EXHIBIT 4.6
DEPOSIT AGREEMENT
(Class C)
Dated as of December 14, 1998
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Escrow Agent
and
CITIBANK, N.A.
as Depositary
TABLE OF CONTENTS
Page
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 . . . . . . . . . . . . . . . . . . . . . . 4
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
Schedule I Schedule of Deposits
Exhibit A Notice of Purchase Withdrawal
Exhibit B Notice of Final Withdrawal
This DEPOSIT AGREEMENT (Class C) 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 Citibank, N.A., a national banking
association, 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 1998-1C pursuant to which the US Airways Pass Through Trust,
Series 1998-1C Certificates referred to therein (the "Certificates") are
being issued;
WHEREAS, US Airways and Airbus Industrie Financial Services, a
corporation formed under the laws of Ireland ("AIFS") have entered into a
Purchase Agreement dated as of December 14, 1998 pursuant to which US
Airways will cause the Pass Through Trustee to issue and sell the
Certificates to AIFS;
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, AIFS, 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, AIFS and the Pass Through Trustee intend that the Net
Proceeds be held in escrow by the Escrow Agent on behalf of AIFS and its
successors, assigns and transferees as registered owners of the
Certificates (together, with AIFS, 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 AIFS and the other 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 2.4 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 AIFS 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: Citibank, N.A., Reference: US Airways 1998-1, A/C#
3064-0009, ABA# 000000000 and the Depositary shall accept from AIFS on
behalf of the Escrow Agent the sum of US$112,495,918. 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 6.82% 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 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 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.
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 and (ii) pay the
full amount deducted or withheld (including in respect of such additional
amounts) to the competent taxation authority. 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;
(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
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 shall be deemed to be given and effective upon receipt
thereof. All notices shall be sent to (x) in the case of the Depositary,
Citibank, N.A., 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx, XX 00000,
Attention: Xxxx Xxxxxxxxx (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 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.
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: /s/ C. Xxxxx Xxxxxxx
---------------------------------
Name: C. Xxxxx Xxxxxxx
Title: Vice President
CITIBANK, N.A., as Depositary
By: /s/ Xxxxxx Deffar
--------------------------------
Name: Xxxxxx Deffar
Title: Managing Director
Schedule I
SCHEDULE OF DEPOSITS
--------------------
(Class C)
DATE TAIL NO. DEPOSIT AMOUNT ACCOUNT NO. MATURITY DATE
12/14/98 N705UW $5,793,467 3064-0009 10/31/1999
12/14/98 N101UW 7,063,070 3064-0009 10/31/1999
12/14/98 N706US 5,793,467 3064-0009 10/31/1999
12/14/98 N707UW 5,793,467 3064-0009 10/31/1999
12/14/98 N708UW 5,788,248 3064-0009 10/31/1999
12/14/98 N709UW 5,797,284 3064-0009 10/31/1999
12/14/98 N102UW 7,110,663 3064-0009 10/31/1999
12/14/98 N103US 7,110,663 3064-0009 10/31/1999
12/14/98 N710UW 5,823,677 3064-0009 10/31/1999
12/14/98 N104UW 7,125,015 3064-0009 10/31/1999
12/14/98 N105UW 7,125,015 3064-0009 10/31/1999
12/14/98 N711UW 5,831,762 3064-0009 10/31/1999
12/14/98 N712US 5,831,762 3064-0009 10/31/1999
12/14/98 N106US 7,134,730 3064-0009 10/31/1999
12/14/98 N713UW 5,843,407 3064-0009 10/31/1999
12/14/98 N714US 5,843,407 3064-0009 10/31/1999
12/14/98 N715UW 5,843,407 3064-0009 10/31/1999
12/14/98 N716UW 5,843,407 3064-0009 10/31/1999
EXHIBIT A
NOTICE OF PURCHASE WITHDRAWAL
CITIBANK, N.A.
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Telecopier: 000-000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class C) dated as of
December 14, 1998 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and Citibank, N.A., 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:___________, ____
cc: Art Deffaa
Telecopy No.: (000) 000-0000
EXHIBIT B
NOTICE OF FINAL WITHDRAWAL
CITIBANK, N.A.
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Telecopier: 000-000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class C) dated as of
December 14 , 1998 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and Citibank, N.A. (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:__________, ____
cc: Art Deffaa
Telecopy No.: (000) 000-0000
