EXHIBIT 4.5
TRUST SUPPLEMENT No. 2000-3C
Dated as of November 2, 2000
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
as Trustee,
and
US AIRWAYS, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of October 5, 2000
US Airways Pass Through Trust 2000-3C
8.39% US Airways
Pass Through Certificates,
Series 2000-3C
This Trust Supplement No. 2000-3C, dated as of November
2, 2000 (herein called the "Trust Supplement"), between US Airways, Inc., a
Delaware corporation (the "Company") and State Street Bank and Trust
Company of Connecticut, National Association (the "Trustee"), to the Pass
Through Trust Agreement, dated as of October 5, 2000, between the Company
and the Trustee (the "Basic Agreement").
W I T N E S S E T H:
-------------------
WHEREAS, the Basic Agreement, unlimited as to the
aggregate principal amount of Certificates (unless otherwise specified
herein, capitalized terms used herein without definition having the
respective meanings specified in the Basic Agreement) which may be issued
thereunder, has heretofore been executed and delivered;
WHEREAS, the Company obtained commitments from AVSA for
the delivery of twenty-three (23) Aircraft;
WHEREAS, the Company intends to finance the acquisition
of each such Aircraft either (i) through separate leveraged lease
transactions, in which case the Company will lease such Aircraft
(collectively, the "Leased Aircraft") or (ii) through separate secured loan
transactions, in which case the Company will own such Aircraft
(collectively, the "Owned Aircraft");
WHEREAS, in the case of each Leased Aircraft, each Owner
Trustee, acting on behalf of the corresponding Owner Participant, will
issue pursuant to an Indenture, on a non-recourse basis, Equipment Notes in
order to finance a portion of its purchase price of such Leased Aircraft;
WHEREAS, in the case of each Owned Aircraft, the Company
will issue pursuant to an Indenture, on a recourse basis, Equipment Notes
to finance a portion of the purchase price of such Owned Aircraft;
WHEREAS, the Trustee hereby declares the creation of this
US Airways Pass Through Trust 2000-3C (the "Applicable Trust") for the
benefit of the Applicable Certificateholders, and the initial Applicable
Certificateholders as the grantors of the Applicable Trust, by their
respective acceptances of the Applicable Certificates, join in the creation
of the Applicable Trust with the Trustee;
WHEREAS, all Applicable Certificates to be issued by the
Applicable Trust will evidence fractional undivided interests in the
Applicable Trust and will convey no rights, benefits or interests in
respect of any property other than the Trust Property except for those
Applicable Certificates to which an Escrow Receipt has been affixed;
WHEREAS, the Escrow Agent, the Trustee, the Escrow Paying
Agent, and AIFS have contemporaneously herewith entered into an Escrow
Agreement with the Escrow Paying Agent pursuant to which AIFS has delivered
to the Escrow Agent the proceeds from the sale of the Applicable
Certificates and has irrevocably instructed the Escrow Agent to withdraw
and pay funds from such proceeds upon request and proper certification by
the Trustee to purchase Equipment Notes as the Aircraft are delivered by
AVSA under the Aircraft Purchase Agreement from time to time prior to the
Delivery Period Termination Date;
WHEREAS, the Escrow Agent on behalf of the Applicable
Certificateholders has contemporaneously herewith entered into a Deposit
Agreement with the Depositary under which the Deposits referred to therein
will be made and from which it will withdraw funds to allow the Trustee to
purchase Equipment Notes from time to time prior to the Delivery Period
Termination Date;
WHEREAS, pursuant to the terms and conditions of the
Basic Agreement as supplemented by this Trust Supplement (the "Agreement")
and the Note Purchase Agreement, the Trustee on behalf of the Applicable
Trust, using funds withdrawn under the Escrow Agreement, shall purchase one
or more Equipment Notes having the same interest rate as, and Final Legal
Distribution Date not later than the final Regular Distribution Date of,
the Applicable Certificates issued hereunder and, in each case, shall hold
such Equipment Notes in trust for the benefit of the Applicable
Certificateholders; and
WHEREAS, all of the conditions and requirements necessary
to make this Trust Supplement, when duly executed and delivered, a valid,
binding and legal instrument in accordance with its terms and for the
purposes herein expressed, have been done, performed and fulfilled, and the
execution and delivery of this Trust Supplement in the form and with the
terms hereof have been in all respects duly authorized.
NOW THEREFORE, in consideration of the premises herein,
it is agreed between the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. The Certificates. There is hereby created a
series of certificates to be issued under the Agreement to be distinguished
and known as "8.39% US Airways Pass Through Certificates, Series 2000-3C"
(including any Exchange Certificates and any Private Exchange Certificates)
(hereinafter defined as the "Applicable Certificates"). Each Applicable
Certificate represents a fractional undivided interest in the Applicable
Trust created hereby. The Applicable Certificates shall be the only
instruments evidencing a fractional undivided interest in the Applicable
Trust.
The terms and conditions applicable to the Applicable
Certificates are as follows:
(a) The aggregate principal amount of the Applicable
Certificates that shall be authenticated under the Agreement
(except for Applicable Certificates authenticated and delivered
pursuant to Sections 3.03, 3.04 and 3.06 of the Basic Agreement
and in connection with the Registration Agreement) is
$157,054,000.
(b) The Regular Distribution Dates with respect to any
payment of Scheduled Payments means March 1 and September 1 of
each year, commencing on March 1, 2001, until payment of all of
the Scheduled Payments to be made under the Equipment Notes has
been made.
(c) The Special Distribution Dates with respect to the
Applicable Certificates means any Business Day on which a Special
Payment is to be distributed pursuant to the Agreement.
(d) At the Escrow Agent's request under the Escrow
Agreement, the Trustee shall affix the corresponding Escrow
Receipt to each Applicable Certificate. In any event, any transfer
or exchange of any Applicable Certificate shall also effect a
transfer or exchange of the related Escrow Receipt. Prior to the
Final Withdrawal Date, no transfer or exchange of any Applicable
Certificate shall be permitted unless the corresponding Escrow
Receipt is attached thereto and also is so transferred or
exchanged. By acceptance of any Applicable Certificate to which an
Escrow Receipt is attached, each Holder of such an Applicable
Certificate acknowledges and accepts the restrictions on transfer
of the Escrow Receipt set forth herein and in the Escrow
Agreement.
(e) (i) The Applicable Certificates shall be in the form
attached hereto as Exhibit A. Any Person acquiring or accepting an
Applicable Certificate or an interest therein will, by such
acquisition or acceptance, be deemed to represent and warrant that
either (i) the assets of an employee benefit plan subject to Title
I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or of a plan subject to Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code"), have not
been used to purchase Applicable Certificates or an interest
therein or (ii) the purchase and holding of Applicable
Certificates is exempt from the prohibited transaction
restrictions of ERISA and the Code pursuant to one or more
prohibited transaction statutory or administrative exemptions.
(ii) The Applicable Certificates shall be Book-Entry
Certificates and shall be subject to the conditions set forth in
the Letter of Representations between the Company and the Clearing
Agency attached hereto as Exhibit E.
(f) The Applicable Certificates are subject to the
Intercreditor Agreement, the Deposit Agreement and the Escrow
Agreement.
(g) The Applicable Certificates will have the benefit of
the Liquidity Facility and the Registration Agreement.
(h) The Responsible Party is the Company.
(i) The particular "sections of the Note Purchase
Agreement", for purposes of clause (3) of Section 7.07 of the
Basic Agreement, are Section 6(b) (with respect to Owned Aircraft)
and Section 6(c) (with respect to Leased Aircraft) of the relevant
Participation Agreement attached as an exhibit to the Note
Purchase Agreement.
ARTICLE II
DEFINITIONS
Section 2.01. Definitions. Capitalized terms used but not
otherwise defined herein shall have the meaning ascribed to them in the
Basic Agreement. For all purposes of the Basic Agreement as supplemented by
this Trust Supplement, the following capitalized terms have the following
meanings:
Agreement: Has the meaning specified in the recitals hereto.
AIFS: Means Airbus Industrie Financial Services.
Aircraft: Means each of the New Aircraft or Substitute
Aircraft in respect of which a Participation Agreement is entered
into in accordance with the Note Purchase Agreement.
Aircraft Purchase Agreement: Has the meaning specified in
the Note Purchase Agreement.
Applicable Certificate: Has the meaning specified in
Section 1.01 of this Agreement.
Applicable Certificateholder: Means the Person in whose
name an Applicable Certificate is registered on the Register for
the Applicable Certificates.
Applicable Delivery Date: Has the meaning specified in
Section 5.01(b) of this Trust Supplement.
Applicable Participation Agreement: Has the meaning
specified in Section 5.01(b) of this Trust Supplement.
AVSA: Means AVSA, S.A.R.L.
Business Day: Means any day other than a Saturday, a
Sunday or other day on which insurance companies or commercial
banks in New York, New York or commercial banking institutions in
Pittsburgh, Pennsylvania and in the cities in which the Corporate
Trust Office of the Subordination Agent or any Loan Trustee or the
fiscal agent of the Policy Provider or the office of the Policy
Prover are located are authorized or obligated by law or executive
order to close.
Class C Purchase Agreement: Means the Purchase Agreement
dated as of October 26, 2000 between AIFS and the Company, as the
same may be amended, supplemented or otherwise modified from time
to time in accordance with its terms.
Class G Agreement: Means the Basic Agreement as
supplemented by the Trust Supplement No. 2000-3G.
Class G Certificates: Means the 7.89% US Airways Pass
Through Certificates, Series 2000-3G.
Class G Certificateholder: Means a holder of Class G
Certificates.
Class G Trustee: Means the Trustee under the Class G
Agreement.
Closing Notice: Means the Closing Notice as defined in
and delivered pursuant to Section 2(b) of the Note Purchase
Agreement.
Cut-off Date: Means the earlier of (a) the Delivery
Period Termination Date and (b) the date on which a Triggering
Event occurs.
Delivery Date: Has the meaning specified in the
Participation Agreements.
Delivery Notice: Has the meaning specified in the
Participation Agreements.
Delivery Period Termination Date: Means the earlier of
(a) July 1, 2001 and (b) the date on which Equipment Notes issued
with respect to all of the New Aircraft (or Substitute Aircraft in
lieu thereof) have been purchased by the Applicable Trust and the
Class G Trust in accordance with the Note Purchase Agreement.
Deposits: Has the meaning specified in the Deposit Agreement.
Deposit Agreement: Means the Deposit Agreement dated as
of November 2, 2000 relating to the Applicable Certificates
between the Depositary and the Escrow Agent, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Depositary: Means ABN AMRO Bank N.V., acting through its
Chicago branch, and any replacement or successor therefor.
Distribution Date: Means any Regular Distribution Date or
Special Distribution Date as the context requires.
Escrow Agent: Means, initially, First Security Bank,
National Association, and any replacement or successor therefor
appointed in accordance with the Escrow Agreement.
Escrow Agreement: Means the Escrow and Paying Agent
Agreement dated as of November 2, 2000 relating to the Applicable
Certificates, among the Escrow Agent, the Escrow Paying Agent, the
Trustee and AIFS, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Escrow Paying Agent: Means the Person acting as paying
agent under the Escrow Agreement.
Escrow Receipt: Means the receipt substantially in the
form annexed to the Escrow Agreement representing a fractional
undivided interest in the funds held in escrow thereunder.
Exchange Certificate: Means any of the certificates,
substantially in the form of Exhibit A, issued in exchange for an
Initial Certificate pursuant to the Registration Agreement and
authenticated under this Agreement.
Exchange Offer Registration Statement: Means the Exchange
Offer Registration Statement defined in the Registration
Agreement.
Final Legal Distribution Date: Means, with respect to the
Applicable Certificates, September 1, 2023.
Final Withdrawal: Has the meaning specified in Section
1.2 of the Escrow Agreement.
Final Withdrawal Date: Has the meaning specified in
Section 1.2 of the Escrow Agreement.
Final Withdrawal Notice: Has the meaning specified in
Section 5.02 of this Trust Supplement.
Global Certificates: Has the meaning assigned to such
term in Section 9.01(a).
Indenture: Means each of the separate trust indentures
and mortgages relating to the Aircraft, in each case as the same
may be amended, supplemented or otherwise modified from time to
time in accordance with its terms.
Initial Certificate: Means any of the certificates issued
and authenticated, under this Agreement, substantially in the form
of Exhibit A, other than an Exchange Certificate or a Private
Exchange Certificate.
Institutional Accredited Investor or IAI: Means an
institutional investor that is an "accredited investor" within the
meaning set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act.
Intercreditor Agreement: Means the Intercreditor
Agreement dated as of November 2, 2000 among the Trustee, the
Class G Trustee, the Liquidity Provider, the Policy Provider, and
State Street Bank and Trust Company of Connecticut, National
Association, as Subordination Agent and as trustee thereunder, as
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Investors: Means AIFS together with all subsequent
beneficial owners of the Applicable Certificates.
Lease: Means, with respect to each Leased Aircraft, the
lease between an Owner Trustee, as the lessor, and the Company, as
the lessee, referred to in the related Indenture, as such lease
may be amended, supplemented or otherwise modified in accordance
with its terms.
Leased Aircraft: Has the meaning specified in the third
recital to this Trust Supplement.
Liquidity Facility: Means, initially, the Revolving
Credit Agreement dated as of November 2, 2000 relating to the
Applicable Certificates, between the Liquidity Provider and State
Street Bank and Trust Company of Connecticut, National
Association, as Subordination Agent, as agent and trustee for the
Applicable Trust, and, from and after the replacement of such
agreement pursuant to the Intercreditor Agreement, the replacement
liquidity facility therefor, in each case as amended, supplemented
or otherwise modified from time to time in accordance with their
respective terms.
Liquidity Provider: Means, initially, Xxxxxx Xxxxxxx
Capital Services Inc., and any replacements or successors therefor
appointed in accordance with the Intercreditor Agreement.
New Aircraft: Has the meaning specified in the Note
Purchase Agreement.
Non-U.S. Person: Means a Person that is not a "U.S.
person," as defined in Regulation S.
Note Documents: Means the Note Purchase Agreement, this
Trust Supplement and, with respect to any Equipment Note, means
(i) the Indenture and the Participation Agreement relating to such
Equipment Note, and (ii) in the case of any Equipment Note related
to a Leased Aircraft, the Lease relating to such Leased Aircraft.
Note Purchase Agreement: Means the Note Purchase
Agreement dated as of November 2, 2000 among the Trustee, the
Class G Trustee, the Company, the Escrow Agent, the Escrow Paying
Agent and the Subordination Agent, providing for, among other
things, the purchase of certain Equipment Notes by the Trustee on
behalf of the Trust, as the same may be amended, supplemented or
otherwise modified from time to time, in accordance with its
terms.
Notice of Purchase Withdrawal: Has the meaning specified
in the Deposit Agreement.
Offering Memorandum: Means the Confidential Offering
Memorandum, dated November 2, 2000, relating to the offering of
the Applicable Certificates.
Owned Aircraft: Has the meaning specified in the third
recital to this Trust Supplement.
Owner Participant: With respect to any Equipment Note
relating to a Leased Aircraft, means the "Owner Participant" as
referred to in the Indenture pursuant to which such Equipment Note
is issued and any permitted successor or assign of such Owner
Participant; and Owner Participants at any time of determination
means all of the Owner Participants thus referred to in the
Indentures.
Owner Trustee: With respect to any Equipment Note
relating to a Leased Aircraft, means the "Owner Trustee", as
referred to in the Indenture pursuant to which such Equipment Note
is issued, not in its individual capacity but solely as trustee;
and Owner Trustees means all of the Owner Trustees party to any of
the Indentures.
Participation Agreement: Means each Participation
Agreement to be entered into by the Trustee pursuant to the Note
Purchase Agreement, as the same may be amended, supplemented or
otherwise modified in accordance with its terms.
Physical Certificates: Has the meaning specified in
Section 10.01(b).
Policy: Has the meaning specified in the Intercreditor
Agreement.
Policy Provider: Has the meaning specified in the
Intercreditor Agreement.
Policy Provider Default: Has the meaning specified in the
Intercreditor Agreement.
Pool Balance: Means, as of any date, (i) the original
aggregate face amount of the Applicable Certificates less (ii) the
aggregate amount of all payments made in respect of such
Applicable Certificates or in respect of Deposits relating to the
Applicable Trust other than payments made in respect of interest
or premium thereon or reimbursement of any costs or expenses
incurred in connection therewith. The Pool Balance as of any
Distribution Date shall be computed after giving effect to any
special distribution with respect to unused Deposits, payment of
principal of the Equipment Notes or payment with respect to other
Trust Property, and the distribution thereof to be made on that
date.
Pool Factor: Means, as of any Distribution Date, the
quotient (rounded to the seventh decimal place) computed by
dividing (i) the Pool Balance by (ii) the original aggregate face
amount of the Applicable Certificates. The Pool Factor as of any
Distribution Date shall be computed after giving effect to any
special distribution with respect to unused Deposits, payment of
principal of the Equipment Notes or other Trust Property and the
distribution thereof to be made on that date.
Private Exchange Certificate: Means any of the
certificates, substantially in the form of Exhibit A, issued in
exchange for an Initial Certificate pursuant to the Registration
Agreement and authenticated under this Agreement.
Private Placement Legend: Has the meaning specified in
Section 10.02(a).
Prospectus Supplement: Means the Prospectus Supplement
dated October 26, 2000, relating to the offering of the Class G
Certificates.
PTC Event of Default: Means, with respect to the
Applicable Certificates, any failure to pay within ten Business
Days of the due date thereof: (i) the outstanding Pool Balance of
the Applicable Certificates on the Final Legal Distribution Date
for the Applicable Certificates or (ii) interest due on the
Applicable Certificates on any Distribution Date (unless the
Subordination Agent shall have made an Interest Drawing, or a
withdrawal from the Cash Collateral Account or a drawing under the
Policy with respect thereto in an aggregate amount sufficient to
pay such interest and shall have distributed such amount to the
Trustee).
QIB: Means a "qualified institutional buyer" as defined
in Rule 144A.
Registration Agreement: Means the Registration Agreement,
dated as of the date hereof, between the Initial Purchaser, the
Trustee and the Company, as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Registration Statement: Means the Registration Statement
defined in the Registration Agreement.
Rule 144A: Means Rule 144A under the Securities Act and
any successor rule thereto.
SEC: Means the Securities and Exchange Commission, as
from time to time constituted or created under the Securities
Exchange Act of 1934, as amended, or, if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
Securities Act: Means the United States Securities Act of
1933, as amended from time to time, or any successor thereto.
Scheduled Payment: Means, with respect to any Equipment
Note, (i) any payment of principal or interest on such Equipment
Note (other than any such payment which is not in fact received by
the Trustee or any Subordination Agent within five days of the
date on which such payment is scheduled to be made) or (ii) any
payment of interest on the Applicable Certificates with funds
drawn under the Liquidity Facility (other than any such payment
which is not in fact received by the Trustee or any Subordination
Agent within five days of the date upon which payment is scheduled
to be made), which payment in the case of clauses (i) or (ii)
represents the installment of principal on such Equipment Note at
the stated maturity of such installment, the payment of regularly
scheduled interest accrued on the unpaid principal amount of such
Equipment Note, or both; provided, however, that any payment of
principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute
a Scheduled Payment.
Special Redemption Premium: Means the premium payable by
the Company in respect of the Final Withdrawal pursuant to the
Note Purchase Agreement.
Special Payment: Means any payment (other than a
Scheduled Payment) in respect of, or any proceeds of, any
Equipment Note or Trust Indenture Estate (as defined in each
Indenture) or Special Redemption Premium.
Substitute Aircraft: Has the meaning specified in the
Note Purchase Agreement.
Termination Date: Means the date on which first occurs a
"Termination Event" as defined in that certain Aircraft Financing
Letter Agreement, dated as of October 31, 1997 between AVSA,
S.A.R.L. and the Company.
Triggering Event: Has the meaning assigned to such term
in the Intercreditor Agreement.
Trust Property: Means (i) subject to the Intercreditor
Agreement, the Equipment Notes held as the property of the
Applicable Trust, all monies at any time paid thereon and all
monies due and to become due thereunder, (ii) funds from time to
time deposited in the Certificate Account, the Special Payments
Account and, subject to the Intercreditor Agreement, any proceeds
from the sale by the Trustee pursuant to Article VI of the Basic
Agreement of any Equipment Note and (iii) all rights of the
Applicable Trust and the Trustee, on behalf of the Applicable
Trust, under the Intercreditor Agreement, the Escrow Agreement,
the Note Purchase Agreement, and the Liquidity Facility,
including, without limitation, all rights to receive certain
payments thereunder, and all monies paid to the Trustee on behalf
of the Applicable Trust pursuant to the Intercreditor Agreement,
or the Liquidity Facility, provided that rights with respect to
the Deposits or under the Escrow Agreement, except for the right
to direct withdrawals for the purchase of Equipment Notes to be
held herein, will not constitute Trust Property.
ARTICLE III
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. Additions to Article IV of the Basic
Agreement. In addition to the provisions of Article IV of the Basic
Agreement, the following provisions shall apply to the Applicable Trust:
(a) Upon the payment of Special Redemption Premium to the
Trustee under the Note Purchase Agreement, the Trustee, upon
receipt thereof, shall immediately deposit the aggregate amount of
such Special Redemption Premium in the Special Payments Account;
(b) The distribution of amounts of Special Redemption
Premium as provided for in Section 4.02(b) of the Basic Agreement
shall be on the Special Distribution Date with respect to such
Special Payment or as soon thereafter as the Trustee has confirmed
receipt of the related Special Redemption Premium;
(c) In the event of the payment of a Special Redemption
Premium by the Company to the Trustee under the Note Purchase
Agreement, the notice provided for in Section 4.02(c) of the Basic
Agreement shall be mailed, together with the notice by the Escrow
Paying Agent under Section 2.06 of the Escrow Agreement, not less
than 15 days prior to the Special Distribution Date for such
amount, which Special Distribution Date shall be the Final
Withdrawal Date; and
(d) The last sentence of the first paragraph of Section
4.02(c) of the Basic Agreement shall apply equally if the amount
of Special Redemption Premium, if any, has not been calculated at
the time the Trustee mails notice of a Special Payment.
Section 3.02. Statements to Applicable
Certificateholders. (a) On each Distribution Date, the Trustee will include
with each distribution to Applicable Certificateholders of a Scheduled
Payment or Special Payment, as the case may be, a statement setting forth
the information provided below (in the case of a Special Payment, including
any Special Redemption Premium, reflecting in part the information provided
by the Escrow Paying Agent under the Escrow Agreement). Such statement
shall set forth (per $1,000 face amount Applicable Certificate as to (ii),
(iii), (iv) and (v) below) the following information:
(i) the aggregate amount of funds distributed on such
Distribution Date under the Agreement and under the Escrow
Agreement, indicating the amount allocable to each source
including any portion thereof paid by the Liquidity Provider;
(ii) the amount of such distribution under the Agreement
allocable to principal and the amount allocable to premium
(including the Special Redemption Premium), if any;
(iii) the amount of such distribution under the Agreement
allocable to interest;
(iv) the amount of such distribution under the Escrow
Agreement allocable to interest;
(v) the amount of such distribution under the Escrow
Agreement allocable to Deposits; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in
the name of a Clearing Agency, on the Record Date prior to each
Distribution Date, the Trustee will request from such Clearing Agency a
securities position listing setting forth the names of all Clearing Agency
Participants reflected on such Clearing Agency's books as holding interests
in the Applicable Certificates on such Record Date. On each Distribution
Date, the Trustee will mail to each such Clearing Agency Participant the
statement described above and will make available additional copies as
requested by such Clearing Agency Participant for forwarding to holders of
interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of
each calendar year but not later than the latest date permitted by law, the
Trustee shall furnish to each Person who at any time during such calendar
year was an Applicable Certificateholder of record a statement containing
the sum of the amounts determined pursuant to clauses (a)(i), (a)(ii),
(a)(iii), (a)(iv) and (a)(v) of this Section 3.02 for such calendar year
or, in the event such Person was an Applicable Certificateholder of record
during a portion of such calendar year, for such portion of such year, and
such other items as are readily available to the Trustee and which an
Applicable Certificateholder shall reasonably request as necessary for the
purpose of such Applicable Certificateholder's preparation of its federal
income tax returns. Such statement and such other items shall be prepared
on the basis of information supplied to the Trustee by the Clearing Agency
Participants and shall be delivered by the Trustee to such Clearing Agency
Participants to be available for forwarding by such Clearing Agency
Participants to the holders of interests in the Applicable Certificates in
the manner described in Section 3.02(a) of this Trust Supplement.
(c) Promptly following (i) the Cut-Off Date, if there has
been any change in the information set forth in clauses (x), (y) and (z)
below from that set forth in page S-45 of the Prospectus Supplement, and
(ii) any early redemption or purchase of, or any default in the payment of
principal or interest in respect of, any of the Equipment Notes held in the
Applicable Trust, or any Final Withdrawal, the Trustee shall furnish to
Applicable Certificateholders of record on such date a statement setting
forth (x) the expected Pool Balances for each subsequent Regular
Distribution Date following the Cut-Off Date, (y) the related Pool Factors
for such Regular Distribution Dates and (z) the expected principal
distribution schedule of the Equipment Notes, in the aggregate, held as
Trust Property at the date of such notice. With respect to the Applicable
Certificates registered in the name of a Clearing Agency, on the Cut-Off
Date, the Trustee will request from such Clearing Agency a securities
position listing setting forth the names of all Clearing Agency
Participants reflected on such Clearing Agency's books as holding interests
in the Applicable Certificates on such date. The Trustee will mail to each
such Clearing Agency Participant the statement described above and will
make available additional copies as requested by such Clearing Agency
Participant for forwarding to holders of interests in the Applicable
Certificates.
(d) This Section 3.02 supersedes and replaces Section
4.03 of the Basic Agreement.
ARTICLE IV
DEFAULT
Section 4.01. Purchase Rights of Certificateholders. (a)
(i) At any time after the occurrence and during the continuance of a
Triggering Event, each Applicable Certificateholder shall have the right to
purchase, for the purchase price set forth below, all, but not less than
all, of the Class G Certificates upon ten days' written notice to the
Trustee, and each other Applicable Certificateholder, provided that (A) if
prior to the end of such ten-day period any other Applicable
Certificateholder notifies such purchasing Applicable Certificateholder
that such other Applicable Certificateholder wants to participate in such
purchase, then such other Applicable Certificateholder may join with the
purchasing Applicable Certificateholder to purchase all, but not less than
all, of the Class G Certificates pro rata based on the Fractional Undivided
Interest in the Applicable Trust held by each such Applicable
Certificateholder and (B) if prior to the end of such ten-day period any
other Applicable Certificateholder fails to notify the purchasing
Applicable Certificateholder of such other Applicable Certificateholder's
desire to participate in such a purchase, then such other Applicable
Certificateholder shall lose its right to purchase the Class G Certificates
pursuant to this Section 4.01(a) and (ii) whether or not any Applicable
Certificateholder exercises its right to purchase pursuant to clause (a)(i)
above, the Policy Provider, if it is then the Controlling Party and 180
days have elapsed since the occurrence of a Triggering Event that is
continuing, shall have the right (except in the event of a Policy Provider
Default) to purchase all, but not less than all, of the Class G
Certificates upon ten days' written notice to the Trustee, the trustee of
the Class G Trust and the Class G Certificateholders.
The purchase price with respect to the Class G
Certificates shall be equal to the Pool Balance of the Class G
Certificates, together with accrued and unpaid interest thereon to the date
of such purchase, without premium, but including any other amounts then due
and payable to the Class G Certificateholders under this Agreement, the
Intercreditor Agreement, the Escrow Agreement or any Note Document or on or
in respect of the Applicable Certificates; provided, however, that (x) if
such purchase occurs after the record date specified in Section 2.03(b) of
the Escrow Agreement relating to the distribution of unused Deposits and
accrued and unpaid interest thereunder, such purchase price shall be
reduced by the aggregate amount of unused Deposits and interest to be
distributed under the Escrow Agreement (which deducted amounts shall remain
distributable to, and may be retained by, the Class G Certificateholder as
of such Record Date) and (y) if such purchase occurs after a Record Date,
such purchase price shall be reduced by the amount to be distributed
hereunder on the related Distribution Date (which deducted amounts shall
remain distributable to, and may be retained by, the Class G
Certificateholder as of such Record Date); provided further that no such
purchase of Class G Certificates shall be effective unless the purchaser(s)
shall certify to the Trustee that contemporaneously with such purchase,
such purchaser(s) is purchasing the Class G Certificates pursuant to the
terms of this Agreement. Each payment of the purchase price of the Class G
Certificates referred to in the first sentence hereof shall be made to an
account or accounts designated by the Trustee and each such purchase shall
be subject to the terms of this Section 4.01(a).
(b) This Section 4.01 supersedes and replaces Section
6.01(b) of the Basic Agreement.
ARTICLE V
THE TRUSTEE
Section 5.01. Delivery of Documents; Delivery Dates. (a)
The Trustee is hereby directed (i) to execute and deliver the Intercreditor
Agreement, the Escrow Agreement, the Registration Agreement and the Note
Purchase Agreement, each in the form delivered to the Trustee by the
Company and (ii) subject to the respective terms thereof, to perform its
obligations thereunder. Upon request of the Company and the satisfaction or
waiver of the closing conditions specified in the Class C Purchase
Agreement, the Trustee shall execute, deliver, authenticate, issue and sell
Applicable Certificates in authorized denominations equaling in the
aggregate the amount set forth, with respect to the Applicable Trust, in
Schedule I to the Class C Purchase Agreement evidencing the entire
ownership interest in the Applicable Trust, which amount equals the maximum
aggregate principal amount of Equipment Notes which may be purchased by the
Trustee pursuant to the Note Purchase Agreement. Except as provided in
Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement, the Trustee
shall not execute, authenticate or deliver Applicable Certificates in
excess of the aggregate amount specified in this paragraph.
(b) On or after the Issuance Date the Company may deliver
from time to time to the Trustee a Closing Notice relating to one or more
Equipment Notes. After receipt of a Closing Notice and in any case no later
than one Business Day prior to a Delivery Date as to which such Closing
Notice relates (the "Applicable Delivery Date"), the Trustee shall (as and
when specified in the Closing Notice) instruct the Escrow Agent to provide
a Notice of Purchase Withdrawal to the Depositary requesting (A) the
withdrawal of one or more Deposits on the Applicable Delivery Date in
accordance with and to the extent permitted by the terms of the Escrow
Agreement and the Deposit Agreement and (B) the payment of all, or a
portion, of such Deposit or Deposits in an amount equal in the aggregate to
the purchase price of such Equipment Notes to or on behalf of the Owner
Trustee or the Company, as the case may be, issuing such Equipment Notes,
all as shall be described in the Closing Notice. The Trustee shall (as and
when specified in such Closing Notice), subject to the conditions set forth
in Section 3 of the Note Purchase Agreement, enter into and perform its
obligations under the Participation Agreement specified in such Closing
Notice (the "Applicable Participation Agreement") and cause such
certificates, documents and legal opinions relating to the Trustee to be
duly delivered as required by the Applicable Participation Agreement. If at
any time prior to the Applicable Delivery Date, the Trustee receives a
notice of postponement pursuant to Section 2(e), 2(f), or 2(g) of the Note
Purchase Agreement, then the Trustee shall give the Depositary (with a copy
to the Escrow Agent) a notice of cancellation of such Notice of Purchase
Withdrawal relating to such Deposit or Deposits on such Applicable Delivery
Date. Upon satisfaction of the conditions specified in the Note Purchase
Agreement and the Applicable Participation Agreement, the Trustee shall
purchase the applicable Equipment Notes with the proceeds of the
withdrawals of one or more Deposits made on the Applicable Delivery Date in
accordance with the terms of the Deposit Agreement and the Escrow
Agreement. The purchase price of such Equipment Notes shall equal the
principal amount of such Equipment Notes. Amounts withdrawn from such
Deposit or Deposits in excess of the purchase price of the Equipment Notes
or to the extent not applied on the Applicable Delivery Date to the
purchase price of the Equipment Notes, shall be re-deposited by the Trustee
with the Depositary on the Applicable Delivery Date in accordance with the
terms of the Deposit Agreement. The provisions of Section 5.01(a) hereof
and this Section 5.01(b) supersede and replace the provisions of Section
2.02 of the Basic Agreement (which are inapplicable to the Trust), and all
provisions of the Basic Agreement relating to Section 2.02 of the Basic
Agreement shall not apply to the Applicable Trust.
Section 5.02. Withdrawal of Deposits. If any Deposits
remain outstanding on the Business Day next succeeding the Cut-off Date or
on the Termination Date, (i) the Trustee shall give the Escrow Agent notice
that the Trustee's obligation to purchase Equipment Notes under the Note
Purchase Agreement has terminated and instruct the Escrow Agent to provide
a notice of Final Withdrawal to the Depositary substantially in the form of
Exhibit B to the Deposit Agreement (the "Final Withdrawal Notice") and (ii)
the Trustee will make a demand upon the Company under the Note Purchase
Agreement for an amount equal to the Special Redemption Premium, such
payment to be made on the Final Withdrawal Date.
Section 5.03. The Trustee. (a) Subject to Section 5.04 of
this Trust Supplement and Section 7.15 of the Basic Agreement, the Trustee
shall not be responsible in any manner whatsoever for or in respect of the
validity or sufficiency of this Trust Supplement, the Deposit Agreement or
the Escrow Agreement or the due execution hereof or thereof by the Company
or the other parties thereto (other than the Trustee), or for or in respect
of the recitals and statements contained herein or therein, all of which
recitals and statements are made solely by the Company.
(b) Except as herein otherwise provided, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed by the Trustee by reason of this Trust Supplement other than as set
forth in the Basic Agreement, and this Trust Supplement is executed and
accepted on behalf of the Trustee, subject to all the terms and conditions
set forth in the Basic Agreement, upon the effectiveness thereof, as fully
to all intents as if the same were herein set forth at length.
Section 5.04. Representations and Warranties of the
Trustee. The Trustee hereby represents and warrants that:
(a) the Trustee has full power, authority and legal right
to execute, deliver and perform this Trust Supplement, the
Intercreditor Agreement, the Registration Agreement, the Escrow
Agreement and the Note Documents to which it is a party and has
taken all necessary action to authorize the execution, delivery
and performance by it of this Trust Supplement, the Intercreditor
Agreement, the Escrow Agreement and the Note Documents to which it
is a party;
(b) the execution, delivery and performance by the
Trustee of this Trust Supplement, the Intercreditor Agreement, the
Escrow Agreement the Registration Agreement, and the Note
Documents to which it is a party (i) will not violate any
provision of any United States federal law or the law of the state
of the United States where it is located governing the banking and
trust powers of the Trustee or any order, writ, judgment, or
decree of any court, arbitrator or governmental authority
applicable to the Trustee or any of its assets, (ii) will not
violate any provision of the articles of association or by-laws of
the Trustee, and (iii) will not violate any provision of, or
constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any
properties included in the Trust Property pursuant to the
provisions of any mortgage, indenture, contract, agreement or
other undertaking to which it is a party, which violation, default
or lien could reasonably be expected to have an adverse effect on
the Trustee's performance or ability to perform its duties
hereunder or thereunder or on the transactions contemplated herein
or therein;
(c) the execution, delivery and performance by the
Trustee of this Trust Supplement, the Intercreditor Agreement, the
Registration Agreement, the Escrow Agreement and the Note
Documents to which it is a party will not require the
authorization, consent, or approval of, the giving of notice to,
the filing or registration with, or the taking of any other action
in respect of, any governmental authority or agency of the United
States or the state of the United States where it is located
regulating the banking and corporate trust activities of the
Trustee; and
(d) this Trust Supplement, the Intercreditor Agreement,
the Registration Agreement, the Escrow Agreement and the Note
Documents to which it is a party have been, or will be, as
applicable, duly executed and delivered by the Trustee and
constitute, or will constitute, as applicable, the legal, valid
and binding agreements of the Trustee, enforceable against it in
accordance with their respective terms; provided, however, that
enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the rights of creditors generally and (ii) general principles of
equity.
Section 5.05. Trustee Liens. The Trustee in its
individual capacity agrees, in addition to the agreements contained in
Section 7.17 of the Basic Agreement, that it will at its own cost and
expense promptly take any action as may be necessary to duly discharge and
satisfy in full any Trustee's Liens on or with respect to the Trust
Property which is attributable to the Trustee in its individual capacity
and which is unrelated to the transactions contemplated by the
Intercreditor Agreement or the Note Purchase Agreement.
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. Supplemental Agreements Without Consent of
Applicable Certificateholders. Under the terms of, and subject to the
limitations contained in, Section 9.01 of the Basic Agreement, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03
of the Basic Agreement) shall, at the Company's request, at any time and
from time to time, enter into one or more agreements supplemental to the
Escrow Agreement, the Note Purchase Agreement or the Deposit Agreement, for
any of the purposes set forth in clauses (1) through (9) of such Section
9.01, except that (a) clause (3) of such Section 9.01 shall be deemed to
include the Company's rights and powers conferred by the Note Purchase
Agreement and (b) clause (4) of such Section 9.01 shall be deemed to
include corrections or supplements to provisions of the Escrow Agreement or
the Deposit Agreement which may be defective or inconsistent with any other
provision of this Agreement or contained in any agreement referred to in
such clause (4) and the curing of any ambiguity or the modification of any
other provision with respect to matters or questions arising under the
Escrow Agreement or the Deposit Agreement.
Section 6.02. Supplemental Agreements with Consent of
Applicable Certificateholders. The provisions of Section 9.02 of the Basic
Agreement shall apply to agreements or amendments for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of the Escrow Agreement, the Deposit Agreement or the Note
Purchase Agreement to the extent applicable to the Applicable
Certificateholders approving such agreement or amendment or modifying in
any manner the rights and obligations of such Applicable Certificateholders
under the Escrow Agreement, the Deposit Agreement or the Note Purchase
Agreement; provided that the provisions of Section 9.02(1) of the Basic
Agreement shall be deemed to include reductions in any manner of, or delay
in the timing of, any receipt by the Applicable Certificateholders of
payments upon the Deposits. The provisions of Sections 9.01(9) and 9.01(10)
of the Basic Agreement shall not be applicable to this Trust Supplement.
ARTICLE VII
TERMINATION OF TRUST
Section 7.01. Termination of the Trust. The respective
obligations and responsibilities of the Company and the Trustee with
respect to the Applicable Trust shall terminate upon the distribution to
all Applicable Certificateholders and the Trustee of all amounts required
to be distributed to them pursuant to this Agreement and the disposition of
all property held as part of the Trust Property; provided, however, that in
no event shall the Applicable Trust continue beyond 21 years less one day
following the death of the last survivor of all descendants living on the
date hereof of Xxxxxx X. Xxxxxxx, Xx., unless applicable law shall permit a
longer term, in which case such longer term shall apply.
Notice of any termination specifying the Distribution
Date upon which the Applicable Certificateholders may surrender their
Applicable Certificates to the Trustee for payment of the final
distribution and cancellation, shall be mailed promptly by the Trustee to
Applicable Certificateholders not earlier than the 60th day and not later
than the 15th day next preceding such final Distribution Date specifying
(A) the Distribution Date upon which the proposed final payment of the
Applicable Certificates will be made upon presentation and surrender of
Applicable Certificates at the office or agency of the Trustee therein
specified, (B) the amount of any such proposed final payment, and (C) that
the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Applicable Certificates at the office or agency of the Trustee therein
specified. The Trustee shall give such notice to the Registrar at the time
such notice is given to Applicable Certificateholders. Upon presentation
and surrender of the Applicable Certificates in accordance with such
notice, the Trustee shall cause to be distributed to Applicable
Certificateholders such final payments.
In the event that all of the Applicable
Certificateholders shall not surrender their Applicable Certificates for
cancellation within six months after the date specified in the
above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Applicable Certificateholders to surrender their
Applicable Certificates for cancellation and receive the final distribution
with respect thereto. No additional interest shall accrue on the Applicable
Certificates after the Distribution Date specified in the first written
notice. In the event that any money held by the Trustee for the payment of
distributions on the Applicable Certificates shall remain unclaimed for two
(2) years (or such lesser time as the Trustee shall be satisfied, after
sixty days' notice from the Company, is one month prior to the escheat
period provided under applicable law) after the final distribution date
with respect thereto, the Trustee shall pay to each Loan Trustee the
appropriate amount of money relating to such Loan Trustee and shall give
written notice thereof to the related Owner Trustees, the Owner
Participants and the Company.
ARTICLE VIII
THE COMPANY
Section 8.01. Consolidation, Mergers, Etc. Section 5.02
of the Basic Agreement is hereby amended with respect to the Applicable
Trust by deleting the word "and" at the end of clause (b) thereof,
renumbering clause (c) as clause "(d)" and inserting a new clause (c) as
follows:
"(c) immediately after giving effect to such transaction,
no Indenture Event of Default (in the case of an Owned Aircraft)
or, in the case of a Leased Aircraft, Lease Event of Default (as
defined in the related Indenture) shall have occurred and be
continuing; and"
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Basic Agreement Ratified. Except and so far
as herein expressly provided, all of the provisions, terms and conditions
of the Basic Agreement are in all respects ratified and confirmed; and the
Basic Agreement and this Trust Supplement shall be taken, read and
construed as one and the same instrument.
Section 9.02. GOVERNING LAW. THIS AGREEMENT AND THE
APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
Section 9.03. Execution in Counterparts. This Trust
Supplement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but
one and the same instrument.
Section 9.04. Intention of Parties. The parties hereto
intend that the Applicable Trust be classified for U.S. federal income tax
purposes as a grantor trust under Subpart E, Part I of Subchapter J of the
Internal Revenue Code of 1986, as amended, and not as a trust or
association taxable as a corporation or as a partnership. Each Applicable
Certificateholder and Investor, by its acceptance of its Applicable
Certificate or a beneficial interest therein, agrees to treat the
Applicable Trust as a grantor trust for all U.S. federal, state and local
income tax purposes. The powers granted and obligations undertaken pursuant
to the Agreement shall be so construed so as to further such intent.
Section 9.05. Benefits of Agreement. (a) Nothing in this
Agreement or in the Certificates of any series, express or implied, shall
give to any person, other than the parties hereto and their successors
hereunder and the Certificateholders of each series, any benefit or any
legal or equitable right, remedy or claim under this Agreement.
(b) This Section 9.05 supercedes and replaces Section
12.10 of the Basic Agreement.
ARTICLE X
THE CERTIFICATES
Section 10.01. Additions to Article III of the Basic
Agreement. In addition to the provisions of Article III of the Basic
Agreement, the following provisions shall apply to the Applicable Trust:
(a) Initial Certificates offered and sold in reliance on
Rule 144A or to an Institutional Accredited Investor, or resold in reliance
on Regulation S and Rule 904 under the Securities Act, each shall be issued
initially in the form of one or more permanent global Certificates in
registered form, substantially in the form set forth as Exhibit A
(respectively, the "144A Global Certificate," the "IAI Global Certificate,"
and the "Regulation S Global Certificate," each, a "Global Certificate"),
duly executed and authenticated by the Trustee as provided in Section 3.02
of the Basic Agreement. The Global Certificates shall be registered in the
name of Cede & Co., as nominee for DTC, and deposited with the Trustee, as
custodian for DTC. The aggregate principal amount of the Global
Certificates may from time to time be decreased by adjustments made on the
records of DTC or its nominee, or of the Trustee, as custodian for DTC or
its nominee, as hereinafter provided.
(b) Initial Certificates offered and sold other than
pursuant to Rule 144A or pursuant to Regulation S or to Institutional
Accredited Investors shall be issued in the form of permanent certificated
Certificates in registered form, in substantially the form set forth as
Exhibit A (the "Physical Certificates"). All other Certificates shall be
Global Certificates.
(c) The Applicable Certificates shall be in registered
form and shall be typed, printed, lithographed or engraved or produced by
any combination of these methods or may be produced in any other manner,
all as determined by the officers executing such Certificates, as evidenced
by their execution of such Certificates.
Section 10.02 Restrictive Legends. (a) Subject to Section
10.03(a) of this Trust Supplement, unless and until (i) an Initial
Certificate or a Private Exchange Certificate is sold under an effective
Registration Statement, (ii) an Initial Certificate is exchanged for an
Exchange Certificate pursuant to an effective Exchange Offer Registration
Statement, (iii) an Initial Certificate or a Private Exchange Certificate
is sold pursuant to Rule 144, (iv) as otherwise provided in the Private
Placement Legend or (v) the Company and the holder thereof otherwise agree,
in each case as provided for in the Registration Agreement, each Global
Certificate and each Physical Certificate shall bear the following legend
(the "Private Placement Legend") on the face thereof:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS AND ACCORDINGLY, THIS CERTIFICATE OR ANY INTEREST OR PARTICIPATION
HEREIN MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER: (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR"), OR (C) IT IS
OTHERWISE ACQUIRING THIS CERTIFICATE IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; (2) AGREES THAT IT WILL
NOT WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS
CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS OWNED BY US
AIRWAYS, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY SUCH PERSON RESELL OR
OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO US AIRWAYS, INC, (B) TO A
PERSON WHO THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE AGGREGATE
PRINCIPAL AMOUNT OF SUCH CERTIFICATE THAT, PRIOR TO SUCH TRANSFER,
FURNISHED TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED (OTHER THAN PURSUANT TO
CLAUSES (2)(D) AND (2)(F) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE AS A
RESTRICTED SECURITY WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS
HELD BY US AIRWAYS, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY SUCH PERSONS
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER NOTICE
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (2)(C) OR
(2)(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTIONS
TERMINATE. THE CLASS C TRUST SUPPLEMENT CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION
OF THE FOREGOING RESTRICTIONS.
(b) Each Global Certificate of each class shall also bear
the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN
EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 10.03 OF THE
TRUST SUPPLEMENT NO. 2000-3C.
Section 10.03. Special Transfer Provisions. Unless and
until (i) an Initial Certificate or a Private Exchange Certificate is sold
under an effective Registration Statement, (ii) an Initial Certificate is
exchanged for an Exchange Certificate pursuant to an effective Exchange
Offer Registration Statement, (iii) an Initial Certificate or a Private
Exchange Certificate is sold pursuant to Rule 144, (iv) as otherwise
provided in the Private Placement Legend or (v) the Company and the holder
thereof otherwise agree, the Registrar shall refuse to register any
exchange except in accordance with the following provisions:
(a) Private Placement Legend. Upon the transfer, exchange
or replacement of Applicable Certificates not bearing the Private Placement
Legend, the Registrar shall deliver Applicable Certificates that do not
bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Applicable Certificates bearing the Private Placement
Legend, the Registrar shall deliver only Applicable Certificates that bear
the Private Placement Legend, except as contemplated by Section 10.02.
(b) General. By its acceptance of any Applicable
Certificate bearing the Private Placement Legend, each Holder of such
Applicable Certificate acknowledges the restrictions on transfer of such
Applicable Certificate set forth in this Trust Supplement and agrees that
it shall transfer such Certificate only as provided in this Trust
Supplement. The Registrar shall not register a transfer of any Applicable
Certificate unless such transfer complies with the restrictions on transfer
of such Certificate set forth in this Trust Supplement. In connection with
any transfer of Applicable Certificates, each Certificateholder agrees by
its acceptance of the Applicable Certificates to furnish the Registrar or
the Trustee such certifications, legal opinions or other information as the
Private Placement Legend requires to confirm that such transfer is being
made pursuant to an exemption from, or a transaction not subject to, the
registration requirements of the Securities Act.
Until such time as no Applicable Certificates remain
Outstanding, the Registrar shall retain copies of all letters, notices and
other written communications received pursuant to this Section 10.03. The
Trustee, if not the Registrar at such time, shall have the right to inspect
and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
Transfers of the Applicable Certificates (and interests
therein) among different types of Global Certificates (including a Global
Certificate not containing a Private Placement Legend) and from Global
Certificates to a Physical Certificate and from Physical Certificates to
Global Certificates shall be made in accordance with the procedures set
forth on Exhibit F hereto.
IN WITNESS WHEREOF, the Company and the Trustee have
caused this Trust Supplement to be duly executed by their respective
officers thereto duly authorized, as of the day and year first written
above.
US AIRWAYS, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
----------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President and Treasurer
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
EXHIBIT A
---------
FORM OF CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS AND ACCORDINGLY, THIS CERTIFICATE OR ANY INTEREST OR PARTICIPATION
HEREIN MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER: (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR"), OR (C) IT IS
OTHERWISE ACQUIRING THIS CERTIFICATE IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; (2) AGREES THAT IT WILL
NOT WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS
CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS OWNED BY US
AIRWAYS, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY SUCH PERSON RESELL OR
OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO US AIRWAYS, INC., (B) TO
A PERSON WHO THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE AGGREGATE
PRINCIPAL AMOUNT OF SUCH CERTIFICATE THAT, PRIOR TO SUCH TRANSFER,
FURNISHED TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED (OTHER THAN PURSUANT TO
CLAUSES (2)(D) AND (2)(F) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE AS A
RESTRICTED SECURITY WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS
HELD BY US AIRWAYS, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY SUCH PERSONS
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER NOTICE
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (2)(C) OR
(2)(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTIONS
TERMINATE. THE CLASS C TRUST SUPPLEMENT CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION
OF THE FOREGOING RESTRICTIONS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.*
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 10.03 OF THE TRUST SUPPLEMENT NO. 2000-3C
US AIRWAYS SERIES 2000-3C PASS THROUGH TRUST
8.39% US Airways [Initial][Exchange]
Pass Through Certificate, Series
2000-3C
Final Expected Regular Distribution
Date: March 1, 2022 evidencing a
fractional undivided interest in a
trust, the property of which
includes certain equipment notes
each secured by Aircraft owned by or
leased to US Airways, Inc.
Certificate
No.1 $157,054,000 Fractional Undivided Interest representing
--------
*This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company.
.0006367237% of the Trust per $1,000 face amount
THIS CERTIFIES THAT Cede & Co., for value received, is the
registered owner of a $157,054,000 (ONE HUNDRED FIFTY SEVEN MILLION FIFTY
FOUR THOUSAND dollars) Fractional Undivided Interest in the US Airways Pass
Through Trust, Series 2000-3C (the "Trust") created by State Street Bank
and Trust Company of Connecticut, National Association, as trustee (the
"Trustee"), pursuant to a Pass Through Trust Agreement dated as of October
5, 2000 (the "Basic Agreement"), between the Trustee and US Airways, Inc.,
a Delaware corporation (the "Company"), as supplemented by Trust Supplement
No. 2000-3C thereto dated November 2, 2000, between the Trustee and the
Company (collectively, the "Agreement"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Agreement. This Certificate is one of the
duly authorized Certificates designated as "8.39% US Airways
[Initial][Exchange] Pass Through Certificate, Series 2000-3C" (herein
called the "Certificates"). This Certificate is issued under and is subject
to the terms, provisions and conditions of the Agreement. By virtue of its
acceptance hereof, the Certificateholder of this Certificate assents to and
agrees to be bound by the provisions of the Agreement and the Intercreditor
Agreement. The property of the Trust includes certain Equipment Notes and
all rights of the Trust to receive any payments under the Intercreditor
Agreement and any Liquidity Facility (the "Trust Property"). Each issue of
the Equipment Notes is or will be secured by, among other things, a
security interest in aircraft leased to or owned by the Company.
The Certificates represent Fractional Undivided Interests in the
Trust and the Trust Property, and have no rights, benefits or interest in
respect of any other separate trust established pursuant to the terms of
the Basic Agreement for any other series of certificates issued pursuant
thereto.
Subject to and in accordance with the terms of the Agreement and
the Intercreditor Agreement, from funds then available to the Trustee,
there will be distributed on each March 1 and September 1 (a "Regular
Distribution Date"), commencing on March 1, 2001, to the Person in whose
name this Certificate is registered at the close of business on the 15th
day preceding the Regular Distribution Date, an amount in respect of the
Scheduled Payments on the Equipment Notes due on such Regular Distribution
Date, the receipt of which has been confirmed by the Trustee, equal to the
product of the percentage interest in the Trust evidenced by this
Certificate and an amount equal to the sum of such Scheduled Payments.
Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreement, in the event that Special Payments on the
Equipment Notes are received by the Trustee, from funds then available to
the Trustee, there shall be distributed on the applicable Special
Distribution Date, to the Person in whose name this Certificate is
registered at the close of business on the 15th day preceding the Special
Distribution Date, an amount in respect of such Special Payments on the
Equipment Notes, the receipt of which has been confirmed by the Trustee,
equal to the product of the percentage interest in the Trust evidenced by
this Certificate and an amount equal to the sum of such Special Payments so
received. If a Regular Distribution Date or Special Distribution Date is
not a Business Day, distribution shall be made on the immediately following
Business Day with the same force and effect as if made on such Regular
Distribution Date or Special Distribution Date and no interest shall accrue
during the intervening period. The Trustee shall mail notice of each
Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
The Holder of this Certificate is entitled to the benefits of the
Registration Agreement, dated as of November 2, 2000, between the Company,
the Trustee and the Purchaser named therein (the "Registration Agreement").
If (i) any Registration Statement required by the Registration Agreement is
not (i) filed with the Securities and Exchange Commission (the
"Commission") on or prior to the applicable filing deadline specified in
the Registration Agreement, (ii) any Registration Statement required by the
Registration Agreement is not declared effective by the Commission on or
prior to the applicable effectiveness deadline specified in the
Registration Agreement, (iii) any Registered Exchange Offer has not been
consummated on or prior to the consummation deadline specified in the
Registration Agreement or (iv) any Registration Statement required by the
Registration Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose at any
time prior to (a) in the case of an Exchange Offer Registration Statement,
the expiration of the respective Exchange Offer Registration Period (as
defined in the Registration Agreement) or (b) if a Shelf Registration
Statement (as defined in the Registration Agreement) is required to be
filed pursuant to the Registration Agreement, the expiration of the Shelf
Registration Period (as defined in the Registration Agreement), in each
case without being succeeded within two (2) days by a post-effective
amendment to such Registration Statement that cures such failure and that
is itself declared effective within five (5) days of filing such
post-effective amendment to such Registration Statement (each such event in
clauses (i) through (iv), a "Registration Default"), then the interest rate
applicable to this Certificate shall be increased as follows: during the
first ninety (90)-day period immediately following the occurrence of such
Registration Default, such interest rate shall be increased by 0.25% per
annum from and including the first Business Day following the date on which
such Registration Default occurs to but excluding the date such
Registration Default is cured in accordance with the last sentence of this
paragraph. During Each subsequent ninety (90) day period during which any
Registration Default has occurred and is continuing, the interest rate
applicable to this Certificate shall increase by an additional 0.25% per
annum up to a maximum of 1.00% per annum. Notwithstanding the foregoing,
(1) upon the filing of the respective Registered Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the
respective Registered Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement) in the case of (ii) above,
(3) upon consummation of the respective Registered Exchange Offer in the
case of (iii) above, or (4) upon the filing of a post-effective amendment
to the respective Registration Statement or any additional Registration
Statement that causes the respective Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) above, the existing
Registration Default shall be deemed cured and the Securities that are the
subject of such Registration Statement as a result of such clause (i),
(ii), (iii) or (iv), as applicable, will again bear interest at 8.39% per
annum, until such time, if any, that another Registration Default occurs.
Notwithstanding any other provision of the Registration Agreement, the time
periods in which a Registration Default will be deemed to have occurred may
be delayed or extended in accordance with the provisions of the
Registration Agreement.
Subject to the terms of the Intercreditor Agreement, any
incremental interest due to a Holder of this Certificate will be passed
through to such Holder on each Regular Distribution Date in the manner
provided for in the Agreement, as more fully set forth in the Agreement and
this Certificate.
Distributions on this Certificate will be made by the Trustee by
check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon, except
that with respect to Certificates registered on the Record Date in the name
of a Clearing Agency (or its nominee), such distribution shall be made by
wire transfer. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Certificate will
be made after notice mailed by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate
at the office or agency of the Trustee specified in such notice.
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the Company or the Trustee or
any affiliate thereof. The Certificates are limited in right of payment,
all as more specifically set forth on the face hereof and in the Agreement.
All payments or distributions made to Certificateholders under the
Agreement shall be made only from the Trust Property and only to the extent
that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the
Agreement. Each Certificateholder of this Certificate, by its acceptance
hereof, agrees that it will look solely to the income and proceeds from the
Trust Property to the extent available for distribution to such
Certificateholder as provided in the Agreement. This Certificate does not
purport to summarize the Agreement and reference is made to the Agreement
for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement
may be examined during normal business hours at the principal office of the
Trustee, and at such other places, if any, designated by the Trustee, by
any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Certificateholders under the Agreement at
any time by the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust.
Any such consent by the Certificateholder of this Certificate shall be
conclusive and binding on such Certificateholder and upon all future
Certificateholders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without
the consent of the Certificateholders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
set forth therein, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Trustee in its capacity as
Registrar, or by any successor Registrar duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Registrar, duly executed by the Certificateholder hereof or such
Certificateholder's attorney duly authorized in writing, and thereupon one
or more new Certificates of authorized denominations evidencing the same
aggregate Fractional Undivided Interest in the Trust will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided
Interest and integral multiples thereof except that one Certificate may be
issued in a different denomination. As provided in the Agreement and
subject to certain limitations therein set forth, the Certificates are
exchangeable for new Certificates of authorized denominations evidencing
the same aggregate Fractional Undivided Interest in the Trust, as requested
by the Certificateholder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee shall require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
Each Certificateholder and Investor, by its acceptance of this
Certificate or a beneficial interest herein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Trustee, the
Registrar, nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and
the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them
pursuant to the Agreement and the disposition of all property held as part
of the Trust Property.
Any Person acquiring or accepting this Certificate or an interest
herein will, by such acquisition or acceptance, be deemed to have
represented and warranted that either: (i) the assets of an employee
benefit plan subject to Title I of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or of a plan subject to Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code"), have not been
used to purchase this Certificate or an interest herein or (ii) the
purchase and holding of this Certificate or interest herein are exempt from
the prohibited transaction restrictions of ERISA and the Code pursuant to
one or more prohibited transaction statutory or administrative exemptions.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon has been executed
by the Trustee, by manual signature, this Certificate shall not be entitled
to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
US AIRWAYS PASS THROUGH TRUST
2000-3C
By: STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as Trustee
By:
------------------------------
Title:
---------------------------
Dated:
-------------------------------
FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT B
---------
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder
hereby sell(s), assign(s) and transfer(s) unto:
Insert Taxpayer Identification No.
-------------------
please print or typewrite name and address including zip code of assignee
-------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
-------------------
attorney to transfer said Certificate on the books of the Trustee with full
power of substitution in the premises.
In connection with any transfer of this Certificate
occurring prior to the date that is the earlier of the date of an effective
Registration Statement or ________, ____, the undersigned confirms that
without utilizing any general solicitation or general advertising that:
[Check One]
[] (a) this Certificate is being transferred in compliance
with the exemption from registration under the Securities
Act of 1933, as amended, provided by Rule 144A
thereunder.
or
[] (b) this Certificate is being transferred other than in
accordance with (a) above and documents are being
furnished that comply with the conditions of transfer set
forth in this Certificate and the Agreement.
If neither of the foregoing boxes is checked, the Trustee or other
Registrar shall not be obligated to register this Certificate in the name
of any Person other than the Holder hereof unless and until the conditions
to any such transfer of registration set forth herein and in Section 10.03
of the Trust Supplement shall have been satisfied.
Date: [Name of Transferor]
-----------------------------------
NOTE: The signature must correspond with the
name as written upon the face of the
within-mentioned instrument in every particular,
without alteration or any change whatsoever.
Signature Guarantee:
---------------------------
EXHIBIT C
---------
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
[Date]
State Street Bank and Trust Company
of Connecticut, National Association
[Address]
Re: US Airways Pass Through Trust 2000-3C
(the "Trust"), US Airways Pass Through
Certificates, Series 2000-3C (the "Certificates")
Dear Sirs:
In connection with our proposed sale of $_______
Fractional Undivided Interest of the Certificates, we confirm that such
sale has been effected pursuant to and in accordance with Regulation S
under the Securities Act of 1933, as amended, and, accordingly, we
represent that:
1. the offer of the Certificates was not made to a person in
the United States;
2. either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any
person acting on our behalf reasonably believed that the
transferee was outside the United States or (b) the
transaction was executed in, on or through the facilities
of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the
United States;
3. no directed selling efforts have been made in the United
States in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S, as applicable; and
4. the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted
period and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation
S are applicable thereto, we confirm that such sale has been made in
accordance with the applicable provisions of Rule 903(c)(3) or Rule
904(c)(1), as the case may be.
You and US Airways, Inc. are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby. Terms used
in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
---------------------
Authorized Signature
EXHIBIT D
---------
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
[Date]
State Street Bank and Trust Company of Connecticut,
National Association
[Address]
Re: US Airways Pass Through Trust 2000-3C
(the "Trust"), US Airways Pass Through
Certificates, Series 2000-3C (the "Certificates")
Dear Sirs:
In connection with our proposed purchase of $_________
aggregate principal amount of the Certificates, we confirm that:
1. We understand that any subsequent transfer of the
Certificates is subject to certain restrictions and
conditions set forth in the Pass Through Trust Agreement,
dated as of __________, 2000, as supplemented by Trust
Supplement No. 2000-3C, relating to the Certificates (the
"Pass Through Trust Agreement") and the undersigned
agrees to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance
with, such restrictions and conditions and the Securities
Act of 1933, as amended (the "Securities Act").
2. We understand that the Certificates have not been
registered under the Securities Act, and that the
Certificates may not be offered or sold except as
permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any
Certificate, we shall do so only (A) to US Airways, Inc.,
(B) to a person who the holder reasonably believes is a
"qualified institutional buyer" in compliance with Rule
144A under the Securities Act, (C) to an institutional
"accredited investor" acquiring $100,000 or more
aggregate principal amount of such Certificate that,
prior to such transfer, furnished to the Trustee a signed
letter containing certain representations and agreements
relating to the restrictions on transfer of this
certificate (the form of which letter can be obtained
from the Trustee), (D) pursuant to the exemption from
registration provided by Rule 144 under the Securities
Act (if available), (E) in accordance with another
exemption from the Securities Act or (F) pursuant to an
effective registration statement under the Securities
Act; and we further agree to provide to any person
purchasing any of the Certificates from us a notice
advising such purchaser that resales of the Notes are
restricted as stated herein. We further understand that
the Certificates purchased by us shall bear a legend to
the foregoing effect.
3. We understand that, in connection with any transfer of
this Certificate as a restricted security within two
years after the later of the original issuance of this
Certificate or the last date on which this Certificate
was held by US Airways, Inc., the Trustee, or any
affiliate of any such persons, the holder must check the
appropriate box set forth on the transfer notice attached
to the Certificate relating to the manner of such
transfer and submit this Certificate to the Trustee;
provided that the Company and the Trustee shall have the
right prior to any such offer, sale or transfer pursuant
to clause (C) or (E) in paragraph 2 to require the
delivery of an opinion of counsel, certification and/or
other information satisfactory to each of them. We
further understand that the Certificates purchased by us
shall bear a legend to the foregoing effect.
4. We are [an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7)]*/[a
non-institutional "accredited investor" (as defined in
Rule 501(a), (4), (5), (6) or (8)]** of Regulation D
under the Securities Act) and have such knowledge and
experience in financial and business matters as to be [,
or have access to financial, legal, accounting and tax
advisors and have consulted the same to the extent
necessary for us to be,]** capable of evaluating the
merits and risks of our investment in the Certificates
and we and any accounts for which we are acting are each
able to bear the economic risk of our or its investment.
-------------------
* For institutional accredited investors only.
** For non-institutional accredited investors only.
5. We are acquiring the Certificates purchased by us for our
own account [or for one or more accounts (each of which
is an institutional "accredited investor") as to each of
which we exercise sole investment discretion.]*
You and US Airways, Inc. are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
-----------------------
Authorized Signature
EXHIBIT E
---------
[DTC Letter of Representations]
EXHIBIT F
---------
OTHER SPECIAL TRANSFER PROVISIONS
The following provisions shall supplement and, to the extent
inconsistent with, shall supercede and replace Sections 3.04 and 3.05 of
the Basic Agreement.
(a) Transfers other than to QIBs, IAIs, or pursuant to
Regulation S. The following provisions shall apply with respect to the
registration of any proposed transfer of an Applicable Certificate bearing,
both before and after the transfer, a Private Placement Legend (a
"Restricted Certificate") other than to any QIB, IAI which is not a QIB, or
pursuant to Regulation S:
(i) The Registrar shall register the transfer of
any such Restricted Certificate, if the proposed transferee has
delivered to the Registrar a letter substantially in the form of
Exhibit D hereto, and if (x) the proposed transferee agrees that
it will not within two years after the later of the original
issuance of this certificate or the last date on which this
certificate was owned by US Airways, Inc., the Trustee or any
affiliate of any such person resell or otherwise transfer this
certificate except (a) to US Airways, Inc., (b) to a person who
the transferee reasonably believes is a Qualified Institutional
Buyer in compliance with Rule 144A under the Securities Act, (c)
to an Institutional Accredited Investor acquiring $100,000 or more
aggregate principal amount of such Certificate that, prior to such
transfer, furnished to the Trustee a signed letter containing
certain representations and agreements relating to the
restrictions on transfer of this Certificate (the form of which
letter substantially in the form of Exhibit D), (d) pursuant to
the exemption from registration provided by Rule 144 under the
Securities Act (if available), (e) in accordance with another
exemption from the Securities Act or (f) pursuant to an effective
registration statement under the Securities Act; (y) the proposed
transferee agrees that it will deliver to each person to whom this
certificate is transferred (other than pursuant to clauses (d) and
(f) above) a notice substantially to the effect of this legend;
and (z) the proposed transferor and transferee have delivered to
the Registrar such other documents as are required by the Private
Placement Legend.
(ii) If the proposed transferor is an Agent
Member holding a beneficial interest in a Global Certificate, upon
receipt by the Registrar of (x) the documents, if any, required by
paragraph (i) and (y) instructions given in accordance with DTC's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date of the transfer and a decrease in the
principal amount of such Global Certificate in an amount equal to
the Fractional Undivided Interest represented by the beneficial
interest in such Global Certificate to be transferred, and the
Company shall execute, and the Trustee shall authenticate and
deliver to the transferor or at its direction, one or more
Physical Certificates of like class, tenor and amount, or an
interest in a Restricted Certificate (other than a Rule 144A
Global Certificate).
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer to a QIB:
(i) The Registrar shall register the transfer if
(x) such transfer is being made by a proposed transferor who has
checked the box provided for on the Form of Transfer Notice
attached to the Initial Certificate or Private Exchange
Certificate stating, or has otherwise advised the Trustee and the
Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who the
transferor reasonably believes is a QIB and has notified the
transferee that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A; and (y) the proposed transferor and
transferee have delivered to the Registrar such other documents as
are required by the Private Placement Legend.
(ii) If the Certificate to be transferred is a
Physical Certificate, upon receipt by the Registrar of the
documents referred to in clause (i) above and instructions given
in accordance with DTC's and the Registrar's procedures therefor,
the Registrar shall reflect on its books and records the date of
such transfer and an increase in the Fractional Undivided Interest
of the Rule 144A Global Certificate in an amount equal to the
Fractional Undivided Interest of the Physical Certificates being
transferred, and the Trustee shall cancel such Physical
Certificates. If the proposed transfer is a transfer of a
beneficial interest in one Global Certificate, the provisions of
paragraph (e) below shall apply.
(c) Transfers to IAIs. The following provisions shall
apply with respect to the registration of any proposed transfer of, or an
interest in, a Restricted Certificate (other than the IAI Global
Certificate) to an IAI who is not a QIB:
(i) The Registrar shall register the transfer if
the proposed transferee has delivered to the Registrar a letter
substantially in the form of Exhibit D and the proposed transferor
and transferee have delivered to the Registrar such other
documents as are required by the Private Placement Legend.
(ii) If the Certificate to be transferred is a
Physical Certificate, upon receipt by the Registrar of the
documents referred to in clause (i) above and instructions given
in accordance with DTC's and the Registrar's procedures therefor,
the Registrar shall reflect on its books and records the date of
such transfer and an increase in the Fractional Undivided Interest
of the IAI Global Certificate in an amount equal to the Fractional
Undivided Interest of the Physical Certificates being transferred,
and the Trustee shall cancel such Physical Certificates. If the
proposed transfer is a transfer of a beneficial interest in one
Global Certificate to a beneficial interest in another Global
Certificate, the provisions of paragraph (e) below shall apply.
(d) Transfers to Non-U.S. Persons. The following
provisions shall apply with respect to any registration of any transfer of
an Initial Certificate in accordance with Regulation S:
(i) The Registrar shall register any proposed
transfer to any Non-U.S. Person if the Certificate to be
transferred is a Physical Certificate or an interest in the Global
Certificate, upon receipt of a certificate substantially in the
form of Exhibit C from the proposed transferor. The Registrar
shall promptly send a copy of such certificate to the Company.
(ii) Upon receipt by the Registrar of (x) the
documents, if any, required by clause (i) and (y) instructions in
accordance with DTC's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date of such
transfer and a decrease in the Fractional Undivided Interest of
such Global Certificate in an amount equal to the Fractional
Undivided Interest represented by the beneficial interest in such
Global Certificate to be transferred, and (B) upon receipt by the
Registrar of instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the Fractional Undivided
Interest of the Regulation S Global Certificate in an amount equal
to the Fractional Undivided Interest of the Physical Certificate
or the Regulation S Global Certificate to be transferred, and the
Trustee shall cancel the Physical Certificate if any, so
transferred or decrease the Fractional Undivided Interest of such
Global Certificate.
(iii) Upon a sale or transfer after the
expiration of the "restricted period" as defined in Regulation S
of any Restricted Certificate acquired pursuant to Regulation S,
such Certificate shall no longer bear the Private Placement
Legend.
(e) Transfers of and between Global Certificates. (i)
Transfers of any Global Certificate shall be limited to transfers of such
Global Certificate in whole, but not in part, to nominees of DTC, its
successor or such successor's nominees. Beneficial interests in the Global
Certificate may be transferred in accordance with the rules and procedures
of DTC and the provisions of Section 9.03 and this Exhibit F. If the
proposed transfer is a transfer of a beneficial interest in one Global
Certificate to a beneficial interest in another Global Certificate, the
Registrar shall reflect on its books and records the date of such transfer
and an increase in the principal amount of the Global Certificate to which
such interest is being transferred in an amount equal to the principal
amount of the interest to be so transferred, and the Registrar shall
reflect on its books and records the date of such transfer and a
corresponding decrease in the principal amount of the Global Certificate
from which such interest is being transferred.
