EXHIBIT 4.5
TRUST SUPPLEMENT No. 1999-1C
Dated as of August 31, 1999
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee,
and
US AIRWAYS, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of July 30, ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Through Trust 1999-1C
7.96% US Airways
Pass Through Certificates,
Series 1999-1C
This Trust Supplement No. 1999-1C, dated as of August 31,
1999 (herein called the "Trust Supplement"), between US Airways, Inc., a
Delaware corporation (the "Company"), and State Street Bank and Trust
Company of Connecticut, National Association (the "Trustee"), to the Pass
Through Trust Agreement, dated as of July 30, 1999, between the Company, US
Airways Group, Inc., a Delaware corporation, 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 has obtained commitments from Airbus
for the delivery of 20 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 1999-1C (the "Applicable Trust") for the benefit
of the Applicable Certificateholders, and the initial Applicable
Certificateholders as the grantors of the Applicable Trust, by their
respective acceptances of the Applicable Certificates, join in the creation
of the Applicable Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Applicable
Trust will evidence fractional undivided interests in the Applicable Trust
and will convey no rights, benefits or interests in respect of any property
other than the Trust Property except for those Certificates to which an
Escrow Receipt has been affixed;
WHEREAS, the Escrow Agent, the Trustee, the Escrow Paying
Agent, and AIFS have contemporaneously herewith entered into an Escrow
Agreement with the Escrow Paying Agent pursuant to which AIFS has delivered
to the Escrow Agent the proceeds from the sale of the Applicable
Certificates and has 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 Aircraft are delivered by
Airbus 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, 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; and
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.
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 "7.96% US Airways Pass Through Certificates, Series 1998-1C"
(including the Exchange Certificates and the Private Exchange Certificates,
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 and
in connection with the performance of the Registration Agreement)
is $121,517,000.
(b) The Regular Distribution Dates with respect to any
payment of Scheduled Payments means January 20 and July 20 of each
year, commencing on January 20, 2000, 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.
(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 E.
(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 and the Registration Agreement.
(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 attached as an exhibit to the Note Purchase
Agreement.
ARTICLE II
DEFINITIONS
Section 2.01. Definitions. Capitalized terms used herein and
not defined herein shall have the meaning ascribed to them in the Basic
Agreement. 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.
AIFS: Means Airbus Industrie Financial Services.
Airbus: Means Airbus Industrie G.I.E.
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.
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.
Class C Certificate Purchase Agreement: Means the Purchase
Agreement dated as of the date hereof between US Airways, Inc. and
AIFS.
Class C Special Indemnity Payment: Has the meaning specified
in the Participation Agreements.
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)
July 20, 2000 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.
Deposit Agreement: Means the Deposit Agreement dated as of
August 31, 1999 relating to the Applicable Certificates between the
Depositary and the Escrow Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with its terms.
Depositary: Means, ABN AMRO Bank, N.V., acting through its
Chicago branch.
Deposits: Has the meaning specified in the Deposit
Agreement.
DTC: The Depository Trust Company, its nominees and their
respective successors.
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 August 31, 1999 relating to the Applicable
Certificates, among the Escrow Agent, the Escrow Paying Agent, the
Trustee and AIFS, 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.
Exchange Certificate: Means any of the certificates,
substantially in the form of Exhibit A, issued in exchange for an
Initial Certificate pursuant to the Registration Agreement and
authenticated under this Agreement.
Exchange Offer Registration Statement: Means the Exchange
Offer Registration Statement defined in the Registration Agreement.
Final Maturity Date: Means July 20, 2019.
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.
Global Certificates: Has the meaning assigned to such term
in Section 9.01(a).
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 Note Purchase
Agreement or the related Participation Agreement, in each case as
the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms.
Initial Certificate: Means any of the certificates issued
and authenticated, under this Agreement, substantially in the form
of Exhibit A, other than an Exchange Certificate or a Private
Exchange Certificate.
Institutional Accredited Investor or IAI: Means an
institutional investor that is an "accredited investor" within the
meaning set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act.
Intercreditor Agreement: Means the Intercreditor Agreement
dated as of August 31, 1999 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 of Connecticut,
National Association, as Subordination Agent and as trustee
thereunder, as amended, supplemented or otherwise modified from
time to time in accordance with its terms.
Investors: Means AIFS 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 August 31, 1999 relating to the Applicable
Certificates, between the Liquidity Provider and State Street Bank
and Trust Company of Connecticut, National Association, 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, AIG Matched Funding
Corp., and any replacements or successors therefor appointed in
accordance with the Intercreditor Agreement.
New Aircraft: Has the meaning specified in the Note Purchase
Agreement.
Non-U.S. Person: Means a Person that is not a "U.S. person,"
as defined in Regulation S.
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 August 31, 1999 among the Trustee, the Other Trustees,
the Company, the Escrow Agent, the Escrow Paying Agent and the
Subordination Agent, providing for, among other things, the
purchase of Equipment Notes by the Trustee on behalf of the 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.
Offering Memorandum: Means the Offering Memorandum dated
August 24, 1999, relating to the offering of the Applicable
Certificates.
Other Agreements: Means (i) the Basic Agreement as
supplemented by Trust Supplement No. 1999-1A dated the date hereof
relating to US Airways Pass Through Trust 1999-1A and (ii) the
Basic Agreement as supplemented by Trust Supplement No. 1999-1B
dated the date hereof relating to US Airways Pass Through Trust
1999-1B.
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 1998-1B.
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
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.
Physical Certificates: Has the meaning specified in Section
9.01(b).
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 other than payments made in
respect of interest or premium thereon or reimbursement of any
costs or expenses incurred in connection therewith. The Pool
Balance as of any Distribution Date shall be computed after giving
effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes or payment with respect
to other Trust Property and the distribution thereof to be made on
that date.
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.
Private Exchange Certificate: Means any of the certificates,
substantially in the form of Exhibit A, issued in exchange for an
Initial Certificate pursuant to the Registration Agreement and
authenticated under this Agreement.
Private Placement Legend: Has the meaning specified in
Section 9.02(a).
Prospectus Supplement: Means the Prospectus Supplement dated
August 24, 1999, relating to the offering of the Class A
Certificates and Class B Certificates (as each is defined in the
Intercreditor Agreement)
QIB: Means a "qualified institutional buyer" as defined in
Rule 144A.
Registration Agreement: Means the Registration Agreement,
dated as of the date hereof, between the Initial Purchaser, the
Trustee and the Company, as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Registration Statement: Means the Registration Statement
defined in the Registration Agreement.
Rule 144A: Means Rule 144A under the Securities Act and any
successor rule thereto.
SEC: Means the Securities and Exchange Commission, as from
time to time constituted or created under the Securities Exchange
Act of 1934, as amended, or, if at any time after the execution of
this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
Securities Act: Means the United States Securities Act of
1933, as amended from time to time, or any successor thereto.
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.
Substitute Aircraft: Has the meaning specified in the Note
Purchase Agreement.
Termination Date: Means the date on which first occurs a
"Termination Event" as defined in that certain Aircraft Financing
Letter Agreement, dated as of October 31, 1997 between AVSA,
S.A.R.L. and the Company.
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.
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.
(e) Upon the payment of a Class C Special Indemnity Payment
to the Trustee under the Participation Agreement or a Class C
Special Deposit Payment to the Trustee under the Note Purchase
Agreement, the Trustee, upon receipt thereof, shall immediately
deposit the aggregate amount of such payments in the Certificate
Account.
(f) Distribute the amount of each Class C Special Indemnity
Payment or Class C Special Deposit Payment, if any, on the next
succeeding Regular Distribution Date after the Trustee has
confirmed receipt of any such payment.
(g) If any Class C Special Indemnity Payment or Class C
Special Deposit Payment is distributed on a Regular Distribution
Date, the information required to be provided to Certificateholders
pursuant to Section 4.03(a) of the Basic Agreement shall include
the amount of such distribution allocable to any such 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 $100,000 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;
(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 forth in page S-42 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 (which shall
not expire upon any purchase of the Class A Certificates pursuant to the
agreements governing the Class B Trust) 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 and the Class B Certificates upon ten
days' written notice to the Class A Trustee, the Class B 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 and the Class B 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
and the Class B Certificates pursuant to this Section 4.01(a).
As used in this Section 4.01(a), the terms "Class A
Certificateholder", "Class A Trust", "Class A Certificate", "Class A
Trustee", "Class B Certificateholder", "Class B Trust", "Class B
Certificate" and "Class B Trustee" shall have the respective meanings
assigned to such terms in the Intercreditor Agreement.
(b) Except as expressly set forth above, 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
Registration Agreement 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 Class C Certificate Purchase 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 Class C Certificate Purchase
Agreement evidencing the entire ownership interest in the Applicable Trust,
which amount equals the maximum aggregate principal amount of Equipment
Notes which may be purchased by the Trustee pursuant to the Note Purchase
Agreement. 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), 2(f) or 2(g) 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)
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 Section 2.02 of the Basic Agreement shall not
apply to the Applicable Trust.
Section 5.02. Withdrawal of Deposits. If any Deposits remain
outstanding on the Business Day next succeeding the Cut-off Date or the
Termination Date, (i) (A) 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 Withdrawal to the Depositary substantially in the form of
Exhibit B to the Deposit Agreement (the "Final Withdrawal Notice") and (B)
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, the Note Documents
and the Registration Agreement 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, the Note Documents and the
Registration Agreement 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, the Note Documents and the Registration Agreement to
which it is a party (i) will not violate any provision of any
United States federal law or the law of the state of the United
States where it is located governing the banking and trust powers
of the Trustee or any order, writ, judgment, or decree of any
court, arbitrator or governmental authority applicable to the
Trustee or any of its assets, (ii) will not violate any provision
of the articles of association or by-laws of the Trustee, and (iii)
will not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation
or imposition of any lien on any properties included in the Trust
Property pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to
have an adverse effect on the 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, the Note Documents and the Registration Agreement 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, the Note Documents and the Registration Agreement
to which it is a party have been, or will be, as applicable, duly
executed and delivered by the Trustee and constitute, or will
constitute, as applicable, the legal, valid and binding agreements
of the Trustee, enforceable against it in accordance with their
respective terms; provided, however, that enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and (ii) general principles of equity.
Section 5.05. Trustee Liens. The Trustee in its individual
capacity agrees, in addition to the agreements contained in Section 7.17 of
the Basic Agreement, that it will at its own cost and expense promptly take
any action as may be necessary to duly discharge and satisfy in full any
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 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 hereof 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 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
MISCELLANEOUS PROVISIONS
Section 8.01. Basic Agreement Ratified. Except and so far as
herein expressly provided, all of the provisions, terms and conditions of
the Basic Agreement are in all respects ratified and confirmed; and the
Basic Agreement and this Trust Supplement shall be taken, read and
construed as one and the same instrument.
Section 8.02. 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 8.03. Execution in Counterparts. This Trust
Supplement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but
one and the same instrument.
Section 8.04. Intention of Parties. The parties hereto
intend that the Applicable Trust be classified for U.S. federal income tax
purposes as a grantor trust under Subpart E, Part I of Subchapter J of the
Internal Revenue Code of 1986, as amended, and not as a trust or
association taxable as a corporation or as a partnership. Each Applicable
Certificateholder and Investor, by its acceptance of its Applicable
Certificate or a beneficial interest therein, agrees to treat the
Applicable Trust as a grantor trust for all U.S. federal, state and local
income tax purposes. The powers granted and obligations undertaken pursuant
to the Agreement shall be so construed so as to further such intent.
ARTICLE IX
THE CERTIFICATES
Section 9.01. Additions to Article III of the Basic
Agreement. In addition to the provisions of Article III of the Basic
Agreement, the following provisions shall apply to the Applicable Trust:
(a) Initial Certificates offered and sold in reliance on
Rule 144A or to an Institutional Accredited Investor, or resold in reliance
on Regulation S and Rule 904 under the Securities Act, each shall be issued
initially in the form of one or more permanent global Certificates in
registered form, substantially in the form set forth as Exhibit A
(respectively, the "144A Global Certificate," the "IAI Global Certificate,"
and the "Regulation S Global Certificate," each, a "Global Certificate"),
duly executed and authenticated by the Trustee as provided in Section 3.02
of the Basic Agreement. The Global Certificates shall be registered in the
name of Cede & Co., as nominee for DTC, and deposited with the Trustee, as
custodian for DTC. The aggregate principal amount of the Global
Certificates may from time to time be decreased by adjustments made on the
records of DTC or its nominee, or of the Trustee, as custodian for DTC or
its nominee, as hereinafter provided.
(b) Initial Certificates offered and sold other than
pursuant to Rule 144A or pursuant to Regulation S or to Institutional
Accredited Investors shall be issued in the form of permanent certificated
Certificates in registered form, in substantially the form set forth as
Exhibit A (the "Physical Certificates"). All other Certificates shall be
Global Certificates.
(c) The Applicable Certificates shall be in registered form
and shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner, all as
determined by the officers executing such Certificates, as evidenced by
their execution of such Certificates.
Section 9.02 Restrictive Legends. (a) Subject to Section
9.03(a) of this Trust Supplement, unless and until (i) an Initial
Certificate or a Private Exchange Certificate is sold under an effective
Registration Statement, (ii) an Initial Certificate is exchanged for an
Exchange Certificate pursuant to an effective Exchange Offer Registration
Statement, (iii) an Initial Certificate or a Private Exchange Certificate
is sold pursuant to Rule 144, (iv) as otherwise provided in the Private
Placement Legend or (v) the Company and the holder thereof otherwise agree,
in each case as provided for in the Registration Agreement, each Global
Certificate and each Physical Certificate shall bear the following legend
(the "Private Placement Legend") on the face thereof:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND ACCORDINGLY, THIS CERTIFICATE OR ANY INTEREST OR
PARTICIPATION HEREIN MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER: (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR"), OR (C)
IT IS OTHERWISE ACQUIRING THIS CERTIFICATE IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; (2) AGREES THAT IT WILL
NOT WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS
CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS OWNED BY US
AIRWAYS, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY SUCH PERSON RESELL OR
OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO US AIRWAYS, INC, (B) TO A
PERSON WHO THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE AGGREGATE
PRINCIPAL AMOUNT OF SUCH CERTIFICATE THAT, PRIOR TO SUCH TRANSFER,
FURNISHED TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED (OTHER THAN PURSUANT TO
CLAUSES (2)(D) AND (2)(F) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE AS A
RESTRICTED SECURITY WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS
HELD BY US AIRWAYS, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY SUCH PERSONS
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER NOTICE
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (2)(C) OR
(2)(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTIONS
TERMINATE. THE CLASS C TRUST SUPPLEMENT CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION
OF THE FOREGOING RESTRICTIONS.
(b) Each Global Certificate of each class shall also bear
the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN
EXCHANGE FOR THIS CERTIFICATE 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 HEREON 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 AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 9.03 OF THE
TRUST SUPPLEMENT NO. 1999-1C.
Section 9.03. Special Transfer Provisions. Unless and until
(i) an Initial Certificate or a Private Exchange Certificate is sold under
an effective Registration Statement, (ii) an Initial Certificate is
exchanged for an Exchange Certificate pursuant to an effective Exchange
Offer Registration Statement, (iii) an Initial Certificate or a Private
Exchange Certificate is sold pursuant to Rule 144, (iv) as otherwise
provided in the Private Placement Legend or (v) the Company and the holder
thereof otherwise agree, the Registrar shall refuse to register any
exchange except in accordance with the following provisions:
(a) Private Placement Legend. Upon the transfer, exchange or
replacement of Applicable Certificates not bearing the Private Placement
Legend, the Registrar shall deliver Applicable Certificates that do not
bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Applicable Certificates bearing the Private Placement
Legend, the Registrar shall deliver only Applicable Certificates that bear
the Private Placement Legend, except as contemplated by Section 9.02.
(b) General. By its acceptance of any Applicable Certificate
bearing the Private Placement Legend, each Holder of such Applicable
Certificate acknowledges the restrictions on transfer of such Applicable
Certificate set forth in this Trust Supplement and agrees that it shall
transfer such Certificate only as provided in this Trust Supplement. The
Registrar shall not register a transfer of any Applicable Certificate
unless such transfer complies with the restrictions on transfer of such
Certificate set forth in this Trust Supplement. In connection with any
transfer of Applicable Certificates, each Certificateholder agrees by its
acceptance of the Applicable Certificates to furnish the Registrar or the
Trustee such certifications, legal opinions or other information as the
Private Placement Legend requires to confirm that such transfer is being
made pursuant to an exemption from, or a transaction not subject to, the
registration requirements of the Securities Act.
Until such time as no Applicable Certificates remain
Outstanding, the Registrar shall retain copies of all letters, notices and
other written communications received pursuant to this Section 9.03. The
Trustee, if not the Registrar at such time, shall have the right to inspect
and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
Transfers of the Applicable Certificates (and interests
therein) among different types of Global Certificates (including a Global
Certificate not containing a Private Placement Legend) and from Global
Certificates to a Physical Certificate and from Physical Certificates to
Global Certificates shall be made in accordance with the procedures set
forth on Exhibit F hereto.
ARTICLE X
THE COMPANY
Section 10.01. Consolidation, Merger, 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".
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: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
EXHIBIT A
FORM OF CERTIFICATE
CUSIP No._______________
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
ACCORDINGLY, THIS CERTIFICATE OR ANY INTEREST OR PARTICIPATION HEREIN MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER: (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR"), OR (C) IT IS
OTHERWISE ACQUIRING THIS CERTIFICATE IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; (2) AGREES THAT IT WILL
NOT WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS
CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS OWNED BY US
AIRWAYS, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY SUCH PERSON RESELL OR
OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO US AIRWAYS, INC., (B) TO
A PERSON WHO THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE AGGREGATE
PRINCIPAL AMOUNT OF SUCH CERTIFICATE THAT, PRIOR TO SUCH TRANSFER,
FURNISHED TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED (OTHER THAN PURSUANT TO
CLAUSES (2)(D) AND (2)(F) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE AS A
RESTRICTED SECURITY WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS
HELD BY US AIRWAYS, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY SUCH PERSONS
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER NOTICE
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (2)(C) OR
(2)(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTIONS
TERMINATE. THE CLASS C TRUST SUPPLEMENT CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION
OF THE FOREGOING RESTRICTIONS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE 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 HEREON 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 AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 9.03 OF THE TRUST SUPPLEMENT NO. 1999-1C.
US AIRWAYS PASS THROUGH TRUST 1999-1C
___% US Airways [Initial][Exchange] Pass Through Certificate, Series 1999-1C
Issuance Date: _____________
Final Expected Distribution Date: ________, _____
Evidencing A Fractional Undivided Interest In The US Airways
Pass Through Trust 1999-1C, 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._________% of the Trust per $_____ face amount
THIS CERTIFIES THAT _________, for value received, is the
registered owner of a $___________ (________________ Dollars) Fractional
Undivided Interest in the US Airways 1999-1C Pass Through Trust (the
"Trust") created by State Street Bank and Trust Company of Connecticut,
National Association, as trustee (the "Trustee") pursuant to a Pass Through
Trust Agreement, dated as of _________, 1999 between the Trustee, US
Airways, Inc., a Delaware corporation (the "Company") and US Airways Group,
Inc. (the "Parent") (the "Basic Agreement"), as supplemented by Trust
Supplement No. 1999-1C, dated ______, ____, between the Trustee and the
Company (collectively, the "Agreement"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Agreement. This Certificate is a duly
authorized global Certificate designated as "___% US Airways
[Initial][Exchange] Pass Through Certificate, Series 1999-1C" (the
"Certificate"). 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 __________ and ____________ (a "Regular
Distribution Date") commencing _________, ____ 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 the intervening period. The Trustee shall mail notice of each
Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
The Holder of this Certificate is entitled to the benefits
of the Registration Agreement, dated as of ________________, between the
Company, the Trustee and the Purchaser named therein (the "Registration
Agreement"). If (i) any Registration Statement required by the Registration
Agreement is not (i) filed with the Securities and Exchange Commission (the
"Commission") on or prior to the applicable filing deadline specified in
the Registration Agreement, (ii) any Registration Statement required by the
Registration Agreement is not declared effective by the Commission on or
prior to the applicable effectiveness deadline specified in the
Registration Agreement, (iii) any Registered Exchange Offer has not been
consummated on or prior to the consummation deadline specified in the
Registration Agreement or (iv) any Registration Statement required by the
Registration Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose at any
time prior to (a) in the case of an Exchange Offer Registration Statement,
the expiration of the respective Exchange Offer Registration Period (as
defined in the Registration Agreement) or (b) if a Shelf Registration
Statement (as defined in the Registration Agreement) is required to be
filed pursuant to the Registration Agreement, the expiration of the Shelf
Registration Period (as defined in the Registration Agreement), in each
case without being succeeded within two (2) days by a post-effective
amendment to such Registration Statement that cures such failure and that
is itself declared effective within five (5) days of filing such
post-effective amendment to such Registration Statement (each such event in
clauses (i) through (iv), a "Registration Default"), then US Airways agrees
to pay to the Class C Trust for distribution to each Holder effected
thereby liquidated damages in an amount equal to the following: during the
first ninety (90)-day period immediately following the occurrence of such
Registration Default, .0025 (the "Multiplier") times the aggregate
principal amount of such holder's Class C Certificates times the number of
days such Registration Default exists divided by 360 (less any amount
thereof that has been paid as provided in the next paragraph). The amount
of the Multiplier shall increase by .0025 during each subsequent ninety
(90)-day period up to a maximum Multiplier of .01. Notwithstanding the
prior sentence, (1) upon the filing of the respective Registered Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the
respective Registered Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement) in the case of (ii) above,
(3) upon consummation of the respective Registered Exchange Offer in the
case of (iii) above, or (4) upon the filing of a post-effective amendment
to the respective Registration Statement or any additional Registration
Statement that causes the respective Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) above, the liquidated
damages payable with respect to the Securities that are the subject of such
Registration Statement as a result of such clause (i), (ii), (iii) or (iv),
as applicable, will cease, until such time, if any, that another
Registration Default occurs.
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 of payment,
all as more specifically set forth on the face hereof and in the Agreement.
All payments or distributions made to Certificateholders under the
Agreement shall be made only from the Trust Property and only to the extent
that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the
Agreement. Each Certificateholder of this Certificate, by its acceptance
hereof, agrees that it will look solely to the income and proceeds from the
Trust Property to the extent available for distribution to such
Certificateholder as provided in the Agreement. This Certificate does not
purport to summarize the Agreement and reference is made to the Agreement
for information with respect to the interests, rights, benefits,
obligations, 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 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 $______ Fractional
Undivided Interest and integral multiples thereof except that one
Certificate may be issued in a different denomination. As provided in the
Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest
in the Trust, as requested by the Certificateholder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee shall require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
Each Certificateholder and Investor, by its acceptance of
this Certificate or a beneficial interest herein, agrees to treat the Trust
as a grantor trust for all U.S. federal, state and local income tax
purposes.
The Trustee, the Registrar, and any agent of the Trustee or
the Registrar may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee,
the Registrar, nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the
Agreement and the Trust created thereby shall terminate upon the
distribution to Certificateholders of all amounts required to be
distributed to them pursuant to the Agreement and the disposition of all
property held as part of the Trust Property.
Any Person acquiring or accepting this Certificate or an
interest herein will, by such acquisition or acceptance, be deemed to have
represented and warranted 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 administrative exemptions.
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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
US AIRWAYS PASS THROUGH TRUST 1999-1C
By: STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------------
Name:
Title:
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 OF CONNECTICUT,
NATIONAL ASSOCIATION, as Trustee
By:
------------------------------------
Name:
Title:
Dated: ___________________
EXHIBIT B
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto:
Insert Taxpayer Identification No.
-------------------
please print or typewrite name and address including zip code of assignee
-------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
-------------------
attorney to transfer said Certificate on the books of the Trustee with full
power of substitution in the premises.
In connection with any transfer of this Certificate
occurring prior to the date that is the earlier of the date of an effective
Registration Statement or ________, ____, the undersigned confirms that
without utilizing any general solicitation or general advertising that:
[Check One]
[ ] (a) this Certificate is being transferred in compliance
with the exemption from registration under the Securities
Act of 1933, as amended, provided by Rule 144A thereunder.
or
[ ] (b) this Certificate is being transferred other than in
accordance with (a) above and documents are being furnished
that comply with the conditions of transfer set forth in
this Certificate and the Agreement.
If neither of the foregoing boxes is checked, the Trustee or other
Registrar shall not be obligated to register this Certificate in the name
of any Person other than the Holder hereof unless and until the conditions
to any such transfer of registration set forth herein and in Section 9.03
of the Trust Supplement shall have been satisfied.
Date: [Name of Transferor]
------------------------------------
NOTE: The signature must correspond with the name as
written upon the face of the within-mentioned
instrument in every particular, without alteration or
any change whatsoever.
Signature Guarantee:
---------------------------
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
[Date]
State Street Bank and Trust Company
of Connecticut, National Association
[Address]
Re: US Airways Pass Through Trust 1999-1C
(the "Trust"), US Airways Pass Through
Certificates, Series 1999-1C (the "Certificates")
Dear Sirs:
In connection with our proposed sale of $_______ Fractional
Undivided Interest of the Certificates, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended, and, accordingly, we represent that:
1. the offer of the Certificates was not made to a person in
the United States;
2. either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any
person acting on our behalf reasonably believed that the
transferee was outside the United States or (b) the
transaction was executed in, on or through the facilities of
a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction
has been pre-arranged with a buyer in the United States;
3. no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b)
or Rule 904(b) of Regulation S, as applicable; and
4. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance
with the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the
case may be.
You and US Airways, Inc. are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby. Terms used
in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------------
Authorized Signature
EXHIBIT D
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
[Date]
State Street Bank and Trust Company of Connecticut,
National Association
[Address]
Re: US Airways Pass Through Trust 1999-1C
(the "Trust"), US Airways Pass Through
Certificates, Series 1999-1C (the "Certificates")
Dear Sirs:
In connection with our proposed purchase of $_________
aggregate principal amount of the Certificates, we confirm that:
1. We understand that any subsequent transfer of the
Certificates is subject to certain restrictions and
conditions set forth in the Pass Through Trust Agreement,
dated as of __________, 1999, as supplemented by Trust
Supplement No. 1999-1C, relating to the Certificates (the
"Pass Through Trust Agreement") and the undersigned agrees
to be bound by, and not to resell, pledge or otherwise
transfer the Certificates except in compliance with, such
restrictions and conditions and the Securities Act of 1933,
as amended (the "Securities Act").
2. We understand that the Certificates have not been registered
under the Securities Act, and that the Certificates may not
be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that
if we should sell any Certificate, we shall do so only (A)
to US Airways, Inc., (B) to a person who the holder
reasonably believes is a "qualified institutional buyer" in
compliance with Rule 144A under the Securities Act, (C) to
an institutional "accredited investor" acquiring $100,000 or
more aggregate principal amount of such Certificate that,
prior to such transfer, furnished to the Trustee a signed
letter containing certain representations and agreements
relating to the restrictions on transfer of this certificate
(the form of which letter can be obtained from the Trustee),
(D) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act (if available), (E) in
accordance with another exemption from the Securities Act or
(F) pursuant to an effective registration statement under
the Securities Act; and we further agree to provide to any
person purchasing any of the Certificates from us a notice
advising such purchaser that resales of the Notes are
restricted as stated herein. We further understand that the
Certificates purchased by us shall bear a legend to the
foregoing effect.
3. We understand that, in connection with any transfer of this
Certificate as a restricted security within two years after
the later of the original issuance of this Certificate or
the last date on which this Certificate was held by US
Airways, Inc., the Trustee, or any affiliate of any such
persons, the holder must check the appropriate box set forth
on the transfer notice attached to the Certificate relating
to the manner of such transfer and submit this Certificate
to the Trustee; provided that the Company and the Trustee
shall have the right prior to any such offer, sale or
transfer pursuant to clause (C) or (E) in paragraph 2 to
require the delivery of an opinion of counsel, certification
and/or other information satisfactory to each of them. We
further understand that the Certificates purchased by us
shall bear a legend to the foregoing effect.
4. We are [an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7)]*/[a non-institutional
"accredited investor" (as defined in Rule 501(a), (4), (5),
(6) or (8)]** of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business
matters as to be [, or have access to financial, legal,
accounting and tax advisors and have consulted the same to
the extent necessary for us to be,]** capable of evaluating
the merits and risks of our investment in the Certificates
and we and any accounts for which we are acting are each
able to bear the economic risk of our or its investment.
5. We are acquiring the Certificates purchased by us for our
own account [or for one or more accounts (each of which is
an institutional "accredited investor") as to each of which
we exercise sole investment discretion.]*
-----------
* For institutional accredited investors only.
** For non-institutional accredited investors only.
You and US Airways, Inc. are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
-----------------------------
Authorized Signature
EXHIBIT E
[DTC Letter of Representations]
EXHIBIT F
OTHER SPECIAL TRANSFER PROVISIONS
The following provisions shall supplement and, to the extent
inconsistent with, shall supercede and replace Sections 3.04 and 3.05 of
the Basic Agreement.
(a) Transfers other than to QIBs, IAIs, or pursuant to
Regulation S. The following provisions shall apply with respect to the
registration of any proposed transfer of an Applicable Certificate bearing,
both before and after the transfer, a Private Placement Legend (a
"Restricted Certificate") other than to any QIB, IAI which is not a QIB, or
pursuant to Regulation S:
(i) The Registrar shall register the transfer of any
such Restricted Certificate, if the proposed transferee has
delivered to the Registrar a letter substantially in the form of
Exhibit D hereto, and if (x) the proposed transferee agrees that it
will not within two years after the later of the original issuance
of this certificate or the last date on which this certificate was
owned by US Airways, Inc., the Trustee or any affiliate of any such
person resell or otherwise transfer this certificate except (a) to
US Airways, Inc., (b) to a person who the transferee reasonably
believes is a Qualified Institutional Buyer in compliance with Rule
144A under the Securities Act, (c) to an Institutional Accredited
Investor acquiring $100,000 or more aggregate principal amount of
such Certificate that, prior to such transfer, furnished to the
Trustee a signed letter containing certain representations and
agreements relating to the restrictions on transfer of this
Certificate (the form of which letter substantially in the form of
Exhibit D), (d) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available), (e)
in accordance with another exemption from the Securities Act or (f)
pursuant to an effective registration statement under the
Securities Act; (y) the proposed transferee agrees that it will
deliver to each person to whom this certificate is transferred
(other than pursuant to clauses (d) and (f) above) a notice
substantially to the effect of this legend; and (z) the proposed
transferor and transferee have delivered to the Registrar such
other documents as are required by the Private Placement Legend.
(ii) If the proposed transferor is an Agent Member
holding a beneficial interest in a Global Certificate, upon receipt
by the Registrar of (x) the documents, if any, required by
paragraph (i) and (y) instructions given in accordance with DTC's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date of the transfer and a decrease in the
principal amount of such Global Certificate in an amount equal to
the Fractional Undivided Interest represented by the beneficial
interest in such Global Certificate to be transferred, and the
Company shall execute, and the Trustee shall authenticate and
deliver to the transferor or at its direction, one or more Physical
Certificates of like class, tenor and amount, or an interest in a
Restricted Certificate (other than a Rule 144A Global Certificate).
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer to a QIB:
(i) The Registrar shall register the transfer if (x)
such transfer is being made by a proposed transferor who has
checked the box provided for on the Form of Transfer Notice
attached to the Initial Certificate or Private Exchange Certificate
stating, or has otherwise advised the Trustee and the Registrar in
writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who the transferor
reasonably believes is a QIB and has notified the transferee that
the transferor is relying upon its foregoing representations in
order to claim the exemption from registration provided by Rule
144A; and (y) the proposed transferor and transferee have delivered
to the Registrar such other documents as are required by the
Private Placement Legend.
(ii) If the Certificate to be transferred is a
Physical Certificate, upon receipt by the Registrar of the
documents referred to in clause (i) above and instructions given in
accordance with DTC's and the Registrar's procedures therefor, the
Registrar shall reflect on its books and records the date of such
transfer and an increase in the Fractional Undivided Interest of
the Rule 144A Global Certificate in an amount equal to the
Fractional Undivided Interest of the Physical Certificates being
transferred, and the Trustee shall cancel such Physical
Certificates. If the proposed transfer is a transfer of a
beneficial interest in one Global Certificate, the provisions of
paragraph (e) below shall apply.
(c) Transfers to IAIs. The following provisions shall apply
with respect to the registration of any proposed transfer of, or an
interest in, a Restricted Certificate (other than the IAI Global
Certificate) to an IAI who is not a QIB:
(i) The Registrar shall register the transfer if the
proposed transferee has delivered to the Registrar a letter
substantially in the form of Exhibit D and the proposed transferor
and transferee have delivered to the Registrar such other documents
as are required by the Private Placement Legend.
(ii) If the Certificate to be transferred is a
Physical Certificate, upon receipt by the Registrar of the
documents referred to in clause (i) above and instructions given in
accordance with DTC's and the Registrar's procedures therefor, the
Registrar shall reflect on its books and records the date of such
transfer and an increase in the Fractional Undivided Interest of
the IAI Global Certificate in an amount equal to the Fractional
Undivided Interest of the Physical Certificates being transferred,
and the Trustee shall cancel such Physical Certificates. If the
proposed transfer is a transfer of a beneficial interest in one
Global Certificate to a beneficial interest in another Global
Certificate, the provisions of paragraph (e) below shall apply.
(d) Transfers to Non-U.S. Persons. The following provisions
shall apply with respect to any registration of any transfer of an Initial
Certificate in accordance with Regulation S:
(i) The Registrar shall register any proposed
transfer to any Non-U.S. Person if the Certificate to be
transferred is a Physical Certificate or an interest in the Global
Certificate, upon receipt of a certificate substantially in the
form of Exhibit C from the proposed transferor. The Registrar shall
promptly send a copy of such certificate to the Company.
(ii) Upon receipt by the Registrar of (x) the
documents, if any, required by clause (i) and (y) instructions in
accordance with DTC's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date of such transfer
and a decrease in the Fractional Undivided Interest of such Global
Certificate in an amount equal to the Fractional Undivided Interest
represented by the beneficial interest in such Global Certificate
to be transferred, and (B) upon receipt by the Registrar of
instructions given in accordance with DTC's and the Registrar's
procedures, the Registrar shall reflect on its books and records
the date and an increase in the Fractional Undivided Interest of
the Regulation S Global Certificate in an amount equal to the
Fractional Undivided Interest of the Physical Certificate or the
Regulation S Global Certificate to be transferred, and the Trustee
shall cancel the Physical Certificate if any, so transferred or
decrease the Fractional Undivided Interest of such Global
Certificate.
(iii) Upon a sale or transfer after the expiration of
the "restricted period" as defined in Regulation S of any
Restricted Certificate acquired pursuant to Regulation S, such
Certificate shall no longer bear the Private Placement Legend.
(e) Transfers of and between Global Certificates. (i)
Transfers of any Global Certificate shall be limited to transfers of such
Global Certificate in whole, but not in part, to nominees of DTC, its
successor or such successor's nominees. Beneficial interests in the Global
Certificate may be transferred in accordance with the rules and procedures
of DTC and the provisions of Section 9.03 and this Exhibit F. If the
proposed transfer is a transfer of a beneficial interest in one Global
Certificate to a beneficial interest in another Global Certificate, the
Registrar shall reflect on its books and records the date of such transfer
and an increase in the principal amount of the Global Certificate to which
such interest is being transferred in an amount equal to the principal
amount of the interest to be so transferred, and the Registrar shall
reflect on its books and records the date of such transfer and a
corresponding decrease in the principal amount of the Global Certificate
from which such interest is being transferred.