EXHIBIT 4.9
ESCROW AND PAYING AGENT AGREEMENT
(Class C)
Dated as of December 14, 1998
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Escrow Agent
AIRBUS INDUSTRIE FINANCIAL SERVICES
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
US Airways Pass Through Trust 1998-1C
as Pass Through Trustee
and
STATE STREET BANK AND TRUST COMPANY
as Paying Agent
TABLE OF CONTENTS
Page
SECTION 1. Escrow Agent . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 Appointment of Escrow Agent . . . . . . . . . . 2
Section 1.2 Instruction, Etc. . . . . . . . . . . . . . . . 3
Section 1.3 Initial Escrow Amount; Issuance of Escrow
Receipts . . . . . . . . . . . . . . . . . . . . 4
Section 1.4 Payments to Receiptholders . . . . . . . . . . . 4
Section 1.5 Mutilated, Destroyed, Lost or Stolen
Escrow Receipt . . . . . . . . . . . . . . . . . 5
Section 1.6 Additional Escrow Amounts . . . . . . . . . . . 5
Section 1.7 Resignation or Removal of Escrow Agent . . . . . 6
Section 1.8 Persons Deemed Owners . . . . . . . . . . . . . 6
Section 1.9 Further Assurances . . . . . . . . . . . . . . . 6
SECTION 2. Paying Agent . . . . . . . . . . . . . . . . . . . . 6
Section 2.1 Appointment of Paying Agent . . . . . . . . . . 6
Section 2.2 Establishment of Paying Agent Account . . . . . 7
Section 2.3 Payments from Paying Agent Account . . . . . . . 7
Section 2.4 Withholding Taxes . . . . . . . . . . . . . . . 8
Section 2.5 Resignation or Removal of Paying Agent . . . . . 9
Section 2.6 Notice of Final Withdrawal . . . . . . . . . . . 9
SECTION 3. Payments . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4. Other Actions . . . . . . . . . . . . . . . . . . . 10
SECTION 5. Representations And Warranties of The Escrow
Agent . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6. Representations And Warranties of The Paying
Agent . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 7. Indemnification . . . . . . . . . . . . . . . . . . 13
SECTION 8. Amendment, Etc . . . . . . . . . . . . . . . . . . 13
SECTION 9. Notices . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 10. Transfer . . . . . . . . . . . . . . . . . . . . . 14
SECTION 11. Entire Agreement . . . . . . . . . . . . . . . . . 14
SECTION 12. Governing Law . . . . . . . . . . . . . . . . . . . 15
SECTION 13. Waiver of Jury Trial Right . . . . . . . . . . . . 15
SECTION 14. Counterparts . . . . . . . . . . . . . . . . . . . 15
EXHIBITS
Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
This ESCROW AND PAYING AGENT AGREEMENT (Class C) dated as of
December 14, 1998 (as amended, modified or supplemented from time to time,
this "Agreement") among First Security Bank, National Association, a
national banking association, as Escrow Agent (in such capacity, together
with its successors in such capacity, the "Escrow Agent"); Airbus Industrie
Financial Services, a corporation formed under the laws of Ireland ("AIFS";
and together with its transferees and assigns as registered owners of the
Certificates, the "Investors"); State Street Bank and Trust Company, a
Massachusetts trust company, 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 the Pass Through Trust Agreement referred to below; and
State Street Bank and Trust Company, a Massachusetts trust company, as
paying agent hereunder (in such capacity, together with its successors in
such capacity, the "Paying Agent").
W I T N E S S E T H
WHEREAS, US Airways, Inc. ("US Airways") and the Pass Through
Trustee have entered into a Trust Supplement, dated as of the date hereof
(the "Trust Supplement"), to the Pass Through Trust Agreement, dated as of
December 4, 1998 (together, as amended, modified or supplemented from time
to time in accordance with the terms thereof, the "Pass Through Trust
Agreement") relating to US Airways Pass Through Trust 1998-1C (the "Pass
Through Trust") pursuant to which the US Airways Pass Through Trust, Series
1998-1C Certificates referred to therein (the "Certificates") are being
issued;
WHEREAS, US Airways and AIFS have entered into a Purchase
Agreement dated the date hereof, pursuant to which the Pass Through Trustee
will issue and sell the Certificates to AIFS;
WHEREAS, US Airways, the Pass Through Trustee, certain other pass
through trustees and certain other persons concurrently herewith are
entering into the Note Purchase Agreement, dated as of the date hereof (the
"Note Purchase Agreement"), pursuant to which the Pass Through Trustee has
agreed to acquire from time to time on or prior to the Delivery Period
Termination Date (as defined in the Note Purchase Agreement) equipment
notes (the "Equipment Notes") issued to finance the acquisition of aircraft
by US Airways, as lessee or as owner, utilizing a portion of the proceeds
from the sale of the Certificates (the "Net Proceeds");
WHEREAS, AIFS and the Pass Through Trustee intend that the Net
Proceeds be held in escrow by the Escrow Agent on behalf of the Investors,
subject to withdrawal upon request by the Pass Through Trustee and satis-
faction of the conditions set forth in the Note Purchase Agreement for the
purpose of purchasing Equipment Notes, and that pending such withdrawal the
Net Proceeds be deposited on behalf of the Escrow Agent with Citibank,
N.A., as Depositary (the "Depositary") under the Deposit Agreement, dated
as of the date hereof between the Depositary and the Escrow Agent relating
to the Pass Through Trust (as amended, modified or supplemented from time
to time in accordance with the terms thereof, the "Deposit Agreement")
pursuant to which, among other things, the Depositary will pay interest for
distribution to the Investors and establish accounts from which the Escrow
Agent shall make withdrawals upon request of and proper certification by
the Pass Through Trustee;
WHEREAS, the Escrow Agent wishes to appoint the Paying Agent to
pay amounts required to be distributed to the Investors in accordance with
this Agreement; and
WHEREAS, capitalized terms used but not defined herein shall have
the respective meanings set forth or incorporated by reference in the Pass
Through Trust Agreement.
NOW, THEREFORE, in consideration of the obligations contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby
agree as follows:
SECTION 1. Escrow Agent.
Section 1.1 Appointment of Escrow Agent. AIFS, for and on
behalf of itself and each other Investor from time to time holding an
Escrow Receipt, hereby irrevocably appoints, authorizes and directs the
Escrow Agent to act as escrow agent and fiduciary hereunder and under the
Deposit Agreement for such specific purposes and with such powers as are
specifically delegated to the Escrow Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. Any
and all money received and held by the Escrow Agent under this Agreement or
the Deposit Agreement shall be held in escrow by the Escrow Agent in
accordance with the terms of this Agreement. This Agreement is irrevocable
and the Investors' rights with respect to any monies received and held in
escrow by the Escrow Agent under this Agreement or the Deposit Agreement
shall only be as provided under the terms and conditions of this Agreement
and the Deposit Agreement. The Escrow Agent (which term as used in this
sentence shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement;
(b) shall not be responsible to the Pass Through Trustee,
AIFS or any other Investor for any recitals, statements, representations or
warranties of any person other then itself contained in this Agreement or
the Deposit Agreement or for the failure by the Pass Through Trustee, AIFS,
any other Investor or any other person or entity (other than the Escrow
Agent) to perform any of its obligations hereunder (whether or not the
Escrow Agent shall have any knowledge thereof); and
(c) shall not be responsible for any action taken or
omitted to be taken by it hereunder or provided for herein or in connection
herewith, except for its own willful misconduct or gross negligence (or
simple negligence in connection with the handling of funds).
Section 1.2 Instruction, Etc. AIFS, for and on behalf of
itself and each other Investor, hereby irrevocably instructs the Escrow
Agent, and the Escrow Agent agrees: (a) to enter into the Deposit Agree-
ment; (b) to appoint the Paying Agent as provided in this Agreement; (c)
upon receipt at any time and from time to time prior to the Termination
Date (as defined below) of a certificate substantially in the form of
Exhibit B hereto (a "Withdrawal Certificate") executed by the Pass Through
Trustee, together with an attached Notice of Purchase Withdrawal in
substantially the form of Exhibit A to the Deposit Agreement duly completed
by the Pass Through Trustee (the "Applicable Notice of Purchase Withdrawal"
and the withdrawal to which it relates, a "Purchase Withdrawal"), immedi-
ately to execute the Applicable Notice of Purchase Withdrawal as Escrow
Agent and transmit it to the Depositary by facsimile transmission in
accordance with the Deposit Agreement; provided that, upon the request of
the Pass Through Trustee after such transmission, the Escrow Agent shall
cancel such Applicable Notice of Purchase Withdrawal; and (d) if there are
any undrawn Deposits (as defined in the Deposit Agreement) on the "Termina-
tion Date", which shall mean the earlier of (i) October 31, 1999 and (ii)
the day on which the Escrow Agent receives notice from the Pass Through
Trustee that the Pass Through Trustee's obligation to purchase Equipment
Notes under the Note Purchase Agreement has terminated, to give notice to
the Depositary (with a copy to the Paying Agent) substantially in the form
of Exhibit B to the Deposit Agreement requesting a withdrawal of all of the
remaining Deposits, together with accrued and unpaid interest on such
Deposits to the date of withdrawal, on the 15th day after the date that
such notice of withdrawal is given to the Depositary (or, if not a Business
Day, on the next succeeding Business Day) (a "Final Withdrawal"), provided
that if the day scheduled for the Final Withdrawal in accordance with the
foregoing is within ten (10) days before or after a Regular Distribution
Date, then the Escrow Agent shall request that such requested Final
Withdrawal be made on such Regular Distribution Date (the date of such
requested withdrawal, the "Final Withdrawal Date"). If for any reason the
Escrow Agent shall have failed to give the Final Withdrawal Notice to the
Depositary on or before November 1, 1999, and there are unwithdrawn
Deposits on such date, the Final Withdrawal Date shall be deemed to be
November 16, 1999.
Section 1.3 Initial Escrow Amount; Issuance of Escrow Re-
ceipts. The Escrow Agent hereby directs AIFS to, and AIFS hereby acknowl-
edges that on the date hereof it shall, irrevocably deliver to the Deposi-
tary on behalf of the Escrow Agent, an amount in U.S. dollars ("Dollars")
and immediately available funds equal to $112,495,918 for deposit on behalf
of the Escrow Agent with the Depositary in accordance with Section 2.1 of
the Deposit Agreement. AIFS hereby instructs the Escrow Agent, upon
receipt of such sum from AIFS, to confirm such receipt by executing and
delivering to the Pass Through Trustee an Escrow Receipt in the form of
Exhibit A hereto (an "Escrow Receipt"), (a) to be affixed by the Pass
Through Trustee to each Certificate and (b) to evidence the same percentage
interest ("Escrow Interest") in the Account Amounts (as defined below) as
the fractional undivided interest in the Pass Through Trust evidenced by
the Certificate to which it is to be affixed. The Escrow Agent shall
provide to the Pass Through Trustee for attachment to each Certificate
newly issued under and in accordance with the Pass Through Trust Agreement
an executed Escrow Receipt as the Pass Through Trustee may from time to
time request of the Escrow Agent. Each Escrow Receipt shall be registered
by the Escrow Agent in a register (the "Register") maintained by the Escrow
Agent in the same name and same manner as the Certificate to which it is
attached and may not thereafter be detached from such Certificate to which
it is to be affixed prior to the distribution of the Final Withdrawal (the
"Final Distribution"). After the Final Distribution, no additional Escrow
Receipts shall be issued and the Pass Through Trustee shall request the
return to the Escrow Agent for cancellation of all outstanding Escrow
Receipts.
Section 1.4 Payments to Receiptholders. All payments and
distributions made to holders of an Escrow Receipt (collectively
"Receiptholders") in respect of the Escrow Receipt shall be made only from
amounts deposited in the Paying Agent Account (as defined below) ("Account
Amounts"). Each Receiptholder, by its acceptance of an Escrow Receipt,
agrees that (a) it will look solely to the Account Amounts for any payment
or distribution due to such Receiptholder pursuant to the terms of the
Escrow Receipt and this Agreement and (b) it will have no recourse to US
Airways, the Pass Through Trustee, the Paying Agent or the Escrow Agent,
except as expressly provided herein or in the Pass Through Trust Agreement.
No Receiptholder shall have any right to vote or in any manner otherwise
control the operation and management of the Paying Agent Account or the
obligations of the parties hereto, nor shall anything set forth herein, or
contained in the terms of the Escrow Receipt, be construed so as to
constitute the Receiptholders from time to time as partners or members of
an association.
Section 1.5 Mutilated, Destroyed, Lost or Stolen Escrow
Receipt. If (a) any mutilated Escrow Receipt is surrendered to the Escrow
Agent or the Escrow Agent receives evidence to its satisfaction of the
destruction, loss or theft of any Escrow Receipt and (b) there is delivered
to the Escrow Agent and the Pass Through Trustee such security, indemnity
or bond, as may be required by them to hold each of them harmless, then,
absent notice to the Escrow Agent or the Pass Through Trustee that such
destroyed, lost or stolen Escrow Receipt has been acquired by a bona fide
purchaser, and provided that the requirements of Section 8-405 of the
Uniform Commercial Code in effect in any applicable jurisdiction are met,
the Escrow Agent shall execute, authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Escrow Receipt,
a new Escrow Receipt or Escrow Receipts and of like Escrow Interest in the
Account Amounts and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Escrow Receipt under
this Section 1.5, the Escrow Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Pass Through Trustee and the Escrow Agent) connected
therewith.
Any duplicate Escrow Receipt issued pursuant to this Section 1.5
shall constitute conclusive evidence of the appropriate Escrow Interest in
the Account Amounts, as if originally issued, whether or not the lost,
stolen or destroyed Escrow Receipt shall be found at any time.
The provisions of this Section 1.5 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
Escrow Receipts.
Section 1.6 Additional Escrow Amounts. On the date of any
Purchase Withdrawal, the Pass Through Trustee may re-deposit with the
Depositary some or all of the amounts so withdrawn in accordance with
Section 2.4 of the Deposit Agreement.
Section 1.7 Resignation or Removal of Escrow Agent. Subject
to the appointment and acceptance of a successor Escrow Agent as provided
below, the Escrow Agent may resign at any time by giving thirty (30) days'
prior written notice thereof to the Investors, but may not otherwise be
removed except for cause by the written consent of the Investors with
respect to Investors representing Escrow Interests aggregating not less
than a majority in interest in the Account Amounts (an "Action of Inves-
tors"). Upon any such resignation or removal, the Investors, by an Action
of Investors, shall have the right to appoint a successor Escrow Agent. If
no successor Escrow Agent shall have been so appointed and shall have
accepted such appointment within thirty (30) days after the retiring Escrow
Agent's giving of notice of resignation or the removal of the retiring
Escrow Agent, then the retiring Escrow Agent may appoint a successor Escrow
Agent. Any successor Escrow Agent shall be a bank which has an office in
the United States with a combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as Escrow Agent
hereunder by a successor Escrow Agent, such successor Escrow Agent shall
enter into such documents as the Pass Through Trustee shall require and
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Escrow Agent, and the retiring Escrow
Agent shall be discharged from its duties and obligations hereunder. No
resignation or removal of the Escrow Agent shall be effective unless a
written confirmation shall have been obtained from each of Moody's Inves-
tors Service, Inc. and Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., that the replacement of the Escrow Agent with
the successor Escrow Agent will not result in (a) a reduction of the rating
for the Certificates below the then current rating for the Certificates or
(b) a withdrawal or suspension of the rating of the Certificates.
Section 1.8 Persons Deemed Owners. Prior to due presentment
of a Certificate for registration of transfer, the Escrow Agent and the
Paying Agent may treat the Person in whose name any Escrow Receipt is
registered (as of the day of determination) as the owner of such Escrow
Receipt for the purpose of receiving distributions pursuant to this
Agreement and for all other purposes whatsoever, and neither the Escrow
Agent nor the Paying Agent shall be affected by any notice to the contrary.
Section 1.9 Further Assurances. The Escrow Agent agrees to
take such actions, and execute such other documents, as may be reasonably
requested by the Pass Through Trustee in order to effectuate the purposes
of this Agreement and the performance by the Escrow Agent of its obliga-
tions hereunder.
SECTION 2. Paying Agent.
Section 2.1 Appointment of Paying Agent. The Escrow Agent
hereby irrevocably appoints and authorizes the Paying Agent to act as its
paying agent hereunder, for the benefit of AIFS and the other Investors
from time to time holding Escrow Receipts, for such specific purposes and
with such powers as are specifically delegated to the Paying Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Any and all money received and held by the Paying Agent
under this Agreement or the Deposit Agreement shall be held in the Paying
Agent Account for the benefit of AIFS and the other Investors from time to
time holding Escrow Receipts. The Paying Agent (which term as used in this
sentence shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement, and shall not by reason of this
Agreement be a trustee for the Escrow Agent;
(b) shall not be responsible to the Escrow Agent for any
recitals, statements, representations or warranties of any person other
then itself contained in this Agreement or for the failure by the Escrow
Agent or any other person or entity (other than the Paying Agent) to
perform any of its obligations hereunder (whether or not the Paying Agent
shall have any knowledge thereof); and
(c) shall not be responsible for any action taken or
omitted to be taken by it hereunder or provided for herein or in connection
herewith, except for its own willful misconduct or gross negligence (or
simple negligence in connection with the handling of funds).
Section 2.2 Establishment of Paying Agent Account. The Paying
Agent shall establish a deposit account (the "Paying Agent Account") at
State Street Bank and Trust Company in the name of the Escrow Agent. It is
expressly understood by the parties hereto that the Paying Agent is acting
as the paying agent of the Escrow Agent hereunder and that no amounts on
deposit in the Paying Agent Account constitute part of the Trust Property.
Section 2.3 Payments from Paying Agent Account. The Escrow
Agent hereby irrevocably instructs the Paying Agent, and the Paying Agent
agrees to act, as follows:
(a) On each Interest Payment Date (as defined in the
Deposit Agreement) or as soon thereafter as the Paying Agent has confirmed
receipt in the Paying Agent Account from the Depositary of any amount in
respect of accrued interest on the Deposits, the Paying Agent shall
distribute out of the Paying Agent Account the entire amount deposited
therein by the Depositary. There shall be so distributed to each
Receiptholder of record on the 15th day (whether or not a Business Day)
preceding such Interest Payment Date by check mailed to such Receiptholder,
at the address appearing in the Register, such Receiptholder's pro rata
share (based on the Escrow Interest in the Account Amounts held by such
Receiptholder) of the total amount of interest deposited by the Depositary
in the Paying Agent Account on such date, except that, with respect to
Escrow Receipts registered on the Record Date in the name of The Depository
Trust Company, a New York corporation ("DTC"), such distribution shall be
made by wire transfer in immediately available funds to the account
designated by DTC.
(b) Upon the confirmation by the Paying Agent of receipt in
the Paying Agent Account from the Depositary of any amount in respect of
the Final Withdrawal, the Paying Agent shall forthwith distribute the
entire amount of the Final Withdrawal deposited therein by the Depositary.
There shall be so distributed to each Receiptholder of record on the 15th
day (whether or not a Business Day) preceding the Final Withdrawal Date by
check mailed to such Receiptholder, at the address appearing in the
Register, such Receiptholder's pro rata share (based on the Escrow Interest
in the Account Amounts held by such Receiptholder) of the total amount in
the Paying Agent Account on account of such Final Withdrawal, except that,
with respect to Escrow Receipts registered on the Record Date in the name
of DTC, such distribution shall be made by wire transfer in immediately
available funds to the account designated by DTC.
(c) If any payment of interest or principal in respect of
the Final Withdrawal is not received by the Paying Agent within five (5)
days of the applicable date when due, then it shall be distributed to
Receiptholders after actual receipt by the Paying Agent on the same basis
as a Special Payment is distributed under the Pass Through Trust Agreement.
(d) The Paying Agent shall include with any check mailed
pursuant to this Section any notice required to be distributed under the
Pass Through Trust Agreement that is furnished to the Paying Agent by the
Pass Through Trustee.
Section 2.4 Withholding Taxes. The Paying Agent shall exclude
and withhold from each distribution of accrued interest on the Deposits (as
defined in the Deposit Agreement) and any amount in respect of the Final
Withdrawal any and all withholding taxes applicable thereto as required by
law. The Paying Agent 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 Deposits (as defined in the Deposit Agreement) or the escrow
amounts, to withhold such amounts and timely pay the same to the appropri-
ate authority in the name of and on behalf of the Receiptholders, 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 Receiptholder appropriate documentation showing the payment
thereof, together with such additional documentary evidence as such
Receiptholder may reasonably request from time to time. The Paying Agent
agrees to file any other information reports as it may be required to file
under United States law.
Section 2.5 Resignation or Removal of Paying Agent. Subject
to the appointment and acceptance of a successor Paying Agent as provided
below, the Paying Agent may resign at any time by giving thirty (30) days'
prior written notice thereof to the Escrow Agent, but may not otherwise be
removed except for cause by the Escrow Agent. Upon any such resignation or
removal, the Escrow Agent shall have the right to appoint a successor
Paying Agent. If no successor Paying Agent shall have been so appointed
and shall have accepted such appointment within thirty (30) days after the
retiring Paying Agent's giving of notice of resignation or the removal of
the retiring Paying Agent, then the retiring Paying Agent may appoint a
successor Paying Agent. Any Successor Paying Agent shall be a bank which
has an office in the United States with a combined capital and surplus of
at least US$100,000,000. Upon the acceptance of any appointment as Paying
Agent hereunder by a successor Paying Agent, such successor Paying Agent
shall enter into such documents as the Escrow Agent shall require and shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Paying Agent, and the retiring Paying
Agent shall be discharged from its duties and obligations hereunder.
Section 2.6 Notice of Final Withdrawal. Promptly after
receipt by the Paying Agent of notice that the Escrow Agent has requested a
Final Withdrawal or that a Final Withdrawal will be made, the Paying Agent
shall cause notice of the distribution of the Final Withdrawal to be mailed
to each of the Receiptholders at its address as it appears in the Register.
Such notice shall be mailed not less than fifteen (15) days prior to the
Final Withdrawal Date. Such notice shall set forth:
(a) the Final Withdrawal Date and the date for determining
Receiptholders of record who shall be entitled to receive distributions in
respect of the Final Withdrawal;
(b) the amount of the payment in respect of the Final
Withdrawal for each $1,000 face amount Certificate (based on information
provided by the Pass Through Trustee) and the amount thereof constituting
unused Deposits (as defined in the Deposit Agreement) and interest thereon;
and
(c) if the Final Withdrawal 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 Certificate (based on information provided by the
Pass Through Trustee).
Such mailing may include any notice required to be given to
Certificateholders in connection with such distribution pursuant to the
Pass Through Trust Agreement.
SECTION 3. Payments. If, notwithstanding the instructions in
Article IV of the Deposit Agreement that all amounts payable to the Escrow
Agent under the Deposit Agreement be paid by the Depositary directly to the
Paying Agent or the Pass Through Trustee (depending on the circumstances),
the Escrow Agent receives any payment thereunder, then the Escrow Agent
shall forthwith pay such amount in Dollars and in immediately available
funds by wire transfer to (a) in the case of a payment of accrued interest
on the Deposits (as defined in the Deposit Agreement) or any Final With-
drawal, directly to the Paying Agent Account and (b) in the case of any
Purchase Withdrawal, directly to the Pass Through Trustee or its designee
as specified and in the manner provided in the Applicable Notice of
Purchase Withdrawal. The Escrow Agent hereby waives any and all rights of
set-off, combination of accounts, right of retention or similar right
(whether arising under applicable law, contract or otherwise) it may have
against amounts payable to the Paying Agent howsoever arising.
SECTION 4. Other Actions. The Escrow Agent shall take such
other actions under or in respect of the Deposit Agreement (including,
without limitation, the enforcement of the obligations of the Depositary
thereunder) as the Investors, by an Action of Investors, may from time to
time request.
SECTION 5. Representations And Warranties of The Escrow
Agent. The Escrow Agent represents and warrants to US Airways, AIFS, the
Paying Agent and the Pass Through Trustee as follows:
(a) it is a national banking association duly organized and
validly existing in good standing under the laws of the United States of
America;
(b) it has full power, authority and legal right to conduct
its business and operations as currently conducted and to enter into and
perform its obligations under this Agreement and the Deposit Agreement;
(c) the execution, delivery and performance of each of this
Agreement and the Deposit Agreement have been duly authorized by all
necessary corporate action on the part of it and do not require any
stockholder approval, or approval or consent of any trustee or holder of
any indebtedness or obligations of it, and each such document has been duly
executed and delivered by it and constitutes its legal, valid and binding
obligations enforceable against it in accordance with the terms hereof or
thereof except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or equitable
principles of general application to or affecting the enforcement of
creditors' rights generally (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(d) no authorization, consent or approval of or other
action by, and no notice to or filing with, any United States federal or
state governmental authority or regulatory body is required for the
execution, delivery or performance by it of this Agreement or the Deposit
Agreement;
(e) neither the execution, delivery or performance by it of
this Agreement or the Deposit Agreement, nor compliance with the terms and
provisions hereof or thereof, conflicts or will conflict with or results or
will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or
bylaws, as amended, of it or any similar instrument binding on it or any
order, writ, injunction or decree of any court or governmental authority
against it or by which it or any of its properties is bound or any inden-
ture, mortgage or contract or other agreement or instrument to which it is
a party or by which it or any of its properties is bound, or constitutes or
will constitute a default thereunder or results or will result in the
imposition of any lien upon any of its properties; and
(f) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not purportedly
on behalf of it) against or affecting it or any of its property before or
by any court or administrative agency which, if adversely determined, (A)
would adversely affect the ability of it to perform its obligations under
this Agreement or the Deposit Agreement or (B) would call into question or
challenge the validity of this Agreement or the Deposit Agreement or the
enforceability hereof or thereof in accordance with the terms hereof or
thereof, nor is the Escrow Agent in default with respect to any order of
any court, governmental authority, arbitration board or administrative
agency so as to adversely affect its ability to perform its obligations
under this Agreement or the Deposit Agreement.
SECTION 6. Representations And Warranties of The Paying
Agent. The Paying Agent represents and warrants to US Airways, AIFS, the
Escrow Agent and the Pass Through Trustee as follows:
(a) it is a corporation duly organized and validly existing
in good standing under the laws of its jurisdiction of incorporation;
(b) it has full power, authority and legal right to conduct
its business and operations as currently conducted and to enter into and
perform its obligations under this Agreement;
(c) the execution, delivery and performance of this
Agreement has been duly authorized by all necessary corporate action on the
part of it and does not require any stockholder approval, or approval or
consent of any trustee or holder of any indebtedness or obligations of it,
and such document has been duly executed and delivered by it and consti-
tutes its legal, valid and binding obligations enforceable against it in
accordance with the terms hereof except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(d) no authorization, consent or approval of or other
action by, and no notice to or filing with, any United States federal or
state governmental authority or regulatory body is required for the
execution, delivery or performance by it of this Agreement;
(e) neither the execution, delivery or performance by it of
this Agreement, nor compliance with the terms and provisions hereof,
conflicts or will conflict with or results or will result in a breach or
violation of any of the terms, conditions or provisions of, or will require
any consent or approval under, any law, governmental rule or regulation or
the charter documents, as amended, or bylaws, as amended, of it or any
similar instrument binding on it or any order, writ, injunction or decree
of any court or governmental authority against it or by which it or any of
its properties is bound or any indenture, mortgage or contract or other
agreement or instrument to which it is a party or by which it or any of its
properties is bound, or constitutes or will constitute a default thereunder
or results or will result in the imposition of any lien upon any of its
properties; and
(f) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not purportedly
on behalf of it) against or affecting it or any of its property before or
by any court or administrative agency which, if adversely determined, (A)
would adversely affect the ability of it to perform its obligations under
this Agreement or (B) would call into question or challenge the validity of
this Agreement or the enforceability hereof in accordance with the terms
hereof, nor is the Paying Agent in default with respect to any order of any
court, governmental authority, arbitration board or administrative agency
so as to adversely affect its ability to perform its obligations under this
Agreement.
SECTION 7. Indemnification. Except for actions expressly
required of the Escrow Agent or the Paying Agent hereunder, each of the
Escrow Agent and the Paying Agent shall in all cases be fully justified in
failing or refusing to act hereunder unless it shall have been indemnified
by the party requesting such action in a manner reasonably satisfactory to
it against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. In the event US
Airways requests any amendment to any Operative Document (as defined in the
Note Purchase Agreement), the Pass Through Trustee agrees to pay all
reasonable fees and expenses (including, without limitation, fees and
disbursements of counsel) of the Escrow Agent and the Paying Agent in
connection therewith.
SECTION 8. Amendment, Etc. Upon request of the Pass Through
Trustee and approval by an Action of Investors, the Escrow Agent shall
enter into an amendment to this Agreement, so long as such amendment does
not adversely affect the rights or obligations of the Escrow Agent or the
Paying Agent, provided that upon request of the Pass Through Trustee and
without any consent of AIFS or any other Investor, the Escrow Agent shall
enter into an amendment to this Agreement for any of the following pur-
poses:
(a) to correct or supplement any provision in this Agree-
ment which may be defective or inconsistent with any other provision herein
or to cure any ambiguity or correct any mistake or to modify any other
provision with respect to matters or questions arising under this Agree-
ment, provided that any such action shall not materially adversely affect
the interests of AIFS or any other Investor; or
(b) to comply with any requirement of the SEC, applicable
law, rules or regulations of any exchange or quotation system on which the
Certificates are listed or any regulatory body; or
(c) to evidence and provide for the acceptance of appoint-
ment under this Agreement of a successor Escrow Agent, successor Paying
Agent or successor Pass Through Trustee.
SECTION 9. Notices. Unless otherwise expressly provided
herein, any notice or other communication under this Agreement shall be in
writing (including by facsimile) and shall be deemed to be given and
effective upon receipt thereof. All notices shall be sent to (a) in the
case of AIFS and any other Investor, as their respective addresses shall
appear in the Register, (b) in the case of the Escrow Agent, First Security
Bank, National Association, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Services (Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇), (c) in
the case of the Pass Through Trustee, State Street Bank and Trust Company,
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate
Trust Administration (Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇) or (d) in the case of
the Paying Agent, State Street Bank and Trust Company, ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administra-
tion (Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇), in each case with a copy to US Airways,
US Airways, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Treasurer (Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇) (or at such other address as any
such party may specify from time to time in a written notice to the other
parties). On or prior to the execution of this Agreement, the Pass Through
Trustee has delivered to the Escrow Agent a certificate containing specimen
signatures of the representatives of the Pass Through Trustee who are
authorized to give notices and instructions with respect to this Agreement.
The Escrow Agent may conclusively rely on such certificate until the Escrow
Agent receives written notice from the Pass Through Trustee to the con-
trary.
SECTION 10. Transfer. No party hereto shall be entitled to
assign or otherwise transfer this Agreement (or any interest herein) other
than (in the case of the Escrow Agent) to a successor escrow agent under
Section 1.7 hereof or (in the case of the Paying Agent) to a successor
paying agent under Section 2.5 hereof, and any purported assignment in
violation thereof shall be void. This Agreement shall be binding upon the
parties hereto and their respective successors and (in the case of the
Escrow Agent and the Paying Agent) their respective permitted assigns.
SECTION 11. Entire Agreement. This Agreement sets forth all
of the promises, covenants, agreements, conditions and understandings among
the Escrow Agent, the Paying Agent, AIFS and the Pass Through Trustee with
respect to the subject matter hereof, and supersedes all prior and contem-
poraneous agreements and undertakings, inducements or conditions, express
or implied, oral or written.
SECTION 12. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 13. WAIVER OF JURY TRIAL RIGHT. EACH OF THE ESCROW
AGENT, THE PAYING AGENT, AIFS, EACH OTHER INVESTOR AND THE PASS THROUGH
TRUSTEE ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES
ITS RIGHT TO A TRIAL BY JURY.
SECTION 14. Counterparts. This Agreement may be executed in
one or more counterparts, all of which taken together shall constitute one
instrument.
IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, AIFS and
the Pass Through Trustee have caused this Escrow and Paying Agent Agreement
(Class C) to be duly executed as of the day and year first above written.
STATE STREET BANK AND TRUST FIRST SECURITY BANK, NATIONAL
COMPANY, not in its indi- ASSOCIATION, as Escrow Agent
vidual capacity, but solely
as Pass Through Trustee for
and on behalf of US Airways By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Pass Through Trust 1998-1C --------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ AIRBUS INDUSTRIE FINANCIAL SERVICES
Title: Vice President
By: /s/ Yann Ballet
STATE STREET BANK AND TRUST --------------------------------
COMPANY as Paying Agent Name: Yann Ballet
Title: Managing Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
EXHIBIT A
US Airways 1998-1C Escrow Receipt
No. __
This Escrow Receipt evidences a fractional undivided interest in
amounts ("Account Amounts") from time to time deposited into a certain
paying agent account (the "Paying Agent Account") described in the Escrow
and Paying Agent Agreement (Class C) dated as of December 14, 1998 (as
amended, modified or supplemented from time to time, the "Escrow and Paying
Agent Agreement") among First Security Bank, National Association, a
national banking association, as Escrow Agent (in such capacity, together
with its successors in such capacity, the "Escrow Agent"), Airbus Industrie
Financial Services, a corporation formed under the laws of Ireland, State
Street Bank and Trust Company, as Pass Through Trustee (in such capacity,
together with its successors in such capacity, the "Pass Through Trustee")
and State Street Bank and Trust Company as paying agent (in such capacity,
together with its successors in such capacity, the "Paying Agent").
Capitalized terms not defined herein shall have the meanings assigned to
them in the Escrow and Paying Agent Agreement.
This Escrow Receipt is issued under and is subject to the terms,
provisions and conditions of the Escrow and Paying Agent Agreement. By
virtue of its acceptance hereof the holder of this Escrow Receipt assents
and agrees to be bound by the provisions of the Escrow and Paying Agent
Agreement and this Escrow Receipt.
This Escrow Receipt represents a fractional undivided interest in
amounts deposited from time to time in the Paying Agent Account, and grants
or represents no rights, benefits or interests of any kind in respect of
any assets or property other than such amounts. This Escrow Receipt
evidences the same percentage interest in the Account Amounts as the
Fractional Undivided Interest in the Pass Through Trust evidenced by the
Certificate to which this Escrow Receipt is affixed.
All payments and distributions made to Receiptholders in respect
of the Escrow Receipt shall be made only from Account Amounts deposited in
the Paying Agent Account. The holder of this Escrow Receipt, by its
acceptance of this Escrow Receipt, agrees that it will look solely to the
Account Amounts for any payment or distribution due to it pursuant to this
Escrow Receipt and that it will not have any recourse to US Airways, the
Pass Through Trustee, the Paying Agent or the Escrow Agent, except as
expressly provided herein or in the Pass Through Trust Agreement. No
Receiptholder of this Escrow Receipt shall have any right to vote or in any
manner otherwise control the operation and management of the Paying Agent
Account, nor shall anything set forth herein, or contained in the terms of
this Escrow Receipt, be construed so as to constitute the Receiptholders
from time to time as partners or members of an association.
This Escrow Receipt may not be assigned or transferred except in
connection with the assignment or transfer of the Certificate to which this
Escrow Receipt is affixed. After payment to the holder hereof of its Escrow
Interest in the Final Distribution, upon the request of the Pass Through
Trustee, the holder hereof will return this Escrow Receipt to the Pass
Through Trustee.
The Paying Agent may treat the person in whose name the Certifi-
cate to which this Escrow Receipt is attached as the owner hereof for all
purposes, and the Paying Agent shall not be affected by any notice to the
contrary.
THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow
Receipt to be duly executed.
Dated: __________, 1998
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as
Escrow Agent
By __________________________________________
Name:
Title:
EXHIBIT B
Withdrawal Certificate
(Class C)
First Security Bank, National Association,
as Escrow Agent
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent Agreement, dated
as of December 14, 1998 (the "Agreement"). We hereby certify to you that
the conditions to the obligations of the undersigned to execute a Partici-
pation Agreement pursuant to the Note Purchase Agreement have been satis-
fied. Pursuant to Section 1.2(c) of the Agreement, please execute the
attached Notice of Withdrawal and immediately transmit by facsimile to the
Depositary, at _______________.
Very truly yours,
STATE STREET BANK AND TRUST COMPANY, not in its
individual capacity but solely as Pass Through
Trustee
By ____________________________________________
Name:
Title:
Dated:____________,____
NOTICE OF PURCHASE WITHDRAWAL
CITIBANK, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [___]
Telecopier: [___]
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class C) dated as of
December 14, 1998 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and Citibank, N.A., 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 proceeds
of the Deposit to _______________, Account No. __________, Reference:
__________ on _______________, _____, upon the telephonic request of a
representative of the Pass Through Trustee.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By _______________________________________
Name:
Title:
Dated:___________, ____