Exhibit 4(a)(iii)
TRUST SUPPLEMENT No. 1999-1B
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, 0000
XX Xxxxxxx Xxxx Through Trust 1999-1B
9.01% US Airways
Pass Through Certificates,
Series 1999-1B
This Trust Supplement No. 1999-1B, 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 obtained commitments from AVSA 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 1999-1B (the "Applicable Trust") for the benefit
of the Applicable Certificateholders, and the initial Applicable
Certificateholders as the grantors of the Applicable Trust, by their
respective acceptances of the Applicable Certificates, join in the creation
of the Applicable Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Applicable
Trust will evidence fractional undivided interests in the Applicable Trust
and will convey no rights, benefits or interests in respect of any property
other than the Trust Property except for those Certificates to which an
Escrow Receipt has been affixed;
WHEREAS, the Escrow Agent, the Trustee, the Escrow Paying
Agent, and the Underwriters have contemporaneously herewith entered into an
Escrow Agreement with the Escrow Paying Agent pursuant to which the
Underwriters have delivered to the Escrow Agent the proceeds from the sale
of the Applicable Certificates and have irrevocably instructed the Escrow
Agent to withdraw and pay funds from such proceeds upon request and proper
certification by the Trustee to purchase Equipment Notes as the Aircraft
are delivered by AVSA under the Aircraft Purchase Agreement from time to
time prior to the Delivery Period Termination Date;
WHEREAS, the Escrow Agent on behalf of the Applicable
Certificateholders has contemporaneously herewith entered into a Deposit
Agreement with the Depositary under which the Deposits referred to therein
will be made and from which it will withdraw funds to allow the Trustee to
purchase Equipment Notes from time to time prior to the Delivery Period
Termination Date;
WHEREAS, pursuant to the terms and conditions of the Basic
Agreement as supplemented by this Trust Supplement (the "Agreement") and
the Note Purchase Agreement, the Trustee on behalf of the Applicable Trust,
using funds withdrawn under the Escrow Agreement, shall purchase one or
more Equipment Notes having the same interest rate as, and final maturity
date not later than the final Regular Distribution Date of, the Applicable
Certificates issued hereunder and, in each case, shall hold such Equipment
Notes in trust for the benefit of the Applicable Certificateholders;
WHEREAS, all of the conditions and requirements necessary to
make this Trust Supplement, when duly executed and delivered, a valid,
binding and legal instrument in accordance with its terms and for the
purposes herein expressed, have been done, performed and fulfilled, and the
execution and delivery of this Trust Supplement in the form and with the
terms hereof have been in all respects duly authorized; and
WHEREAS, this Trust Supplement is subject to the provisions
of the Trust Indenture Act of 1939, as amended, and shall, to the extent
applicable, be governed by such provisions;
NOW THEREFORE, in consideration of the premises herein, it
is agreed between the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. The Certificates. There is hereby created a
series of Certificates to be issued under the Agreement to be distinguished
and known as "9.01% US Airways Pass Through Certificates, Series 1999-1B"
(hereinafter defined as the "Applicable Certificates"). Each Applicable
Certificate represents a fractional undivided interest in the Applicable
Trust created hereby. The Applicable Certificates shall be the only
instruments evidencing a fractional undivided interest in the Applicable
Trust.
The terms and conditions applicable to the Applicable
Certificates are as follows:
(a) The aggregate principal amount of the Applicable
Certificates that shall be authenticated under the Agreement
(except for Applicable Certificates authenticated and delivered
pursuant to Sections 3.03, 3.04 and 3.06 of the Basic Agreement) is
$83,384,000.
(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 B.
(f) The Applicable Certificates are subject to the
Intercreditor Agreement, the Deposit Agreement and the Escrow
Agreement.
(g) The Applicable Certificates will have the benefit of the
Liquidity Facility.
(h) The Responsible Party is the Company.
(i) The particular "sections of the Note Purchase
Agreement", for purposes of clause (3) of Section 7.07 of the Basic
Agreement, are Section 6(b) (with respect to Owned Aircraft) and
Section 6(c) (with respect to Leased Aircraft) of the relevant
Participation Agreement attached as an exhibit to the Note Purchase
Agreement.
ARTICLE II
DEFINITIONS
Section 2.01. Definitions. For all purposes of the Basic
Agreement as supplemented by this Trust Supplement, the following
capitalized terms have the following meanings:
Agreement: Has the meaning specified in the recitals hereto.
Aircraft: Means each of the New Aircraft or Substitute
Aircraft in respect of which a Participation Agreement is entered
into in accordance with the Note Purchase Agreement.
Aircraft Purchase Agreement: Has the meaning specified in
the Note Purchase Agreement.
Applicable Certificateholder: Means the Person in whose name
an Applicable Certificate is registered on the Register for the
Applicable Certificates.
Applicable Delivery Date: Has the meaning specified in
Section 5.01(b) of this Trust Supplement.
Applicable Participation Agreement: Has the meaning
specified in Section 5.01(b) of this Trust Supplement.
AVSA: Means AVSA, S.A.R.L.
Business Day: Means any day other than a Saturday, a Sunday
or a day on which commercial banks are required or authorized to
close in New York, New York, Salt Lake City, Utah, Pittsburgh,
Pennsylvania, or, so long as any Applicable Certificate is
outstanding, the city and state in which the Trustee or any Loan
Trustee maintains its Corporate Trust Office or receives and
disburses funds.
Cut-off Date: Means the earlier of (a) the Delivery Period
Termination Date and (b) the date on which a Triggering Event
occurs.
Delivery Date: Has the meaning specified in the
Participation Agreements.
Delivery Notice: Has the meaning specified in the
Participation Agreements.
Delivery Period Termination Date: Means the earlier of (a)
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.
Deposits: Has the meaning specified in the Deposit Agreement.
Deposit Agreement: Means the Deposit Agreement dated 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.
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 August 31, 1999 relating to the Applicable
Certificates, among the Escrow Agent, the Escrow Paying Agent, the
Trustee and Underwriters, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its
terms.
Escrow Paying Agent: Means the Person acting as paying agent
under the Escrow Agreement.
Escrow Receipt: Means the receipt substantially in the form
annexed to the Escrow Agreement representing a fractional undivided
interest in the funds held in escrow thereunder.
Final Withdrawal: Has the meaning specified in the Escrow
Agreement.
Final Withdrawal Date: Has the meaning specified in the
Escrow Agreement.
Final Withdrawal Notice: Has the meaning specified in
Section 5.02 of this Trust Supplement.
Indenture: Means each of the separate trust indentures and
mortgages relating to the Aircraft, each as specified or described
in a Delivery Notice delivered pursuant to the related
Participation Agreement, in each case as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with its terms.
Intercreditor Agreement: Means the Intercreditor Agreement
dated 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 the Underwriters together with all
subsequent beneficial owners of the Applicable Certificates.
Lease: Means, with respect to each Leased Aircraft, the
lease between an Owner Trustee, as the lessor, and the Company, as
the lessee, referred to in the related Indenture, as such lease may
be amended, supplemented or otherwise modified in accordance with
its terms.
Leased Aircraft: Has the meaning specified in the third
recital to this Trust Supplement.
Liquidity Facility: Means, initially, the Revolving Credit
Agreement dated 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.
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 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 certain 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.
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 1999- 1C dated
the date hereof relating to US Airways Pass Through Trust 1999-1C.
Other Trustees: Means the trustees under the Other
Agreements, and any successor or other trustee appointed as
provided therein.
Other Trusts: Means the US Airways Pass Through Trust
1999-1A and the US Airways Pass Through Trust 1999-1C, each created
on the date hereof.
Owned Aircraft: Has the meaning specified in the third
recital to this Trust Supplement.
Owner Participant: With respect to any Equipment Note
relating to a Leased Aircraft, means the "Owner Participant" as
referred to in the Indenture pursuant to which such Equipment Note
is issued and any permitted successor or assign of such Owner
Participant; and Owner Participants at any time of determination
means all of the Owner Participants thus referred to in the
Indentures.
Owner Trustee: With respect to any Equipment Note relating
to a Leased Aircraft, means the "Owner Trustee", as referred to in
the Indenture pursuant to which such Equipment Note is issued, not
in its individual capacity but solely as trustee; and Owner
Trustees means all of the Owner Trustees party to any of the
Indentures.
Participation Agreement: Means each Participation Agreement
to be entered into by the Trustee pursuant to the Note Purchase
Agreement, as the same may be amended, supplemented or otherwise
modified in accordance with its terms.
Pool Balance: Means, as of any date, (i) the original
aggregate face amount of the Applicable Certificates less (ii) the
aggregate amount of all payments made in respect of such Applicable
Certificates or in respect of Deposits relating to the Applicable
Trust other than payments made in respect of interest or premium
thereon or reimbursement of any costs or expenses incurred in
connection therewith. The Pool Balance as of any Distribution Date
will be computed after giving effect to any special distribution
with respect to unused Deposits, payment of principal of the
Equipment Notes or payment with respect to other Trust Property and
the distribution thereof to be made on that date.
Pool Factor: Means, as of any Distribution Date, the
quotient (rounded to the seventh decimal place) computed by
dividing (i) the Pool Balance by (ii) the original aggregate face
amount of the Applicable Certificates. The Pool Factor as of any
Distribution Date shall be computed after giving effect to any
special distribution with respect to unused Deposits, payment of
principal of the Equipment Notes or other Trust Property and the
distribution thereof to be made on that date.
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)
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.
Triggering Event: Has the meaning assigned to such term in
the Intercreditor Agreement.
Trust Property: Means (i) subject to the Intercreditor
Agreement, the Equipment Notes held as the property of the
Applicable Trust, all monies at any time paid thereon and all
monies due and to become due thereunder, (ii) funds from time to
time deposited in the Certificate Account and the Special Payments
Account and, subject to the Intercreditor Agreement, any proceeds
from the sale by the Trustee pursuant to Article VI of the Basic
Agreement of any Equipment Note and (iii) all rights of the
Applicable Trust and the Trustee, on behalf of the Applicable
Trust, under the Intercreditor Agreement, the Escrow Agreement, the
Note Purchase Agreement and the Liquidity Facility, including,
without limitation, all rights to receive certain payments
thereunder, and all monies paid to the Trustee on behalf of the
Applicable Trust pursuant to the Intercreditor Agreement or the
Liquidity Facility, provided that rights with respect to the
Deposits or under the Escrow Agreement, except for the right to
direct withdrawals for the purchase of Equipment Notes to be held
herein, will not constitute Trust Property.
Underwriters: Means, collectively, Credit Suisse First
Boston Corporation, Xxxxxxx, Xxxxx & Co., Xxxxxxxxx Lufkin &
Xxxxxxxx Securities Corporation, Deutsche Bank Securities Inc., and
Xxxxxxx Xxxxx Barney Inc..
Underwriting Agreement: Means the Underwriting Agreement
dated August 24, 1999 among the Underwriters and the Company, as
the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms.
ARTICLE III
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. Additions to Article IV of the Basic
Agreement. In addition to the provisions of Article IV of the Basic
Agreement, the following provisions shall apply to the Applicable Trust:
(a) Upon the payment of Special Redemption Premium to the
Trustee under the Note Purchase Agreement, the Trustee, upon
receipt thereof, shall immediately deposit the aggregate amount of
such Special Redemption Premium in the Special Payments Account;
(b) The distribution of amounts of Special Redemption
Premium as provided for in Section 4.02(b) of the Basic Agreement
shall be on the Special Distribution Date with respect to such
Special Payment or as soon thereafter as the Trustee has confirmed
receipt of the related Special Redemption Premium;
(c) In the event of the payment of a Special Redemption
Premium by the Company to the Trustee under the Note Purchase
Agreement, the notice provided for in Section 4.02(c) of the Basic
Agreement shall be mailed, together with the notice by the Escrow
Paying Agent under Section 2.06 of the Escrow Agreement, not less
than 15 days prior to the Special Distribution Date for such
amount, which Special Distribution Date shall be the Final
Withdrawal Date; and
(d) The last sentence of the first paragraph of Section
4.02(c) of the Basic Agreement shall apply equally if the amount of
Special Redemption Premium, if any, has not been calculated at the
time the Trustee mails notice of a Special Payment.
Section 3.02. Statements to Applicable Certificateholders.
(a) On each Distribution Date, the Trustee will include with each
distribution to Applicable Certificateholders of a Scheduled Payment or
Special Payment, as the case may be, a statement setting forth the
information provided below (in the case of a Special Payment, including any
Special Redemption Premium, reflecting in part the information provided by
the Escrow Paying Agent under the Escrow Agreement). Such statement shall
set forth (per $1,000 face amount Applicable Certificate as to (ii), (iii),
(iv) and (v) below) the following information:
(i) the aggregate amount of funds distributed on such
Distribution Date under the Agreement and under the Escrow
Agreement, indicating the amount allocable to each source;
(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 to purchase,
for the purchase price set forth in Section 6.01(b) of the Basic Agreement,
all, but not less than all, of the Class A Certificates upon ten days'
written notice to the Class A Trustee and each other Applicable
Certificateholder, provided that (i) if prior to the end of such ten-day
period any other Applicable Certificateholder notifies such purchasing
Applicable Certificateholder that such other Applicable Certificateholder
wants to participate in such purchase, then such other Applicable
Certificateholder may join with the purchasing Applicable Certificateholder
to purchase all, but not less than all, of the Class A Certificates pro
rata based on the Fractional Undivided Interest in the Applicable Trust
held by each such Applicable Certificateholder and (ii) if prior to the end
of such ten-day period any other Applicable Certificateholder fails to
notify the purchasing Applicable Certificateholder of such other Applicable
Certificateholder's desire to participate in such a purchase, then such
other Applicable Certificateholder shall lose its right to purchase the
Class A Certificates pursuant to this Section 4.01(a).
(b) By acceptance of its Applicable Certificate, each
Applicable Certificateholder agrees that at any time after the occurrence
and during the continuation of a Triggering Event, each Class C
Certificateholder shall have the right (which shall not expire upon any
purchase of the Class A Certificates pursuant to clause (a) above) to
purchase all, but not less than all, of the Applicable Certificates and the
Class A Certificates upon ten days' written notice to the Trustee, the
Class A Trustee and each other Class C Certificateholder, provided that (A)
if prior to the end of such ten-day period any other Class C
Certificateholder notifies such purchasing Class C Certificateholder that
such other Class C Certificateholder wants to participate in such purchase,
then such other Class C Certificateholder may join with the purchasing
Class C Certificateholder to purchase all, but not less than all, of the
Applicable Certificates and the Class A Certificates pro rata based on the
Fractional Undivided Interest in the Class C Trust held by each such Class
C Certificateholder and (B) if prior to the end of such ten-day period any
other Class C Certificateholder fails to notify the purchasing Class C
Certificateholder of such other Class C Certificateholder's desire to
participate in such a purchase, then such other Class C Certificateholder
shall lose its right to purchase the Applicable Certificates pursuant to
this Section 4.01(b).
The purchase price with respect to the Applicable
Certificates shall be equal to the Pool Balance of the Applicable
Certificates, together with accrued and unpaid interest thereon to the date
of such purchase, without premium, but including any other amounts then due
and payable to the Applicable Certificateholders under this Agreement, the
Intercreditor Agreement, the Escrow Agreement or any Note Document or on or
in respect of the Applicable Certificates; provided, however, that (i) if
such purchase occurs after the record date specified in Section 2.03(b) of
the Escrow Agreement relating to the distribution of unused Deposits and
accrued and unpaid interest thereunder, such purchase price shall be
reduced by the aggregate amount of unused Deposits and interest to be
distributed under the Escrow Agreement (which deducted amounts shall remain
distributable to, and may be retained by, the Applicable Certificateholder
as of such Record Date) and (ii) if such purchase occurs after a Record
Date, such purchase price shall be reduced by the amount to be distributed
hereunder on the related Distribution Date (which deducted amounts shall
remain distributable to, and may be retained by, the Applicable
Certificateholder as of such Record Date); provided further that no such
purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is purchasing, pursuant to the terms of this
Agreement and the Other Agreements, the Applicable Certificates and the
Class A Certificates which are senior to the securities held by such
purchaser(s). Each payment of the purchase price of the Applicable
Certificates referred to in the first sentence hereof shall be made to an
account or accounts designated by the Trustee and each such purchase shall
be subject to the terms of this Section 4.01(b). Each Applicable
Certificateholder agrees by its acceptance of its Applicable Certificate
that it will, subject to Section 3.04 of the Basic Agreement, upon payment
from such Class C Certificateholder(s), of the purchase price set forth in
the first sentence of this paragraph, forthwith sell, assign, transfer and
convey to the purchaser(s) thereof (without recourse, representation or
warranty of any kind except for its own acts), all of the right, title,
interest and obligation of such Applicable Certificateholder in this
Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor
Agreement, the Liquidity Facility, the Note Documents and all Applicable
Certificates and Escrow Receipts held by such Applicable Certificateholder
(excluding all right, title and interest under any of the foregoing to the
extent such right, title or interest is with respect to an obligation not
then due and payable as respects any action or inaction or state of affairs
occurring prior to such sale) and the purchaser shall assume all of such
Applicable Certificateholder's obligations under this Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the
Liquidity Facility, the Note Documents and all such Applicable Certificates
and Escrow Receipts. The Applicable Certificates will be deemed to be
purchased on the date payment of the purchase price is made notwithstanding
the failure of the Applicable Certificateholders to deliver any Applicable
Certificates and, upon such a purchase, (i) the only rights of the
Applicable Certificateholders will be to deliver the Applicable
Certificates to the purchaser(s) and receive the purchase price for such
Applicable Certificates and (ii) if the purchaser(s) shall so request, such
Applicable Certificateholder will comply with all the provisions of Section
3.04 of the Basic Agreement to enable new Applicable Certificates to be
issued to the purchaser in such denominations as it shall request. All
charges and expenses in connection with the issuance of any such new
Applicable Certificates shall be borne by the purchaser thereof.
As used in this Section 4.01(a), the terms "Class A
Certificateholder", "Class A Trust", "Class A Certificate", "Class A
Trustee", "Class C Certificateholder", "Class C Trust", "Class C
Certificate" and "Class C Trustee" shall have the respective meanings
assigned to such terms in the Intercreditor Agreement.
(b) This Section 4.01 supersedes and replaces Section
6.01(b) of the Basic Agreement.
ARTICLE V
THE TRUSTEE
Section 5.01. Delivery of Documents; Delivery Dates. (a) The
Trustee is hereby directed (i) to execute and deliver the Intercreditor
Agreement, the Escrow Agreement and the Note Purchase Agreement, each in
the form delivered to the Trustee by the Company and (ii) subject to the
respective terms thereof, to perform its obligations thereunder. Upon
request of the Company and the satisfaction or waiver of the closing
conditions specified in the Underwriting Agreement, the Trustee shall
execute, deliver, authenticate, issue and sell Applicable Certificates in
authorized denominations equaling in the aggregate the amount set forth,
with respect to the Applicable Trust, in Schedule I to the Underwriting
Agreement evidencing the entire ownership interest in the Applicable Trust,
which amount equals the maximum aggregate principal amount of Equipment
Notes which may be purchased by the Trustee pursuant to the 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) and
Section 5.01(c) hereof supersede and replace the provisions of Section 2.02
of the Basic Agreement (which are inapplicable to the Trust), and all
provisions of the Basic Agreement relating to 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, (i) the
Trustee shall give the Escrow Agent notice that the Trustee's obligation to
purchase Equipment Notes under the Note Purchase Agreement has terminated
and instruct the Escrow Agent to provide a notice of Final Withdrawal to
the Depositary substantially in the form of Exhibit B to the Deposit
Agreement (the "Final Withdrawal Notice") and (ii) the Trustee will make a
demand upon the Company under the Note Purchase Agreement for an amount
equal to the Special Redemption Premium, such payment to be made on the
Final Withdrawal Date.
Section 5.03. The Trustee. (a) Subject to Section 5.04 of
this Trust Supplement and Section 7.15 of the Basic Agreement, the Trustee
shall not be responsible in any manner whatsoever for or in respect of the
validity or sufficiency of this Trust Supplement, the Deposit Agreement or
the Escrow Agreement or the due execution hereof or thereof by the Company
or the other parties thereto (other than the Trustee), or for or in respect
of the recitals and statements contained herein or therein, all of which
recitals and statements are made solely by the Company.
(b) Except as herein otherwise provided, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed by the Trustee by reason of this Trust Supplement other than as set
forth in the Basic Agreement, and this Trust Supplement is executed and
accepted on behalf of the Trustee, subject to all the terms and conditions
set forth in the Basic Agreement, upon the effectiveness thereof, as fully
to all intents as if the same were herein set forth at length.
Section 5.04. Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants that:
(a) the Trustee has full power, authority and legal right to
execute, deliver and perform this Trust Supplement, the
Intercreditor Agreement, the Escrow Agreement and the Note
Documents to which it is a party and has taken all necessary action
to authorize the execution, delivery and performance by it of this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement
and the Note Documents to which it is a party;
(b) the execution, delivery and performance by the Trustee
of this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement and the Note Documents to which it is a party (i) will
not violate any provision of any United States federal law or the
law of the state of the United States where it is located governing
the banking and trust powers of the Trustee or any order, writ,
judgment, or decree of any court, arbitrator or governmental
authority applicable to the Trustee or any of its assets, (ii) will
not violate any provision of the articles of association or by-laws
of the Trustee, and (iii) will not violate any provision of, or
constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any
properties included in the Trust Property pursuant to the
provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or
lien could reasonably be expected to have an adverse effect on the
Trustee's performance or ability to perform its duties hereunder or
thereunder or on the transactions contemplated herein or therein;
(c) the execution, delivery and performance by the Trustee
of this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement and the Note Documents to which it is a party will not
require the authorization, consent, or approval of, the giving of
notice to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or agency of
the United States or the state of the United States where it is
located regulating the banking and corporate trust activities of
the Trustee; and
(d) this Trust Supplement, the Intercreditor Agreement, the
Escrow Agreement and the Note Documents to which it is a party have
been, or will be, as applicable, duly executed and delivered by the
Trustee and constitute, or will constitute, as applicable, the
legal, valid and binding agreements of the Trustee, enforceable
against it in accordance with their respective terms; provided,
however, that 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 Xxxxxx X. Xxxxxxx, Xx., 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
THE COMPANY
Section 8.01. Consolidation, Mergers, 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) 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"
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Basic Agreement Ratified. Except and so far as
herein expressly provided, all of the provisions, terms and conditions of
the Basic Agreement are in all respects ratified and confirmed; and the
Basic Agreement and this Trust Supplement shall be taken, read and
construed as one and the same instrument.
Section 9.02. GOVERNING LAW. THIS AGREEMENT AND THE
APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 9.03. Execution in Counterparts. This Trust
Supplement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but
one and the same instrument.
Section 9.04. Intention of Parties. The parties hereto
intend that the Applicable Trust be classified for U.S. federal income tax
purposes as a grantor trust under Subpart E, Part I of Subchapter J of the
Internal Revenue Code of 1986, as amended, and not as a trust or
association taxable as a corporation or as a partnership. Each Applicable
Certificateholder and Investor, by its acceptance of its Applicable
Certificate or a beneficial interest therein, agrees to treat the
Applicable Trust as a grantor trust for all U.S. federal, state and local
income tax purposes. The powers granted and obligations undertaken pursuant
to the Agreement shall be so construed so as to further such intent.
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/ Xxxxxxx X. XxXxxxxx
_____________________________
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President and
Treasurer
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as
Trustee
By:/s/ Xxxx X. Xxxxxxx
_____________________________
Name: Xxxx X. Xxxxxxx
Title:Assistant Secretary
EXHIBIT A
FORM OF CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.*
US AIRWAYS ____________ PASS THROUGH TRUST
*This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company.
Pass Through Certificate, Series __________
Final Expected Regular Distribution Date: _____,
____ evidencing a fractional undivided interest in
a trust, the property of which includes certain
equipment notes each secured by Aircraft owned by
or leased to US Airways, Inc.
Certificate
No.______ $__________ Fractional Undivided Interest representing
._____% of the Trust per $1,000 face amount
THIS CERTIFIES THAT __________________, for value received,
is the registered owner of a $___________ (________ dollars)
Fractional Undivided Interest in the US Airways Pass Through Trust,
Series [___] (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 (the "Basic Agreement"), between the Trustee, US
Airways, Inc., a corporation incorporated under Delaware law (the
"Company") and US Airways Group, Inc., a corporation incorporated
under Delaware law (the "Parent"), as supplemented by Trust
Supplement No. _______ thereto 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 one of the duly authorized Certificates
designated as "___% US Airways Pass Through Certificate, Series
____" (herein called the "Certificates"). This Certificate is
issued under and is subject to the terms, provisions and conditions
of the Agreement. By virtue of its acceptance hereof, the
Certificateholder of this Certificate assents to and agrees to be
bound by the provisions of the Agreement and any related
Intercreditor Agreement. The property of the Trust includes certain
Equipment Notes and all rights of the Trust to receive any payments
under any Intercreditor Agreement or Liquidity Facility (the "Trust
Property"). Each issue of the Equipment Notes is or will be secured
by, among other things, a security interest in 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 any related Intercreditor Agreement, from funds then available
to the Trustee, there will be distributed on each __________ and
___________ (a "Regular Distribution Date"), commencing on
_________, ____, 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 any related 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.
Distributions on this Certificate will be made by the
Trustee by check mailed to the Person entitled thereto, without the
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, 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 $1,000
Fractional Undivided Interest and integral multiples thereof except
that one Certificate may be issued in a different denomination. As
provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same
aggregate Fractional Undivided Interest in the Trust, as requested
by the Certificateholder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee shall require payment of a
sum sufficient to cover any tax or governmental charge payable in
connection therewith.
Each Certificateholder and Investor, by its acceptance of
this Certificate or a beneficial interest herein, agrees to treat
the Trust as a grantor trust for all U.S. federal, state and local
income tax purposes.
The Trustee, the Registrar, and any agent of the Trustee or
the Registrar may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the
Trustee, the Registrar, nor any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the
Agreement and the Trust created thereby shall terminate upon the
distribution to Certificateholders of all amounts required to be
distributed to them pursuant to the Agreement and the disposition
of all property held as part of the Trust Property.
Any Person acquiring or accepting this Certificate or an
interest herein will, by such acquisition or acceptance, be deemed
to have represented and warranted 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
By: STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as
Trustee
By:_____________________________
Title:__________________________
Dated:__________________________
FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as
Trustee
By:______________________________
Authorized Officer
EXHIBIT B
[DTC Letter of Representations]
