FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported)
August 27, 1999
US Airways Group, Inc.
(Commission file number: 1-8444)
and
US Airways, Inc.
(Commission file number: 1-8442)
(Exact names of registrants as specified in their charters)
Delaware US Airways, Group Inc. 54-1194634
(State of incorporation US Airways, Inc. 53-0218143
of both registrants) (I.R.S. Employer Identification Nos.)
US Airways Group, Inc.
2345 Crystal Drive, Arlington, VA 22227
(Address of principal executive offices)
(703) 872-5306
(Registrant's telephone number, including area code)
US Airways, Inc.
2345 Crystal Drive, Arlington, VA 22227
(Address of principal executive offices)
(703) 872-7000
(Registrant's telephone number, including area code)
Item 7. Financial Statements and Exhibits
The following document is being filed as an Exhibit in
connection with, and incorporated by reference into, US Airways, Inc.'s
and US Airways Group, Inc.'s Registration Statement on
Form S-3 (Registration No. 333-79825). The Registration
Statement and the Prospectus Supplement, dated August 24, 1999 to
the Prospectus, dated July 30, 1999, relate to the offering by US
Airways, Inc. of Pass Through Certificates, Series 1999-1.
Reg. No. 333-79825
Exhibit No. Document
- ---------------- -------------
Exhibit 1(a) Underwriting Agreement relating to
the issuance of Pass Through
Certificates, Series 1999-1.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrants have duly caused this report to be
signed on their behalf by the undersigned hereunto duly
authorized.
US Airways Group, Inc. (REGISTRANT)
Date: August 27, 1999 By: /s/Anita P. Beier
-------------------------------
Anita P. Beier
Vice President and Controller
(Chief Accounting Officer)
US Airways, Inc. (REGISTRANT)
Date: August 27, 1999 By: /s/Anita P. Beier
--------------------------------
Anita P. Beier
Vice President and Controller
(Chief Accounting Officer)
(this space intentionally left blank)
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Exhibit 1(a)
US AIRWAYS, INC.
Pass Through Certificates
Series 1999-1, Class A and Class B
UNDERWRITING AGREEMENT
August 24, 1999
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Donaldson Lufkin & Jenrette Securities Corporation
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
Dear Sirs:
US AIRWAYS, INC., a Delaware corporation (the
"Company"), proposes that State Street Bank and Trust Company of
Connecticut, National Association, as pass through trustee (the
"Trustee") under the Class A Trust and the Class B Trust (each as
defined below), issue and sell to the underwriters named in
Schedule II hereto its pass through certificates in the aggregate
principal amounts and with the interest rates and final
distribution dates set forth on Schedule I hereto (the "Offered
Certificates") on the terms and conditions stated herein and in
Schedule III. Concurrently with the issuance of the Offered
Certificates the Company is proposing that the Trustee under the
Class C Trust (as defined below) issue and sell to Airbus
Industrie Financial Services ("AIFS") pursuant to an agreement
between the Company and AIFS (the "Class C Purchase Agreement")
its pass through certificates in the aggregate principal amount
and with the interest rate and final distribution date set forth
on Schedule IV hereto (the "Class C Certificates", together with
the Offered Certificates, the "Certificates").
The Certificates will be issued pursuant to the Pass
Through Trust Agreement (the "Basic Agreement") between the
Company and the Trustee, as supplemented with respect to each
series of Certificates by a separate Pass Through Trust
Supplement to be dated as of the Closing Date (as defined below)
(individually, a "Series Supplement"), between the Company and
the Trustee (the Basic Agreement as supplemented by each such
Series Supplement being referred to herein individually as a
"Pass Through Agreement"). The Series Supplements are related to
the creation and administration of US Airways Pass Through Trust,
Series 1999-1A the "Class A Trust"), US Airways Pass Through
Trust, Series 1999-1B (the "Class B Trust"; together with the
Class A Trust, the "Covered Trusts") and US Airways Pass Through
Trust, Series 1999-1C (the "Class C Trust"; together with the
Covered Trusts, the "Trusts").
As used herein, unless the context otherwise requires,
the term "Underwriters" shall mean the firms named as
Underwriters in Schedule II, and the term "you" shall mean the
Underwriter or Underwriters, if no underwriting syndicate is
purchasing the Offered Certificates or the representative or
representatives of the Underwriters if an underwriting syndicate
is purchasing the Offered Certificates, as indicated in Schedule
II.
The cash proceeds of the offering of Certificates by
each Trust will be paid to First Security Bank, National
Association, as escrow agent (the "Escrow Agent"), under an
Escrow and Paying Agent Agreement among the Escrow Agent, the
Underwriters (in the case of the Offered Certificates) or AIFS
(in the case of the Class C Certificates), the Trustee and State
Street Bank and Trust Company of Connecticut, National
Association, as paying agent (the "Paying Agent"), for the
benefit of the holders of Certificates issued by such Trust
(each, an "Escrow Agreement"). The Escrow Agent will deposit
such cash proceeds (each, a "Deposit") with ABN AMRO Bank, N.V.
(the "Depositary"), in accordance with a Deposit Agreement
relating to the respective Trust (each, a "Deposit Agreement"),
and will withdraw Deposits upon request to allow the Trustee to
purchase Equipment Notes (as defined in the Note Purchase
Agreement referred to herein) from time to time pursuant to a
Note Purchase Agreement to be dated as of the Closing Date (the
"Note Purchase Agreement") among the Company, State Street Bank
and Trust Company of Connecticut, National Association, as
Trustee of each of the Trusts, as Subordination Agent (as
hereinafter defined) and as Paying Agent, and the Escrow Agent.
Each Escrow Agent will issue receipts to be attached to each
related Certificate ("Escrow Receipts") representing each
holder's fractional undivided interest in amounts deposited with
such Escrow Agent and will pay to such holders through the
related Paying Agent interest accrued on the Deposits and
received by such Paying Agent pursuant to the related Deposit
Agreement at a rate per annum equal to the interest rate
applicable to the corresponding Certificates.
Certain amounts of interest payable on the Certificates
will be entitled to the benefits of separate liquidity
facilities. AIG Matched Funding Corp. (the "Liquidity Provider")
will enter into a separate revolving credit agreement with
respect to each Trust (each, a "Liquidity Facility") to be dated
as of the Closing Date for the benefit of the holders of the
Certificates. The Liquidity Provider and the holders of the
Certificates will be entitled to the benefits of an Intercreditor
Agreement to be dated as of the Closing Date (the "Intercreditor
Agreement") among the Trustees, State Street Bank and Trust
Company of Connecticut, National Association, as subordination
agent and trustee thereunder (the "Subordination Agent"), and the
Liquidity Provider.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a shelf registration statement on
Form S-3 (File No. 333-79825) relating to pass through
certificates (such registration statement, in the form in which
it became effective (including the respective exhibits thereto
and the respective documents filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act"), that are
incorporated by reference therein, as amended by Post-Effective
Amendment No. 1 filed with the Commission on August 19, 1999 and
any further amendments at the date hereof, being herein referred
to as the "Registration Statement") and the offering thereof from
time to time in accordance with Rule 415 of the Securities Act of
1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"). The
Registration Statement has been declared effective by the
Commission.
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The Company has filed with, or transmitted for filing
to, or shall promptly hereafter file with or transmit for filing
to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Offered Certificates
pursuant to Rule 424 under the Securities Act. The term "Basic
Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Certificates, together with
the Basic Prospectus. As used herein, the terms "Basic
Prospectus", "Prospectus" and "preliminary prospectus" shall
include in each case the documents, if any, incorporated by
reference therein. The terms "supplement", "amendment" and
"amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company
with the Commission pursuant to the Exchange Act.
Capitalized terms not otherwise defined in this
Agreement shall have the meanings specified therefor in the Pass
Through Agreements, the Note Purchase Agreement or the
Intercreditor Agreement referred to in the Pass Through
Agreements; provided that, as used in this Agreement, the term
"Operative Agreements" shall mean the Class C Purchase Agreement,
the Deposit Agreements, the Escrow Agreements, the Intercreditor
Agreement, the Liquidity Facilities, the Indentures, the Leases,
the Note Purchase Agreement, the Participation Agreements, the
Trust Agreements and the Pass Through Agreements. As used herein
the term "Financing Agreements" shall mean with respect to each
Aircraft the related FAA Bill of Sale, Trust Indenture and Lease
(each as defined in the Participation Agreements).
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, you and each
Underwriter named in Schedule II that as of the date hereof:
(a) The Registration Statement and the Prospectus
comply as to form and, as amended or supplemented, if applicable,
will comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
The Registration Statement, at the time it became
effective, did not contain, and the Registration Statement, as
amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, not
misleading; the Prospectus, as of the date hereof does not
contain, and will not contain for so long as you are required to
deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Offered Certificates, an untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in
this subsection (a) shall not apply to statements in or omissions
from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through Credit Suisse First Boston Corporation
("CSFBC") expressly for use in the Registration Statement or
Prospectus or to that part of the Registration Statement which
constitutes the Statement of Eligibility of Trustee on Form T-1.
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The Registration Statement has become effective. No
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission.
(b) The documents incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects
with the requirements of the Exchange Act, and, when read
together and with the other information in the Prospectus, did
not and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were or are made, not
misleading.
(c) The accountants who certified the financial
statements included or incorporated by reference in the
Registration Statement or Prospectus are independent public
accountants as required by the Securities Act.
(d) None of the Company or any Covered Trust is an
"investment company", within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act");
and after giving effect to the offering and sale of the Offered
Certificates and the application of the proceeds thereof as
described in the Prospectus, neither of the Covered Trusts will
be, nor will the escrow arrangements relating to the Covered
Trusts contemplated by the respective Escrow Agreements result in
the creation of, an "investment company", as defined in the
Investment Company Act.
(e) The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida) or is exempt therefrom.
(f) The execution and delivery by the Company of this
Agreement, each Pass Through Agreement and the other Operative
Documents to which the Company is or will be a party, the
consummation by the Company of the transactions contemplated
herein and therein and in the Prospectus and compliance with the
terms hereof and thereof do not and will not result in any
violation of the charter or by-laws of the Company and do not and
will not conflict with or violate, or result in a breach of any
of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company under (i)
any indenture, mortgage or loan agreement, or any other agreement
or instrument to which the Company is a party or by which it may
be bound or to which any of its properties may be subject (except
for such conflicts, breaches, violations, defaults, liens,
charges or encumbrances that, individually or in the aggregate,
would not have a material adverse effect on the financial
condition or on the earnings or business affairs of the Company
and its subsidiaries considered as a single entity), (ii) any
existing applicable law, rule or regulation or (iii) any
judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its properties.
(g) No authorization, approval, consent, license,
order of or registration or filing with, or the giving of notice
to, any government, governmental instrumentality or
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court, domestic or foreign, or other regulatory body or authority
(other than with respect to the effectiveness of the Registration
Statement under the 1933 Act of the qualification of the Pass
Through Agreements under Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission thereunder (the
"1939 Act") and other than with respect to the securities or Blue
Sky laws of the various states) is required to be obtained or
made by the Company for the valid authorization, execution,
delivery and performance by the Company of this Agreement or any
of the Operative Documents to which the Company is a party or the
consummation of the transactions contemplated by this Agreement
or any such Operative Documents, except such as may be required
under (i) the securities or Blue Sky laws of the various states
or (ii) the Transportation Code and the Uniform Commercial Code
as in effect in Utah and Virginia, which filings or recordings
referred to in this clause (ii), with respect to any particular
set of Financing Agreements, shall have been made or duly
presented for filing or recordation in all material respects or
shall be in the process of being duly filed or filed for
recordation in all material respects, on or prior to the
applicable Delivery Date (as defined in the Participation
Agreements) for the Aircraft related to such Financing
Agreements.
(h) This Agreement has been duly authorized by all
necessary corporate action and duly executed and delivered by the
Company. The Operative Documents to which the Company will be a
party will be duly executed and delivered by the Company on or
prior to the Closing Date or the applicable Delivery Date (as
defined in the Participation Agreements), as the case may be.
(i) The Operative Documents to which the Company is or
will be a party have been duly authorized by all necessary
corporate action, will each be substantially in the form
heretofore supplied to you and will constitute, when duly
executed and delivered by the Company (assuming that such
Operative Documents constitute valid and binding obligations of
each other party thereto), valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except to the extent that enforceability thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity). The Basic Agreement as executed
is substantially in the form filed as an exhibit to the
Registration Statement and has been duly qualified under the 1939
Act. The Certificates and the Operative Documents to which the
Company is, or is to be, a party will conform in all material
respects to the descriptions thereof in the Prospectus.
(j) When executed, issued, authenticated and delivered
pursuant to the provisions of the Pass Through Agreements and
sold and paid for as provided in this Agreement and the Class C
Purchase Agreement, the Certificates will constitute valid and
legally binding obligations of the Trustee enforceable in
accordance with their terms, except to the extent that
enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity); and the Certificates will be entitled to the benefits
provided by such Pass Through Agreements.
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When executed, authenticated, issued and delivered in the manner
provided for in the related Escrow Agreements, the Escrow
Receipts will be legally and validly issued and will be entitled
to the benefits of the related Escrow Agreements.
(k) The Equipment Notes to be issued under each
applicable Indenture, when duly executed and delivered by the
related Owner Trustee or the Company, as the case may be, and
duly authenticated by the Indenture Trustee in accordance with
the terms of such Indenture, will be duly issued under such
Indenture and will constitute the valid and binding obligations
of such Owner Trustee or the Company, as the case may be,
enforceable in accordance with their terms, except that
enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity); and the Holders thereof will be entitled to the benefits
of such Indenture.
(l) No Appraiser is an affiliate of the Company or has
a substantial interest, direct or indirect, in the Company. None
of the officers and directors of any of the Appraisers is
connected with the Company or any of its affiliates as an
officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
(m) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, when so filed complied as to form in all material
respects with the Securities Act.
The parties agree that any certificate signed by a duly
authorized officer of the Company and delivered to an
Underwriter, or to counsel for the Underwriters, on the Closing
Date and in connection with this Agreement or the offering of the
Certificates, shall be deemed a representation and warranty by
(and only by) the Company to the Underwriters as to the matters
covered thereby.
2. Purchase and Delivery.
(a) On the basis of the representations, warranties
and agreements herein contained, but subject to the terms and the
conditions herein set forth and in Schedule III, the Company
agrees to cause the Trustee to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from
the Trustee, at the purchase price specified in Schedule 1, the
respective amounts of each Class of Offered Certificates set
forth opposite the name of such Underwriter in Schedule II.
Concurrently with the issuance of the Offered Certificates, the
Escrow Agent shall issue and deliver to the Trustee the Escrow
Receipts in accordance with the terms of the Escrow Agreements,
which Escrow Receipts shall be attached to the related
Certificates.
(b) The Company is advised by you that the
Underwriters propose to make a public offering of the Offered
Certificates as soon after this Agreement has been entered into
as in your judgment is advisable as set forth in the Prospectus.
(c) As compensation to the Underwriters for their
respective commitments and obligations hereunder in respect of
the Offered Certificates, including their respective
6
undertakings to distribute the Offered Certificates, the Company
will pay to each Underwriter an amount equal to that percentage
of the aggregate principal amount of each Class of Offered
Certificates purchased by such Underwriter (as set forth in
Schedule II). Such payment will be made on the Closing Date
simultaneously with the issuance and sale of the Offered
Certificates (with the related Escrow Receipts attached) to the
Underwriters. Payment of such compensation shall be made by wire
transfer of immediately available funds.
(d) Delivery of and payment of the purchase price for
the Offered Certificates to be purchased by the Underwriters
(with attached Escrow Receipts) shall be made at the offices of
Skadden, Arps, Slate, Meagher & Flom, LLP, 1440 New York Avenue,
N.W., Washington D.C. 20005 (or at such other place as shall be
agreed upon by you and the Company) at 10:00 A.M., New York City
time, on the seventh business day following the date hereof or
such other date, time and place as may be agreed upon by the
Company and you (such date and time of delivery and payment for
the Offered Certificates (with attached Escrow Receipts) being
herein called the "Closing Date"). Delivery of the Offered
Certificates (with attached Escrow Receipts) issued by each Trust
shall be made to your account at The Depository Trust Company
("DTC") for the respective accounts of the several Underwriters
against payment by the Underwriters of the purchase price thereof
by wire transfer of immediately available funds to the accounts
and in the manner specified in the related Escrow Agreements.
The Offered Certificates (with attached Escrow Receipts) issued
by each Trust shall be in the form of one or more fully
registered global certificates, and shall be deposited with the
related Trustee as custodian for DTC and registered in the name
of Cede & Co.
(e) The Company agrees to have the Offered
Certificates (with attached Escrow Receipts) available for
inspection and checking by you in New York, New York not later
than 1:00 P.M. on the business day prior to the Closing Date.
3. Conditions to Closing. The several obligations of
the Underwriters to purchase and pay for the Offered Certificates
pursuant to this Agreement are subject to the accuracy of and
compliance with the representations and warranties of the Company
contained herein as of the date hereof and the Closing Date, to
the accuracy of the statements of the officers of the Company
made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of its covenants and
other obligations hereunder and to the following further
conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have
occurred any downgrading in the rating accorded any of the
securities of the Company by Moody's Investors Service, Inc. or
Standard & Poor's Ratings Service, nor shall any notice have been
given of (i) any intended or potential downgrading or (ii) any
review or possible change in such rating.
(b) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have
occurred any material adverse change, or any development
reasonably likely to result in a material adverse change, in the
financial condition or in the earnings or business affairs of the
Company from that set forth or contemplated in the preliminary
prospectus, that, in your judgment, makes it
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impracticable to market the Offered Certificates on the terms and
in the manner contemplated in the Prospectus.
(c) You shall have received on the Closing Date a
certificate, dated the Closing Date and signed by a Vice
President, Treasurer or Assistant Treasurer of the Company, to
the effect (i) that no event set forth in clause (a) above has
occurred, (ii) that the representations and warranties of the
Company contained herein are true and correct as of the Closing
Date (except to the extent that a representation or warranty
expressly relates to an earlier or later date, in which case it
will be true and correct as of such date), (iii) that there shall
not have occurred any material adverse change, or any development
reasonably likely to result in a material adverse change, in the
financial condition or in the earnings or business affairs of the
Company from that set forth or contemplated in the preliminary
prospectus, and (iv) that the Company shall have performed in all
material respects all of its obligations to be performed
hereunder on or prior to the Closing Date. The officer signing
and delivering such certificate may rely on the best of his or
her knowledge.
(d) You shall have received on the Closing Date an
opinion, dated the Closing Date, from the General Counsel, Deputy
General Counsel or Associate General Counsel of the Company, in
form satisfactory to you and your counsel, to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the State of Delaware and has all necessary corporate
power and authority under such laws to own its properties, to
conduct its business as described in the Prospectus, to enter
into this Agreement and each of the Operative Agreements to which
it is a party and to perform its obligations hereunder and
thereunder (except where the failure to have such power or
authority would not have a material adverse effect on the
Company); and the Company is duly qualified to transact business
as a foreign corporation in good standing in each jurisdiction in
which its ownership of property or the conduct of its business
requires such qualification (except where the failure to so
qualify would not have a material adverse effect upon the
Company);
(ii) The Company is an "air carrier" and a
"citizen of the United States" within the meaning of the
Transportation Code, and is "holding an air carrier operating
certificate issued by the Secretary of Transportation" within the
meaning of 11 U.S.C. Section 1110; the descriptions in the Registration
Statement and the Prospectus with respect to statutes, contracts,
administrative orders and regulations and legal and governmental
proceedings are accurate and fairly summarize the information
required to be shown; and there are, to the best of such
counsel's knowledge, no statutes, administrative orders or
regulations or pending or threatened legal or governmental
proceedings required to be described in the Registration
Statement or the Prospectus which are not described as required,
nor any contracts or documents of a character required to be
described or referred to in the Registration Statement or the
Prospectus, or to be filed as exhibits to the Registration
Statement, that are not so described, referred to or filed as
required;
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(iii) The statements in the Prospectus as to the
routes that the Company presently operates or is authorized to
operate are correct in all material respects. Except as
disclosed in the Prospectus, no action or proceeding has been
instituted or to such counsel's knowledge, has been threatened by
the United States Department of Transportation, the Federal
Aviation Administration or the aeronautical authorities of any
other country that would impair the Company's ability to operate
such routes;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company;
(v) No authorization, approval, consent,
license, order of, or registration with, or the giving of notice
to, any government, governmental instrumentality, or court,
domestic or foreign, or other regulatory body or authority (other
than with respect to the effectiveness of the Registration
Statement under the 1933 Act or the qualification of the Basic
Agreement under the 1939 Act and other than with respect to the
securities or Blue Sky laws of the various states and with
respect to any registration, filing or recording that may be
required under the Transportation Code and the Uniform Commercial
Code as in effect in various jurisdictions) is required to be
obtained or made by the Company for the valid authorization,
issuance, sale and delivery of the Certificates and the Equipment
Notes relating thereto or for the valid authorization, execution,
delivery and performance by the Company of this Agreement and
each of the Operative Agreements to which the Company is a party
or the consummation of the transactions contemplated by this
Agreement and such Operative Agreements;
(vi) The execution and delivery by the Company
of this Agreement and the Operative Agreements to which the
Company is or will be a party, the issuance and sale of the
Certificates and the related Equipment Notes, the issuance of the
Escrow Receipts attached to the Certificates, the consummation by
the Company of the transactions contemplated herein and therein
and in the Prospectus and compliance with the terms hereof and
thereof do not and will not result in any violation of the
charter or by-laws of the Company and do not and will not
conflict with or violate, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company under (A) any
indenture, mortgage or loan agreement, or any other agreement or
instrument known to such counsel, to which the Company is a party
or by which either it be bound or to which any of its properties
may be subject (except for such conflicts, breaches, defaults,
violations, liens, charges or encumbrances that, individually or
in the aggregate, would not have a material adverse effect on the
financial condition or on the earnings or business affairs of the
Company and its subsidiaries considered as a single entity), (B)
any existing applicable law, rule or regulation (other than the
securities or Blue Sky laws of the various states, as to which
such counsel need express no opinion) or (C) any judgment, order
or decree known to such counsel of any government, governmental
instrumentality
9
or court, domestic or foreign, having jurisdiction over the
Company or any of its properties;
(vii) No default exists in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, loan agreement,
note, lease or other agreement or instrument that is described or
referred to in the Registration Statement or the Prospectus or
filed as an exhibit to the Registration Statement;
(viii) Except as disclosed in the Prospectus,
there is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or
foreign, now pending or, to the knowledge of such counsel,
threatened against or affecting the Company that might reasonably
be expected to result in any material adverse change in the
financial condition or in the earnings or business affairs of the
Company, or that could adversely affect the consummation of the
transactions contemplated by this Agreement or any of the other
Operative Agreements to which the Company is a party; and
(ix) Such counsel has participated in the
preparation of the Registration Statement, the Prospectus and the
documents incorporated by reference in the Prospectus and such
counsel has no reason to believe (A) that the Registration
Statement or any amendment thereto (except for the financial
statements and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, and
except for the Statement of Eligibility on Form T-1 of the
Trustee, as to which such counsel need express no opinion), at
the time the Registration Statement became effective, contained
and, as of the date such opinion is delivered, contains any
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or (B) that the Prospectus
or any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, as to
which such counsel need express no opinion), at the time the
Prospectus was issued, at the time any amended or supplemented
Prospectus was issued or as of the Closing Date, contained or
contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(e) You shall have received on the Closing Date an
opinion, dated the Closing Date, of Skadden, Arps, Slate, Meagher
& Flom, counsel for the Company, in form and substance reasonably
satisfactory to you and substantially to the effect set forth in
Exhibit A hereto.
(f) You shall have received on the Closing Date an
opinion of Bingham Dana, LLP, counsel for State Street Bank and
Trust Company of Connecticut, National Association, individually
and as Trustee, Subordination Agent and Paying Agent, dated
10
the Closing Date, in form and substance reasonably satisfactory
to you and substantially to the effect set forth in Exhibit B
hereto.
(g) You shall have received on the Closing Date an
opinion of Ray, Quinney & Nebeker, counsel for the Escrow Agent,
dated the Closing Date, in form and substance reasonably
satisfactory to you and substantially to the effect set forth in
Exhibit C hereto.
(h) You shall have received on the Closing Date an
opinion of Sullivan & Cromwell, counsel for the Liquidity
Provider, dated the Closing Date, in form and substance
reasonably satisfactory to you and substantially to the effect
set forth in Exhibit D hereto.
(i) You shall have received on the Closing Date the
opinion of Vedder, Price, Kaufman & Kammholz, special U.S.
counsel for the Depositary for the Trusts, dated the Closing
Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit E hereto.
(j) You shall have received on the Closing Date the
opinion of Clifford Chance, Dutch counsel for the Depositary for
the Trusts, dated the Closing Date, in form and substance
reasonably satisfactory to you and substantially to the effect
set forth in Exhibit F hereto.
(k) You shall have received on the Closing Date an
opinion of Milbank, Tweed, Hadley & McCloy LLP, as counsel for
the Underwriters, dated as of the Closing Date, with respect to
the issuance and sale of the Offered Certificates, the
Registration Statement, the Prospectus and other related matters
as the Underwriters may reasonably require.
(l) On the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the Securities Act and no proceedings therefor shall
have been instituted or threatened by the Commission.
(m) Each of the Appraisers shall have furnished to the
Underwriters a letter from such Appraiser, addressed to the
Company and dated the Closing Date, confirming that such
Appraiser and each of its directors and officers (i) is not an
affiliate of the Company or any of its affiliates, (ii) does not
have any substantial interest, direct or indirect, in the Company
or any of its affiliates and (iii) is not connected with the
Company or any of its affiliates as an officer, employee,
promoter, underwriter, trustee, partner, director or person
performing similar functions.
(n) At the Closing Date, each of the Operative
Agreements (other than the Indentures, Leases and Participation
Agreements) shall have been duly executed and delivered by each
of the parties thereto; the representations and warranties of the
Company contained in each of such executed Operative Agreements
shall be true and correct in all material respects as of the
Closing Date (except to the extent that they relate solely to an
earlier or later date, in which case they shall be true and
correct as of such earlier or later date) and the Underwriters
shall have received a certificate of the President or a Vice
President of the Company, dated as of the Closing Date, to such
effect.
11
(o) On the Closing Date, the Offered Certificates
shall be rated "AA-", in the case of the Offered Certificates of
the Class A Trust and "A", in the case of the Offered
Certificates of the Class B Trust, by Standard & Poor's Ratings
Service; "A2", in the case of the Offered Certificates of the
Class A Trust and "Baa1", in the case of the Offered Certificates
of the Class B Trust, by Moody's Investors Service, Inc.
(p) The Underwriters shall have received on each of
the date of this Agreement and the Closing Date, a letter dated
the date hereof or the Closing Date, as the case may be, in form
and substance satisfactory to the Underwriters, from the
Company's independent public accountants, containing statements
and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain other financial or statistical data and
certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
(q) The Class C Certificates (with attached Escrow
Receipts) in the amount and containing the terms described in the
Prospectus shall be concurrently issued and purchased.
4. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) The Company has prepared a preliminary prospectus,
and immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement in connection with
the offering of the Offered Certificates. The Company will
promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the Securities
Act.
(b) The Company will notify you promptly (i) of the
effectiveness of any amendment to the Registration Statement,
(ii) of the transmittal to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant
to the Exchange Act which will be incorporated by reference in
the Prospectus, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the
Prospectus or the Prospectus Supplement relating in any way to
the offer and sale of the Offered Certificates, (iv) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information and (v) of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for
that purpose.
(c) The Company will give you notice of its intention
to file or prepare any amendment to the Registration Statement or
any amendment or supplement to the Prospectus, whether by the
filing of documents pursuant to the Exchange Act, the Securities
Act or otherwise, and will furnish you with copies of any such
amendment or supplement or other documents proposed to be filed
or prepared a reasonable time in advance of such proposed filing
or preparation, as the case may be.
12
(d) The Company will deliver to you as many signed and
conformed copies of the Registration Statement (as originally
filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as you may
reasonably request. The Company will furnish to you, without
charge, as many copies of the Prospectus and any supplements and
amendments thereto as you may reasonably request so long as you
are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Offered Certificates.
(e) If, during the period after the first date of the
public offering of the Offered Securities as in the written
opinion of counsel for the Underwriters (which counsel shall be
reasonably acceptable to the Company, provided that Milbank,
Tweed, Hadley & McCloy LLP shall be acceptable to the Company)
the Prospectus is required by the Securities Act to be delivered
in connection with sales of the Offered Certificates by an
Underwriter or dealer any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the
Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein in the
light of the circumstances existing at the time it is delivered
to a purchaser, not misleading or if it shall be necessary, at
any such time to amend or supplement the Registration Statement
or the Prospectus in order to comply with the requirements of the
Securities Act or the rules and regulations of the Commission
thereunder, the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing
documents pursuant to the Exchange Act, the Securities Act or
otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement and Prospectus
comply with such requirements.
(f) The Company will endeavor to qualify the Offered
Certificates for offer and sale under the securities or Blue Sky
laws of such jurisdictions as you shall reasonably request and to
maintain such qualification for as long as you shall reasonably
request (provided, however, that the Company shall not be
obligated to file any general consent to service of process or to
qualify as a foreign corporation or to subject itself to taxation
as doing business in any jurisdiction in which it is not
otherwise required to be so qualified) and to pay all expenses
(including reasonable fees and disbursements of counsel) in
connection with such qualification and in connection with the
determination of the eligibility of the Offered Certificates for
investment under the laws of such jurisdictions as you may
designate, as well as all reasonable expenses payable in
connection with the review (if any) of the offering of the
Offered Certificates by the National Association of Securities
Dealers, Inc. (including any filing fees and reasonable fees and
expenses of counsel for the Underwriters in connection
therewith).
(g) Whether or not any sale of such Offered Securities
is consummated, the Company will pay or cause to be paid all
expenses incident to the performance of its obligations under
this Agreement, including: (i) the preparation and filing of the
Registration Statement and all amendments thereto, the
Preliminary Prospectus, if any, and the Prospectus and any
amendments or supplements thereto; (ii) the filing of this
Agreement; (iii) the preparation, issuance and delivery of the
Offered Certificates;
13
(iv) the reasonable fees and disbursements of the Company's
accountants and counsel, of the Trustee, the Subordination Agent,
each Liquidity Provider, each Depositary, the Escrow Agent, the
related Owner Trustees and the Indenture Trustee and their
respective counsel, and of any registrar, paying agent and
authenticating agent; (v) the qualification of the Offered
Certificates under securities laws in accordance with the
provisions of Section 4(f), including filing fees and the
reasonable fees and disbursements of counsel to the Underwriters
in connection therewith and in connection with the preparation of
any Blue Sky Survey and any Legal Investment Survey; (vi) the
printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the Registration Statement and
any amendments thereto, and of the Prospectus and any amendments
or supplements thereto, and the delivery by the Underwriters of
the Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the
Offered Certificates; (vii) the preparation and delivery to the
Underwriters of copies of the Pass Through Agreements and the
other Operative Agreements, including all expenses incident to
the performance of the Company's obligations under the Pass
Through Agreements, Participation Agreements, Indentures, Leases
and each of the other agreements and instruments referred to in
the Indentures and Participation Agreements; (viii) any fees
charged by rating agencies for the rating of the Offered
Certificates; and (ix) all other costs and expenses incident to
the performance of the obligations of the Company hereunder for
which provision is not otherwise made in this Section.
(h) The Company will not, during the period beginning
on the date of this Agreement and continuing to the Closing Date,
offer or sell, or enter into any agreement to sell, any equipment
notes, pass through certificates, equipment trust certificates or
equipment purchase certificates secured by aircraft owned or
leased by the Company (or rights relating thereto), other than
the Class C Certificates and the Equipment Notes relating
thereto, without the prior written consent of the Underwriters.
(i) The Company, during the period when the Prospectus
is required to be delivered under the Securities Act, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(j) The Company will make generally available to its
securities holders and you as soon as practicable (but in any
event not later than 45 days) after the close of the period
covered thereby, an earnings statement (which shall satisfy the
provisions of Section 11(a) under the Securities Act) covering
each twelve-month period beginning, in each case, not later than
the first day of the Company's first full fiscal quarter after
the date of this Agreement.
5. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, and each
person, if any, who controls such Underwriter within the meaning
of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material
fact required to be stated
14
therein or necessary to make the statements therein in light of
the circumstances under which they were made not misleading,
except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through CSFBC expressly for use therein; provided,
however, that the foregoing indemnity agreement, with respect to
any Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Offered Certificates, or
any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person,
if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Offered Certificates to
such person, and if the Prospectus (as so amended or
supplemented) would have cured the defects giving rise to such
losses, claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from
the Company to such Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company
in writing by such Underwriter through CSFBC expressly for use in
the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any
governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to
either paragraph (a) or (b) above, such person (the "indemnified
party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay
the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the
reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection
with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of
more than one firm (in addition to any local counsel) for all
such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be
designated in writing by CSFBC in the case of parties indemnified
pursuant to paragraph (a) above and by the Company in the case of
parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by
reason
15
of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
proceeding and does not include a statement as to or an admission
of fault, culpability or failure to act by or on behalf of any
indemnified party.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 5 is unavailable to an
indemnified party or insufficient in respect of any losses,
claims, damages or liabilities, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company, on the
one hand, and the Underwriters, on the other hand, from the
offering of the Offered Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the
Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other hand in connection
with the offering of the Offered Certificates shall be deemed to
be in the same respective proportions as the net proceeds from
the offering of such Offered Certificates (before deducting
expenses) received by the Trusts and the total underwriting
discounts and commissions received by the Underwriters, in each
case as set forth in (or in the notes to) the table on the cover
of the Prospectus, bear to the aggregate offering price of the
Offered Certificates. The relative fault of the Company on the
one hand and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant
to this Section 5 are several in proportion to the respective
principal amount of Offered Certificates they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this
Section 5 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by
any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total
price at which the Offered Certificates underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent
16
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
indemnity and contribution provisions contained in this Section 5
and the representations and warranties of the Company contained
in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the
Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the
Offered Certificates. The remedies provided for in this Section
5 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law
or in equity.
(f) The indemnity and contribution provisions
contained in this Section and the representations, warranties and
other statements of the Company contained in this Agreement or
contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or the Company, its officers
or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Offered Securities.
6. Termination. This Agreement shall be subject to
termination in your absolute discretion, by oral notice confirmed
in writing, given by you to the Company, which notice cites one
of the specific events set forth below that has occurred, if (a)
after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended
on or by, as the case may be, any of the New York Stock Exchange,
the American Stock Exchange, the National Association of
Securities Dealers, Inc., or the Chicago Board of Options
Exchange, (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal
or New York State authorities or (iv) there shall have occurred
any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your
judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event
singly or together with any other such event makes it, in your
judgment, impracticable to market the Offered Certificates on the
terms and in the manner contemplated in the Prospectus.
7. Default of Underwriters. If, on the Closing Date,
any one or more of the Underwriters shall fail or refuse to
purchase Offered Certificates that it has or they have agreed to
purchase hereunder on such date, and the aggregate principal
amount of Offered Certificates which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of Offered
Certificates, the other Underwriters shall be obligated severally
in the proportions that the principal amount of Offered
Certificates set forth opposite their respective names in
Schedule II bears to the aggregate principal amount of Offered
Certificates set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Offered Certificates which such
defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall
the principal amount of Offered Certificates that any Underwriter
has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 7 by an amount in excess of one-ninth of
such principal amount of
17
Offered Certificates without the written consent of such
Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Offered
Certificates which it or they have agreed to purchase hereunder
on such date and the aggregate principal amount of Offered
Certificates with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Offered
Certificates to be purchased on such date and arrangements
satisfactory to you and the Company for the purchase of such
Offered Certificates are not made within 36 hours after such
default, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or of the Company. In any
such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Any action taken
under this Section shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter
under this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal
on the part of the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the
offering contemplated hereunder.
8. Notices. All notices and other communications
under this Agreement shall be in writing, unless otherwise stated
herein, and shall be deemed to have been duly given if delivered,
mailed or transmitted by any standard form of telecommunication.
Notices to you shall be directed to you, c/o Credit Suisse First
Boston Corporation, Eleven Madison Avenue, New York, New York
10010-3629, Attention: Investment Banking Department-Transaction
Advisory Group; and notices to the Company shall be directed to
it at US Airways, Inc., Crystal Park Four, 2345 Crystal Drive,
Arlington, VA 22227, Attention: Treasurer.
9. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon
the same instrument.
10. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
11. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only
and shall not be deemed a part of this Agreement.
18
Please confirm your agreement to the foregoing by
signing in the space provided below for that purpose and
returning to us a copy hereof, whereupon this Agreement shall
constitute a binding agreement between us.
Very truly yours,
US AIRWAYS, INC.
By: /s/ Jeffery A. McDougle
-----------------------
Title: Vice President and
Treasurer
Agreed, August 24, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
DONALDSON LUFKIN & JENRETTE SECURITIES CORPORATION
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
Acting on behalf of itself and
as the representative of the
other named Underwriters.
By: /s/ Thomas L. Smith
-------------------
Title: Director
19
SCHEDULE I
Pass Through Certificates, Series 1999-1
Pass Through Aggregate Final Expected
Certificate Principal Interest Distribution
Designation Amount Rate Date
- ------------ --------- -------- --------------
1999-1A $384,884,000 8.36% January 20, 2019
1999-1B $83,384,000 9.01% January 20, 2019
<TABLE>
SCHEDULE II
Pass Through Certificates, Series 1999-1
<CAPTION>
Donaldson
Deutsche Lufkin & Salomon
Credit Suisse Bank Jenrette Goldman, Smith
First Boston Securities Securities Sachs Barney
Corporation Inc. Corporation &Co. Inc.
------------- ----------- ----------- ---------- ----------
<S> <C> <C> <C> <C> <C>
1999-1A $76,980,000 $76,976,000 $76,976,000 $76,976,000 $76,976,000
1999-1B 16,680,000 16,676,000 16,676,000 16,676,000 16,676,000
----------- ----------- ----------- ----------- -----------
Total $93,660,000 $93,652,000 $93,652,000 $93,652,000 $93,652,000
=========== =========== =========== =========== ===========
</TABLE>
SCHEDULE III
US AIRWAYS, INC.
Underwriting fees,
discounts, commissions
or other compensation: $3,980,278
SCHEDULE IV
Pass Through Certificates, Series 1999-1
Pass Through
Certificate Aggregate Principal Final Expected
Designation Amount Distribution Date
------------ ------------------- -----------------
1999-1C $121,517,000 January 20, 2018
