EXHIBIT 4(a)(v)
DEPOSIT AGREEMENT
(Class B)
Dated as of December 14, 1998
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Escrow Agent
and
CREDIT SUISSE FIRST BOSTON, New York Branch
as Depositary
TABLE OF CONTENTS
-----------------
Page
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ARTICLE I FORMATION OF DEPOSITS 2
Section 1.1 Acceptance of Depositary 2
Section 1.2 Establishment of Accounts 2
ARTICLE II MAINTENANCE OF DEPOSITS 3
Section 2.1 Deposits 3
Section 2.2 Interest 3
Section 2.3 Withdrawals 3
Section 2.4 Other Accounts 4
ARTICLE III TERMINATION 5
ARTICLE IV PAYMENTS 5
ARTICLE V REPRESENTATIONS AND WARRANTIES 6
ARTICLE VI TRANSFER 7
ARTICLE VII AMENDMENT 7
ARTICLE VIII NOTICES 7
ARTICLE IX OBLIGATIONS UNCONDITIONAL 8
ARTICLE X ENTIRE AGREEMENT 8
ARTICLE XI GOVERNING LAW 8
ARTICLE XII WAIVER OF JURY TRIAL RIGHT 9
ARTICLE XIII COUNTERPARTS 9
i
ARTICLE XIV HEAD OFFICE OBLIGATION 9
Schedule I Schedule of Deposits
Exhibit A Notice of Purchase Withdrawal
Exhibit B Notice of Final Withdrawal
ii
This DEPOSIT AGREEMENT (Class B) dated as of December 14, 1998 (as
amended, modified or supplemented from time to time, this "Agreement")
between First Security Bank, National Association, a national banking
association, as Escrow Agent under the Escrow and Paying Agent Agreement
referred to below (in such capacity, together with its successors in such
capacity, the "Escrow Agent"), and Credit Suisse First Boston, a banking
institution organized under the laws of Switzerland acting through its New
York branch, as depositary bank (the "Depositary").
W I T N E S S E T H
-------------------
WHEREAS, US Airways, Inc. ("US Airways") and State Street Bank and Trust
Company, not in its individual capacity except as otherwise expressly
provided therein, but solely as trustee (in such capacity, together with its
successors in such capacity, the "Pass Through Trustee") have entered into a
Trust Supplement, dated December 14, 1998, to the Pass Through Trust
Agreement dated as of December 4, 1998 (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
1998-1B pursuant to which the US Airways Pass Through Trust, Series 1998-1B
Certificates referred to therein (the "Certificates") are being issued;
WHEREAS, US Airways and Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse
First Boston Corporation, Xxxxxx Brothers Inc. and Xxxxxxx Xxxxx Xxxxxx Inc.
(collectively, the "Underwriters" and, together with their respective
transferees and assigns as registered owners of the Certificates, the
"Investors") have entered into an Underwriting Agreement dated as of December
4, 1998 pursuant to which the Pass Through Trustee will issue and sell the
Certificates to the Underwriters;
WHEREAS, US Airways, the Pass Through Trustee, certain other pass
through trustees 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 Escrow Agent, the Underwriters, the Pass Through Trustee
and State Street Bank and Trust Company, as paying agent for the Escrow Agent
(in such capacity, together with its successors in such capacity, the "Paying
Agent") concurrently herewith are entering into an Escrow and Paying Agent
Agreement, dated as of the date hereof (as amended, modified or supplemented
from time to time in accordance with the terms thereof, the "Escrow and
Paying Agent Agreement"); and
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
pursuant to the Escrow and Paying Agent Agreement, subject to withdrawal upon
request of and proper certification by the Pass Through Trustee for the
purpose of purchasing Equipment Notes, and that pending such withdrawal the
Net Proceeds be deposited by the Escrow Agent with the Depositary pursuant to
this Agreement, which provides for the Depositary to pay interest for
distribution to the Investors and to establish accounts from which the Escrow
Agent shall make withdrawals upon request of and proper certification by the
Pass Through Trustee.
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:
ARTICLE I
FORMATION OF DEPOSITS
---------------------
Section 1.1 Acceptance of Depositary. The Depositary hereby agrees to
act as depositary bank as provided herein and in connection therewith to
accept all amounts to be delivered to or held by the Depositary pursuant to
the terms of this Agreement. The Depositary further agrees to hold, maintain
and safeguard the Deposits and the Accounts (as defined below) during the
term of this Agreement in accordance with the provisions of this Agreement.
The Escrow Agent shall not have any right to withdraw, assign or otherwise
transfer moneys held in the Accounts except as permitted by this Agreement.
Section 1.2 Establishment of Accounts. The Escrow Agent hereby
instructs the Depositary, and the Depositary agrees, to establish the
separate deposit accounts listed on Schedule I hereto and to establish such
additional separate deposit accounts as may be required in connection with
the deposits contemplated by Section
2
2.4 hereof (each, an "Account" and collectively, the "Accounts"), each in the
name of the Escrow Agent and all on the terms and conditions set forth in
this Agreement.
ARTICLE II
MAINTENANCE OF DEPOSITS
-----------------------
Section 2.1 Deposits. The Escrow Agent shall direct the Underwriters to
deposit with the Depositary on the date of this Agreement (the "Deposit
Date") in Federal (same day) funds by official check or checks or wire or
other transfer to: Bank of New York, Reference: US Xxxxxxx 0000-0, XXX#
000000000, Account # 8900329238, and the Depositary shall accept from the
Underwriters, on behalf of the Escrow Agent, the sum of US$64,114,059. Upon
acceptance of such sum, the Depositary shall (i) establish each of the
deposits specified in Schedule I hereto maturing on the respective dates set
forth therein (including any deposit made pursuant to Section 2.4 hereof,
individually, a "Deposit" and, collectively, the "Deposits") and (ii)
credit each Deposit to the related Account as set forth therein. No amount
shall be deposited in any Account other than the related Deposit.
Section 2.2 Interest. Each Deposit shall bear interest from and
including the date of deposit to but excluding the date of withdrawal at the
rate of 7.35% per annum (computed on the basis of a year of twelve 30-day
months) payable to the Paying Agent on behalf of the Escrow Agent semi-
annually in arrears on each January 30 and July 30, commencing on January 30,
1999 (each, an "Interest Payment Date"), and on the date of the Final
Withdrawal (as defined below), all in accordance with the terms of this
Agreement (whether or not any such Deposit is withdrawn on an Interest
Payment Date). Interest accrued on any Deposit that is withdrawn pursuant to
a Notice of Purchase Withdrawal (as defined below) shall be paid on the next
Interest Payment Date, notwithstanding any intervening Final Withdrawal.
Section 2.3 Withdrawals. (a) On and after the date seven (7) days
after the establishment of any Deposit, the Escrow Agent may, by providing at
least one (1) Business Day's prior notice of withdrawal to the Depositary in
the form of Exhibit A hereto (a "Notice of Purchase Withdrawal"), withdraw
not less than the entire balance of such Deposit, except that at any time
prior to the actual withdrawal of such Deposit, the Escrow Agent or the Pass
Through Trustee may, by notice to the Depositary, cancel such withdrawal
(including on the scheduled date therefor), and thereafter such Deposit shall
continue to be maintained by the Depositary in
3
accordance with the original terms thereof. Following such withdrawal the
balance in the related Account shall be zero and the Depositary shall close
such Account. As used herein, "Business Day" means any day, other than a
Saturday, Sunday or other day on which commercial banks are authorized or
required by law to close in New York, New York, Pittsburgh, Pennsylvania,
Boston, Massachusetts or Salt Lake City, Utah.
(b) The Escrow Agent may, by providing at least fifteen (15) days'
prior notice of withdrawal to the Depositary in the form of Exhibit B hereto
(a "Notice of Final Withdrawal"), withdraw the entire amount of all of the
remaining Deposits together with the payment by the Depositary of all accrued
and unpaid interest on such Deposits to but excluding the specified date of
withdrawal (a "Final Withdrawal"), on such date as shall be specified in such
Notice of Final Withdrawal. If a Notice of Final Withdrawal has not been
given to the Depositary on or before November 1, 1999 and there are
unwithdrawn Deposits on such date, the Depositary shall pay the amount of the
Final Withdrawal to the Paying Agent on November 16, 1999.
(c) If the Depositary receives a duly completed Notice of Purchase
Withdrawal or Notice of Final Withdrawal complying with the provisions of
this Agreement, it shall make the payments specified therein in accordance
with the provisions of this Agreement.
Section 2.4 Other Accounts. On the date of withdrawal of any Deposit,
the Escrow Agent, or the Pass Through Trustee on behalf of the Escrow Agent,
shall be entitled to re-deposit with the Depositary any portion thereof and
the Depositary shall accept the same for deposit hereunder. Any sums so
received for deposit shall be established as a new Deposit and credited to a
new Account, all as more fully provided in Section 2.1 hereof, and thereafter
the provisions of this Agreement shall apply thereto as fully and with the
same force and effect as if such Deposit had been established on the Deposit
Date except that (i) such Deposit may not be withdrawn prior to the date
seven days after the establishment thereof and (ii) such Deposit shall mature
on November 15, 1999 and bear interest as provided in Section 2.2. The
Depositary shall promptly give notice to the Escrow Agent of receipt of each
such re-deposit and the account number assigned thereto.
4
ARTICLE III
TERMINATION
-----------
This Agreement shall terminate on the fifth (5th) Business Day after the
later of the date on which (i) all of the Deposits shall have been withdrawn
and paid as provided herein without any re-deposit and (ii) all accrued and
unpaid interest on the Deposits shall have been paid as provided herein, but
in no event prior to the date on which the Depositary shall have performed in
full its obligations hereunder.
ARTICLE IV
PAYMENTS
--------
All payments (including, without limitation, those payments made in
respect of Taxes (as defined and provided for below)) made by the Depositary
hereunder shall be paid in United States Dollars and immediately available
funds by wire transfer (i) in the case of accrued interest on the Deposits
payable under Section 2.2 hereof or any Final Withdrawal, directly to the
Paying Agent at State Street Bank and Trust Company, 0 Xxxxxxxxxxxxx Xxxxx,
0xx Xxxxx, Xxxxxx, XX 00000, ABA#000-0000-00, Account #9903-9901, Attention:
Xxxxxxx Xxxxxxxxxxx, Reference: US Airways 1998-1 EETC, or to such other
account as the Paying Agent may direct from time to time in writing to the
Depositary and the Escrow Agent and (ii) in the case of any withdrawal of one
or more Deposits pursuant to a Notice of Purchase Withdrawal, directly to or
as directed by the Pass Through Trustee as specified and in the manner
provided in such Notice of Purchase Withdrawal. The Depositary 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 the Deposits howsoever arising. All payments on or in
respect of each Deposit shall be made free and clear of and without reduction
for or on account of any and all taxes, levies or other impositions or
charges (collectively, "Taxes"). However, if the Depositary or the Paying
Agent (pursuant to Section 2.4 of the Escrow and Paying Agent Agreement)
shall be required by law to deduct or withhold any Taxes from or in respect
of any sum payable hereunder, the Depositary shall: (i) make such deductions
or withholding; (ii) pay the full amount deducted or withheld (including in
respect of such additional amounts) to the competent taxation authority; and
(iii) if the Taxes required to be deducted or withheld are imposed by
Switzerland or any political subdivision thereof, pay such additional amounts
as may be necessary in order that the actual amount received by the
designated recipient of such sum under this Agreement or the Escrow and
Paying Agent Agreement after such deduction or withholding equals the sum it
would have
5
received had no such deduction or withholding been required. If the date on
which any payment due on any Deposit would otherwise fall on a day which is
not a Business Day, such payment shall be made on the next succeeding
Business Day with the same force and effect as if made on such scheduled
date, and no additional interest shall accrue in respect of such extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The Depositary hereby represents and warrants to US Airways, the Escrow
Agent, the Pass Through Trustee and the Paying Agent that:
(a) it is a bank duly organized and validly existing in good
standing under the laws of its jurisdiction of organization and is duly
qualified to conduct banking business in the State of New York through its
New York branch;
(b) 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;
(c) the execution, delivery and performance of this 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 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;
(d) 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;
(e) 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
6
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
(f) 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, (i) would adversely
affect the ability of it to perform its obligations under this Agreement or
(ii) would call into question or challenge the validity of this Agreement or
the enforceability hereof in accordance with the terms hereof, nor is the
Depositary 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.
ARTICLE VI
TRANSFER
--------
Neither 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 of the Escrow and Paying
Agent Agreement, 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) permitted
assigns.
ARTICLE VII
AMENDMENT
---------
This Agreement may not be amended, waived or otherwise modified except
by an instrument in writing signed by the party against whom the amendment,
waiver or other modification is sought to be enforced and by the Pass Through
Trustee.
ARTICLE VIII
NOTICES
-------
Unless otherwise expressly provided herein, any notice or other
communication under this Agreement shall be in writing (including by
facsimile) and
7
shall be deemed to be given and effective upon receipt thereof. All notices
shall be sent to (x) in the case of the Depositary, Credit Suisse First
Boston, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxx and Xxxxxxxx Xxxx (Telecopier: (000) 000-0000) or (y) 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), in each case, with a copy to the Pass Through
Trustee, State Street Bank and Trust Company, 0 Xxxxxxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxxxxx, XX 00000 (Telecopier: (000) 000-0000) and 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 parties hereto). On or
prior to the execution of this Agreement, the Escrow Agent has delivered to
the Depositary a certificate containing specimen signatures of the
representatives of the Escrow Agent who are authorized to give notices and
instructions with respect to this Agreement. The Depositary may conclusively
rely on such certificate until the Depositary receives written notice from
the Escrow Agent to the contrary.
ARTICLE IX
OBLIGATIONS UNCONDITIONAL
-------------------------
The Depositary hereby acknowledges and agrees that its obligation to
repay each Deposit together with interest thereon as provided herein is
absolute, irrevocable and unconditional and constitutes a full recourse
obligation of the Depositary enforceable against it to the full extent of all
of its assets and properties.
ARTICLE X
ENTIRE AGREEMENT
----------------
This Agreement (including all attachments hereto) sets forth all of the
promises, covenants, agreements, conditions and understandings between the
Depositary and the Escrow Agent 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.
ARTICLE XI
GOVERNING LAW
-------------
THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE DEPOSITARY AND THE
ESCROW AGENT WITH RESPECT TO THE
8
DEPOSITS, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK AND SUBJECT TO THE PROVISIONS OF REGULATION D OF THE
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM (OR ANY SUCCESSOR), AS THE
SAME MAY BE MODIFIED AND SUPPLEMENTED AND IN EFFECT FROM TIME TO TIME.
ARTICLE XII
WAIVER OF JURY TRIAL RIGHT
--------------------------
EACH OF THE DEPOSITARY AND THE ESCROW AGENT 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.
ARTICLE XIII
COUNTERPARTS
------------
This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one instrument.
ARTICLE XIV
HEAD OFFICE OBLIGATION
----------------------
Credit Suisse First Boston hereby agrees that the obligations of the
Depositary hereunder are also the obligations of Credit Suisse First Boston's
Head Office in Zurich, Switzerland. Accordingly, any beneficiary of this
Agreement will be able to proceed directly against Credit Suisse First
Boston's Head Office in Zurich, Switzerland if Credit Suisse First Boston's
New York branch defaults in its obligation to such beneficiary under this
Agreement.
9
IN WITNESS WHEREOF, the Escrow Agent and the Depositary have caused this
Deposit Agreement to be duly executed as of the day and year first above
written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Escrow Agent
By___________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, New
York Branch, as Depositary
By_____________________________
Name:
Title:
By_____________________________
Name:
Title:
Schedule I
SCHEDULE OF DEPOSITS
--------------------
(Class B)
DATE TAIL NO. DEPOSIT ACCOUNT NO. MATURITY DATE
AMOUNT
12/14/98 N705UW $3,523,910 8900329238 10/31/1999
12/14/98 N101UW 4,706,573 8900329238 10/31/1999
12/14/98 N706US 3,414,504 8900329238 10/31/1999
12/14/98 N707UW 3,249,879 8900329238 10/31/1999
12/14/98 N708UW 3,387,021 8900329238 10/31/1999
12/14/98 N709UW 3,406,805 8900329238 10/31/1999
12/14/98 N102UW 3,100,808 8900329238 10/31/1999
12/14/98 N103US 4,179,107 8900329238 10/31/1999
12/14/98 N710UW 3,353,182 8900329238 10/31/1999
12/14/98 N104UW 4,069,042 8900329238 10/31/1999
12/14/98 N105UW 4,069,042 8900329238 10/31/1999
12/14/98 N711UW 3,369,900 8900329238 10/31/1999
12/14/98 N712US 3,369,900 8900329238 10/31/1999
12/14/98 N106US 3,846,114 8900329238 10/31/1999
12/14/98 N713UW 3,292,757 8900329238 10/31/1999
12/14/98 N714US 3,292,757 8900329238 10/31/1999
12/14/98 N715UW 3,241,379 8900329238 10/31/1999
12/14/98 N716UW 3,241,379 8900329238 10/31/1999
X-0
X-0
EXHIBIT A
---------
NOTICE OF PURCHASE WITHDRAWAL
-----------------------------
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx and Xxxxxxxx Xxxx
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class B) dated as of
December 14, 1998 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and Credit Suisse First Boston, New
York 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 the proceeds of the
Deposit to _________, Account No. _______________, Reference: __________ on
__________, ______, upon the telephonic request of a representative of the
Pass Through Trustee.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
as Escrow Agent
By______________________
Name:
Title:
Dated:__________, _____
A-1
EXHIBIT B
---------
NOTICE OF FINAL WITHDRAWAL
--------------------------
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx and Xxxxxxxx Xxxx
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class B) dated as of
December 14 , 1998 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and Credit Suisse First Boston, New
York Branch (the "Depositary").
In accordance with Section 2.3(b) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of all
Deposits.
The undersigned hereby directs the Depositary to pay the proceeds of the
Deposits and accrued interest thereon to the Paying Agent at State Street
Bank and Trust Company, ABA#000-0000-00, Account #9903-9901, Attention:
Xxxxxxx Xxxxxxxxxxx, Reference: US Airways 1998-1 EETC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
as Escrow Agent
By______________________
Name:
Title:
Dated:__________, _____
B-1
