EXHIBIT 4(a)(iii)
TRUST SUPPLEMENT No. 1998-1B
Dated as of December 14, 1998
between
STATE STREET BANK AND TRUST COMPANY
as Trustee,
and
US AIRWAYS, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of December 4, 1998
US Airways Pass Through Trust 1998-1B
7.35% US Airways
Pass Through Certificates,
Series 1998-1B
This Trust Supplement No. 1998-1B, dated as of December 14, 1998 (herein
called the "Trust Supplement"), between US Airways, Inc., Inc., a Delaware
corporation (the "Company"), and State Street Bank and Trust Company (the
"Trustee"), to the Pass Through Trust Agreement, dated as of December 4,
1998, 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 obtained commitments from AVSA for the delivery of
23 Aircraft;
WHEREAS, the Company intends to finance the acquisition of each such
Aircraft either (i) through separate leveraged lease transactions, in which
case the Company will lease such Aircraft (collectively, the "Leased
Aircraft") or (ii) through separate secured loan transactions, in which case
the Company will own such Aircraft (collectively, the "Owned Aircraft");
WHEREAS, in the case of each Leased Aircraft, each Owner Trustee, acting
on behalf of the corresponding Owner Participant, will issue pursuant to an
Indenture, on a non-recourse basis, Equipment Notes in order to finance a
portion of its purchase price of such Leased Aircraft;
WHEREAS, in the case of each Owned Aircraft, the Company will issue
pursuant to an Indenture, on a recourse basis, Equipment Notes to finance a
portion of the purchase price of such Owned Aircraft;
WHEREAS, the Trustee hereby declares the creation of this US Airways
Pass Through Trust 1998-1B (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;
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WHEREAS, the Escrow Agent, the Trustee, the Escrow Paying 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 a portion of 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 remaining
undelivered Aircraft are delivered by AVSA under the Aircraft Purchase
Agreement 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 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 Note Purchase
Agreement, (i) on or shortly following the date hereof, the Trustee on behalf
of the Applicable Trust, using a portion of the proceeds from the sale of the
Applicable Certificates, shall purchase one or more Equipment Notes issued
pursuant to the Participation Agreements relating to the Aircraft described
in Exhibit C hereto (the "Delivered Aircraft Equipment Notes") in respect of
each of five of the Aircraft (such five Aircraft being the "Delivered
Aircraft") 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 (ii) with respect to each remaining
Aircraft, 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, in each case, 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;
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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 "7.35% US Airways Pass Through Certificates, Series 1998-1B" (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 pursuant to Sections 3.03, 3.04 and
3.06 of the Basic Agreement) is $81,282,000.
(b) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means January 30 and July 30 of each year, commencing on
January 30, 1999, 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 Agent's 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.
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(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 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 Applicable Certificates or an interest therein or (ii) the
purchase and holding of Applicable Certificates 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 Applicable Certificates are subject to the Intercreditor
Agreement, the Deposit Agreement and the Escrow Agreement.
(g) The Applicable Certificates will have the benefit of the
Liquidity Facility.
(h) The Responsible Party is the Company.
(i) The particular "sections of the Note Purchase Agreement", for
purposes of clause (3) of Section 7.07 of the Basic Agreement, are Section
6(b) (with respect to Owned Aircraft) and Section 6(c) (with respect to
Leased Aircraft) of the relevant Participation Agreement.
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:
Agreement: Has the meaning specified in the recitals hereto.
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Aircraft: Means each of the New Aircraft or Substitute Aircraft in
respect of which a Participation Agreement is entered into in accordance with
the Note Purchase Agreement.
Aircraft Purchase Agreement: Has the meaning specified in the Note
Purchase Agreement.
Applicable Certificateholder: Means the Person in whose name an
Applicable Certificate is registered on the Register for the Applicable
Certificates.
Applicable Delivery 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.
AVSA: Means AVSA, S.A.R.L.
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 New York, New
York, Salt Lake City, Utah, Pittsburgh, Pennsylvania, or, so long as any
Applicable Certificate is outstanding, the city and state in which the
Trustee or any Loan Trustee maintains its Corporate Trust Office or receives
and disburses funds.
Cut-off Date: Means the earlier of (a) the Delivery Period Termination
Date and (b) the date on which a Triggering Event occurs.
Delivery Date: Has the meaning specified in the Participation
Agreements.
Delivery Notice: Has the meaning specified in the Participation
Agreements.
Delivery Period Termination Date: Means the earlier of (a) October 31,
1999 and (b) the date on which Equipment Notes issued with respect to all of
the New Aircraft (or Substitute Aircraft in lieu thereof) have been purchased
by the Applicable Trust and the Other Trusts in accordance with the Note
Purchase Agreement.
Deposits: Has the meaning specified in the Deposit Agreement.
Deposit Agreement: Means the Deposit Agreement dated as of December 14,
1998 relating to the Applicable Certificates between the Depositary and the
Escrow
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Agent, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms.
Depositary: Means Credit Suisse First Boston, New York branch
Distribution Date: Means any Regular Distribution Date or Special
Distribution Date as the context requires.
Escrow Agent: Means, initially, First Security Bank, 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 14, 1998 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 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.
Indenture: Means each of the separate trust indentures and mortgages
relating to the Aircraft, each as specified or described in a Delivery Notice
delivered pursuant to 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.
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Intercreditor Agreement: Means the Intercreditor Agreement dated as of
December 14, 1998 among the Trustee, the Other Trustees, the Liquidity
Provider, the liquidity providers relating to the Certificates issued under
(and as defined in) each of the Other Agreements, and State Street Bank and
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.
Lease: Means, with respect to each Leased Aircraft, the lease between
an Owner Trustee, as the lessor, and the Company, as the lessee, referred to
in the related Indenture, as such lease may be amended, supplemented or
otherwise modified in accordance with its terms.
Leased Aircraft: Has the meaning specified in the third recital to this
Trust Supplement.
Liquidity Facility: Means, initially, the Revolving Credit Agreement
dated as of December 14, 1998 relating to the Applicable Certificates,
between the Liquidity Provider and State Street Bank and 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, ABN AMRO Bank N.V., acting
through its Chicago Branch, and any replacements or successors therefor
appointed in accordance with the Intercreditor Agreement.
New Aircraft: Has the meaning specified in the Note Purchase Agreement.
Note Documents: Means the Note Purchase Agreement, this Trust Supplement
and with respect to any Equipment Note, means (i) the Indenture and the
Participation Agreement relating to such Equipment Note, and (ii) in the case
of any Equipment Note related to a Leased Aircraft, the Lease relating to
such Leased Aircraft.
Note Purchase Agreement: Means the Note Purchase Agreement dated as of
December 14, 1998 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 certain Equipment Notes by the
Trustee on behalf of the
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Trust, as the same may be amended, supplemented or otherwise modified from
time to time, in accordance with its terms.
Notice of Purchase Withdrawal: Has the meaning specified in the Deposit
Agreement.
Other Agreements: Means (i) the Basic Agreement as supplemented by
Trust Supplement No. 1998-1A dated the date hereof relating to US Airways
Pass Through Trust 1998-1A and (ii) the Basic Agreement as supplemented by
Trust Supplement 1998-1C dated the date hereof relating to US Airways Pass
Through Trust 1998-1C.
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 1998-1A and the
US Airways Pass Through Trust 1998-1C, each created on the date hereof.
Owned Aircraft: Has the meaning specified in the third recital to this
Trust Supplement.
Owner Participant: With respect to any Equipment Note relating to a
Leased Aircraft, means the "Owner Participant" 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: With respect to any Equipment Note relating to a Leased
Aircraft, means the "Owner Trustee", 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 Indentures.
Participation Agreement: Means each Participation Agreement relating to
the Aircraft described in Exhibit C hereto or to be entered into by the
Trustee pursuant to the Note Purchase Agreement, 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 in respect of such Applicable Certificates or in respect of
Deposits relating to the Applicable Trust other than payments made in respect
of interest or premium thereon or reimbursement of any costs or expenses
incurred in connection therewith. The Pool
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Balance as of any Distribution Date will 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 other Trust Property and the distribution
thereof to be made on that date.
Postponed Notes: Means the Delivered Aircraft Equipment Notes having a
scheduled Transfer Date of December 15, 1998 as specified in Exhibit C hereto
and the Delivered Aircraft Equipment Notes to be held in the Trust as to
which a Postponement Notice shall have been delivered pursuant to Section
5.01(c).
Postponement Notice: Means an Officer's Certificate of the Company (i)
requesting that the Trustee temporarily postpone purchase of one or more of
the Delivered Aircraft Equipment Notes to a date which is later than the
scheduled Transfer Date therefor as specified in Exhibit C hereto, (ii)
identifying the amount of the purchase price of each such Equipment Note and
the aggregate purchase price for all such Equipment Notes, (iii) setting
forth the reasons for such postponement and (iv) with respect to each such
Equipment Note, either (a) setting or resetting a new Transfer Date (which
shall be on or prior to December 28, 1998 (the "Postponement Cut-Off Date"))
for payment by the Trustee of such purchase price and issuance of the related
Equipment Note, or (b) indicating that such new Transfer Date (which shall be
on or prior to the Postponement Cut-off Date) will be set by subsequent
written notice not less than one Business Day prior to such new Transfer
Date.
Prospectus Supplement: Means the Prospectus Supplement dated December
4, 1998, relating to the offering of the Class A Certificates and Class B
Certificates (as defined in the Intercreditor Agreement)
Special Redemption Premium: Means the premium payable by the Company in
respect of the Final Withdrawal pursuant to the Note Purchase Agreement.
Special Payment: Means 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) or Special Redemption Premium.
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Substitute Aircraft: Has the meaning specified in the Note Purchase
Agreement.
Transfer Date: Has the meaning assigned to the term "Delivery Date" in
the Participation Agreement relating to each Delivered Aircraft.
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, 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 Note Purchase Agreement 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.
Underwriters: Means, collectively, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
Credit Suisse First Boston Corporation, ▇▇▇▇▇▇ Brothers, Inc. and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Underwriting Agreement: Means the Underwriting Agreement dated
December 4, 1998 among the Underwriters and the Company, as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with its terms.
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ARTICLE III
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. Additions to Article IV of the Basic Agreement. In
addition to the provisions of Article IV of the Basic Agreement, the
following provisions shall apply to the Applicable Trust:
(a) Upon the payment of Special Redemption Premium to the Trustee
under the Note Purchase Agreement, the Trustee, upon receipt thereof, shall
immediately deposit the aggregate amount of such Special Redemption Premium
in the Special Payments Account;
(b) The distribution of amounts of Special Redemption Premium as
provided for in Section 4.02(b) of the Basic Agreement shall be on the
Special Distribution Date with respect to such Special Payment or as soon
thereafter as the Trustee has confirmed receipt of the related Special
Redemption Premium;
(c) In the event of the payment of a Special Redemption Premium by
the Company to the Trustee under the Note Purchase Agreement, the notice
provided for in Section 4.02(c) of the Basic Agreement shall be mailed,
together with the notice by the Escrow Paying Agent under Section 2.06 of the
Escrow Agreement, not less than 15 days prior to the Special Distribution
Date for such amount, which Special Distribution Date shall be the Final
Withdrawal Date; and
(d) The last sentence of the first paragraph of Section 4.02(c) of
the Basic Agreement shall apply equally if the amount of Special Redemption
Premium, if any, has not been calculated at the time the Trustee mails notice
of a Special Payment.
Section 3.02. 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, including any Special Redemption Premium,
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;
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(ii) the amount of such distribution under the Agreement allocable
to principal and the amount allocable to premium (including the Special
Redemption 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 Deposits; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name of a
Clearing Agency, on the Record Date prior to each Distribution 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 Agency's 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
Certificateholder's preparation of its 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
3.02(a) of this Trust Supplement.
(c) Promptly following (i) the Delivery Period Termination Date, if
there has been any change in the information set forth in clauses (x), (y)
and (z) below from that set
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forth in page S-35 of the Prospectus Supplement, and (ii) any early
redemption or purchase 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 Agency's 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.
(d) This Section 3.02 supersedes and replaces Section 4.03 of the
Basic Agreement.
ARTICLE IV
DEFAULT
Section 4.01. Purchase Rights of Certificateholders. (a) At any time
after the occurrence and during the continuance of a Triggering Event, each
Applicable Certificateholder shall have the right to purchase, for the
purchase price set forth in Section 6.01(b) of the Basic Agreement, all, but
not less than all, of the Class A Certificates upon ten days' written notice
to the Class A Trustee and each other Applicable Certificateholder, provided
that (i) if prior to the end of such ten-day period any other Applicable
Certificateholder notifies such purchasing Applicable Certificateholder that
such other Applicable Certificateholder wants to participate in such
purchase, then such other Applicable Certificateholder 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 (ii) if prior to the end of such ten-day period any
other Applicable Certificateholder fails to notify the purchasing Applicable
Certificateholder of such other Applicable Certificateholder's 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
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Triggering Event, each Class C Certificateholder 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 Applicable
Certificates and the Class A Certificates upon ten days' written notice to
the Trustee, the Class A Trustee and each other Class C Certificateholder,
provided that (A) if prior to the end of such ten-day period any other Class
C Certificateholder notifies such purchasing Class C Certificateholder that
such other Class C Certificateholder wants to participate in such purchase,
then such other Class C Certificateholder may join with the purchasing Class
C Certificateholder to purchase all, but not less than all, of the Applicable
Certificates and the Class A Certificates pro rata based on the Fractional
Undivided Interest in the Class C Trust held by each such Class C
Certificateholder and (B) if prior to the end of such ten-day period any
other Class C Certificateholder fails to notify the purchasing Class C
Certificateholder of such other Class C Certificateholder's desire to
participate in such a purchase, then such other Class C Certificateholder
shall lose its right to purchase the Applicable Certificates pursuant to this
Section 4.01(b).
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 this Agreement, the Intercreditor
Agreement, the Escrow Agreement or any Note Document or on or in respect of
the Applicable Certificates; provided, however, that (i) if such purchase
occurs after the record date specified in Section 2.03(b) of the Escrow
Agreement relating to the distribution of unused Deposits and accrued and
unpaid interest thereunder, such purchase price shall be reduced by the
aggregate amount of unused Deposits and interest to be distributed under the
Escrow Agreement (which deducted amounts shall remain distributable to, and
may be retained by, the Applicable Certificateholder as of such Record Date)
and (ii) if such purchase occurs after a Record Date, such purchase price
shall be reduced by the amount to be distributed hereunder on the related
Distribution Date (which deducted amounts shall remain distributable to, and
may be retained by, the Applicable Certificateholder as of such Record Date);
provided further 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 purchasing,
pursuant to the terms of this Agreement and the Other Agreements, the
Applicable Certificates and the Class A Certificates which are senior to the
securities held by such purchaser(s). 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(b). Each
Applicable Certificateholder agrees by its acceptance of its Applicable
Certificate that it will, subject to Section 3.04 of the Basic Agreement,
upon payment from such Class C Certificateholder(s) of the purchase price set
forth in the first sentence of this paragraph, 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,
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interest and obligation of such Applicable Certificateholder in this
Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor
Agreement, the Liquidity Facility, 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 Certificateholder's obligations under this Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the Note Documents and all such Applicable Certificates and Escrow
Receipts. 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(a), the terms "Class A Certificate", "Class
A Trustee", "Class C Certificateholder", "Class C Trust", "Class C
Certificate" and "Class C Trustee" 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.
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, the Note Purchase Agreement and the Participation
Agreements relating to the Delivered Aircraft 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
16
maximum aggregate principal amount of Equipment Notes which may be purchased
by the Trustee pursuant to the Note Purchase Agreement and the Participation
Agreements. 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.
(b) On or after the Issuance Date the Company may deliver from time
to time to the Trustee a Delivery Notice relating to one or more Equipment
Notes. After receipt of a Delivery Notice and in any case no later than one
Business Day prior to a Delivery Date as to which such Delivery Notice
relates (the "Applicable Delivery Date"), the Trustee shall (as and when
specified in the Delivery 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 Delivery 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 Owner Trustee or the Company, as the
case may be, issuing such Equipment Notes, all as shall be described in the
Delivery Notice. The Trustee shall (as and when specified in such Delivery
Notice), subject to the conditions set forth in Section 3 of the Note
Purchase Agreement, enter into and perform its obligations under the
Participation Agreement specified in such Delivery 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
Delivery Date, the Trustee receives a notice of postponement pursuant to
Section 2(e) or 2(f) of the Note Purchase Agreement, 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 Delivery Date. Upon satisfaction of the
conditions specified in the Note Purchase Agreement 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 Delivery 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 Delivery
Date to the purchase price of the Equipment Notes, shall be re-deposited by
the Trustee with the Depositary on the Applicable Delivery Date in accordance
with the terms of the Deposit Agreement. The provisions of this Section
5.01(b) shall not apply to the Delivered aircraft Equipment Notes. The
provisions of this Section 5.01(b) and Section 5.01(c) hereof supersede and
replace the provisions of Section 2.02 of the Basic Agreement (which are
inapplicable to the 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, provided that (i) the reference in Section
2.03 of the Basic Agreement to "Section 2.02 hereof" shall apply to the
17
Applicable Trust and shall be deemed to refer to Section 5.01(c) of this
Trust Supplement and (ii) for purposes of Section 4.02(c) of the Basic
Agreement, the reference to (x) "Postponed Notes" shall apply to the
Applicable Trust and such term shall have the meaning specified herein and
(y) "Section 2.02" shall apply to the Applicable Trust and shall be deemed a
reference to Section 5.01(c) of this Trust Supplement.
(c) The Trustee shall purchase, pursuant to the terms and conditions
of the Participation Agreements relating to the Delivered Aircraft, the
Delivered Aircraft Equipment Notes on the Issuance Date or on December 15,
1998, as specified in Exhibit C hereto.
In the case of (x) the Delivered Aircraft Equipment Notes having a
scheduled Transfer Date of December 15, 1998 and (y) any Delivered Aircraft
Equipment Notes with respect to which the Company shall deliver to the
Trustee a Postponement Notice relating to one or more Postponed Notes, the
Trustee shall deposit into an escrow account (the "Postponed Notes Escrow
Account") to be maintained as part of the Applicable Trust an amount equal to
the purchase price of such Postponed Notes (the "Postponed Notes Escrowed
Funds"). The Postponed Notes Escrowed Funds so deposited shall be invested
by the Trustee at the written direction of the Company in Specified
Investments (i) maturing no later than any scheduled Transfer Date relating
to the Postponed Notes or (ii) if no such Transfer Date has been scheduled,
maturing on the next Business Day, or (iii) if the Company has given notice
to the Trustee that any Postponed Notes will not be issued, with respect to
the portion of the Postponed Notes Escrowed Funds relating to such Postponed
Notes, maturing on the next applicable Special Distribution Date, if such
investments are reasonably available for purchase. The Trustee shall make
withdrawals from the Postponed Notes Escrow Account only as provided in this
Agreement. Upon request of the Company on one or more occasions and the
satisfaction of the closing conditions specified in the applicable
Participation Agreements on or prior to the Postponement Cut-off Date, the
Trustee shall purchase the applicable Postponed Notes with the Postponed
Notes Escrowed Funds withdrawn from the Postponed Notes Escrow Account. The
purchase price shall equal the principal amount of such Postponed Notes.
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 a Postponed Notes 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 of the Company in
Specified Investments maturing as provided in the preceding paragraph.
Any earnings or Specified Investments received from time to time by the
Trustee shall be promptly distributed to the Company. The Company shall pay
to the Trustee
18
for deposit to the Postponed Notes Escrow Account an amount equal to any
losses on such Specified Investments as incurred.
On the January 30, 1999 Regular Distribution Date, the Company will pay
(in immediately available funds) to the Trustee an amount equal to the
interest that would have accrued on any Postponed Notes, if any, purchased
after the Issuance Date if such Postponed Notes had been purchased on the
Issuance Date, from the Issuance Date to, but not including, the date of the
purchase of such Postponed Notes by the Trustee.
If the Company notifies the Trustee prior to the Postponement Cut-off
Date that any Postponed Notes will not be issued on or prior to the
Postponement Cut-off Date for any reason, on the next Special Distribution
Date occurring not less than 15 days following the date of such notice (i)
the Company shall pay to the Trustee for deposit in the Special Payments
Account, in immediately available funds, an amount equal to the interest that
would have accrued on the Postponed Notes designated in such notice at a rate
equal to the interest rate applicable to the Certificates from the Issuance
Date to, but not including, such Special Distribution Date and (ii) the
Trustee shall transfer an amount equal to that amount of Postponed Notes
Escrowed Funds that would have been used to purchase the Postponed Notes
designated in such notice and the amount paid by the Company 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 the Postponement Cut-off Date, an amount equal to less than all
of the Postponed Notes Escrowed Funds (other than Postponed Notes 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 the Postponement Cut-off Date (i) the Company
shall pay to the Trustee for deposit in the 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
Postponed Notes Escrowed Funds (other than Postponed Notes Escrowed Funds
referred to in the immediately preceding paragraph) but not so purchased at a
rate equal to the interest rate applicable to the Applicable Certificates
from the Issuance Date to, but not including, such Special Distribution Date
and (ii) the Trustee shall transfer such unused Postponed Notes Escrowed
Funds and the amount paid by the Company 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 5.02. Withdrawal of Deposits. If any Deposits remain
outstanding on the Business Day next succeeding the Cut-off Date, (i) the
Trustee shall give the Escrow Agent notice that the Trustee's obligation to
purchase Equipment Notes under the Note Purchase Agreement has terminated and
instruct the Escrow Agent to provide a notice of Final
19
Withdrawal to the Depositary substantially in the form of Exhibit B to the
Deposit Agreement (the "Final Withdrawal Notice") and (ii) the Trustee will
make a demand upon the Company under the Note Purchase Agreement for an
amount equal to the Special Redemption Premium, such payment to be made on
the Final Withdrawal Date.
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 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.
(b) Except as herein otherwise provided, 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
Basic 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
Basic Agreement, upon the effectiveness thereof, 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 and the Note Documents to which it is 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 and the Note Documents to which it is a party;
(b) the execution, delivery and performance by the Trustee of this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement 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,
20
which violation, default or lien could reasonably be expected to have an
adverse effect on the Trustee's 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 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) this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement 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 enforce ability 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 Trustee's 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 Note Purchase Agreement.
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. Supplemental Agreements Without Consent of Applicable
Certificateholders. 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 Company's request, at any time and from time to
time, enter into one or more agreements supplemental to the Escrow Agreement,
the Note Purchase Agreement or the Deposit Agreement, for any of the purposes
set forth in clauses (1) through (9) of such Section 9.01, except that (a)
clause (3) of such Section 9.01 shall be deemed to include the Company's
rights and powers conferred by the Note Purchase Agreement and (b) clause (4)
of such Section 9.01 shall be deemed to include
21
corrections or supplements to provisions of the Escrow Agreement or the
Deposit Agreement which may be defective or inconsistent with any other
provision of this Agreement or contained in any agreement referred to in such
clause (4) and the curing of any ambiguity or the modification of any other
provision with respect to matters or questions arising under the Escrow
Agreement or the Deposit Agreement.
Section 6.02. Supplemental Agreements with Consent of Applicable
Certificateholders 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 or the Note Purchase Agreement
to the extent applicable to the Applicable Certificateholders approving such
agreement or amendment or modifying in any manner the rights and obligations
of such Applicable Certificateholders under the Escrow Agreement, the Deposit
Agreement or the Note Purchase Agreement; 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; provided further that the
provisions of Section 9.02(6) of the Basic Agreement shall not apply to the
Applicable Trust and any supplemental agreement having the effect described
in said Section 9.02(6) shall require only the consent of Applicable
Certificateholders holding Applicable Certificates evidencing a Fractional
Undivided Interest aggregating not less than a majority in interest in the
Applicable Trust.
ARTICLE VII
TERMINATION OF TRUST
Section 7.01. Termination of the Trust. 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 this 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 21 years less one day following the death of
the last survivor of all descendants living on the date thereof of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇., unless applicable law shall permit a longer term, in which case
such longer term shall apply.
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 60th day and not later than the 15th 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
22
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 related Owner
Trustees, the Owner Participants and the Company.
ARTICLE VIII
THE COMPANY
Section 8.01. Consolidation, Merges, Etc. Section 5.02 of the Basic
Agreement is hereby amended with respect to the Applicable Trust by deleting
the word "and" at the end of clause (b) thereof, renumbering clause (c)
thereof as clause "(d)" and inserting a new clause (c) as follows:
"(c) immediately after giving effect to such transaction, no Indenture
Event of Default (in the case of an Owned Aircraft) or, in the case of a
Leased Aircraft, Lease Event of Default (as defined in the related Indenture)
shall have occurred and be continuing; and"
23
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. 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.
Section 9.02. GOVERNING LAW. THIS AGREEMENT AND THE APPLICABLE
CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
Section 9.03. 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 9.04. 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.
24
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.
US AIRWAYS, INC.
By:
----------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
----------------------------
Name:
Title:
EXHIBIT A
---------
FORM OF CERTIFICATE
[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 1998-1B
7.35% US Airways Pass Through Certificate, Series 1998-1B
Issuance Date: December 14, 1998
Final Expected Distribution Date: January 30, 2018
Evidencing A Fractional Undivided Interest In The US Airways Pass Through
Trust 1998-1B, The Property Of Which Includes Certain Equipment Notes Each
Secured By An Aircraft Leased To Or Owned By US Airways, Inc.
Certificate
No.______ $__________Fractional Undivided Interest representing
0.001230284% 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 1998-1B (the "Trust") created
by State Street Bank and Trust Company, as trustee (the "Trustee"), pursuant
to a Pass Through Trust Agreement, dated as of December 4,
_______________________________
* This legend to appear on Book-Entry Certifictaes to be deposited with the
Depository Trust Company.
A-2
1998 (the "Basic Agreement"), between the Trustee and US Airways, Inc., Inc.,
a Delaware corporation (the "Company"), as supplemented by Trust Supplement
No. 1998-1B thereto, dated as of December 14, 1998 (the "Trust Supplement"
and, together with the Basic Agreement, the "Agreement"), between the Trustee
and the Company, 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 "7.35%
US Airways Pass Through Certificates, Series 1998-1B" (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 Certificateholder of this Certificate 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 and
all rights of the Trust to receive payments under the Intercreditor Agreement
and any Liquidity Facility (the "Trust Property"). Each issue of the
Equipment Notes is secured by, among other things, a security interest in an
Aircraft leased to or 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 each January 30 and July 30 (a "Regular Distribution Date")
commencing January 30, 1999, 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 no interest shall
accrue during
A-3
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 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 or 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, proceeds, 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
A-4
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 Certificateholder's 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.
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 Certificate
holders 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 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 this
Certificate or an interest herein or (ii) the purchase and holding of this
Certificate or interest herein are exempt from the prohibited transaction
restrictions of ERISA and the Code pursuant to one or more prohibited
transaction statutory or administration exemptions.
A-5
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY 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.
A-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
US AIRWAYS PASS THROUGH TRUST 1998-1B
By: STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
-----------------------------------
Name:
Title:
FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
By: STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
-------------------------------
Name:
Title:
EXHIBIT B
[DTC Letter of Representations]
B-2
EXHIBIT C
Aircraft Type and Registration No. Scheduled Transfer Date
---------------------------------- -----------------------
Airbus A319/N700UW December 15, 1998
Airbus A319/N701UW December 15, 1998
Airbus A319/N702UW December 14, 1998
Airbus A319/N703UW December 14, 1998
Airbus A319/N704US December 15, 1998