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)
February 25, 2000
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
February 25, 2000 to the Prospectus, dated July 30, 1999, relate to the
offering by US Airways, Inc. of Pass Through Certificates, Series 2000-1.
Reg. No. 333-79825
Exhibit No. Document
------------------ -------------
Exhibit 1(a) Underwriting Agreement, dated February 25, 2000
relating to the issuance of Pass Through
Certificates, Series 2000-1.
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: February 29, 2000 By: /s/ Anita P. Beier
-----------------------------------
Anita P. Beier
Vice President and Controller
(Chief Accounting Officer)
US Airways, Inc. (REGISTRANT)
Date: February 29, 2000 By: /s/ Anita P. Beier
-----------------------------------
Anita P. Beier
Vice President and Controller
(Chief Accounting Officer)
(this space intentionally left blank)
EXECUTION VERSION
US AIRWAYS, INC.
Pass Through Certificates
Series 2000-1, Class G
UNDERWRITING AGREEMENT
February 25, 2000
Salomon Smith Barney Inc.
Chase Securities Inc.
Credit Lyonnais Securities (USA) Inc.
Credit Suisse First Boston Corporation
c/o Salomon Smith Barney Inc.
390 Greenwich Street
New York, NY 10013
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 G
Trust, 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 "Certificates") on the terms and conditions stated herein and in
Schedule III.
The Certificates will be issued pursuant to the Pass
Through Trust Agreement (the "Basic Agreement") between the Company, US
Airways Group, Inc., a Delaware corporation, and the Trustee, as
supplemented with respect to the Certificates by a separate Pass Through
Trust Supplement to be dated as of the Closing Date (as defined below) (the
"Series Supplement"), between the Company and the Trustee (the Basic
Agreement as supplemented by the Series Supplement being referred to herein
individually as the "Pass Through Agreement"). The Series Supplement is
related to the creation and administration of US Airways Pass Through
Trust, Series 2000-1G (the "Trust").
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 Certificates or the
representative or representatives of the Underwriters if an underwriting
syndicate is purchasing the Certificates, as indicated in Schedule II.
The cash proceeds of the offering of Certificates 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, 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 the Trust
(the "Escrow Agreement"). The Escrow Agent will deposit such cash proceeds
(each, a "Deposit") with ABN AMRO Bank, N.V., acting through its Chicago
branch, (the "Depositary"), in accordance with a Deposit Agreement relating
to the Trust (the "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 the Trust, as
Subordination Agent (as hereinafter defined) and as Paying Agent, and the
Escrow Agent. The 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
Deposit Agreement at a rate per annum equal to the interest rate applicable
to the Certificates.
Certain amounts of interest payable on the Certificates
will be entitled to the benefits of a liquidity facility. Bayerische
Landesbank Girozentrale (the "Liquidity Provider") will enter into a
revolving credit agreement (the "Liquidity Facility") to be dated as of the
Closing Date for the benefit of the holders of the Certificates. The
Liquidity Provider, MBIA Insurance Corporation, as provider of the Policy
referred to below (in such capacity, the "Policy 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 Trustee, State Street Bank and Trust Company of
Connecticut, National Association, as subordination agent and trustee
thereunder (the "Subordination Agent"), the Policy Provider and the
Liquidity Provider.
Payments of interest on the Certificates will be
supported by a financial guaranty insurance policy (the "Policy") issued by
the Policy Provider to the extent the Liquidity Facility and any funds
contained in the cash collateral account funded from such Liquidity
Facility are insufficient or unavailable for that purpose. The Policy will
also support the payment of the final distribution on the Certificates and
will take effect in certain other circumstances described in the
Intercreditor Agreement and the Policy. The Policy will be issued pursuant
to an insurance and indemnity agreement dated as of the Closing Date (the
"Policy Provider Agreement") among the Policy Provider, the Company and the
Subordination Agent. Under the Intercreditor Agreement, the Policy Provider
will be entitled to reimbursement for amounts paid pursuant to claims made
under the Policy.
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.
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 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 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 Agreement,
the Note Purchase Agreement or the Intercreditor Agreement referred to in
the Pass Through Agreement; provided that, as used in this Agreement, the
term "Operative Documents" shall mean the Deposit Agreement, the Escrow
Agreement, the Intercreditor Agreement, the Liquidity Facility, the Policy,
the Policy Provider Agreement, the Indemnification Agreement dated the date
hereof (the "Indemnification Agreement") among the Company, the Policy
Provider and the Underwriters, the Indentures, the Leases, the Note
Purchase Agreement, the Participation Agreements, the Trust Agreements and
the Pass Through Agreement. 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 Certificates, an untrue statement of a
material fact or omit 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; provided, however,
that the representations and warranties in this subsection (a)
shall not apply to (i) 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
Salomon Smith Barney Inc. ("SSB") expressly for use in the
Registration Statement or Prospectus, (ii) that part of the
Registration Statement which constitutes the Statement of
Eligibility of Trustee on Form T-1 or (iii) statements in or
omissions from the Prospectus made with respect to information
relating to the Policy Provider.
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 the light of the circumstances
under which they were or are made, not misleading; provided,
however, that the representations and warranties in this
subsection (b) shall not apply to documents incorporated by
reference in the Prospectus relating to the Policy Provider.
(c) The accountants who certified the financial
statements pertaining to the Company included or incorporated by
reference in the Registration Statement or Prospectus are
independent public accountants as required by the Securities Act.
(d) Neither the Company nor any 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 Certificates and the
application of the proceeds thereof as described in the
Prospectus, the Trust will not be, and the escrow arrangements
relating to the Trust contemplated by the Escrow Agreement will
not 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, the 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 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 or will be 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 Agreement and sold
and paid for as provided in this 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 Agreement. When executed, authenticated, issued
and delivered in the manner provided for in the Escrow Agreement,
the Escrow Receipts will be legally and validly issued and will be
entitled to the benefits of the Escrow Agreement.
(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 nor the Policy Provider 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 or of the Policy Provider 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 I, the respective
amounts of each Class of Certificates set forth opposite the name of such
Underwriter in Schedule II. Concurrently with the issuance of the
Certificates, the Escrow Agent shall issue and deliver to the Trustee the
Escrow Receipts in accordance with the terms of the Escrow Agreement, 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 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
Certificates, including their respective undertakings to distribute the
Certificates, the Company will pay to each Underwriter an amount equal to
that percentage of the aggregate principal amount of the Certificates
purchased by such Underwriter (as set forth in Schedule II) multiplied by
the total amount of underwriters' compensation (as set forth in Schedule
III). Such payment will be made on the Closing Date simultaneously with the
issuance and sale of the 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
Certificates to be purchased by the Underwriters (with attached Escrow
Receipts) shall be made at the offices of Skadden, Arps, Slate, Meagher &
Flom, LLP, 4 Times Square, New York, NY 10036 (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 fifth 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 Certificates (with attached
Escrow Receipts) being herein called the "Closing Date"). Delivery of the
Certificates (with attached Escrow Receipts) issued by the 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 Escrow
Agreement. The Certificates (with attached Escrow Receipts) shall be in the
form of one or more fully registered global certificates, and shall be
deposited with the Trustee as custodian for DTC and registered in the name
of Cede & Co.
(e) The Company agrees to have the 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 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 impracticable to
market the 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 Documents 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. ss. 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;
(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 Documents to
which the Company is a party or the consummation of the
transactions contemplated by this Agreement and such
Operative Documents;
(vi) The execution and delivery by the Company
of this Agreement and the Operative Documents 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 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 Documents 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 (1) the financial
statements and other financial or statistical data
included or incorporated by reference therein or omitted
therefrom and (2) statements in or omissions from the
Prospectus made with respect to information relating to
the Policy Provider, as to both of 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 LLP, 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 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 Winthrop, Stimson, Putnam & Roberts, special New York
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-1 hereto and an
opinion of Schwarz Kurtze Schniewind Kelwing Wicke, special German
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-2 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 the opinion, dated as of the
Closing Date, of the General Counsel for the Policy Provider, in
form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit G.
(l) You shall have received the opinion of Shaw Pittman,
special counsel to the Policy Provider, dated as of the Closing
Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit H.
(m) 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 Certificates, the Registration Statement,
the Prospectus and other related matters as the Underwriters may
reasonably require.
(n) 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.
(o) 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.
(p) At the Closing Date, each of the Operative Documents
(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 Documents 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.
(q) On the Closing Date, the Certificates shall be rated
"AAA" by Standard & Poor's Ratings Service and "Aaa" by Moody's
Investors Service, Inc.
(r) 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.
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 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 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.
(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 Certificates.
(e) If, during the period after the first date of the
public offering of the Certificates 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 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 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 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 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 Certificates 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 any and
all amendments to the Registration Statement and any and all
amendments to the Prospectus; (ii) the filing of this Agreement;
(iii) the preparation, issuance and delivery of the Certificates;
(iv) the reasonable fees and disbursements of the Company's
accountants and counsel, of the Trustee, the Subordination Agent,
the Liquidity Provider, the 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 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) one half of all
reasonable fees and expenses of counsel to the Underwriters; (vii)
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 Certificates;
(viii) the preparation and delivery to the Underwriters of copies
of the Pass Through Agreement and the other Operative Documents,
including all expenses incident to the performance of the
Company's obligations under the Pass Through Agreement,
Participation Agreements, Indentures, Leases and each of the other
agreements and instruments referred to in the Indentures and
Participation Agreements; (ix) any fees charged by rating agencies
for the rating of the Certificates; and (x) 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
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
therein or necessary to make the statements therein in the 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: (i) any Underwriter furnished to the Company in
writing by such Underwriter through SSB expressly for use therein; and (ii)
the Policy Provider; 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 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 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 SSB 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 SSB 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 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 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 Certificates shall be deemed to be in
the same respective proportions as the net proceeds from the offering of
such 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
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 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 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 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 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 Certificates.
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
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
Certificates that it has or they have agreed to purchase hereunder on such
date, and the aggregate principal amount of 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
Certificates, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Certificates set forth opposite
their respective names in Schedule II bears to the aggregate principal
amount of Certificates set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the 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 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 Certificates without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase Certificates which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of
Certificates with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Certificates to be purchased
on such date and arrangements satisfactory to you and the Company for the
purchase of such 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 Salomon Smith Barney Inc., 390 Greenwich Street, 4th Floor, New
York, New York 10013, Attention: John F. Grier; 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.
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, February 25, 2000
SALOMON SMITH BARNEY INC.
CHASE SECURITIES INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: SALOMON SMITH BARNEY INC.
Acting on behalf of itself and
as the representative of the
other named Underwriters.
By: /s/ Greg Lee
----------------------------------
Title: Vice President
SCHEDULE I
Pass Through Certificates, Series 2000-1
Pass Through Aggregate
Certificate Principal Final Expected
Designation Amount Interest Rate Distribution Date
------------- ---------- ------------- -----------------
2000-1G $281,678,000 8.11% February 20, 2017
SCHEDULE II
Pass Through Certificates, Series 2000-1
Credit Lyonnais Credit Suisse
Salomon Smith Chase Securities Securities (USA) First Boston
Barney Inc. Inc. Inc. Corporation
------------- ---------------- ---------------- -------------
2000-1G $70,419,500 $70,419,500 $70,419,500 $70,419,500
SCHEDULE III
US AIRWAYS, INC.
Underwriting fees,
discounts, commissions
or other compensation: $2,394,263
