EXHIBIT 4.7
EXECUTION
ESCROW AND PAYING AGENT AGREEMENT
(Class G)
Dated as of November 2, 2000
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Escrow Agent
XXXXXX XXXXXXX & CO. INCORPORATED,
CREDIT LYONNAIS SECURITIES (USA) INC.,
DEUTSCHE BANK SECURITIES INC.
and
XX XXXXX SECURITIES CORPORATION
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 2000-3G
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....................7
Section 2.3 Payments from Paying Agent Account.......................7
Section 2.4 Withholding Taxes........................................8
Section 2.5 Resignation or Removal of Paying Agent...................8
Section 2.6 Notice of Final Withdrawal...............................8
SECTION 3. Payments....................................................9
SECTION 4. Other Actions...............................................9
SECTION 5. Representations and Warranties of the Escrow Agent..........9
SECTION 6. Representations and Warranties of the Paying Agent.........11
SECTION 7. Indemnification............................................12
SECTION 8. Amendment, Etc.............................................12
SECTION 9. Notices....................................................12
SECTION 10. Transfer...................................................13
SECTION 11. Entire Agreement...........................................13
SECTION 12. Governing Law..............................................13
SECTION 13. WAIVER OF JURY TRIAL RIGHT.................................14
SECTION 14. Counterparts...............................................14
SECTION 15. Subrogation and Third Party Beneficiary....................14
EXHIBITS
Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
This ESCROW AND PAYING AGENT AGREEMENT (Class G) dated as
of November 2, 2000 (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"); Xxxxxx Xxxxxxx &
Co. Incorporated, Credit Lyonnais Securities (USA) Inc., Deutsche Bank
Securities Inc. and XX Xxxxx Securities Corporation, 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 2000-3G (the "Pass
Through Trust") pursuant to which the US Airways Pass Through Trust, Series
2000-3G Certificates referred to therein (the "Certificates") are being
issued;
WHEREAS, US Airways and the Underwriters have entered
into an Underwriting Agreement dated as of October 26, 2000 (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) July 1, 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
July 2, 2001, and there are unwithdrawn Deposits on such date, the Final
Withdrawal Date shall be deemed to be July 17, 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
$491,135,000 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 FIRST SECURITY BANK, NATIONAL
COMPANY OF CONNECTICUT, ASSOCIATION, as Escrow Agent
NATIONAL ASSOCIATION, not in its
individual capacity, but
solely as Pass Through
Airways Pass Through Trust 2000-3G By /s/ Xxxxx X. Xxxx
------------------
By /s/ Xxxx X. Xxxxxxx Name: Xxxxx X. Xxxx
-------------------- Title: Vice President
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
XXXXXX XXXXXXX & CO. INCORPORATED,
CREDIT LYONNAIS SECURITIES (USA), INC.,
STATE STREET BANK AND TRUST DEUTSCHE BANK SECURITIES INC. and
COMPANY OF CONNECTICUT, XX XXXXX SECURITIES CORPORATION,
NATIONAL ASSOCIATION as Paying Agent as Underwriters
By /s/ Xxxx X. Xxxxxxx BY: XXXXXX XXXXXXX & CO. INCORPORATED
--------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President By /s/ Xxxxxxxxxxx Xxxxxx
Name: Xxxxxxxxxxx Xxxxxx
Title: Principal
EXHIBIT A
US Airways 2000-3G 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 November 2, 2000 (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"), Xxxxxx Xxxxxxx & Co.
Incorporated, Credit Lyonnais Securities (USA) Inc., Deutsche Bank
Securities Inc. and XX Xxxxx Securities Corporation, 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: _________, 2000
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 November 2, 2000 (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 November 2, 2000 (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 November 2, 2000 (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 2000-3G EETC [and to pay accrued interest thereon to
the Paying Agent at _________, ABA # _________, Account No. __________,
Reference: US Airways 2000-3G 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 2000-3G 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 November 2, 2000 (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 2000-3G EETC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
as Escrow Agent
By
-------------------------------
Name:
Title:
Dated: __________, ____
