aircraft Equipment may be "equipment" within the meaning of Sections 1110(a)(3)(A)(i) and 1110(a)(3)(B) of the Bankruptcy Code and, together with the Aircraft Agreements, may be subject to the provisions of Section 1110 of the Bankruptcy Code; provided, however, the Mortgagor reserves all rights and defenses with respect to whether the Aircraft Equipment is, in fact, subject to section 1110 of the Bankruptcy Code and nothing herein shall be deemed to constitute an admission to that effect.
3. Pursuant to section 1110(b) of the Code, in the event the Aircraft Equipment is subject to section 1110 of the Bankruptcy Code, the Mortgagor has requested that the Aircraft Creditor extend the 60 day period for all purposes (the "Section 1110 Period") provided for in Section 1110(a)(2) of the Bankruptcy Code, and the Aircraft Creditor has agreed to such extension, subject to the terms hereof.
4. The Section 1110 Period is hereby extended, for all purposes, effective October 9, 2002 until 11:59 p.m. on December 10, 2002 or such earlier date as the Mortgagor and the Aircraft Creditor may agree (the "Extension").
5. The Mortgagor shall not reject leases governing the use of, or abandon, the Aircraft Equipment unless the effective date of such rejection or abandonment is on or after 12:01 a.m. on December 10, 2002 (it being agreed that (1) the Mortgagor shall be authorized to serve a notice of rejection or abandonment upon the Aircraft Creditor prior to December 10, 2002 in order to effectively reject leases governing the use of, or to abandon, the Aircraft Equipment on or after 12:01 a.m. on December 10, 2002 and (2) any rejection that is effective on December 10, 2002 shall be effective prior to the expiration of the Extension).
6. Notwithstanding anything in the Bankruptcy Code to the contrary including the provisions of section 365(d)(10) of the Bankruptcy Code, if applicable, the Mortgagor will not be obligated to make any payments under the Aircraft Agreements during the Section 1110 Period as extended hereby.
7. The parties hereby agree and acknowledge that this Stipulation does not constitute an agreement to perform all obligations under the Aircraft Agreements under section 1110 of the Bankruptcy Code, nor an assumption of the Aircraft Agreements under Section 365(a) of the Bankruptcy Code (to the extent such section is applicable), and nothing contained herein shall be construed to constitute such an agreement or assumption.
1. Except as otherwise provided herein, this Stipulation does not otherwise limit or affect the rights, remedies, or claims of the Aircraft Creditor, if any, or the Mortgagor, if any, under other provisions of the Bankruptcy Code including the right, if any, to seek adequate protection remedies with respect to the Aircraft Equipment during the Section 1110 Period, as extended hereby.
8. This Stipulation shall be binding upon (a) the Mortgagor, the Debtors and any trustee or examiner in the pending chapter 11 cases, or their respective successors and assigns, (b) the Aircraft Creditor and its respective successors and assigns, (c) the trustee in the event that the above-captioned cases are converted to a case under chapter 7 of the Code and (d) all creditors and other parties in interest in this case.
9. This Stipulation is subject to the final approval of the Court. The Debtors shall promptly cause this Stipulation to be presented to the Court for approval in accordance with the Amended Order Pursuant to 11 U.S.C. § 102 and 105(a), Bankruptcy Rules 2002(m) and 9007, and Local Bankruptcy Rules 2002-1 and 9013-1 Establishing Omnibus Hearing Dates and Certain Notice, Case Management and Administrative Procedures entered on August 13, 2002.
10. This Stipulation may be executed in one or more counterparts, by facsimile or otherwise, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same document.
11. This Stipulation, Section 1110 of the Bankruptcy Code and the Aircraft Agreements as modified hereby together contain the entire agreement between the Aircraft Creditor[s] and the Mortgagor as to the subject matter hereof, and all previous understandings, agreements and communications prior to the date hereof, whether express or implied, oral or written, relating to the subject matter hereof are fully and completely extinguished and superseded by this Stipulation and the Aircraft Agreements as modified hereby. In the event of any inconsistency between this Stipulation and the Aircraft Agreements, this Stipulation shall govern. This Stipulation shall not be altered, amended, modified or otherwise changed, and no right hereunder may be waived, except by a writing duly signed by the Aircraft Creditor and the Debtors.
12. Unless otherwise specifically provided herein, all notices required or permitted by the terms of the Aircraft Agreements or this Stipulation shall be in writing, and any such notice shall become effective upon receipt by the addressee of such notice by certified mail, return receipt requested, overnight courier service or facsimile to the following addresses:
(A) If to the Mortgagor:
US Airways Group, Inc. 2345 Crystal Drive Arlington, VA 22227 Telephone: (703) 872-7000 Facsimile: (703) 872-5208 Attn: Howard L. Wu, Esq.
and
Skadden, Arps, Slate, Meagher Flom (Illinois) 333 West Wacker Drive, Suite 2100 Chicago, IL 60606-1285 Telephone: (312) 407-0700 Facsimile: (312) 407-0411 Attn: John K. Lyons, Esq.
(B) If to any Aircraft Creditor, then as provided in the Aircraft Agreements and to its counsel filing Notice of Appearance herein.
Dated: October ___, 2002 U.S. AIRWAYS GROUP, INC., et al., McLean, Virginia
By Counsel:
John Wm. Butler, Jr. John K. Lyons SKADDEN, ARPS, SLATE, MEAGHER FLOM (ILLINOIS) 333 W. Wacker Drive, Suite 2100 Chicago, Illinois 60606-1285 (312) 407-0700
— and —
/s/ Douglas M. Foley Lawrence E. Rifken (VSB No. 29037) Douglas M. Foley (VSB No. 34364) McGUIREWOODS LLP 1750 Tysons Boulevard, Suite 1800 McLean, Virginia 22102-4215 (703) 712-5000
Attorneys for Debtors and Debtors-in-Possession
Dated: October 8, 2002 Canadian Regional Aircraft Finance Transaction No. 1 Limited, as Security Trustee
By Counsel:
/s/ Thomas E. Pitts, Jr. Thomas E. Pitts, Jr. SIDLEY AUSTIN BROWN WOOD LLP 787 Seventh Avenue New York, New York 10019 (212) 839-5300
This Court having determined that the approval requested in this Agreement is in the best interests of the Debtors, their estates, and creditors; and it appearing that proper and adequate notice has been given and that no other or further notice is necessary; and upon the record herein; and after due deliberation thereon; and good and sufficient cause appearing therefor,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
14. The Stipulation is APPROVED in its entirety.
EXHIBIT A
2. Principal Agreements Relating to the Financing of One de Havilland Dash 8 Series 200 Aircraft, U.S. Registration No. N983HA
Credit Agreement [N983HA], dated as of August 18, 1999, among U.S. Airways, Inc., as Borrower, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Agent, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Lender.
Security Agreement and Chattel Mortgage [N983HA], dated as of August 18, 1999, between U.S. Airways, Inc., Borrower and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Mortgagee.
Purchase Agreement Assignment [N983HA], dated as of August 18, 1999, between U.S. Airways, Inc., assignor, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, assignee.
3. Principal Agreements Relating to the Financing of One de Havilland Dash 8 Series 200 Aircraft, U.S. Registration No. N985HA
Credit Agreement [N985HA], dated as of August 18, 1999, among U.S. Airways, Inc., as Borrower, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Agent, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Lender.
Security Agreement and Chattel Mortgage [N985HA], dated as of August 18, 1999, between U.S. Airways, Inc., Borrower and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Mortgagee.
Purchase Agreement Assignment [N985HA], dated as of August 18, 1999, between U.S. Airways, Inc., assignor, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, assignee.
4. Principal Agreements Relating to the Financing of One de Havilland Dash 8 Series 200 Aircraft, U.S. Registration No. N997HA
Credit Agreement [N997HA], dated as of August 25, 1999, among U.S. Airways, Inc., as Borrower, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Agent, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Lender.
Security Agreement and Chattel Mortgage [N997HA], dated as of August 25, 1999, between U.S. Airways, Inc., Borrower and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Mortgagee.
Purchase Agreement Assignment [N997HA], dated as of August 25, 1999, between U.S. Airways, Inc., assignor, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, assignee.
5. Principal Agreements Relating to the Financing of One de Havilland Dash 8 Series 200 Aircraft, U.S. Registration No. N996HA
Credit Agreement [N996HA], dated as of August 31, 1999, among U.S. Airways, Inc., as Borrower, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Agent, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Lender.
Security Agreement and Chattel Mortgage [N996HA], dated as of August 31, 1999, between U.S. Airways, Inc., Borrower and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Mortgagee.
Purchase Agreement Assignment [N996HA], dated as of August 31, 1999, between U.S. Airways, Inc., assignor, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, assignee.
6. Principal Agreements Relating to the Financing of One de Havilland Dash 8 Series 200 Aircraft, U.S. Registration No. N998HA
Credit Agreement [N998HA], dated as of August 31, 1999, among U.S. Airways, Inc., as Borrower, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Agent, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Lender.
Security Agreement and Chattel Mortgage [N998HA], dated as of August 31, 1999, between U.S. Airways, Inc., Borrower and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Mortgagee.
Purchase Agreement Assignment [N998HA], dated as of August 31, 1999, between U.S. Airways, Inc., assignor, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, assignee.
7. Principal Agreements Relating to the Financing of One de Havilland Dash 8 Series 200 Aircraft, U.S. Registration No. N968HA
Credit Agreement [N968HA], dated as of September 15, 1999, among U.S. Airways, Inc., as Borrower, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Agent, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Lender.
Security Agreement and Chattel Mortgage [N968HA], dated as of September 15, 1999, between U.S. Airways, Inc., Borrower and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Mortgagee.
Purchase Agreement Assignment [N968HA], dated as of September 15, 1999, between U.S. Airways, Inc., assignor, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, assignee.
8. Principal Agreements Relating to the Financing of One de Havilland Dash 8 Series 200 Aircraft, U.S. Registration No. N969HA
Credit Agreement [N969HA], dated as of September 15, 1999, among U.S. Airways, Inc., as Borrower, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Agent, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Lender.
Security Agreement and Chattel Mortgage [N969HA], dated as of September 15, 1999, between U.S. Airways, Inc., Borrower and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Mortgagee.
Purchase Agreement Assignment [N969HA], dated as of September 15, 1999, between U.S. Airways, Inc., assignor, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, assignee.
9. Principal Agreements Relating to the Financing of One de Havilland Dash 8 Series 200 Aircraft, U.S. Registration No. N965HA
Credit Agreement [N965HA], dated as of October 15, 1999, among U.S. Airways, Inc., as Borrower, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Agent, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Lender.
Security Agreement and Chattel Mortgage [N965HA], dated as of October 15, 1999, between U.S. Airways, Inc., Borrower and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Mortgagee.
Purchase Agreement Assignment [N965HA], dated as of October 15, 1999, between U.S. Airways, Inc., assignor, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, assignee.
10. Principal Agreements Relating to the Financing of One de Havilland Dash 8 Series 200 Aircraft, U.S. Registration No. N966HA
Credit Agreement [N966HA], dated as of October 15, 1999, among U.S. Airways, Inc., as Borrower, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Agent, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Lender.
Security Agreement and Chattel Mortgage [N966HA], dated as of October 15, 1999, between U.S. Airways, Inc., Borrower and Canadian Regional Aircraft Finance Transaction No. 1 Limited, Mortgagee.
Purchase Agreement Assignment [N966HA], dated as of October 15, 1999, between U.S. Airways, Inc., assignor, and Canadian Regional Aircraft Finance Transaction No. 1 Limited, assignee.