EXHIBIT 4(a)(xi)
ESCROW AND PAYING AGENT AGREEMENT
(Class B)
Dated as of December 14, 1998
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Escrow Agent
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.
and
XXXXXXX XXXXX XXXXXX INC.
as Underwriters
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
US Airways Pass Through Trust 1998-1B
as Pass Through Trustee
and
STATE STREET BANK AND TRUST COMPANY
as Paying Agent
TABLE OF CONTENTS
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Page
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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 5
Section 1.5 Mutilated, Destroyed, Lost or Stolen Escrow Receipt 5
Section 1.6 Additional Escrow Amounts 6
Section 1.7 Resignation or Removal of Escrow Agent 6
Section 1.8 Persons Deemed Owners 6
Section 1.9 Further Assurances 7
SECTION 2. Paying Agent 7
Section 2.1 Appointment of Paying Agent 7
Section 2.2 Establishment of Paying Agent Account 7
Section 2.3 Payments from Paying Agent Account 8
Section 2.4 Withholding Taxes 9
Section 2.5 Resignation or Removal of Paying Agent 9
Section 2.6 Notice of Final Withdrawal 9
SECTION 3. Payments 10
SECTION 4. Other Actions 10
SECTION 5. Representations And Warranties of The Escrow Agent 11
SECTION 6. Representations And Warranties of The Paying Agent 12
SECTION 7. Indemnification 13
SECTION 8. Amendment, Etc 13
SECTION 9. Notices 14
SECTION 10. Transfer 15
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SECTION 11. Entire Agreement 15
SECTION 12. Governing Law 15
SECTION 13. WAIVER OF JURY TRIAL RIGHT 15
SECTION 14. Counterparts 15
EXHIBITS
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Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
iii
This ESCROW AND PAYING AGENT AGREEMENT (Class B) dated as of December
14, 1998 (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 Suisse First Boston Corporation, Xxxxxx Brothers Inc.
and Xxxxxxx Xxxxx Xxxxxx 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, a Massachusetts trust company, 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, a Massachusetts trust company, 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 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 (the "Pass Through Trust")
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 the Underwriters have entered into an
Underwriting Agreement dated as of December 4, 1998 (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, 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 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 Credit
Suisse First Boston, acting through its New York branch, as Depositary (the
"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") 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
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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):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement;
(b) 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
(c) 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; (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;
and (d) if there are any undrawn Deposits (as defined in the Deposit
Agreement) on the "Termination Date", which shall mean the earlier of (i)
October 31, 1999 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
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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 (10) 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
November 1, 1999, and there are unwithdrawn Deposits on such date, the Final
Withdrawal Date shall be deemed to be November 16, 1999.
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 $64,114,059 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 receipt 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 ("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.
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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.
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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.
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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):
(a) 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;
(b) 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
(c) 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 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.
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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:
(a) 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.
(b) 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.
(c) 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.
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(d) 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
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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:
(a) 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;
(b) 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
(c) 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 and (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.
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.
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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:
(a) it is a national banking association duly organized and
validly existing in good standing under the laws of the United States of
America;
(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 and the Deposit Agreement;
(c) the execution, delivery and performance of each of this
Agreement and the 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);
(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 or the Deposit Agreement;
(e) neither the execution, delivery or performance by it of this
Agreement or the 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
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(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, (A) would adversely
affect the ability of it to perform its obligations under this Agreement or
the 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:
(a) it is a trust company duly organized and validly existing in
good standing under the laws of the Commonwealth of Massachusetts;
(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 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);
(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;
12
(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 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, (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
13
Escrow Agent shall enter into an amendment to this Agreement for any of the
following purposes:
(a) 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
(b) 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
(c) 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, 0 Xxxxxxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxxxxx, XX 00000, Attention: Corporate Trust Administration
(Telecopier: (000) 000-0000) or (d) in the case of the Paying Agent, State
Street Bank and Trust Company, 0 Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx, XX
00000, Attention: Corporate Trust Administration (Telecopier: (617) 664-
5151), in each case with a copy to US Airways, US Airways, Inc., 0000 Xxxxxxx
Xxxxx, Xxxxxxxxx, XX 00000, Attention: Treasurer (Telecopier: (703) 872-
5936) (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.
14
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.
15
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 B) to be duly executed as of the day and year first above
written.
STATE STREET BANK AND TRUST COMPANY, not in its individual capacity, but
solely as Pass Through Trustee for and on behalf of US Airways Pass Through
Trust 1998-1B
By ______________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY as Paying Agent
By ______________
Name:
Title:
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Escrow Agent
By ______________
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED, CREDIT SUISSE FIRST BOSTON CORPORATION and
XXXXXXX XXXXX BARNEY INC., as Underwriters
By: XXXXXX XXXXXXX & CO. INCORPORATED
By ______________
Name:
Title:
EXHIBIT A
---------
US Airways 1998-1B 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 B) dated as of December 14, 1998 (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 Suisse First Boston Corporation, Xxxxxx Brothers Inc. and Xxxxxxx
Xxxxx Xxxxxx Inc., as Underwriters, State Street Bank and Trust Company, 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
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
A-1
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 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: December __, 1998
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Escrow Agent
By ______________________
Name:
Title:
A-2
EXHIBIT B
---------
Withdrawal Certificate
(Class B)
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
December 14, 1998 (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.
Pursuant to Section 1.2(c) of the Agreement, please execute the attached
Notice of Withdrawal and immediately transmit by facsimile to the Depositary,
at (000) 000-0000.
Very truly yours,
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Pass Through
Trustee
By ______________________
Name:
Title:
Dated: __________, ___
B-1
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:___________, ____
B-2
