EXHIBIT 4.5
TRUST SUPPLEMENT No. 1998-1C
Dated as of December 14, 1998
between
STATE STREET BANK AND TRUST COMPANY
as Trustee,
and
US AIRWAYS, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of December 4, 1998
US Airways Pass Through Trust 1998-1C
6.82% US Airways
Pass Through Certificates,
Series 1998-1C
This Trust Supplement No. 1998-1C, dated as of December 14, 1998
(herein called the "Trust Supplement"), between US Airways, Inc., a
Delaware corporation (the "Company"), and State Street Bank and Trust
Company (the "Trustee"), to the Pass Through Trust Agreement, dated as of
December 4, 1998, 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 has received delivery of four Aircraft and
has obtained commitments from Airbus for the delivery of certain additional
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 1998-1C (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 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 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 a portion of 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 remaining undelivered
Aircraft are delivered by Airbus 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 Citibank, N.A. 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, (i) on or shortly following the date hereof,
the Trustee on behalf of the Applicable Trust, using a portion of the
proceeds from the sale of the Applicable Certificates, shall purchase one
or more Equipment Notes issued pursuant to the Participation Agreements
relating to the Aircraft described in Exhibit F hereto (the "Delivered
Aircraft Equipment Notes") in respect of each of the four Aircraft
delivered prior to the date hereof and one additional Aircraft delivered on
or shortly after the date hereof (such five Aircraft being the "Delivered
Aircraft") having the same interest rate as, and final maturity date not
later than the final Regular Distribution Date of, the Applicable
Certificates issued hereunder and (ii) with respect to each remaining
Aircraft, 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 maturity 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 "6.82% US Airways Pass Through Certificates, Series 1998-1C"
(including the Exchange Certificates and the 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 performance of the Registration Agreement) is $141,366,000.
(b) The Regular Distribution Dates with respect to any payment
of Scheduled Payments means January 30 and July 30 of each year,
commencing on January 30, 1999, 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.
ARTICLE II
DEFINITIONS
Section 2.01. Definitions. Capitalized terms used herein and
not 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.
Airbus: Means Airbus Industrie G.I.E.
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 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.
Business Day: Means any day other than a Saturday, a Sunday or a
day on which commercial banks are required or authorized to close in
New York, New York, Salt Lake City, Utah, Pittsburgh, Pennsylvania,
or, so long as any Applicable Certificate is outstanding, the city and
state in which the Trustee or any Loan Trustee maintains its Corporate
Trust Office or receives and disburses funds.
Class C Certificate Purchase Agreement: Means the Purchase
Agreement dated as of the date hereof between US Airways, Inc. and
AIFS.
Class C Special Indemnity Payment: Has the meaning specified in
the Participation Agreements.
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)
October 31, 1999 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 Other
Trusts 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
December 14, 1998 relating to the Applicable Certificates between
Citibank, N.A. and the Escrow Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with its terms.
DTC: The Depository Trust Company, its nominees and their
respective successors.
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 December 14, 1998 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 Maturity Date: Means January 30, 2016.
Final Withdrawal: Has the meaning specified in the Escrow
Agreement.
Final Withdrawal Date: Has the meaning specified in 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, each as specified or described in
a Delivery Notice delivered pursuant to the Note Purchase Agreement or
the related Participation Agreement, 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 December 14, 1998 among the Trustee, the Other Trustees, the
Liquidity Provider, the liquidity providers relating to the
Certificates issued under (and as defined in) each of the Other
Agreements, and State Street Bank and Trust Company, 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 December 14, 1998 relating to the Applicable
Certificates, between the Liquidity Provider and State Street Bank and
Trust Company 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, ABN AMRO Bank N.V., acting
through its Chicago branch, 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 December 14, 1998 among the Trustee, the Other Trustees, the
Company, the Escrow Agent, the Escrow Paying Agent and the
Subordination Agent, providing for, among other things, the purchase
of 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 Offering Memorandum dated
December 14, 1998, relating to the offering of the Applicable
Certificates.
Other Agreements: Means (i) the Basic Agreement as supplemented
by Trust Supplement No. 1998-1A dated the date hereof relating to US
Airways Pass Through Trust 1998-1A and (ii) the Basic Agreement as
supplemented by Trust Supplement No. 1998-1B dated the date hereof
relating to US Airways Pass Through Trust 1998-1B.
Other Trustees: Means the trustees under the Other Agreements,
and any successor or other trustee appointed as provided therein.
Other Trusts: Means the US Airways Pass Through Trust 1998-1A
and the US Airways Pass Through Trust 1998-1B, each created on the
date hereof.
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
relating to the Aircraft described in Exhibit F hereto or 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
9.01(b).
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 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.
Postponed Notes: Means the Delivered Aircraft Equipment Notes
having a scheduled Transfer Date of December 15, 1998, as specified in
Exhibit F hereto and the Delivered Aircraft Equipment Notes to be held
in the Trust as to which a Postponement Notice shall have been
delivered pursuant to Section 5.01(c).
Postponement Notice: Means an Officer's Certificate of the
Company (i) requesting that the Trustee temporarily postpone purchase
of one or more of the Delivered Aircraft Equipment Notes to a date
which is later than the scheduled Transfer Date therefor as specified
in Exhibit F hereto, (ii) identifying the amount of the purchase price
of each such Equipment Note and the aggregate purchase price for all
such Equipment Notes, (iii) setting forth the reasons for such
postponement and (iv) with respect to each such Equipment Note, either
(a) setting or resetting a new Transfer Date (which shall be on or
prior to December 28, 1998 (the "Postponement Cut-Off Date")) for
payment by the Trustee of such purchase price and issuance of the
related Equipment Note, or (b) indicating that such new Transfer Date
(which shall be on or prior to the Postponement Cut-off Date) will be
set by subsequent written notice not less than one Business Day prior
to such new Transfer 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
9.02(a).
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.
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.
Transfer Date: Has the meaning assigned to the term "Delivery
Date" in the Participation Agreement relating to each Delivered
Aircraft.
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 and 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.
(e) Upon the payment of a Class C Special Indemnity Payment to
the Trustee under the Participation Agreement or a Class C Special
Deposit Payment to the Trustee under the Note Purchase Agreement, the
Trustee, upon receipt thereof, shall immediately deposit the aggregate
amount of such payments in the Certificate Account.
(f) Distribute the amount of each Class C Special Indemnity
Payment or Class C Special Deposit Payment, if any, on the next
succeeding Regular Distribution Date after the Trustee has confirmed
receipt of any such payment.
(g) If any Class C Special Indemnity Payment or Class C Special
Deposit Payment is distributed on a Regular Distribution Date, the
information required to be provided to Certificateholders pursuant to
Section 4.03(a) of the Basic Agreement shall include the amount of
such distribution allocable to any such 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 $100,000 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;
(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) above 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 Delivery Period Termination 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-35 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 Delivery Period Termination 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 Delivery Period Termination 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 3.03 of
the Basic Agreement.
ARTICLE IV
DEFAULT
Section 4.01. Purchase Rights of Certificateholders. (a) At any
time after the occurrence and during the continuance of a Triggering Event,
each Applicable Certificateholder shall have the right (which shall not
expire upon any purchase of the Class A Certificates pursuant to the
agreements governing the Class B Trust) to purchase, for the purchase price
set forth in Section 6.01(b) of the Basic Agreement, all, but not less than
all, of the Class A Certificates and the Class B Certificates upon ten
days' written notice to the Class A Trustee, the Class B Trustee and each
other Applicable Certificateholder, provided that (i) 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 A
Certificates and the Class B Certificates pro rata based on the Fractional
Undivided Interest in the Applicable Trust held by each such applicable
Certificateholder and (ii) 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 A Certificates
and the Class B Certificates pursuant to this Section 4.01(a)
As used in this Section 4.01(a), the terms "Class A
Certificateholder", "Class A Trust", "Class A Certificate", "Class A
Trustee", "Class B Certificateholder", "Class B Trust", "Class B
Certificate" and "Class B Trustee" shall have the respective meanings
assigned to such terms in the Intercreditor Agreement.
(b) Except as expressly set forth above, 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 Note Purchase Agreement, the
Participation Agreements relating to the Delivered Aircraft and the
Registration Agreement on or prior to the Issuance Date, 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 Certificate 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 Certificate 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 and the Participation Agreements. 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 Delivery Notice relating to one or more
Equipment Notes. After receipt of a Delivery Notice and in any case no
later than one Business Day prior to a Delivery Date as to which such
Delivery Notice relates (the "Applicable Delivery Date"), the Trustee shall
(as and when specified in the Delivery 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 Delivery Notice. The Trustee shall (as
and when specified in such Delivery 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
Delivery 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) or 2(f) 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 this Section 5.01(b)
shall not apply to the Delivered Aircraft Equipment Notes. The provisions
of this Section 5.01(b) and Section 5.01(c) hereof 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 Postponed Notes and Section 2.02 of the Basic Agreement shall
not apply to the Applicable Trust, provided that (i) the reference in
Section 2.03 of the Basic Agreement to "Section 2.02 hereof" shall apply to
the Applicable Trust and shall be deemed to refer to Section 5.01(c) of
this Trust Supplement and (ii) for purposes of Section 4.02(c) of the Basic
Agreement, the reference to (x) "Postponed Notes" shall apply to the
Applicable Trust and such term shall have the meaning specified herein and
(y) "Section 2.02" shall apply to the Applicable Trust and shall be deemed
a reference to Section 5.01(c) of this Trust Supplement.
(c) The Trustee shall purchase, pursuant to the terms and
conditions of the Participation Agreements relating to the Delivered
Aircraft, the Delivered Aircraft Equipment Notes on the Issuance Date or on
December 15, 1998, as specified in Exhibit F hereto.
In the case of (x) the Delivered Aircraft Equipment Notes having
a scheduled Transfer Date of December 15, 1998 and (y) any Delivered
Aircraft Equipment Notes with respect to which the Company shall deliver to
the Trustee a Postponement Notice, the Trustee shall deposit into an escrow
account (the "Postponed Notes Escrow Account") to be maintained as part of
the Trust an amount equal to the purchase price of such Postponed Notes
(the "Postponed Notes Escrowed Funds"). The Postponed Notes Escrowed Funds
so deposited shall be invested by the Trustee at the written direction of
the Company in Specified Investments (i) maturing no later than any
scheduled Transfer Date relating to the Postponed Notes or (ii) if no such
Transfer Date has been scheduled, maturing on the next Business Day, or
(iii) if the Company has given notice to the Trustee that any Postponed
Notes will not be issued, with respect to the portion of the Postponed
Notes Escrowed Funds relating to such Postponed Notes, maturing on the next
applicable Special Distribution Date, if such investments are reasonably
available for purchase. The Trustee shall make withdrawals from the
Postponed Notes Escrow Account only as provided in this Agreement. Upon
request of the Company on one or more occasions and the satisfaction of the
closing conditions specified in the applicable Participation Agreements on
or prior to the Postponement Cut-off Date, the Trustee shall purchase the
applicable Postponed Notes with the Postponed Notes Escrowed Funds
withdrawn from the Postponed Notes Escrow Account. The purchase price
shall equal the principal amount of such Postponed Notes.
The Trustee shall hold all Specified Investments until the
maturity thereof and will not sell or otherwise transfer Specified
Investments. If Specified Investments held in a Postponed Notes Escrow
Account mature prior to any applicable Transfer Date, any proceeds received
on the maturity of such Specified Investments (other than any earnings
thereon) shall be reinvested by the Trustee at the written direction of the
Company in Specified Investments maturing as provided in the preceding
paragraph.
Any earnings or Specified Investments received from time to time
by the Trustee shall be promptly distributed to the Company. The Company
shall pay to the Trustee for deposit to the Postponed Notes Escrow Account
an amount equal to any losses on such Specified Investments as incurred.
On the January 30, 1999 Regular Distribution Date, the Company
will pay (in immediately available funds) to the Trustee an amount equal to
the interest that would have accrued on any Postponed Notes, if any,
purchased after the Issuance Date if such Postponed Notes had been
purchased on the Issuance Date, from the Issuance Date to, but not
including, the date of the purchase of such Postponed Notes by the Trustee.
If the Company notifies the Trustee prior to the Postponement
Cut-off Date that any Postponed Notes will not be issued on or prior to the
Postponement Cut-off Date for any reason, on the next Special Distribution
Date occurring less than 15 days following the date of such notice (i) the
Company shall pay to the Trustee for deposit in the Special Payments
Account, in immediately available funds, an amount equal to the interest
that would have accrued on the Postponed Notes designated in such notice at
a rate equal to the interest rate applicable to the Certificates from the
Issuance Date to, but not including, such Special Distribution Date and
(ii) the Trustee shall transfer an amount equal to that amount of Postponed
Notes Escrowed Funds that would have been used to purchase the Postponed
Notes designated in such notice and the amount paid by the Company pursuant
to the immediately preceding clause (i) to the related Special Payments
Account for distribution as a Special Payment in accordance with the
provisions hereof.
If, on the Postponement Cut-off Date, an amount equal to less
than all of the Postponed Notes Escrowed Funds (other than Postponed Notes
Escrowed Funds referred to in the immediately preceding paragraph) has been
used to purchase Postponed Notes, on the next Special Distribution Date
occurring less than 15 days following the Postponement Cut-off Date (i) the
Company shall pay to the Trustee for deposit in the Special Payments
Account, in immediately available funds, an amount equal to the interest
that would have accrued on such Postponed Notes contemplated to be
purchased with such unused Postponed Notes Escrowed Funds (other than
Postponed Notes Escrowed Funds referred to in the immediately preceding
paragraph) but not so purchased at a rate equal to the interest rate
applicable to the Applicable Certificates from the Issuance Date to, but
not including, such Special Distribution Date and (ii) the Trustee shall
transfer such unused Postponed Notes Escrowed Funds and the amount paid by
the Company pursuant to the immediately preceding clause (i) to such
Special Payments Account for distribution as a Special Payment in
accordance with the provisions hereof.
Section 5.02. Withdrawal of Deposits. If any Deposits remain
outstanding on the Business Day next succeeding the Cut-off Date or the
Termination Date, (i) (A) 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 (B)
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 Escrow Agreement, the Note Documents and the
Registration Agreement 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, the Note Documents and the Registration Agreement 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 Note Documents and the Registration Agreement 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 Escrow
Agreement, the Note Documents and the Registration Agreement 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
Escrow Agreement, the Note Documents and the Registration Agreement 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 enforce ability 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; provided, further, that the provisions of
Section 9.02(6) of the Basic Agreement shall not apply to the Applicable
Trust and any supplemental agreement having the effect described in said
Section 9.02(6) shall require only the consent of Applicable
Certificateholders holding Applicable Certificates evidencing a Fractional
Undivided Interest aggregating not less than a majority in interest in the
Applicable Trust.
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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., 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 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
MISCELLANEOUS PROVISIONS
Section 8.01. 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 8.02. 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 8.03. 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 8.04. 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.
ARTICLE IX
THE CERTIFICATES
Section 9.01. 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 9.02 Restrictive Legends. Subject to Section 9.03(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 (D) AND (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 (C) OR (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 9.03 OF THE TRUST SUPPLEMENT NO.
1998-1C.
(c) Each Certificate shall also bear the following legend on the
face thereof:
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.
Section 9.03. 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 9.02.
(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 9.03. 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 G hereto which shall be prepared on a reasonable basis by
US Airways promptly after the date hereof, and shall be subject to the
reasonable approval of AIFS, and shall be provided to the Trustee.
ARTICLE X
THE COMPANY
Section 10.01. Consolidation, Merger, 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) thereof 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".
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr. V.P., Finance & CFO
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
EXHIBIT A
FORM OF CERTIFICATE
CUSIP No._______________
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 (D) AND (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 (C) OR (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 9.03 OF THE TRUST SUPPLEMENT NO. 1998-1C.
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.
US AIRWAYS PASS THROUGH TRUST 1998-1C
___% US Airways [Initial][Exchange] Pass Through Certificate,
Series 1998-1C
Issuance Date: _____________
Final Expected Distribution Date: July 30, 2014
Evidencing A Fractional Undivided Interest In The US Airways Pass
Through Trust 1998-1C, The Property Of Which Includes Certain
Equipment Notes Each Secured By An Aircraft Leased To Or Owned
By US Airways, Inc.
Certificate
No. __ $_________ Fractional Undivided Interest
representing 0._________% of the Trust per $_____
face amount
THIS CERTIFIES THAT _________, for value received, is the
registered owner of a $___________ (________________ Dollars) Fractional
Undivided Interest in the US Airways 1998-1C Pass Through Trust (the
"Trust") created by State Street Bank and Trust Company, as trustee (the
"Trustee") pursuant to a Pass Through Trust Agreement, dated as of December
4, 1998 (the "Basic Agreement"), as supplemented by Trust Supplement No.
1998-1C (collectively, the "Agreement") between the Trustee and US Airways,
Inc., a Delaware corporation (the "Company"), 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 a duly
authorized global Certificate designated as "___% US Airways
[Initial][Exchange] Pass Through Certificates, Series 1998-1C" (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 payments under the Intercreditor
Agreement and any Liquidity Facility (the "Trust Property"). Each issue of
the Equipment Notes is secured by, among other things, a security interest
in an 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.
Interest applicable to this Certificate will be payable at 6.82%
per annum.
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 January 30 and July 30 (a "Regular
Distribution Date") commencing January 30, 1999, 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 December 14, 1998, 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) the 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 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 US Airways agrees to pay to the Class C Trust
for distribution to each Holder effected thereby liquidated damages in an
amount equal to the following: during the first ninety (90)-day period
immediately following the occurrence of such Registration Default, .0025
(the "Multiplier") times the aggregate principal amount of such holder's
Class C Certificates times the number of days such Registration Default
exists divided by 360 (less any amount thereof that has been paid as
provided in the next paragraph). The amount of the Multiplier shall
increase by .0025 during each subsequent ninety (90)-day period up to a
maximum Multiplier of .01. Notwithstanding the prior sentence, (1) upon
the filing of the 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 Registered Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) in the
case of (ii) above, (3) upon consummation of the Registered Exchange Offer
in the case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration
Statement that causes the Registered 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 liquidated
damages payable with respect to the Securities as a result of such clause
(i), (ii), (iii) or (iv), as applicable, will cease, until such time, if
any, that another Registration Default occurs.
Distributions on this Certificate will be made by the Trustee by
check mailed to the Person entitled thereto, without 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 or 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 $______ 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.
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 1998-1C
By: STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:______________________________________
Name:
Title:
THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
By: STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:______________________________________
Name:
Title:
Dated: ___________________
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 December 14, 2000, 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 9.03
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
[Address]
Re: US Airways Pass Through Trust 1998-1C
(the "Trust"), US Airways Pass Through
Certificates, Series 1998-1C (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
[Address]
Re: US Airways Pass Through Trust 1998-1C
(the "Trust"), US Airways Pass Through
Certificates, Series 1998-1C (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 December 4, 1998, as
supplemented by Trust Supplement No. 1998-1C, 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)](1)/[a non-institutional
"accredited investor" (as defined in Rule 501(a), (4), (5), (6)
or (8)](2) 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,](2) 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.
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.] (1)
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
-----------------------
(1) For institutional accredited investors only.
(2) For non-institutional accredited investors only.
EXHIBIT E
[DTC Letter of Representations]
EXHIBIT F
Aircraft Type and Registration No. Scheduled Transfer Date
---------------------------------- -----------------------
Airbus A319/N700UW December 15, 1998
Airbus A319/N701UW December 15, 1998
Airbus A319/N702UW December 14, 1998
Airbus A319/N703UW December 14, 1998
Airbus A319/N704US December 15, 1998
EXHIBIT G
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 paragraph (ii) 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 G. 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.
