EXHIBIT 4.7
EXECUTION
ESCROW AND PAYING AGENT AGREEMENT
(Class G)
Dated as of January 26, 2001
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Escrow Agent
XXXXXXX XXXXX XXXXXX INC.,
CREDIT SUISSE FIRST BOSTON CORPORATION,
CHASE SECURITIES INC.,
CREDIT LYONNAIS SECURITIES (USA) INC.
and
DEUTSCHE BANC ALEX. XXXXX INC.
as Underwriters
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
US Airways Pass Through Trust 2001-1G
as Pass Through Trustee
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
as Paying Agent
TABLE OF CONTENTS
Page
SECTION 1. Escrow Agent.....................................................2
Section 1.1 Appointment of Escrow Agent................................2
Section 1.2 Instruction, Etc...........................................3
Section 1.3 Initial Escrow Amount; Issuance of Escrow Receipts.........4
Section 1.4 Payments to Receiptholders.................................4
Section 1.5 Mutilated, Destroyed, Lost or Stolen Escrow Receipt........4
Section 1.6 Additional Escrow Amounts..................................5
Section 1.7 Resignation or Removal of Escrow Agent.....................5
Section 1.8 Persons Deemed Owners......................................6
Section 1.9 Further Assurances.........................................6
SECTION 2. Paying Agent.....................................................6
Section 2.1 Appointment of Paying Agent................................6
Section 2.2 Establishment of Paying Agent Account......................6
Section 2.3 Payments from Paying Agent Account.........................6
Section 2.4 Withholding Taxes..........................................7
Section 2.5 Resignation or Removal of Paying Agent.....................8
Section 2.6 Notice of Final Withdrawal.................................8
SECTION 3. Payments.........................................................8
SECTION 4. Other Actions....................................................9
SECTION 5. Representations and Warranties of the Escrow Agent...............9
SECTION 6. Representations and Warranties of the Paying Agent..............10
SECTION 7. Indemnification.................................................11
SECTION 8. Amendment, Etc..................................................11
SECTION 9. Notices.........................................................12
SECTION 10. Transfer........................................................12
SECTION 11. Entire Agreement................................................12
SECTION 12. Governing Law...................................................12
SECTION 13. WAIVER OF JURY TRIAL RIGHT......................................13
SECTION 14. Counterparts....................................................13
SECTION 15. Subrogation and Third Party Beneficiary.........................13
EXHIBITS
Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
This ESCROW AND PAYING AGENT AGREEMENT (Class G) dated as of
January 26, 2001 (as amended, modified or supplemented from time to time,
this "Agreement") among FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, as Escrow Agent (in such capacity, together
with its successors in such capacity, the "Escrow Agent"); Xxxxxxx Xxxxx
Barney Inc., Credit Suisse First Boston Corporation, Chase Securities Inc.,
Credit Lyonnais Securities (USA) Inc. and Deutsche Banc Alex. Xxxxx Inc.,
as Underwriters of the Certificates referred to below (the "Underwriters"
and together with their respective transferees and assigns as registered
owners of the Certificates, the "Investors") under the Underwriting
Agreement referred to below; STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, a national banking association, not in
its individual capacity except as otherwise expressly provided herein, but
solely as trustee (in such capacity, together with its successors in such
capacity, the "Pass Through Trustee") under the Pass Through Trust
Agreement referred to below; and STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, a national banking association, as
paying agent hereunder (in such capacity, together with its successors in
such capacity, the "Paying Agent").
W I T N E S S E T H:
WHEREAS, US Airways, Inc. ("US Airways") and the Pass Through
Trustee have entered into a Trust Supplement, dated as of the date hereof
(the "Trust Supplement"), to the Pass Through Trust Agreement, dated as of
October 5, 2000 (together, as amended, modified or supplemented from time
to time in accordance with the terms thereof, the "Pass Through Trust
Agreement") relating to US Airways Pass Through Trust 2001-1G (the "Pass
Through Trust") pursuant to which the US Airways Pass Through Trust, Series
2001-1G Certificates referred to therein (the "Certificates") are being
issued;
WHEREAS, US Airways and the Underwriters have entered into an
Underwriting Agreement dated as of January 19, 2001 (as amended, modified
or supplemented from time to time in accordance with the terms thereof, the
"Underwriting Agreement") pursuant to which the Pass Through Trustee will
issue and sell the Certificates to the Underwriters;
WHEREAS, US Airways, the Pass Through Trustee and certain other
persons concurrently herewith are entering into the Note Purchase
Agreement, dated as of the date hereof (the "Note Purchase Agreement"),
pursuant to which the Pass Through Trustee has agreed to acquire from time
to time on or prior to the Delivery Period Termination Date (as defined in
the Note Purchase Agreement) equipment notes (the "Equipment Notes") issued
to finance the acquisition of aircraft by US Airways, as lessee or as
owner, utilizing a portion of the proceeds from the sale of the
Certificates (the "Net Proceeds");
WHEREAS, the Underwriters and the Pass Through Trustee intend
that the Net Proceeds be held in escrow by the Escrow Agent on behalf of
the Investors, subject to withdrawal upon request by the Pass Through
Trustee and satisfaction of the conditions set forth in the Note Purchase
Agreement for the purpose of purchasing Equipment Notes, and that pending
such withdrawal the Net Proceeds be deposited on behalf of the Escrow Agent
with ABN AMRO Bank N.V., acting through its Chicago branch, as Depositary
(the "Depositary"; and the term "Depositary" shall also be deemed to refer
to any Replacement Depositary (as defined in the Note Purchase Agreement)
from and after the date on which the Deposits are transferred to such
Replacement Depositary) under the Deposit Agreement, dated as of the date
hereof between the Depositary and the Escrow Agent relating to the Pass
Through Trust (as amended, modified or supplemented from time to time in
accordance with the terms thereof, the "Deposit Agreement"; and the term
"Deposit Agreement" shall also be deemed to refer to any Replacement
Deposit Agreement (as defined in the Note Purchase Agreement) to which the
Escrow Agent becomes a party pursuant to Section 1.2(a) hereof from and
after the transfer of the Deposits from the Depositary to the Replacement
Depositary) pursuant to which, among other things, the Depositary will pay
interest for distribution to the Investors and establish accounts from
which the Escrow Agent shall make withdrawals upon request of and proper
certification by the Pass Through Trustee;
WHEREAS, the Escrow Agent wishes to appoint the Paying Agent to
pay amounts required to be distributed to the Investors in accordance with
this Agreement; and
WHEREAS, capitalized terms used but not defined herein shall
have the respective meanings set forth or incorporated by reference in the
Pass Through Trust Agreement.
NOW, THEREFORE, in consideration of the obligations contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby
agree as follows:
SECTION 1. Escrow Agent.
Section 1.1 Appointment of Escrow Agent. Each of the
Underwriters, for and on behalf of each of the Investors, hereby
irrevocably appoints, authorizes and directs the Escrow Agent to act as
escrow agent and fiduciary hereunder and under the Deposit Agreement for
such specific purposes and with such powers as are specifically delegated
to the Escrow Agent by the terms of this Agreement, together with such
other powers as are reasonably incidental thereto. Any and all money
received and held by the Escrow Agent under this Agreement or the Deposit
Agreement shall be held in escrow by the Escrow Agent in accordance with
the terms of this Agreement. This Agreement is irrevocable and the
Investors' rights with respect to any monies received and held in escrow by
the Escrow Agent under this Agreement or the Deposit Agreement shall only
be as provided under the terms and conditions of this Agreement and the
Deposit Agreement. The Escrow Agent (which term as used in this sentence
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents):
(1) shall have no duties or responsibilities except those
expressly set forth in this Agreement;
(2) shall not be responsible to the Pass Through Trustee or
the Investors for any recitals, statements, representations or warranties
of any person other then itself contained in this Agreement or the Deposit
Agreement or for the failure by the Pass Through Trustee, the Investors or
any other person or entity (other than the Escrow Agent) to perform any of
its obligations hereunder (whether or not the Escrow Agent shall have any
knowledge thereof); and
(3) shall not be responsible for any action taken or omitted
to be taken by it hereunder or provided for herein or in connection
herewith, except for its own willful misconduct or gross negligence (or
simple negligence in connection with the handling of funds).
Section 1.2 Instruction, Etc. The Underwriters, for and on
behalf of each of the Investors, hereby irrevocably instruct the Escrow
Agent, and the Escrow Agent agrees: (a) to enter into the Deposit Agreement
and, if requested by the Company pursuant to Section 5(a)(vii) of the Note
Purchase Agreement, to enter into a Replacement Deposit Agreement with the
Replacement Depositary specified by the Company; (b) to appoint the Paying
Agent as provided in this Agreement; (c) upon receipt at any time and from
time to time prior to the Termination Date (as defined below) of a
certificate substantially in the form of Exhibit B hereto (a "Withdrawal
Certificate") executed by the Pass Through Trustee, together with an
attached Notice of Purchase Withdrawal in substantially the form of Exhibit
A to the Deposit Agreement duly completed by the Pass Through Trustee (the
"Applicable Notice of Purchase Withdrawal" and the withdrawal to which it
relates, a "Purchase Withdrawal"), immediately to execute the Applicable
Notice of Purchase Withdrawal as Escrow Agent and transmit it to the
Depositary by facsimile transmission in accordance with the Deposit
Agreement; provided that, upon the request of the Pass Through Trustee
after such transmission, the Escrow Agent shall cancel such Applicable
Notice of Purchase Withdrawal; (d) upon receipt of a Withdrawal Certificate
executed by the Pass Through Trustee, together with an attached Notice of
Replacement Withdrawal in substantially the form of Exhibit C to the
Deposit Agreement duly completed by the Pass Through Trustee, to (X) give
such Notice of Replacement Withdrawal to the Depositary requesting a
withdrawal, on the date specified in such notice, which shall not be less
than 15 days after such notice is given (the "Replacement Withdrawal
Date"), of all Deposits then held by the Depositary together with, if the
Replacement Withdrawal Date occurs on a Regular Distribution Date, all
accrued and unpaid interest on such Deposits to but excluding the
Replacement Withdrawal Date, and (Y) direct the Depositary to transfer such
Deposits on behalf of the Escrow Agent to the Replacement Depositary in
accordance with the Replacement Deposit Agreement and (e) if there are any
undrawn Deposits (as defined in the Deposit Agreement) on the "Termination
Date", which shall mean the earlier of (i) November 30, 2001 and (ii) the
day on which the Escrow Agent receives notice from the Pass Through Trustee
that the Pass Through Trustee's obligation to purchase Equipment Notes
under the Note Purchase Agreement has terminated, to give notice to the
Depositary (with a copy to the Paying Agent) substantially in the form of
Exhibit B to the Deposit Agreement requesting a withdrawal of all of the
remaining Deposits, together with accrued and unpaid interest on such
Deposits to the date of withdrawal, on the 15th day after the date that
such notice of withdrawal is given to the Depositary (or, if not a Business
Day, on the next succeeding Business Day) (a "Final Withdrawal"), provided
that if the day scheduled for the Final Withdrawal in accordance with the
foregoing is within ten days before or after a Regular Distribution Date,
then the Escrow Agent shall request that such requested Final Withdrawal be
made on such Regular Distribution Date (the date of such requested
withdrawal, the "Final Withdrawal Date"). If for any reason the Escrow
Agent shall have failed to give the Final Withdrawal Notice to the
Depositary on or before December 3, 2001, and there are unwithdrawn
Deposits on such date, the Final Withdrawal Date shall be deemed to be
December 18, 2001.
Section 1.3 Initial Escrow Amount; Issuance of Escrow Receipts.
The Escrow Agent hereby directs the Underwriters to, and the Underwriters
hereby acknowledge that on the date hereof they shall, irrevocably deliver
to the Depositary on behalf of the Escrow Agent, an amount in U.S. dollars
("Dollars") and immediately available funds equal to $458,047,000 for
deposit on behalf of the Escrow Agent with the Depositary in accordance
with Section 2.1 of the Deposit Agreement. The Underwriters hereby instruct
the Escrow Agent, upon the Depositary's receipt (on behalf of the Escrow
Agent) of such sum from the Underwriters, to confirm such receipt by
executing and delivering to the Pass Through Trustee an Escrow Receipt in
the form of Exhibit A hereto (an "Escrow Receipt"), (a) to be affixed by
the Pass Through Trustee to each Certificate and (b) to evidence the same
percentage interest (the "Escrow Interest") in the Account Amounts (as
defined below) as the Fractional Undivided Interest in the Pass Through
Trust evidenced by the Certificate to which it is to be affixed. The Escrow
Agent shall provide to the Pass Through Trustee for attachment to each
Certificate newly issued under and in accordance with the Pass Through
Trust Agreement an executed Escrow Receipt as the Pass Through Trustee may
from time to time request of the Escrow Agent. Each Escrow Receipt shall be
registered by the Escrow Agent in a register (the "Register") maintained by
the Escrow Agent in the same name and same manner as the Certificate to
which it is attached and may not thereafter be detached from such
Certificate to which it is to be affixed prior to the distribution of the
Final Withdrawal (the "Final Distribution"). After the Final Distribution,
no additional Escrow Receipts shall be issued and the Pass Through Trustee
shall request the return to the Escrow Agent for cancellation of all
outstanding Escrow Receipts.
Section 1.4 Payments to Receiptholders. All payments and
distributions made to holders of an Escrow Receipt (collectively
"Receiptholders") in respect of the Escrow Receipt shall be made only from
amounts deposited in the Paying Agent Account (as defined below) ("Account
Amounts"). Each Receiptholder, by its acceptance of an Escrow Receipt,
agrees that (a) it will look solely to the Account Amounts for any payment
or distribution due to such Receiptholder pursuant to the terms of the
Escrow Receipt and this Agreement and (b) it will have no recourse to US
Airways, the Pass Through Trustee, the Paying Agent or the Escrow Agent,
except as expressly provided herein or in the Pass Through Trust Agreement.
No Receiptholder shall have any right to vote or in any manner otherwise
control the operation and management of the Paying Agent Account or the
obligations of the parties hereto, nor shall anything set forth herein, or
contained in the terms of the Escrow Receipt, be construed so as to
constitute the Receiptholders from time to time as partners or members of
an association.
Section 1.5 Mutilated, Destroyed, Lost or Stolen Escrow
Receipt. If (a) any mutilated Escrow Receipt is surrendered to the Escrow
Agent or the Escrow Agent receives evidence to its satisfaction of the
destruction, loss or theft of any Escrow Receipt and (b) there is delivered
to the Escrow Agent and the Pass Through Trustee such security, indemnity
or bond, as may be required by them to hold each of them harmless, then,
absent notice to the Escrow Agent or the Pass Through Trustee that such
destroyed, lost or stolen Escrow Receipt has been acquired by a bona fide
purchaser, and provided that the requirements of Section 8-405 of the
Uniform Commercial Code in effect in any applicable jurisdiction are met,
the Escrow Agent shall execute, authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Escrow Receipt,
a new Escrow Receipt or Escrow Receipts and of like Escrow Interest in the
Account Amounts and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Escrow Receipt under
this Section 1.5, the Escrow Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Pass Through Trustee and the Escrow Agent) connected
therewith.
Any duplicate Escrow Receipt issued pursuant to this Section
1.5 shall constitute conclusive evidence of the appropriate Escrow Interest
in the Account Amounts, as if originally issued, whether or not the lost,
stolen or destroyed Escrow Receipt shall be found at any time.
The provisions of this Section 1.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Escrow Receipts.
Section 1.6 Additional Escrow Amounts. On the date of any
Purchase Withdrawal, the Pass Through Trustee may re-deposit with the
Depositary some or all of the amounts so withdrawn in accordance with
Section 2.4 of the Deposit Agreement.
Section 1.7 Resignation or Removal of Escrow Agent. Subject to
the appointment and acceptance of a successor Escrow Agent as provided
below, the Escrow Agent may resign at any time by giving thirty (30) days
prior written notice thereof to the Investors, but may not otherwise be
removed except for cause by the written consent of the Investors with
respect to Investors representing Escrow Interests aggregating not less
than a majority in interest in the Account Amounts (an "Action of
Investors"). Upon any such resignation or removal, the Investors, by an
Action of Investors, shall have the right to appoint a successor Escrow
Agent. If no successor Escrow Agent shall have been so appointed and shall
have accepted such appointment within thirty (30) days after the retiring
Escrow Agent's giving of notice of resignation or the removal of the
retiring Escrow Agent, then the retiring Escrow Agent may appoint a
successor Escrow Agent. Any successor Escrow Agent shall be a bank which
has an office in the United States with a combined capital and surplus of
at least $100,000,000. Upon the acceptance of any appointment as Escrow
Agent hereunder by a successor Escrow Agent, such successor Escrow Agent
shall enter into such documents as the Pass Through Trustee shall require
and shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Escrow Agent, and the
retiring Escrow Agent shall be discharged from its duties and obligations
hereunder. No resignation or removal of the Escrow Agent shall be effective
unless a written confirmation shall have been obtained from each of Xxxxx'x
Investors Service, Inc. and Standard & Poor's Rating Services, a division
of The XxXxxx-Xxxx Companies, Inc., that the replacement of the Escrow
Agent with the successor Escrow Agent will not result in (a) a reduction of
the rating for the Certificates below the then current rating for the
Certificates or (b) a withdrawal or suspension of the rating of the
Certificates.
Section 1.8 Persons Deemed Owners. Prior to due presentment of
a Certificate for registration of transfer, the Escrow Agent and the Paying
Agent may treat the Person in whose name any Escrow Receipt is registered
(as of the day of determination) as the owner of such Escrow Receipt for
the purpose of receiving distributions pursuant to this Agreement and for
all other purposes whatsoever, and neither the Escrow Agent nor the Paying
Agent shall be affected by any notice to the contrary.
Section 1.9 Further Assurances. The Escrow Agent agrees to take
such actions, and execute such other documents, as may be reasonably
requested by the Pass Through Trustee in order to effectuate the purposes
of this Agreement and the performance by the Escrow Agent of its
obligations hereunder.
SECTION 2. Paying Agent.
Section 2.1 Appointment of Paying Agent. The Escrow Agent
hereby irrevocably appoints and authorizes the Paying Agent to act as its
paying agent hereunder, for the benefit of the Investors, for such specific
purposes and with such powers as are specifically delegated to the Paying
Agent by the terms of this Agreement, together with such other powers as
are reasonably incidental thereto. Any and all money received and held by
the Paying Agent under this Agreement or the Deposit Agreement shall be
held in the Paying Agent Account for the benefit of the Investors. The
Paying Agent (which term as used in this sentence shall include reference
to its affiliates and its own and its affiliates' officers, directors,
employees and agents):
(1) shall have no duties or responsibilities except those
expressly set forth in this Agreement, and shall not by reason of this
Agreement be a trustee for the Escrow Agent;
(2) shall not be responsible to the Escrow Agent for any
recitals, statements, representations or warranties of any person other
then itself contained in this Agreement or for the failure by the Escrow
Agent or any other person or entity (other than the Paying Agent) to
perform any of its obligations hereunder (whether or not the Paying Agent
shall have any knowledge thereof); and
(3) shall not be responsible for any action taken or omitted
to be taken by it hereunder or provided for herein or in connection
herewith, except for its own willful misconduct or gross negligence (or
simple negligence in connection with the handling of funds).
Section 2.2 Establishment of Paying Agent Account. The Paying
Agent shall establish a deposit account (the "Paying Agent Account") at
State Street Bank and Trust Company of Connecticut, National Association in
the name of the Escrow Agent. It is expressly understood by the parties
hereto that the Paying Agent is acting as the paying agent of the Escrow
Agent hereunder and that no amounts on deposit in the Paying Agent Account
constitute part of the Trust Property.
Section 2.3 Payments from Paying Agent Account. The Escrow
Agent hereby irrevocably instructs the Paying Agent, and the Paying Agent
agrees to act, as follows:
(1) On each Interest Payment Date (as defined in the Deposit
Agreement) or as soon thereafter as the Paying Agent has confirmed receipt
in the Paying Agent Account from the Depositary of any amount in respect of
accrued interest on the Deposits, the Paying Agent shall distribute out of
the Paying Agent Account the entire amount deposited therein by the
Depositary. There shall be so distributed to each Receiptholder of record
on the 15th day (whether or not a Business Day) preceding such Interest
Payment Date by check mailed to such Receiptholder, at the address
appearing in the Register, such Receiptholder's pro rata share (based on
the Escrow Interest in the Account Amounts held by such Receiptholder) of
the total amount of interest deposited by the Depositary in the Paying
Agent Account on such date, except that, with respect to Escrow Receipts
registered on the Record Date in the name of The Depository Trust Company,
a New York corporation ("DTC"), such distribution shall be made by wire
transfer in immediately available funds to the account designated by DTC.
(2) Upon the confirmation by the Paying Agent of receipt in
the Paying Agent Account from the Depositary of any amount in respect of
the Final Withdrawal, the Paying Agent shall forthwith distribute the
entire amount of the Final Withdrawal deposited therein by the Depositary.
There shall be so distributed to each Receiptholder of record on the 15th
day (whether or not a Business Day) preceding the Final Withdrawal Date by
check mailed to such Receiptholder, at the address appearing in the
Register, such Receiptholder's pro rata share (based on the Escrow Interest
in the Account Amounts held by such Receiptholder) of the total amount in
the Paying Agent Account on account of such Final Withdrawal, except that,
with respect to Escrow Receipts registered on the Record Date in the name
of DTC, such distribution shall be made by wire transfer in immediately
available funds to the account designated by DTC.
(3) If any payment of interest or principal in respect of the
Final Withdrawal is not received by the Paying Agent within five (5) days
of the applicable date when due, then it shall be distributed to
Receiptholders after actual receipt by the Paying Agent on the same basis
as a Special Payment is distributed under the Pass Through Trust Agreement.
(4) The Paying Agent shall include with any check mailed
pursuant to this Section any notice required to be distributed under the
Pass Through Trust Agreement that is furnished to the Paying Agent by the
Pass Through Trustee.
Section 2.4 Withholding Taxes. The Paying Agent shall exclude
and withhold from each distribution of accrued interest on the Deposits (as
defined in the Deposit Agreement) and any amount in respect of the Final
Withdrawal any and all withholding taxes applicable thereto as required by
law. The Paying Agent agrees to act as such withholding agent and, in
connection therewith, whenever any present or future taxes or similar
charges are required to be withheld with respect to any amounts payable in
respect of the Deposits (as defined in the Deposit Agreement) or the escrow
amounts, to withhold such amounts and timely pay the same to the
appropriate authority in the name of and on behalf of the Receiptholders,
that it will file any necessary withholding tax returns or statements when
due, and that, as promptly as possible after the payment thereof, it will
deliver to each such Receiptholder appropriate documentation showing the
payment thereof, together with such additional documentary evidence as such
Receiptholder may reasonably request from time to time. The Paying Agent
agrees to file any other information reports as it may be required to file
under United States law.
Section 2.5 Resignation or Removal of Paying Agent. Subject to
the appointment and acceptance of a successor Paying Agent as provided
below, the Paying Agent may resign at any time by giving thirty (30) days
prior written notice thereof to the Escrow Agent, but may not otherwise be
removed except for cause by the Escrow Agent. Upon any such resignation or
removal, the Escrow Agent shall have the right to appoint a successor
Paying Agent. If no successor Paying Agent shall have been so appointed and
shall have accepted such appointment within thirty (30) days after the
retiring Paying Agent's giving of notice of resignation or the removal of
the retiring Paying Agent, then the retiring Paying Agent may appoint a
successor Paying Agent. Any Successor Paying Agent shall be a bank which
has an office in the United States with a combined capital and surplus of
at least US$100,000,000. Upon the acceptance of any appointment as Paying
Agent hereunder by a successor Paying Agent, such successor Paying Agent
shall enter into such documents as the Escrow Agent shall require and shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Paying Agent, and the retiring Paying
Agent shall be discharged from its duties and obligations hereunder.
Section 2.6 Notice of Final Withdrawal. Promptly after receipt
by the Paying Agent of notice that the Escrow Agent has requested a Final
Withdrawal or that a Final Withdrawal will be made, the Paying Agent shall
cause notice of the distribution of the Final Withdrawal to be mailed to
each of the Receiptholders at its address as it appears in the Register.
Such notice shall be mailed not less than fifteen (15) days prior to the
Final Withdrawal Date. Such notice shall set forth:
(1) the Final Withdrawal Date and the date for determining
Receiptholders of record who shall be entitled to receive distributions in
respect of the Final Withdrawal;
(2) the amount of the payment in respect of the Final
Withdrawal for each $1,000 face amount Certificate (based on information
provided by the Pass Through Trustee) and the amount thereof constituting
unused Deposits (as defined in the Deposit Agreement) and interest thereon;
and
(3) if the Final Withdrawal Date is the same date as a
Regular Distribution Date, the total amount to be received on such date for
each $1,000 face amount Certificate (based on information provided by the
Pass Through Trustee).
Such mailing may include any notice required to be given to
Certificateholders in connection with such distribution pursuant to the
Pass Through Trust Agreement.
SECTION 3. Payments. If, notwithstanding the instructions in
Article IV of the Deposit Agreement that all amounts payable to the Escrow
Agent under the Deposit Agreement be paid by the Depositary directly to the
Paying Agent or the Pass Through Trustee (depending on the circumstances),
the Escrow Agent receives any payment thereunder, then the Escrow Agent
shall forthwith pay such amount in Dollars and in immediately available
funds by wire transfer to (a) in the case of a payment of accrued interest
on the Deposits (as defined in the Deposit Agreement) or any Final
Withdrawal, directly to the Paying Agent Account, (b) in the case of any
Purchase Withdrawal, directly to the Pass Through Trustee or its designee
as specified and in the manner provided in the Applicable Notice of
Purchase Withdrawal and (c) in the case of any Replacement Withdrawal
(other than accrued interest), to the Replacement Depositary as provided in
the Replacement Deposit Agreement. The Escrow Agent hereby waives any and
all rights of set-off, combination of accounts, right of retention or
similar right (whether arising under applicable law, contract or otherwise)
it may have against amounts payable to the Paying Agent howsoever arising.
SECTION 4. Other Actions. The Escrow Agent shall take such
other actions under or in respect of the Deposit Agreement (including,
without limitation, the enforcement of the obligations of the Depositary
thereunder) as the Investors, by an Action of Investors, may from time to
time request.
SECTION 5. Representations and Warranties of the Escrow Agent.
The Escrow Agent represents and warrants to US Airways, the Investors, the
Paying Agent and the Pass Through Trustee as follows:
(1) it is a national banking association duly organized and
validly existing in good standing under the laws of the United States of
America;
(2) it has full power, authority and legal right to conduct
its business and operations as currently conducted and to enter into and
perform its obligations under this Agreement, the Deposit Agreement and any
Replacement Deposit Agreement;
(3) the execution, delivery and performance of each of this
Agreement, the Deposit Agreement and any Replacement Deposit Agreement have
been duly authorized by all necessary corporate action on the part of it
and do not require any stockholder approval, or approval or consent of any
trustee or holder of any indebtedness or obligations of it, and each such
document has been duly executed and delivered by it and constitutes its
legal, valid and binding obligations enforceable against it in accordance
with the terms hereof or thereof except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws or equitable principles of general application to or affecting
the enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(4) no authorization, consent or approval of or other action
by, and no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by it of this Agreement or the Deposit Agreement or
any Replacement Deposit Agreement;
(5) neither the execution, delivery or performance by it of
this Agreement or the Deposit Agreement or any Replacement Deposit
Agreement, nor compliance with the terms and provisions hereof or thereof,
conflicts or will conflict with or results or will result in a breach or
violation of any of the terms, conditions or provisions of, or will require
any consent or approval under, any law, governmental rule or regulation or
the charter documents, as amended, or bylaws, as amended, of it or any
similar instrument binding on it or any order, writ, injunction or decree
of any court or governmental authority against it or by which it or any of
its properties is bound or any indenture, mortgage or contract or other
agreement or instrument to which it is a party or by which it or any of its
properties is bound, or constitutes or will constitute a default thereunder
or results or will result in the imposition of any lien upon any of its
properties; and
(6) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not purportedly
on behalf of it) against or affecting it or any of its property before or
by any court or administrative agency which, if adversely determined, (A)
would adversely affect the ability of it to perform its obligations under
this Agreement or the Deposit Agreement or any Replacement Deposit
Agreement or (B) would call into question or challenge the validity of this
Agreement or the Deposit Agreement or the enforceability hereof or thereof
in accordance with the terms hereof or thereof, nor is the Escrow Agent in
default with respect to any order of any court, governmental authority,
arbitration board or administrative agency so as to adversely affect its
ability to perform its obligations under this Agreement or the Deposit
Agreement.
SECTION 6. Representations and Warranties of the Paying Agent.
The Paying Agent represents and warrants to US Airways, the Investors, the
Escrow Agent and the Pass Through Trustee as follows:
(1) it is a national banking association duly organized and
validly existing in good standing under the laws of the United States of
America;
(2) it has full power, authority and legal right to conduct
its business and operations as currently conducted and to enter into and
perform its obligations under this Agreement;
(3) the execution, delivery and performance of this Agreement
has been duly authorized by all necessary corporate action on the part of
it and does not require any stockholder approval, or approval or consent of
any trustee or holder of any indebtedness or obligations of it, and such
document has been duly executed and delivered by it and constitutes its
legal, valid and binding obligations enforceable against it in accordance
with the terms hereof except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(4) no authorization, consent or approval of or other action
by, and no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by it of this Agreement;
(5) neither the execution, delivery or performance by it of
this Agreement, nor compliance with the terms and provisions hereof,
conflicts or will conflict with or results or will result in a breach or
violation of any of the terms, conditions or provisions of, or will require
any consent or approval under, any law, governmental rule or regulation or
the charter documents, as amended, or bylaws, as amended, of it or any
similar instrument binding on it or any order, writ, injunction or decree
of any court or governmental authority against it or by which it or any of
its properties is bound or any indenture, mortgage or contract or other
agreement or instrument to which it is a party or by which it or any of its
properties is bound, or constitutes or will constitute a default thereunder
or results or will result in the imposition of any lien upon any of its
properties; and
(6) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not purportedly
on behalf of it) against or affecting it or any of its property before or
by any court or administrative agency which, if adversely determined, (A)
would adversely affect the ability of it to perform its obligations under
this Agreement or (B) would call into question or challenge the validity of
this Agreement or the enforceability hereof in accordance with the terms
hereof, nor is the Paying Agent in default with respect to any order of any
court, governmental authority, arbitration board or administrative agency
so as to adversely affect its ability to perform its obligations under this
Agreement.
SECTION 7. Indemnification. Except for actions expressly
required of the Escrow Agent or the Paying Agent hereunder, each of the
Escrow Agent and the Paying Agent shall in all cases be fully justified in
failing or refusing to act hereunder unless it shall have been indemnified
by the party requesting such action in a manner reasonably satisfactory to
it against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. In the event US
Airways requests any amendment to any Operative Document (as defined in the
Note Purchase Agreement), the Pass Through Trustee agrees to pay all
reasonable fees and expenses (including, without limitation, fees and
disbursements of counsel) of the Escrow Agent and the Paying Agent in
connection therewith.
SECTION 8. Amendment, Etc. Upon request of the Pass Through
Trustee and approval by an Action of Investors, the Escrow Agent shall
enter into an amendment to this Agreement, so long as such amendment does
not adversely affect the rights or obligations of the Escrow Agent or the
Paying Agent, provided that upon request of the Pass Through Trustee and
without any consent of the Investors, the Escrow Agent shall enter into an
amendment to this Agreement for any of the following purposes:
(1) to correct or supplement any provision in this Agreement
which may be defective or inconsistent with any other provision herein or
to cure any ambiguity or correct any mistake or to modify any other
provision with respect to matters or questions arising under this
Agreement, provided that any such action shall not materially adversely
affect the interests of the Investors; or
(2) to comply with any requirement of the SEC, applicable
law, rules or regulations of any exchange or quotation system on which the
Certificates are listed or any regulatory body; or
(3) to evidence and provide for the acceptance of appointment
under this Agreement of a successor Escrow Agent, successor Paying Agent or
successor Pass Through Trustee.
SECTION 9. Notices. Unless otherwise expressly provided herein,
any notice or other communication under this Agreement shall be in writing
(including by facsimile) and shall be deemed to be given and effective upon
receipt thereof. All notices shall be sent to (a) in the case of the
Investors, as their respective addresses shall appear in the Register, (b)
in the case of the Escrow Agent, First Security Bank, National Association,
00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, XX 00000, Attention: Corporate Trust
Services (Telecopier: (000) 000-0000), (c) in the case of the Pass Through
Trustee, State Street Bank and Trust Company of Connecticut, National
Association, 000 Xxxxxx Xxxxxx, Xxxxxxx Square, Hartford, CT 06103,
Attention: Corporate Trust Administration (Telecopier: (000) 000-0000) or
(d) in the case of the Paying Agent, State Street Bank and Trust Company of
Connecticut, National Association, 000 Xxxxxx Xxxxxx, Xxxxxxx Square,
Hartford, CT 06103, Attention: Corporate Trust/Muni. Department
(Telecopier: (000) 000-0000), in each case with a copy to US Airways, US
Airways, Inc., 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000, Attention:
Treasurer (Telecopier: (000) 000-0000 (or at such other address as any such
party may specify from time to time in a written notice to the other
parties). On or prior to the execution of this Agreement, the Pass Through
Trustee has delivered to the Escrow Agent a certificate containing specimen
signatures of the representatives of the Pass Through Trustee who are
authorized to give notices and instructions with respect to this Agreement.
The Escrow Agent may conclusively rely on such certificate until the Escrow
Agent receives written notice from the Pass Through Trustee to the
contrary.
SECTION 10. Transfer. No party hereto shall be entitled to
assign or otherwise transfer this Agreement (or any interest herein) other
than (in the case of the Escrow Agent) to a successor escrow agent under
Section 1.7 hereof or (in the case of the Paying Agent) to a successor
paying agent under Section 2.5 hereof, and any purported assignment in
violation thereof shall be void. This Agreement shall be binding upon the
parties hereto and their respective successors and (in the case of the
Escrow Agent and the Paying Agent) their respective permitted assigns.
SECTION 11. Entire Agreement. This Agreement sets forth all of
the promises, covenants, agreements, conditions and understandings among
the Escrow Agent, the Paying Agent, the Underwriters and the Pass Through
Trustee with respect to the subject matter hereof, and supersedes all prior
and contemporaneous agreements and undertakings, inducements or conditions,
express or implied, oral or written.
SECTION 12. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 13. WAIVER OF JURY TRIAL RIGHT. EACH OF THE ESCROW
AGENT, THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE
ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO
A TRIAL BY JURY.
SECTION 14. Counterparts. This Agreement may be executed in one
or more counterparts, all of which taken together shall constitute one
instrument.
SECTION 15. Subrogation and Third Party Beneficiary. To the
extent that the Policy Provider makes any payment under the Policy in
respect of an Escrow Receipt as a result of the Depositary's failure to
make a scheduled interest payment on a Deposit to the Paying Agent Account,
the Policy Provider shall be subrogated to the rights of the holder of such
Escrow Receipt in respect thereof to the extent of such payment. The Policy
Provider shall be an express third party beneficiary of this Section 15 to
the extent necessary to enforce such rights of subrogation.
IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the
Underwriters and the Pass Through Trustee have caused this Escrow and
Paying Agent Agreement (Class G) to be duly executed as of the day and year
first above written.
STATE STREET BANK AND TRUST COMPANY FIRST SECURITY BANK, NATIONAL
OF CONNECTICUT, NATIONAL ASSOCIATION, ASSOCIATION, as Escrow Agent
not in its individual capacity, but
solely as Pass Through Trustee for
and on behalf of US Airways Pass By /s/ Xxxxx X. Xxxx
Through Trust 2001-1G ------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
By /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
XXXXXXX XXXXX XXXXXX INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
STATE STREET BANK AND TRUST COMPANY CREDIT LYONNAIS SECURITIES (USA) INC.
OF CONNECTICUT, NATIONAL ASSOCIATION DEUTSCHE BANC ALEX. XXXXX INC.,
as Paying Agent as Underwriters
BY: XXXXXXX XXXXX BARNEY INC.
By /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx By /s/ Xxxx Xxxxx
Title: Assistant Vice President ------------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
EXHIBIT A
US Airways 2001-1G Escrow Receipt
No. __
This Escrow Receipt evidences a fractional undivided interest in amounts
("Account Amounts") from time to time deposited into a certain paying agent
account (the "Paying Agent Account") described in the Escrow and Paying
Agent Agreement (Class G) dated as of January 26, 2001 (as amended,
modified or supplemented from time to time, the "Escrow and Paying Agent
Agreement") among First Security Bank, National Association, a national
banking association, as Escrow Agent (in such capacity, together with its
successors in such capacity, the "Escrow Agent"), Xxxxxxx Xxxxx Xxxxxx
Inc., Credit Suisse First Boston Corporation, Chase Securities Inc., Credit
Lyonnais Securities (USA) Inc. and Deutsche Banc Alex. Xxxxx Inc., as
Underwriters, State Street Bank and Trust Company of Connecticut, National
Association, as Pass Through Trustee (in such capacity, together with its
successors in such capacity, the "Pass Through Trustee") and State Street
Bank and Trust Company of Connecticut, National Association as paying agent
(in such capacity, together with its successors in such capacity, the
"Paying Agent"). Capitalized terms not defined herein shall have the
meanings assigned to them in the Escrow and Paying Agent Agreement.
This Escrow Receipt is issued under and is subject to the
terms, provisions and conditions of the Escrow and Paying Agent Agreement.
By virtue of its acceptance hereof the holder of this Escrow Receipt
assents and agrees to be bound by the provisions of the Escrow and Paying
Agent Agreement and this Escrow Receipt.
This Escrow Receipt represents a fractional undivided interest
in amounts deposited from time to time in the Paying Agent Account, and
grants or represents no rights, benefits or interests of any kind in
respect of any assets or property other than such amounts. This Escrow
Receipt evidences the same percentage interest in the Account Amounts as
the Fractional Undivided Interest in the Pass Through Trust evidenced by
the Certificate to which this Escrow Receipt is affixed.
All payments and distributions made to Receiptholders in
respect of the Escrow Receipt shall be made only from Account Amounts
deposited in the Paying Agent Account. The holder of this Escrow Receipt,
by its acceptance of this Escrow Receipt, agrees that it will look solely
to the Account Amounts for any payment or distribution due to it pursuant
to this Escrow Receipt and that it will not have any recourse to US
Airways, the Pass Through Trustee, the Paying Agent or the Escrow Agent,
except as expressly provided herein, in the Escrow and Paying Agent
Agreement or in the Pass Through Trust Agreement. No Receiptholder of this
Escrow Receipt shall have any right to vote or in any manner otherwise
control the operation and management of the Paying Agent Account, nor shall
anything set forth herein, or contained in the terms of this Escrow
Receipt, be construed so as to constitute the Receiptholders from time to
time as partners or members of an association.
This Escrow Receipt may not be assigned or transferred except
in connection with the assignment or transfer of the Certificate to which
this Escrow Receipt is affixed. After payment to the holder hereof of its
Escrow Interest in the Final Distribution, upon the request of the Pass
Through Trustee, the holder hereof will return this Escrow Receipt to the
Pass Through Trustee.
The Paying Agent may treat the person in whose name the
Certificate to which this Escrow Receipt is attached as the owner hereof
for all purposes, and the Paying Agent shall not be affected by any notice
to the contrary.
THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow
Receipt to be duly executed.
Dated: _________, 2001
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By _______________________________________
Name:
Title:
EXHIBIT B
Withdrawal Certificate
(Class G)
First Security Bank, National Association,
as Escrow Agent
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
Attention: Corporate Trust Services
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent Agreement,
dated as of January 26, 2001 (the "Agreement"). [We hereby certify to you
that the conditions to the obligations of the undersigned to execute a
Participation Agreement pursuant to the Note Purchase Agreement have been
satisfied.] [We hereby notify you that the Depositary is being replaced in
accordance with Section 5(a)(vii) of the Note Purchase Agreement.] Pursuant
to Section 1.2[(c)/(d)] of the Agreement, please execute the attached
Notice of Withdrawal and immediately transmit by facsimile to the
Depositary, at [_________________________].
Very truly yours,
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Pass Through Trustee
By __________________________________
Name:
Title:
Dated: __________, ___
NOTICE OF PURCHASE WITHDRAWAL
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class G) dated as
of January 26, 2001 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and ABN AMRO Bank N.V., acting
through its Chicago Branch, as Depositary (the "Depositary").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the
Deposit, $__________, Account No. __________.
The undersigned hereby directs the Depositary to pay [a portion
of]1 the proceeds of the Deposit [in an amount equal to $___](1) to
_______________, Account No. __________, Reference: __________ on
_______________, _____, [and to re-deposit the remaining proceeds of the
Deposit with the Depositary as a new Deposit pursuant to Section 2.4 of the
Deposit Agreement, in each case]1 upon the telephonic request of a
representative of the Pass Through Trustee.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By _______________________________________
Name:
Title:
Dated: ___________, __
--------------
(1) Use bracketed language if entire Deposit will not be used to purchase
Equipment Notes.
NOTICE OF REPLACEMENT WITHDRAWAL
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class G) dated as
of January 26, 2001 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and ABN AMRO Bank N.V., acting
through its Chicago Branch, as Depositary (the "Depositary").
In accordance with Section 2.3 (b)(ii) of the Deposit
Agreement, the undersigned hereby requests the withdrawal of the entire
amount of all Deposits for payment on ________, 200_.
The undersigned hereby directs the Depositary to pay the
proceeds of the Deposits to [____________] at ________________________,
ABA# ___________, Account ___________, Attention: ______________,
Reference: US Airways 2001-1G EETC [and to pay accrued interest thereon to
the Paying Agent at _________, ABA # _________, Account No. __________,
Reference: US Airways 2001-1G EETC](1). [The undersigned further directs
the Depositary to pay the accrued interest on the Deposits to the Paying
Agent on _________, 20__ (the next Interest Payment Date) at ABA #
__________, Account No. _________, Reference: US Airways 2001-1G EETC.](2).
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By _______________________________________
Name:
Title:
Dated: ___________, __
-------------
(1) To be deleted in the case of a Replacement Withdrawal scheduled for a
date which is not an Interest Payment Date (as defined in the Escrow
and Paying Agent Agreement).
(2) To be inserted in the case of a Replacement Withdrawal scheduled for a
date which is not an Interest Payment Date (as defined in the Escrow
and Paying Agent Agreement).
NOTICE OF FINAL WITHDRAWAL
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class G) dated as
of January 26, 2001 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and ABN AMRO Bank N.V., acting
through its Chicago Branch, as Depositary (the "Depositary").
In accordance with Section 2.3 (b)(i) of the Deposit Agreement,
the undersigned hereby requests the withdrawal of the entire amount of all
Deposits for payment on ________, 200_.
The undersigned hereby directs the Depositary to pay the
proceeds of the Deposits and accrued interest thereon to the Paying Agent
at ________________________, ABA# ___________, Account No. ___________,
Attention: ______________, Reference: US Airways 2001-1G EETC.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By _______________________________________
Name:
Title:
Dated: __________, ____
